Final Rule on H-2B Foreign Labor Certification Program Announced

On February 10, 2012, the U.S. Department of Labor’s (DOL) Employment and Training Administration and Wage and Hour Division announced a final rule implementing changes to the H-2B certification program for temporary nonagricultural workers. The H-2B program allows the entry of low-skilled, nonagricultural guestworkers into the United States on a temporary basis when qualified U.S. workers are not available, and the employment of those foreign workers will not adversely affect the wages and working conditions of U.S. workers. The government may only issue 66,000 H-2B visas per year.

The changes to the H-2B regulations seek to give U.S. workers greater access to jobs and to strengthen worker protections by enhancing transparency throughout the employment process. The final rule creates a national registry for all H-2B job postings and increases the amount of time during which employers must attempt to recruit U.S. workers. Employers also must rehire former employees, if they are available. Further, new employer obligations, under 20 C.F.R. § 655 and 29 C.F.R. § 503, include the provision of the same rights, benefits, and wages to U.S. workers performing substantially the same work as H-2B workers. The new regulations also guarantee H-2B workers’ hours equal to three-fourths of the work hours of the workdays in each 12-week period of the job order/certification period (or in each 6-week period if the job order/certification period is less than 120 days).

The rule will become effective on April 23, 2012.