New H-2B Regulations Proposed (Again)

The U.S. Department of Labor (DOL) has announced the publication of a proposed rule that will once again revise and seek to improve the H-2B temporary nonagricultural worker program. The H-2B nonimmigrant program permits U.S. employers to hire temporary foreign workers to perform nonagricultural labor/services to meet short-term seasonal or intermittent needs. U.S. employers must demonstrate the unavailability of U.S. workers and show that employment of H-2B workers will not adversely affect the wages and working conditions of similarly situated U.S. workers. The program is limited to 66,000 H-2B visas per year.

The DOL proposed H-2B regulations in 2005 that were never enacted. The federal agency tried again in 2008 and issued a new rule that included, among other things, an attestation-based case processing model. An August 2010 court case invalidated various provisions of the 2008 rule, including the prevailing wage rate (see the January 2011 issue of the Immigration eAuthority for the separately promulgated wage rule). The DOL is now seeking to further refine the H-2B labor certification process to focus on enhanced U.S. worker recruitment and strengthened worker protections. Among other things, the proposed rule includes a bifurcation of the registration phase that addresses the employer’s temporary need and an application phase that addresses the labor market test. The proposed rule also eliminates job contractors from the H-2B program and also requires the payment of the H-2B worker’s initial transportation to his or her place of work (e.g., from a foreign country), an issue that has been the subject of multiple court cases under the Fair Labor Standards Act (FLSA). (For more information, see the October 2010 issue of the Immigration eAuthority.)

Please see the DOL news release for additional information on the proposed regulation. Comments on this proposed regulation will be accepted by the DOL through May 17, 2011. For general information on the H-2B program and for an update on the H-2B cap (there is still availability under the FY 2011 cap), visit the USCIS website.