DOL Issues Proposed H-2B Visa Rule

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A proposed H-2B visa rule from the Labor Department's Employment and Training Administration and Wage and Hour Division, published in the March 18 Federal Register (76 Fed. Reg. 15,130), would return the program to a certification-based model, rather than an attestation-based model, and create a registration process for program users.

According to DOL, the 324-page proposed rule would “ensure that U.S. workers receive the same level of protections and benefits as temporary foreign workers recruited under the H-2B program,” and “provide better access for employers with legitimate labor needs.”

The proposed rule includes a variety of program changes aimed at protecting U.S. workers, including barring “job contractors”--third-party recruitment and placement firms--from using the H-2B program, creating a national job registry of all H-2B job openings, and reinstating the role of state workforce agencies in providing expertise on local labor market conditions and recruitment patterns, DOL said.

“As our economy continues to recover, it is important for U.S. workers to receive access to all jobs, and that the H-2B program is used as it was intended,” Secretary of Labor Hilda L. Solis said in a March 17 statement. “At the same time, workers employed through the H-2B program must be treated fairly,” she said.

The H-2B visa program allows the entry of temporary, nonagricultural foreign workers into the United States. The program is capped at 66,000 visas per year.

DOL's role in the H-2B visa program is to issue labor certifications to employers that show that there are not enough able and qualified U.S. workers available for the position, and that the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. Once the employer has been granted a labor certification from DOL, it may apply to the Department of Homeland Security for the H-2B visa.

Comments on the proposed rule will be accepted for 60 days, DOL said.

Rule Would Return Program to Certification Model.

Under the proposed rule, DOL would return to a certification-based H-2B program, which was used “in the program for its entire history until January 2009.”

Under the Bush administration, the Labor Department issued a regulation that changed the H-2B visa program from a certification program--where recruitment, wage rates, and other elements must be certified by DOL--to an attestation style program (26 HRR 1381, 12/22/08).

Under the current attestation-based model, employers must attest that before filing an application to seek H-2B workers, U.S. workers were recruited, and H-2B workers hired will be paid a wage that is equal to or higher than the prevailing wage.

According to DOL, “there are insufficient worker protections in the current attestation-based model in which employers merely assert, and do not demonstrate,” that they have complied with program regulations.

As part of the proposed rule, DOL said “the most reliable method by which the department can ensure compliance with the regulatory requirements is through the review of compliance through documentation provided to the department in advance of the certification determination.”

DOL pointed out that returning to the certification model “creates no significant additional burdens on employers” because it does not change the “nature of obligations with which employers must comply,” and does not introduce additional documentation requirements. Instead, it adjusts the timing and circumstances under which that documentation must be produced for review, the department said.

Despite generally scrapping the attestation requirements, DOL is asking for public comment on areas where attestations may still be appropriate. The department is considering developing “certain attestations” such as one that would be required for specific kinds of recruitment, DOL said.

Registration Process Proposed.

The proposed rule would bifurcate the current H-2B application process into a registration phase that addresses the employer's temporary labor need and an application phase that encompasses the labor market test to ensure no U.S. workers are available to fill the open positions, DOL said.

Under the current H-2B program, DOL adjudicates whether or not there is a legitimate temporary need for workers concurrently with the evaluation of the employer's testing of the labor market. This “often results in delays in processing employer applications for H-2B labor certifications,” the department said.

The proposed rule would create a registration process to allow an employer to prove a legitimate temporary need for nonagricultural foreign workers before the employer is permitted to file an application for temporary employment certification. A separate registration process would allow employers to conduct labor market tests and recruitment closer to the date that they need workers before applying for a certification, DOL said.

Under the proposed rule, a registration would be valid for up to three years, allowing employers to commence the processes of recruiting and testing the labor market during the second and third years of registration without having to again prove their temporary labor need.

According to the proposed rule, “slight variances” in the employers' underlying need for foreign workers will be allowed under an already approved registration, while significant changes such as an increase in the number of requested H-2B positions by more than 20 percent would result in having to redetermine whether there is a temporary need for workers.

Under the proposed rule, an employer must file an H-2B registration no fewer than 120 and no more than 150 calendar days before the date of initial need for H-2B workers. The registration must be accompanied by supporting documentation showing the number of H-2B workers requested and the period of time the employer will need the workers. The employer will also have to show that the labor need is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need.

Other Changes Suggested.

In addition to the major changes of returning to a certification based system and creating a registration process, DOL also proposed several small but significant program alterations.

DOL proposes to exclude “job contractors” from participating in the H-2B program. Job contractors are defined by the regulation as entities that employ workers and then supply them to other firms, and that are generally only engaged in hiring, firing, and payment of workers rather than controlling their day-to-day performance or directly supervising them.

According to DOL, job contractors do not qualify for the H-2B program because of their “ongoing” rather than temporary need for workers.

In addition, the proposed rule would require employers to submit to DOL a copy of any agreements with a foreign labor contractor or recruiter that internationally recruits H-2B workers. The disclosure of the terms of the agreement with a foreign labor contractor “will assist the department in determining whether the underlying transaction raises any program compliance concerns, including whether prohibited fees are being paid” to the recruiters, DOL said.

By Amber McKinney


Text of the proposed rule can be accessed at http://op.bna.com/dlrcases.nsf/r?Open=smgk-8f2rf8.