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Legal Updates

Federal Agencies Announce New Rules For H-2B Visa Program

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.

Background

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:

  • Limiting the duration of “temporary need” H-2B visas to nine months;
  • Establishing a national electronic job registry;
  • Defining “full-time” employment as at least 35 hours per week;
  • Requiring that employers guarantee H-2B workers employment for a total number of work hours equal to at least three-fourths of the workdays in every 12-week period (or, for H-2B job orders lasting less than 120 days, every 6-week period);
  • Requiring employers to (i) actively try to recruit U.S. workers after filing an application for labor certification in connection with an H-2B application, and (ii) demonstrate (and not merely attest) that they could not find U.S. workers for the position(s);
  • Establishing additional recruitment requirements, including that employers first offer employment to U.S. workers from the previous year;
  • Requiring that applications be filed between 75 and 90 days before the date of need, and that the job order remain active until 21 days before the date of need;
  • Requiring employers to pay for certain travel and visa-related expenses for H-2B employees and certain U.S. workers in corresponding employment;
  • Establishing requirements pertaining to frequency of pay, payroll deductions, and payroll records; and
  • Requiring that employers provide a copy of the job order to H-2B employees and U.S. workers in corresponding employment.

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.

Filing Process

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:

  • First, between 120 and 150 days prior to the date of need, the employer must register with the DOL.
  • Subsequently, the employer must (i) file the H-2B application between 75 and 90 days prior to the date of need, and, concurrently, (ii) submit a job order to the appropriate State Workforce Agency (which must remain open until 21 days prior to the date of need).
  • The employer must obtain a prevailing wage determination from the DOL at least 60 days prior to when the determination is needed.

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:

  • Be sure to plan ahead appropriately. As timing and recruitment requirements have changed, it is crucial that employers familiarize themselves with the necessary steps and timing requirements in light of their date of need, to ensure that they start the H-2B application process at the proper time;
  • Carefully document their need for H-2B workers, in light of the IFR’s requirement that employers demonstrate a legitimate need for such workers; and
  • Contact experienced employment counsel with any questions about the new H-2B rules.

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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.