Final H2B Wage Rules Email

 

The H-2B rules promised by end of month are available at the following links. They become effective today.

Comprehensive IFR: https://www.federalregister.gov/articles/2015/04/29/2015-09694/temporary-non-agricultural-employment-of-h-2b-aliens-in-the-united-states

Wage Final Rule: https://www.federalregister.gov/articles/2015/04/29/2015-09692/wage-methodology-for-the-temporary-non-agricultural-employment-h-2b-program

So far, Senator Bennet has asked for comments on how these rules will affect member businesses. If you respond to him, please also email that response to your House Representative and to Senator Gardner. They need to continue to hear from us.

Here’s a short summary of the two rules:

Final H-2B Wage Rule

  • Will become effective upon publication in the Federal Register on April 29.
    • Will apply to all new prevailing wage requests submitted on or after the effective date of the rule. Any prevailing wage request submitted before the effective date of this rule and pending at the time this rule is published will be processed under the 2013 interim final wage rule.
    • In the absence of controlling collective bargaining agreement or wages determined by professional sports league regulations, the prevailing wage will be the mean wage for the occupation in the pertinent geographic area derived from the Bureau of Labor Statistics Occupational Employment Statistics survey, unless the H-2B employer meets the conditions for requesting that the prevailing wage be based on an employer-provided survey.
    • Wage surveys may be used only if they meet the following criteria:

o The survey was independently conducted and issued by a state, including any state agency, state college, or state university;
o The survey is submitted for a geographic area where the OES does not collect data, or in a geographic area where the OES provides an arithmetic mean only at a national level for workers employed in the SOC;
o The job opportunity is not included within an occupational classification of the SOC system; or
o The job opportunity is within an occupational classification of the SOC system designated as an “all other” classification.

    • Sets the following methodological standards required for employer-provided surveys that meet the criteria above:

o Require the survey to include the mean or median wage of all similarly employed workers in the area of intended employment, regardless of skill level, experience, education, and length of employment;
o Require the survey to make a reasonable, good faith attempt to contact all employers employing workers in the occupation and geographic area surveyed or conduct a randomized sample of such employers;
o Require the survey to be independently conducted and issued by a state and approved by a state official or, in the limited circumstances where the OES wage does not provide adequate data for the occupation or geographic area, a bona fide third party;
o Require the survey to include at least thirty employees and three employers in a sample;
o Require that surveys include all types of pay set out in the OES survey instrument, including payment of piece rates or production bonuses in the wages reported;
o Require the wages reported in the survey be no more than twenty-four months old;
o Require that that surveys be conducted across industries that employ workers in the occupation; and
o Require that employers submit a new Employment and Training Administration (ETA) Form ETA-9165, which permits DOL to better assess the validity and reliability of the survey.

  • Does not permit use of the wage determinations issued under the Service Contract Act or the Davis Bacon Act as sources to set the prevailing wage in the H-2B temporary labor certification context.


Comprehensive H-2B Interim Final Rule

  • Becomes effective upon publication in the April 29 Federal Register.
  • Comments are due 60 days after publication in the Federal Register(60 days after April 29).
  • According to DHS ad DOL, “This interim final rule is virtually identical to the 2012 final rule that DOL developed …”The 2012 rule has not been implemented due to a federal court order.
  • A chart comparing the provisions of the 2012 final rule to the 2008 regulations that have been governing the program can be found at: http://www.dol.gov/whd/immigration/H2BFinalRule/H2BSideBySide.htm
  • Some of the key provisions of this new interim final rule include:

o Requires expanded recruitment such as the possible use of an electronic job registry and contact with community-based organizations.
o Requires the job offer to remain open to U.S. workers until 21 days before the employer’s start date of need.
o Reverts back to the compliance-based certification model that had been used prior to the 2008 final rule.
o Increases the number of hours per week required for full-time employment from 30 to 35 hours.
o Requires that U.S. workers in corresponding employment receive the same wages and benefits as the H-2B workers.
o Requires that employers guarantee employment for a total number of work hours equal to at least three-fourths of the workdays in specific periods for both H-2B workers and workers in corresponding employment.
o Requires employers to pay visa and related fees of H-2B workers
o Requires employers to pay the inbound transportation and subsistence costs of workers who complete 50 percent of the job order period and the outbound transportation and subsistence expenses of employees who complete the entire job order period.
o Requires employers to disclose their use of foreign labor recruiters in the solicitation of workers; to provide workers with earnings statements, with hours worked and offered and deductions clearly specified; to provide workers with copies of the job order; and to display a poster describing employee rights and protections.
o Defines temporary need, except in the event of a one-time occurrence, as 9 months in duration, a decrease from the 10-month limitation under DOL’s 2008 rule.

And finally, here is a statement issued by House Judiciary Chair Bob Goodlatte about the regulations:

April 28, 2015 

Goodlatte Statement on Obama Administration’s New H-2B Regulations

Washington, D.C. – House Judiciary Committee Chairman Bob Goodlatte (R-Va.) issued the statement below regarding the Department of Homeland Security and Department of Labor’s new regulations for the H-2B seasonal guestworker program.

“The Obama Administration had the opportunity to issue user-friendly regulations for the thousands of American employers who use the H-2B program, but it knowingly failed to do so. The new regulations issued by the Obama Administration are overly burdensome for the small and seasonal businesses that play by the rules and use this guestworker program to hire a legal workforce. By keeping the Department of Labor’s heavy hand in the process, employers will face more red tape and higher costs when using the program. The House Judiciary Committee is closely examining this issue and the impact of the Administration’s new regulations.”

Background: Earlier this month, Chairman Goodlatte sent a letter signed by 36 Members of Congress to Department of Homeland Security (DHS) Secretary Jeh Johnson asking that the Obama Administration’s new regulations for the H-2B seasonal guestworker program be user-friendly for the thousands of businesses that rely on the program and protect American workers. The H-2B guestworker program is used by American employers to hire foreign workers for temporary and seasonal work, such as forestry, seafood processing, and other industries. On March 4, 2015, a federal district court ruled that the Department of Labor lacked the authority under the Immigration and Nationality Act to issue regulations for the H-2B program. The new regulations can be found here and here.

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