H-2B Program Reactivated

The U.S. Departments of Labor and Homeland Security jointly announced on April 28, 2015 the reinstatement of the H-2B temporary foreign nonagricultural worker program. The announcement coincided with publication in the Federal Register on April 29, 2015 of a Comprehensive Interim Final Rule which is effective immediately for management of the H-2B program.

The Interim Final Rule is subject to a 60-day comment period and may be revised thereafter. In addition, a Final Rule was published on H-2B Wages, which set the wage methodology to be used by the Department of Labor and reinstated the use of employer wage surveys in limited instances.

The Interim Final Rule makes substantial changes to the H-2B program. The Departments’ news release states that these rules strengthen protections for U.S. workers, providing them a fair shot at finding and applying for jobs for which employers seek H-2B workers, while still permitting U.S. employers to hire foreign workers when they can show that U.S. workers are not available. The rule includes provisions to expand recruitment of U.S. workers, including more real-time recruitment efforts, requires employers to offer work to former U.S. employees first, and establishes a national electronic job registry for H-2B positions.

In addition, the rule strengthens worker protections with respect to wages, working conditions, and benefits that must be offered to U.S. workers and H-2B workers covered by these regulations. The rule also establishes interim transition procedures so that employers can adjust to the new rules.

The Departments intend these rules to re-establish the H-2B program on a stable foundation and to bring an end to the litigation that has threatened to terminate employers’ ability to use H-2B workers.

MSEC anticipates scheduling a briefing session via webinar to provide more detailed information to members about this major rule change. Watch for additional announcements.