H-2B Visa Job Ad Changes Finalized

DOL site to host all job ads

Roy Maurer By Roy Maurer November 26, 2019
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​Employers seeking to hire foreign guest workers under the H-2B visa program will no longer be required to post advertisements for those seasonal jobs in print newspapers, nor will they have to post their job ads online—the federal government will do it for them.

The U.S. Department of Labor (DOL) published a final rule Nov. 14 rescinding the requirement that employers post job ads in newspapers before hiring temporary workers from abroad under the H-2B visa program, which covers nonagricultural seasonal work such as landscaping, seafood processing and hospitality jobs, among others.

The DOL based this decision on declining newspaper circulation and job-search trends that indicate most U.S. workers look for jobs online. "The changes will reduce regulatory burdens associated with ineffective recruitment requirements and bring the H-2B visa program into line with the modern recruitment practices of employers and the job-seeking practices of American workers," the agency said. 

"It's a positive change for employers," agreed Jessica Cook, a partner in the Atlanta office of law firm Fisher Phillips. "With the removal of the requirement, the cost of the H-2B process will be significantly reduced for employers. Print ads are expensive because of all the information that must be included."

The final rule also walked back an earlier proposal that employers post their job ads online in lieu of print classifieds, due to some employers saying they lacked reliable Internet access. Instead, the DOL will post the ads on an upgraded version of its electronic job registry, using the information provided in submitted H-2B visa petitions. SeasonalJobs.dol.gov is the DOL's job-search site for temporary agricultural and seasonal jobs for which H-2A and H-2B visas are used.

The change is designed to better reach U.S. workers who may be seeking seasonal jobs and "ensures that all H-2B job opportunities are advertised in a centralized location and in a uniform manner," the DOL said.

"It's one less thing an employer has to do," Cook said. "Employers won't have to worry about compliance issues when posting job advertisements anymore."

Employers seeking to hire H-2B workers are required to test the labor market by first attempting to recruit U.S. workers for the positions. Certifying officers will retain the discretion to evaluate whether additional recruitment is necessary and may ask employers in certain situations to publish newspaper print advertisements in addition to running the online ads.

The rule is scheduled to take effect Dec. 16. A similar rule related to the H-2A visa program for agricultural workers went into effect in October.

[SHRM members-only toolkit: Obtaining U.S. Employment Visas]

H-2B Winter Cap Reached

Interest in the visa program has grown significantly in recent years. Demand for H-2B visas was so high earlier this year that the DOL's electronic labor certification filing system crashed on the first day employers could apply.

And U.S. Citizenship and Immigration Services announced Nov. 20 that it has received enough petitions for H-2B guest workers to reach the 33,000-visa cap for the first half of fiscal year 2020, the earliest the winter cap has been reached in recent years.

The visas are capped at 66,000 per fiscal year. Employers that use the program argue that the ceiling is too low and the visa numbers should be expanded.

"Employers would like an increase in the numbers or bring back the returning worker provision," Cook said. "It's really hard for employers to plan and ensure that they will have the necessary workers with the limitations we have right now."

Critics of the H-2B program say it displaces U.S. workers and lacks adequate oversight.

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