USCIS and DOL Issue Two Joint Rules on the H-2B Nonimmigrant Visa Classification | Practical Law

USCIS and DOL Issue Two Joint Rules on the H-2B Nonimmigrant Visa Classification | Practical Law

The Department of Labor (DOL) announced the release of an interim final rule, published jointly with the Department of Homeland Security (DHS) in the Federal Register. The new rule reinstates the process for employers to obtain a temporary labor certification from the DOL to use to petition the DHS to employ a nonimmigrant worker in H-2B visa status. Simultaneously with the interim final rule, the DOL and the DHS published a final rule establishing the prevailing wage methodology for the H-2B visa program.

USCIS and DOL Issue Two Joint Rules on the H-2B Nonimmigrant Visa Classification

Practical Law Legal Update 8-610-9325 (Approx. 5 pages)

USCIS and DOL Issue Two Joint Rules on the H-2B Nonimmigrant Visa Classification

by Practical Law Labor & Employment
Published on 05 May 2015 • USA (National/Federal)
The Department of Labor (DOL) announced the release of an interim final rule, published jointly with the Department of Homeland Security (DHS) in the Federal Register. The new rule reinstates the process for employers to obtain a temporary labor certification from the DOL to use to petition the DHS to employ a nonimmigrant worker in H-2B visa status. Simultaneously with the interim final rule, the DOL and the DHS published a final rule establishing the prevailing wage methodology for the H-2B visa program.
On April 28, 2015, the DOL announced the release of an interim final rule, published jointly with the Department of Homeland Security (DHS) in the Federal Register on April 29, 2015. The new rule reinstates the process for employers to obtain a temporary labor certification from the DOL to use to petition the DHS to employ a nonimmigrant worker in H-2B status. Simultaneously with the interim final rule, the DOL and the DHS published a final rule establishing the prevailing wage methodology for the H-2B visa program.
An H-2B visa is granted to an alien worker to perform temporary non-agricultural service or labor in the US, only if unemployed persons capable of performing such service or labor cannot be found in the US. The DHS relies on the DOL's advice as to whether US workers capable of performing the temporary (non-agricultural) services or labor are available. Under the DHS regulations, an H–2B visa petition must be accompanied by an approved temporary labor certification from the DOL. The approved temporary labor certification serves as the DOL’s advice to the DHS as to whether:
  • A qualified US worker is available to fill the petitioning H–2B employer’s job opportunity.
  • A foreign worker’s employment in the position will adversely affect the wages or working conditions of similarly employed US workers.
DOL regulations governing the H-2B temporary labor certification program, including how employers identify a prevailing wage, have been the subject of extensive litigation. The prevailing wage is the minimum wage that must be offered to H-2B workers. The US District Court for the Northern District of Florida found the DOL's H-2B regulations were unlawful in two separate litigations (for a summary, see Legal Update, DOL Stops H-2B Prevailing Wage and Labor Certification Processing after District Court Injunction ). The joint rules are intended to overcome the district court's finding that the DOL regulations are not lawful because the DOL does not have rulemaking authority for the H-2B program under the Immigration and Nationality Act (INA) by adding DHS, which has direct rulemaking authority under the INA.
This interim final rule is similar to the rule issued by the DOL alone in 2012, and is intended to improve the DOL’s ability to determine whether it is appropriate to grant a temporary employment certification. In addition, the interim final rule:
  • Expands US workers' ability to become aware of and apply for job opportunities that interest them. For example, the interim final rule:
    • includes new recruitment and other requirements to broaden the dissemination of job offer information, such as introducing an electronic job registry and the possibility of additional required contact with community-based organizations;
    • requires a job offer to remain open to US workers until 21 days before the employer’s start date of need, providing a longer application period ending closer to the date of need than previously required;
    • reverts back to the compliance-based certification model used prior to the 2008 final rule, which contained an attestation model;
    • adopts an employer registration process requiring employers to demonstrate their temporary need for labor or services before they apply for a temporary labor certification, which expedites the certification process; and
    • allows the resulting registration to remain valid for up to three years, resulting in a shorter employer certification process in the future.
  • Provides a number of additional worker protections, such as:
    • increasing the number of hours per week required for full-time employment;
    • requiring that US workers in corresponding employment receive the same wages and benefits as the H–2B workers;
    • requiring that employers 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;
    • requiring employers to pay visa and related fees of H–2B workers;
    • requiring employers to pay the inbound transportation and subsistence costs of workers who complete 50% of the job order period and the outbound transportation and subsistence expenses of employees who complete the entire job order period; and
    • prohibiting retaliation against employees for exercising rights under the H–2B program.
  • Contains provisions leading to increased transparency, for example requiring employers to:
    • disclose their use of foreign labor recruiters in the solicitation of workers;
    • provide workers with earnings statements, hours worked and offered and deductions clearly specified;
    • provide workers with copies of the job order; and
    • display a poster describing employee rights and protections.
The prevailing wage final rule determines the methodology the DOL uses to calculate the prevailing wages to be paid to H–2B workers and US workers recruited in connection with H–2B temporary labor certification applications. The final rule establishes that if the prevailing wage is not set in a valid and controlling collective bargaining agreement, it will be the mean wage for the occupation in the pertinent geographic area as stated in the Bureau of Labor Statistics Occupational Employment Statistics survey, unless the H–2B employer meets the conditions for requesting the wage be based on an employer-provided survey. Any employer-provided survey submitted must follow the methodology established in this final rule. The final rule does not permit use of the wage determinations issued under the Service Contract Act or the Davis-Bacon Act.
The DOL has created a website dedicated to the 2015 H-2B rule. The page includes important information about the H-2B temporary labor certification and wage requirements and will be updated as new information becomes available.