DHS and DOL publishing Interim Final Rule for H-2B program

According to Tom Delany of PLANET, the Department of Homeland Security (DHS) and Department of Labor (DOL) are jointly publishing the Interim Final Rule, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Part 2 in the Federal Register today. Upon publication, the rule is effective immediately. Comments on the rule are due within 45 days of publication in the Federal Register.

The rule is similar to what the DOL attempted to impose in its 2011 Wage Rule that is currently blocked through congressional appropriations. It will establish wage rates for H-2B workers at the mean of Occupational Employment Statistics (OES) wage survey data for occupations.

It appears the DOL intends to retroactively impose new inflated wage rates on employers with H-2B workers that have already received approved prevailing wage rages under the old methodology, Delany said. Employers who have previously applied for H-2B workers but have not yet received them will have to obtain a new prevailing wage determination under the new methodology before their applications will be processed.

Delany said PLANET is speaking with congressional members and consulting with our attorneys involved in the Florida litigation to determine how to best challenge this rule.