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Apr
2015
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Visa Vie: DOL, DHS Issue Another Interim Final Rule for H-2B Guest Worker Definitions, Protections

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The Department of Labor (DOL) and the Department of Homeland Security (DHS) have issued an interim final rule concerning H-2B visas, which will provide additional protections to both U.S. and foreign workers.  The new rule sets the methodology for determining prevailing wages for H-2B workers based on the Occupational Employment Statistics survey from the DOL’s Bureau of Labor Statistics and employer-provided private surveys.  The rule also bans prevailing wage determinations based on the Service Contract Act and Davis-Bacon Act.  The new rule is “virtually identical” to one passed in 2012 that never took effect due to court issued injunctions.

The new interim final rule enters the federal register on April 29th and comments are due in the next 60 days.

The issue of H-2B visa reform has gained support both from labor and some far-right conservatives due to abuses in the high-tech sector.  The H-2B visas are restricted to fields in which a labor shortage exists in the United States. Over the past decade, however, the system has been abused by companies seeking to cut labor costs.

In issuing the interim final H-2B rule, DOL and DHS say there are “a number of improvements” in the labor certification process, including:

•  increased opportunities for U.S. workers to become aware of job opportunities;
• use of a certification-based model rather than relying on employer attestations;
• creation of an employer registration process;
• additional worker protections; and
•  provisions designed to increase transparency, such as a requirement that employers disclose their use of foreign labor recruiters.

In a statement, the DOL and DHS wrote: “The Departments believe that these procedures and additional worker protections will lead to an improved temporary employment certification process.”

Bloomberg BNA writer Laura Francis explains the rule update:

The interim final H-2B rule responds to the U.S. District Court for the Northern District of Florida’s decision in Perez v. Perez, No. 3:14-cv-00682 (N.D. Fla. March 4, 2015), which enjoined the DOL’s 2008 H-2B regulations for the same reasons the court enjoined the 2012 regulations the prior December in Bayou Lawn & Landscape Services v. Perez, 2014 BL 370226, No. 3:12-cv-00183 (N.D. Fla. 2014). The injunction shut down the entire H-2B program until the court issued a temporary stay.

Because it was necessary to have regulations in place when the stay expires May 15, the DOL and DHS said there is “good cause” under the Administrative Procedure Act to issue an interim final rule without prior notice-and-comment and that is effective immediately.

The H-2B wage rule is the final version of an interim final rule issued in April 2013, which responded to an injunction by the U.S. District Court for the Eastern District of Pennsylvania in Comité de Apoyo a Los Trabajadores Agricolas v. Solis, 933 F. Supp. 2d 700, 2013 BL 74772 (E.D. Pa. 2013). The CATA decision enjoined the DOL’s 2008 H-2B wage rule, which the DOL had been using because of a continued congressional ban on funding for a replacement rule issued in 2011.

After that funding ban was lifted, the DOL indicated that it intended to issue a new proposed H-2B wage rule, but the DOL and DHS abandoned that effort in light of the Perez litigation and the need to issue new regulations expeditiously.

In both rules, the DOL and DHS establish the authority for the labor certification process by stating that the DHS has determined that the DOL is the best agency for the DHS to consult with in determining whether or not to issue H-2B visas, pursuant to the INA. The regulations, in turn, present the most effective method for setting the standards by which the DOL will provide that consultation, the departments said.

The new interim final rule also creates changes to definitions.  These changes include:

According to the DOL and DHS, the interim rule makes some changes to definitions from the old regulations. For example, “corresponding employment” includes U.S. workers performing substantially the same work in the job order or substantially the same work performed by the H-2B workers.

However, certain categories of “incumbent employees” are excluded, meaning the employer isn’t required to offer them the same wages and working conditions as H-2B workers. Other incumbent U.S. workers must be offered the same wages and working conditions under the interim rule.

The interim rule also defines “full time” work as 35 hours per week and defines job contractors that can jointly apply for labor certification with their employer-clients. In particular, job contractors only are allowed to file for labor certification based on a seasonal or one-time need for workers.

Except in the event of a one-time need, “temporary need” under the interim rule is defined as nine months instead of the previous 10. The nine-month limitation applies to the other three types of temporary need—seasonal, peak load and intermittent.

The new interim final rule also sets new standards which protect workers, both American and foreign, from retaliation or discrimination due to or because of H-2B status.  According to Francis:

The interim rule protects workers from retaliation for contact or consultation with an attorney or an employee of a legal assistance organization, or contact with labor unions, worker centers and community organizations. That includes oral complaints and complaints made internally to employers, and it applies to current, former and prospective workers, the DOL and DHS said.



Similarly, employers are prohibited from preferential treatment of H-2B workers, and must engage in nondiscriminatory hiring practices—which includes ensuring that U.S. workers aren’t required to have job qualifications or requirements that aren’t required of H-2B workers.

Employers are under a continuing obligation to hire qualified U.S. workers until 21 days before the date of need, even after a recruitment report is submitted to the DOL.

In addition, the interim rule goes beyond the 2008 regulations to prohibit hiring H-2B workers unless there is no strike or lockout at any of the employer’s work sites in the area of intended employment for which the employer is requesting H-2B certification, rather than solely no strike or lockout in the positions being filled by H-2B workers. Similarly employed U.S. workers can’t be laid off from 120 days after the date of need to the end of the certification period, although layoffs during the certification period are permitted for job-related reasons as long as H-2B workers are laid off first.

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