On April 28, the Department of Homeland Security (DHS) and the Department of Labor (DOL) issued a joint final interim rule regulating the H-2B visa program. The rule includes the provisions of the 2012 rule which never became effective due to court intervention. In addition, the rule goes beyond the 2008 regulations with additional requirements for employers. This rule will significantly impact employers who rely on H-2B visas to successfully operate their businesses.
New Definitions – The rule provides new definitions for "corresponding employees," "incumbent employees," "full time" and "temporary need." Corresponding employees are workers who are not H-2B workers who perform either substantially the same work performed by the H-2B workers. Exclusions exist for workers who have been on the job for more than one year (incumbent employees) and those covered by collective bargaining agreements. The definition contains exceptions for two categories of incumbent employees (certain employees who have worked full-time for at least one year and certain employees covered by a collective bargaining agreement).Full-time will now be considered 35 hours per week and temporary need is limited to nine months instead of the previous ten.
New Multi-Step Registration Process – Employers will now have to complete a registration process and be certified through the DOL for their temporary worker needs. Generally, this registration will last three years. This process will need to be started 120 to 150 days prior to the date needed for the start of H-2B visa employees. After registration and obtaining a prevailing wage determination, employers will need to file a labor certification application, copies of third party agreements (see disclosure section) and a job order no later than 75 to 90 days prior to the employee start date.
Job orders will be very specific and must contain explanation on benefits, wages and working conditions (inclusive of rate of pay, frequency of pay, the availability of overtime, and hours); a list of board, lodging or facilities provided; any deductions from paychecks; the three-fourths guarantee; a statement about employer reimbursement for transportation and visa fees; a statement about tools, supplies and equipment provided by the employer; and information such as the employer's contact information and a full description of the job opportunity.
Recruitment – The rule includes new, specific recruitment steps including a requirement to contact former US workers. As well, employers must continue to seek US workers and must offer the job until up to 21 days prior to the start date of the H-2B visa worker.
Three-Fourths Guarantee – Employers must guarantee and include specific language in the job order to offer employment for a total number of work hours equal to at least three-fourths of the workdays of each 12-week period (or 6-week period if the employment covered by the job order is less than 120 days). In the case that the guarantee is not met, the employer must pay the worker what the worker would have earned if the employer had offered the guaranteed number of days.
Transportation and Visa Fees – Employers must provide for the payment of or reimbursement for inbound transportation costs (including meals and necessary lodging) to the US and visa fees. If the employee completes 50 percent of their agreement, employers must also provide outbound/return transportation costs. Payment was also be made to "corresponding workers" who are not reasonably able to return to their residence within the same workday.
Disclosure – The rule will require the disclosure of any agreements with third-party agencies that assist employers with finding H-2B workers as the DOL seeks to create a public list of such entities in the interest of transparency.
In conjunction with this rule, the DHS and DOL reissued an accompanying wage rule. This rule established that employer-provided surveys may not be used to set the prevailing wage except in limited circumstances.
Businesses will have 60 days to comment on the interim rule, ending June 29, 2015. CMAA, in conjunction with our industry allied associations, will be formulating an impact response. In the meantime, however, the rule is currently in effect for clubs who are using the H-2B visa program. As well, make sure you are posting the required poster to your employees.
CMAA, in conjunction with our industry allied associations, will be formulating an impact response. Stay tuned!