Federal government issues new rules for H-2B visa workers

The Department of Labor (DOL) and the Department of Homeland Security (DHS) have issued an interim final rule regarding processes for H-2B visa workers.

The new rule regulating the H-2B labor certification process is “virtually identical” to a similar 2012 rule, according to the departments. Links to the final rule and a companion wage rule can be found on the DOL website here.

Among the obligations for recycling facility operators and other companies and contractors using H-2B workers:

• if companies stop employing an H-2B worker, they must notify the Department of Labor;
• all jobs must be at least 35 hours per week;
• workers must be provided with earnings statements, including hours worked and offered and deductions clearly specified along with copies of the job order;
• jobs must be advertised in newspapers and must be included in the new electronic job registry; there is also the possibility of required contact with community-based organizations;
• former employees with U.S. citizenship must be contacted with job opportunities;
• job offers must remain open to U.S. workers until 21 days before the employer’s start date of need;
• employers are prohibited from retaliating against workers exercising their rights under the program;
• companies are now only allowed to use the program for nine months instead of 10;
• employers must pay visa fees and other related charges;
• employers must pay inbound transportation and subsistence costs of workers who complete 50 percent of the job order period and the outbound transportation and subsistence expenses of employees who complete the entire job order period;
• employers must disclose their use of foreign labor recruiters in the solicitation of workers; and
• employers must display a poster describing employee rights and protections.
   

The DOL and DHS are involved in processing thousands of annual applications to the H-2B program, which grants temporary visas to seasonal workers in non-agricultural industries. One of the key areas of regulation—and contention—during the past few years has been the wage rates for seasonal workers.

But after a challenge from Florida Rural Legal Services, a non-profit labor rights group, the Northern Florida District Court ruled on March 4, 2015, the DOL does not have the authority to issue regulations alone in the H-2B program, including standards for calculating prevailing wages for seasonal workers.

A cap of 66,000 H-2B workers per year is split into two portions, the first of which ended March 31. However, there will be residual delays from the shutdown of the program by the Justice Department. On Feb. 2, the DHS announced the cap for the first half of the fiscal year had been reached. Petitions received after Jan. 26 requesting a start date before April 1 were then rejected.

The interim final rule took effect in late April 2015, but all labor certification applications submitted before April 28 will be processed under the old rules.

Regarding wages, the DOL and DHS also issued a final rule for H-2B workers, eliminating a four-tier structure established in a 2008 ruling.

Under the new rule, also similar to the 2012 ruling, the prevailing wage is the highest mean for an occupational category using the Occupational Employment Statistics (OES) numbers. According to the DOL, “There are no significant skill-based wage differences in the occupations that predominate in the H-2B program, and to the extent such differences might exist, those differences are not captured by the existing four-tier wage structure.”

Employers are no longer allowed to use company-issued surveys to determine wages, except in limited circumstances such as situations in which a job is located somewhere not included in the OES data collection.