Changes to H2B Regulations

There have also been regulation changes which not only affect H2B workers and employers, but also H2A workers and employers. The DOL (Department of Labor) now has enforcement authority over the programs, both of which require increased notification and record keeping.

 

The Department of Homeland Security (DHS) and the Department of Labor (DOL) have released new rules governing the H-2B program effective January 18, 2009. The key changes are:

If there has been a layoff of US workers within 120 days of start date, employer must document that they notified each laid-off worker of the job opportunity, and they have and will consider each worker interested.

Employer must offer and pay throughout period of employment a wage that is equal to or higher than prevailing wage. Terms and conditions must not be worse for US workers than for H-2B workers.

Employer must keep documents related to advertising, recruiting, prevailing wage determination, supporting documentation, and additional attestations for 3 years.

DOL now has enforcement authority over program. Violations may result in debarment from the program for up to 3 years, as well as other penalties.

DHS will require an APPROVED temporary labor certification in connection with all H-2B petitions filed; employers will have the ability to request review with DOL if application is denied.

Beginning October 1, 2009 (FY 2010), the employment start date indicated on Form I-129, Petition for a Nonimmigrant Worker, must match the date of need on the approved temporary labor certification.

DHS has published a list of countries designated as eligible for participation in the H-2B program. Employer may file for unnamed workers except for workers currently in the U.S.

Employer must notify DHS within 2 workdays when:

Worker has not come to work within 5 days of the start date (that employer designates); Worker completes contract 30 days before petition end date; Worker is terminated.

*Must retain evidence of notification for 1 year. Reduce from six months to three months the time an H-2B worker who has spent three years in the U.S. must reside and be physically present outside the U.S. before he is eligible to re-obtain H-2B status.

The change also prohibits H-2B employers and recruiters from imposing certain fees on prospective H-2B workers as a condition of employment or passing along application and other costs to H-2B workers participating in the program.