New H-2B regulations affect recruiting, wages determination

New H-2B regulations affect recruiting, wages determination

DOL and DHS issue wage methodology and interim final rule.

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May 5, 2015

The Department of Labor and the Department of Homeland Security have issued an interim final rule regarding H-2B processes. The new rule regulating the H-2B labor certification process is “virtually identical” to a similar 2012 rule, according to the departments.

Key takeaways.

  • If employers stop employing an H-2B worker, they must notify the Department of Labor.
  • All jobs must be at least 35 hours per week.
  • Jobs must be advertised in newspapers.
  • Jobs must be included in the new electronic job registry. There is also the possibility of required contact with community-based organizations.
  •  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 9 months instead of 10.
  • Employers must pay visa fees and other related charges.
  • Former employees with U.S. citizenship must be contacted with job opportunities.
  • 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.
  • Workers must be provided with earnings statements, including hours worked and offered and deductions clearly specified along with copies of the job order.
  • Employers must display a poster describing employee rights and protections.

The interim final rule is effective immediately, but all labor certification applications submitted before April 28 will be processed under the old rules.

Final wage rule.

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

Under the new rule, which is very similar to the 2012 ruling, the prevailing wage is the highest mean for an occupational category using the Occupational Employment Statistics numbers. According to the Department of Labor, “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.

The H-2B fight.

On April 15, the Department of Labor was allowed to process temporary labor certifications under the H-2B applications through May 15.

The federal district court in the Northern District of Florida vacated DOL’s 2008 H-2B regulations March 4 on the grounds that the DOL lacks authority to issue regulations in the H-2B program. The DOL and the Department of Homeland Security (DHS) are working to publish regulations to minimize future interruptions to the H-2B program, according to DHS.

On March 16, The U.S. Departments of Labor and Homeland Security announced that they were working to issue a joint interim final rule on H-2B, according to the Office of Foreign Labor Certification.

The DOL and DHS both 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 is 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 that the Department of Labor does not have the authority to issue regulations in the H-2B program, including standards for calculating prevailing wages for seasonal workers.

The 66,000 cap is split into two portions, the first of which ended March 31. However, there will be residual delays from the shut down of the program by the Justice Department.  And on Feb. 2, the Department of Homeland Security 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.