Wolfsdorf Rosenthal LLP

DOL, DHS Publish Rules on H-2B Temporary Nonagricultural Worker Program, Related Prevailing Wage Methodology


In response to recent court decisions that the U.S. Departments of Labor and Homeland Security say have created significant uncertainty about the H-2B temporary foreign nonagricultural worker program, the agencies published an interim final rule on April 29, 2015, to reinstate and make improvements to the program, and a final rule the same day to establish the prevailing wage methodology.

The agencies said that these rules “strengthen protections for U.S. workers, providing that they have a fair shot at finding and applying for jobs for which employers are seeking H-2B workers, while also providing that employers can access foreign workers on a temporary basis when U.S. workers are not available.” The rules include several provisions to expand recruitment of U.S. workers, including more recruitment efforts, requiring employers to offer work to former U.S. employees first, and establishing a national electronic job registry. They include worker protections with respect to wages, working conditions, and benefits that must be offered to H-2B and U.S. workers. They also establish the prevailing wage methodology for the H-2B program, reinstating the use of employer-provided surveys to set the prevailing wage in certain limited situations.

The agencies said they intend these rules to support U.S. businesses and the U.S. economy “by expeditiously reinstating the H-2B program and bringing 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 new rules also provide interim transition procedures.

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