The New Interim Final Rule for the H2B Program Has Agencies Up in Arms

A final interim H2B visa program and a final wage rule for a Temporary Guest Worker (TGW) have been issued jointly by the Department of Homeland Security (DHS) and the Department of Labor (DOL).

The H2B program is primarily used by the owners and trainers in the horse industry represented by the American Horse Council (AHC) to hire semi-skilled workers to be employed on racetracks, horse shows and for other non-agricultural purposes.

The interim final rule published in the Federal Register on the 29th of April 2015 explains the hiring process of how an employer can petition the DHS to employ a non-immigrant TGW under the H2B program after obtaining a temporary labor certificate from the DOL.

Two To Tango – The DHS and the DOL
A similar interim H2B rule which was released in 2012 was blocked by the federal court as it was opposed by the AHC and other industries that use this visa provision who challenged the DOL’s authority to regulate the visa program. Hence, the present interim final rule has been jointly issued by the DHS and the DOL. By proceeding together, they are closing out the possibility of any challenge to their authority to regulate the H2B program.

The DHS and the DOL have noted that the Immigration and Nationality Act (INA) has classified the H2B holding, non-agricultural temporary foreign worker as one “having a residence in a foreign country which he has no intention of abandoning, who is coming temporarily to the United States to perform temporary (non-agricultural) service of labor if unemployed persons capable of performing such service or labor cannot be found in this country”.

Under the new process, the DOL advices the DHS about the availability of US workers to fill the petitioned job and also suggests if the employment of a TGW would adversely affect the wages of US workers employed in similar jobs. The new rule also requires that the job offer remains open for US workers until 21 days before the employer’s starting date of need.

Complex, Complicated and Highly Technical
The AHC, which is the most affected by the new interim final H2B and wage rule, opposes it as it believes that the new changes will make the program costlier and more complicated for the employers. The rules are so complex and technical that the AHC has advised employers to use the services of competent service providers to ensure that the rules are properly and completely complied to.

Under the new regulations, a certification from the DOL should accompany any petition for a TGW under the H2B program. Before petitioning for a TGW labor certification, the employers are required to demonstrate their labor need.

Increased Worker Protection
The new interim rule also provides for increased protection for both the US and the temporary workers. It provides for an increase in the number of working hours for full-time workers and an equality in the paying of wages for both the US and the temporary workers. Expenses towards visa and other related fees should be borne by the employers. They also have to provide for the to and fro travel expenses and the expenses towards the subsistence of the H2B workers.

The present interim rule falls back to the 2008 final rule which was a compliance-based model of certification, replacing the currently used attestation model. The new rule is effective from the date of its publication in the Federal Register, but is open for comments which can be submitted within 60 days of its publication.

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Binny Kuriakose

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