H-2B Program Changes, New Federal Posting

It took a team effort between the DOL and DHS to push through an interim final rule for the H-2B program for temporary non-agricultural workers. And now there’s a posting requirement for H-2B employers.

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The U.S. Department of Labor (DOL) and Department of Homeland Security (DHS) reinstated an interim final rule for the H-2B program effective April 29, 2015 that established the prevailing wage methodology and made other changes to the H2-B program.

The interim final rule is “virtually identical” to a final rule that the DOL released in 2012. But in 2013, the U.S. Court of Appeals upheld a preliminary injunction against enforcement of the 2012 H-2B rule (77 FR 10038), on the ground that the DOL lacks H-2B rule-making authority. That’s why the DOL teamed up with DHS:

“…to ensure that there can be no question about the authority for and validity of the regulations in this area…”

H-2B Notice of Workers Rights

An employer engaging workers through the H-2B program must display a notice of H-2B workers’ rights that the DOL will provide. The notice must be displayed in English and in any language “common to a significant portion of the workers if they are not fluent in English”.

The DOL has not yet released the new H-2B posting, but the GovDocs Research Department is monitoring the DOL for its release.

Changes to the H-2B Program

  • Recruitment requirements broaden the dissemination of job offer information.
  • Requires the job offer to remain open to U.S. workers until 21 days before the employer’s start date of need.
  • Returns to the compliance-based certification model rather than an attestation model. (Attestation required employers to attest to having actively recruited U.S. workers prior to pursuing foreign national candidates through the H-2B program and that the H-2B workers are paid a wage equal to or higher than the prevailing wage.)
  • Develops employer registration process that requires employers to demonstrate their temporary need for labor or services before they apply for a temporary labor certification.
  • Increases the number of hours per week required for full-time employment.
  • Requires that U.S. workers receive the same wages and benefits as H-2B workers.
  • Requires that employers must guarantee employment for a total number of work hours equal to at least three-fourths of the workdays in specific periods for both H-2B workers and workers in corresponding employment.
  • Requires employers to pay the 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.

What is the H-2B Program?

The H-2B program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs. The employment must be temporary and for a limited period of time such as a one-time occurrence, a seasonal need, or a peak-load need.

The program is overseen by U.S. Citizenship and Immigration Services (USCIS), but the DOL enforces as of 2009, when DHS transferred enforcement authority for the H-2B program to the DOL, who also determines the wage levels permitted in the H-2B program and advises DHS as to the supply of U.S. workers capable of performing temporary labor.

Free I-129 form for H-2B Program: Employers must submit form I-129 after receiving a temporary labor certification for H-2B employment from the DOL.

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