DOL and Homeland Security Publish New H-2B Regulations – April 2015

From: USADNEWS Volume IX, Issue 2 April/May 2015

As a result of the March decision in the Florida court case Perez v Perezwhich vacated the Department of Labor’s (DOL) 2008 H-2B regulations, the Department of Labor (DOL) and Homeland Security released new interim regulations on April 29, 2015, to be effective immediately. The federal district court in the Northern District of Florida vacated the previous regulations on the grounds that the DOL lacks authority under the Immigration and Nationality Act to issue regulations in the H-2B program. Consequently, US Citizenship and Immigration Services (USCIS) suspended the adjudication of H-2B petitions until new regulations could be established.

The DOL and Homeland Security announced in an April 28 press release that they were releasing a comprehensive interim final rule to “reinstate and make improvements to the program” as well as a final rule “to establish the prevailing wage methodology for that program.” The new rules include provisions that are intended to protect both U.S. workers and employers. They expand the recruitment of U.S. workers through more “real-time recruitment efforts, requiring employers to offer work to former U.S. employees first, and establishing a national electronic job registry.” They also strengthen worker protections related to wages and working conditions. However, the Departments make it clear that they intend the new rules to provide “certainty, stability, and continuity to the program in reaction to litigation on multiple fronts that has threatened to terminate employers’ ability to use H-2B workers.” The prevailing wage final rule reinstates the use of employer-provided surveys in determining the prevailing wage in limited situations. The new rules also provide interim transition procedures to allow employers time to adjust to the new rules.

There are several major differences between the old rules and the new interim rules. One is that the employer’s advertisements are now required to direct applicants to apply for the position at the nearest State Workforce Agency (SWA) office as opposed to applying directly to the employer. The interim rules have also eliminated the employer’s option to replace one of the two required newspaper advertisements with an advertisement in a professional, trade or ethnic newspaper. However, they now require the employer to advertise in a language other than English “where the CO determines it is appropriate.”  The rules also contain guidelines on specific language that should be used in the advertisements.  Furthermore, the interim rules clearly establish the Departments’ position that newspapers of general circulation “remain an important source for recruiting U.S. workers,” especially for the positions typically found in the H-2B program, thus allaying some of the uncertainty around the future of print advertising.

The Departments are requesting feedback on the interim rules through an open comment period that ends on June 29, 2015.  The new rules are available online at the Federal Register:

Comprehensive Interim Final Rule
Wage Final Rule