New Rules Revamp H-2B Visa Program

By Roy Maurer May 6, 2015
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The U.S. Departments of Labor and Homeland Security announced rules meant to reinstate the H-2B temporary foreign worker program, make improvements to it and establish a prevailing wage methodology for its use.

The departments said that they intend these rules “to support our nation’s businesses and the U.S. economy by expeditiously reinstating the H-2B program and bringing certainty, stability and continuity to the program in reaction to litigation on multiple fronts that has threatened to terminate employers’ ability to use H-2B workers.”

The rules rework the H-2B labor certification process, impose new recruitment requirements on employers, strengthen protections for workers, increase transparency and limit the sources for determining prevailing wages.

“While the rules impose some new duties on H-2B employers, the burdens are minimal and justified,” said Ross Eisenbrey, vice president of the Economic Policy Institute. “The rules will result in more U.S. workers being hired for open positions and prevent the exploitation of H-2B workers,” he said.

The interim final H-2B rule and the final H-2B wage rule follow litigation over regulations issued solely by the Department of Labor (DOL). The 2008 H-2B regulations were invalidated and the program temporarily shuttered by a federal court in March 2015 after a determination was made that the department lacks statutory authority to promulgate regulations under the program.

The interim final rule is virtually identical to a 2012 final rule that the DOL developed but never implemented due to litigation.

The DOL and Department of Homeland Security (DHS) said the interim final rule contains “a number of improvements” in the labor certification process, including:

  • Increased opportunities for U.S. workers to become aware of available jobs. For example, the rule includes new recruitment requirements to broaden the dissemination of job offer information, such as by introducing an electronic job registry and the possibility of additional required contact with community-based organizations. The rule also requires that a job offer remain open to U.S. workers until 21 days before the employer’s start date of need, which provides a longer application period that ends closer to the date of need than was previously required.
  • Use of a certification-based model that had been used prior to the 2008 final rule rather than relying on employer attestations.
  • Creation of an employer registration process. The rule requires employers to demonstrate their temporary need for labor or services before they apply for a temporary labor certification, which expedites the certification process. The resulting registration may remain valid for up to three years, thereby shortening the employer’s certification process in future years.
  • Additional worker protections such as increasing the number of hours per week required for full-time employment and requiring that U.S. workers in corresponding employment receive the same wages and benefits as H-2B workers. It also requires that employers must 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. The rule requires employers to pay visa and related fees of H-2B workers, and it requires employers to pay the inbound transportation and subsistence costs of workers who complete 50 percent of the job order period and the outbound transportation and subsistence expenses of employees who complete the entire job order period. Finally, it prohibits employers from retaliating against employees for exercising rights under the H-2B program.
  • Provisions designed to increase transparency, such as requiring employers to disclose their use of foreign labor recruiters in the solicitation of workers, to provide workers with earnings statements, to provide workers with copies of the job order, and to display a poster describing employee rights and protections.

The interim final rule is effective immediately, although labor certification applications submitted before its release will be processed under the old rules. Employers with a start date prior to Oct. 1, 2015, also will be permitted to use the interim rule’s emergency processing provisions, which cut down on processing times.

Final Wage Rule Limits Survey Options

In a separate final rule, the departments unveiled the methodology for determining the prevailing wage that must be paid to H-2B workers.

The rule establishes that, in the absence of a wage set in a valid and controlling collective bargaining agreement, the prevailing wage will be the mean wage for the occupation in the pertinent geographic area derived from the Bureau of Labor Statistics Occupational Employment Statistics survey, unless the H-2B employer meets the conditions for requesting that the prevailing wage be based on an employer-provided survey. Any such survey submitted must meet new methodological criteria established in the final rule in order to be used. The rule will not continue to allow use of wage determinations issued under the Service Contract Act or the Davis-Bacon Act.

The Economic Policy Institute’s Eisenbrey expressed disappointment that the rule allows alternative wage surveys to set the prevailing wage. “Employers only use these alternative surveys to ensure that they can pay their workers the least possible amount, rather than using credible and reliable survey data compiled by DOL,” he said, pointing to the seafood industry as an example as having used private wage surveys to justify “paying their H-2B workers wages near the federal minimum wage for grueling work like crab-picking, rather than the higher average wages paid across Virginia and Maryland for similar work.”

He said the rule would be even more effective if it required employers to pay H-2B workers above-average wages, “because if H-2B workers were paid a premium, it would encourage employers to recruit more extensively for unemployed U.S. workers before hiring H-2B workers, including recruiting regionally or nationwide, instead of just locally.”

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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