After a tumultuous and uncertain 2015 H-2B visa filing period – which included a temporary suspension of the H-2B program and a quick run on the available visas once the program was reinstated – the U.S. Departments of Labor (“DOL”) and Homeland Security (“DHS”) have announced a new interim final rule (“IFR”) governing the H-2B program. In addition, DOL and DHS have announced a final rule establishing a methodology for determining prevailing wage rates under the program.
The IFR applies to H-2B visa applications with employment start dates on or after October 1, 2015. Thus, employers planning to submit H-2B applications should carefully review the filing and other requirements established by these new rules.
The H-2B visa program was created in 1986 as part of an amendment to the Immigration and Nationality Act. H-2B visas have been used to fill jobs in a variety of temporary circumstances, the most common of which is seasonal employment, making H-2B visas a crucial source of workers for employers that operate seasonally.
H-2B visas are limited to 66,000 per year, with half of the visas allocated starting on October 1, and the second half allocated six months later, starting on April 1. H-2B workers must be employed on a full-time basis.
Interim Final Rule
The main intent of the IFR is to strengthen protections for U.S. workers by ensuring (i) that U.S. workers can apply for positions intended to be offered to H-2B workers and (ii) that U.S. workers who perform similar jobs as those held by H-2B workers have the same rights and benefits. In addition, the IFR mandates that H-2B employers follow certain pay practices with regard to their U.S. and foreign workers.
Major Features Of The IFR Include:
Wage Methodology Final Rule
In addition, in a separate Wage Methodology Final Rule (“Wage Final Rule”), the DOL has set forth the methodology for determining prevailing wage rates under the H-2B program. The methodology is similar, though not identical, to the DOL’s prior prevailing wage rate methodology, which was challenged through litigation and ultimately vacated by a federal court decision.
Under the Wage Final Rule, the default prevailing wage rate for an H-2B position is as defined by the Bureau of Labor Statistics’ Occupational Employment Statistics (“OES”) survey, based on the position and geographic area. The Wage Final Rule does not permit prevailing wage rates to be established based on the Service Contract Act or the Davis-Bacon Act. However, prevailing wage rates may be set based on collective bargaining agreements negotiated at arms’ length.
In addition, the Wage Final Rule permits prevailing wage rates to be established based on an employer-provided survey if the OES survey does not include data for the relevant geographic area or job description, or if the survey is independently conducted and issued by a state.
Obtaining an H-2B visa is a multi-step process, with very tight filing timeframes. Under the new rules, an employer must proceed as follows:
Under these timeframes, an employer with a date of need of April 1, for example, would need to (a) submit the prevailing wage determination request by early November, (b) register with the DOL by December 3, and (c) submit the job order and H-2B application in early to mid-January. The job order would need to remain active until early to mid-March.
Recommendations For Employers
In light of these new rules, we recommend that employers that rely on or are interested in hiring H-2B workers:
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If you have questions regarding the H-2B visa program or any other employment-related immigration matter, please feel free to contact us.