New H-2B Regulations Published

 On April 29, 2015, the US Departments of Labor and Homeland Security jointly published new regulations governing the H-2B Temporary Non-agricultural Labor Certification Program. The new regulations are effective immediately. 

To read the Department of Labor's news release on the regulations, see here. The rules are described in the press release as follows:

"These rules strengthen protections for U.S. workers, providing that they have a fair shot at finding and applying for jobs for which employers are seeking H-2B workers, while also providing that employers can access foreign workers on a temporary basis when U.S. workers are not available. The rules include several provisions to expand recruitment of U.S. workers, including more real-time recruitment efforts, requiring employers to offer work to former U.S. employees first, and establishing a national electronic job registry. They strengthen worker protections with respect to wages, working conditions, and benefits that must be offered to H-2B and U.S. workers covered by these regulations. They also establish the prevailing wage methodology for the H-2B program, reinstating the use of employer-provided surveys to set the prevailing wage in certain limited situations."

The Interim Final Rule in full is here. In summary, the rule proposes the following changes:

• protects employees who complain about conditions.Allows more US workers to know if job opportunities, through new recruitment and other requirements.
  requires the job offer to remain open to U.S. workers until 21 days before the proposed start date.
• Reverts to a compliance-based certification model that had been used prior to the 2008 final rule, rather than continuing to use the attestation model.
• Adopts an employer registration process that requires employers to demonstrate their temporary need for labor or services before they apply for a temporary labor certification, which expedites the certification process.
• Allows registration to remain valid for up to three years, thereby shortening the employer's certification process in future years.
• Increases the hours per week required for full-time work.
• Guarantees the same wages and benefits as other workers.
• Requires employers to pay H-2B immigration fees.
• Protects employees who complain about conditions.
• Increase transparency, with provisions such as requiring that employers disclose their use of foreign labor recruiters.

DOL also proposed new rules regarding wage determinations for H-2B worker. The rules establish that if there is no valid 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.

The full text of the H-2B wage rule is here.