H-2B Visa Saga Continues with Rolled-Back Rules

Changes will help to ease burden of employers

By Roy Maurer Feb 5, 2016
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In the latest development regarding the H-2B visa program, Congress has blocked several provisions put forward by the Department of Labor (DOL) that aimed to increase regulation on employers of seasonal immigrant workers.

These legislative changes prevent some portions of the DOL’s April 2015 interim final rule from being enforced and remove other portions outright. Employers have viewed these measures as bureaucratic obstacles to their ability to obtain needed labor.

The latest changes include:

  • Codifying flexibility for seafood industry employers bringing in H-2B workers.
  • Allowing employer-provided surveys for prevailing wage determinations.
  • Prohibiting the use of DOL funds to enforce the “three-fourths guarantee” or “corresponding employment” rules, or to conduct audits and agency-supervised recruitment.
  • Defining “seasonal need” as 10 months instead of nine months.

The new law also provides relief from the annual cap of 66,000 visas by stating that H-2B workers who came to the U.S. in fiscal years 2013, 2014 or 2015 don’t count against the cap in fiscal year 2016.

“Individually and collectively, these changes should ease some of the burdens for employers with workers under the H-2B program,” said Ceridwen Koski, a shareholder in the Denver area office of Ogletree Deakins.

Seafood Industry Flexibility

The provision in the April 2015 interim final rule allowing seafood industry employers to bring in an H-2B worker at any time during the 120-day period on or after the certified start date for that worker has been codified. Seafood industry employers wanting to bring in workers 90 days after the petitioned start date must still conduct additional recruitment to identify qualified U.S. workers between 45 days and 90 days after the start date of need. This includes completing a new assessment of the local labor market and offering the job to any qualified U.S. worker who applies and will be available to work.

Employer-Provided Surveys for Prevailing Wage Determinations

The law once again permits employers to use private wage surveys for prevailing wage determinations and requires the DOL to accept them even if its own Occupational Employment Statistics surveys are available, unless the methodology and data of the private survey is not statistically supported.

The decision is the latest development in a seesaw history of regulations, legislation and litigation over the use of private wage surveys to calculate the prevailing wages employers must offer under the H-2B program.

“The prevailing wage must be paid as a means of ensuring that H-2B workers will not displace U.S. workers or adversely affect their wages and working conditions,” reminded Koski.

Enforcement of Key Rules Blocked

The new law prevents the DOL from using any funds to enforce its three-fourths guarantee and corresponding workers rules, which require employers to pay H-2B workers and corresponding U.S. workers for at least three-fourths of the stated employment period, even if there isn’t enough work for them. Labor groups and immigrant worker advocacy organizations have charged that H-2B workers are often over-recruited and exploited, which led the DOL to impose the regulation.

Importantly, the DOL noted that the rolled-back regulations are not vacated and remain in effect, imposing a legal duty on H-2B employers even though the agency is prohibited from using any fiscal year (FY) 2016 funds to enforce them. “While the department will not use any FY 2016 funds to enforce those provisions, the department will still enforce the requirement that employers must offer at least the same wages and working conditions to U.S. workers who are hired during the recruitment period for positions covered by the relevant H-2B application,” the DOL said.

“One of the most significant changes from a practice perspective is the act’s prohibition on using FY 2016 funds to enforce audit examinations and supervised recruitment,” Koski said. “The guidance provided by the DOL indicates that not only are new audit examinations prohibited, but pending audit examinations and supervised recruitment which result from violations the DOL has identified in audits are rescinded.”

The DOL said it will issue discontinuation notices to all employers currently under an audit examination. No further action will be taken on those cases, and employers won’t be required to provide further information or responses. Similarly, the DOL will be issuing discontinuation notices to employers that have received a notification of supervised recruitment.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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