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Labor, Homeland Security Departments Issue Interim H-2B Visa Rule in Wake of Florida Federal Court’s Ruling

The U.S. Department of Labor, acting jointly with the U.S. Department of Homeland Security, recently issued an Interim Final Rule governing many aspects of the H-2B visa program. Some, including the departments, have hailed the new rule’s benefits for workers, while others believe that the rule’s changes will make using the H-2B more costly and more onerous for some employers.

The origins of the new rule stem from a recent decision by the U.S. District Court for the Northern District of Florida. That court concluded that the U.S. Department of Labor did not have the legal authority to issue regulations regarding the H-2B visa program. This decision wiped out the department’s 2008 regulations that set standards and procedures for certifying employers’ requests for importing H-2B workers and assessing the prevailing wage rates for temporary foreign workers.

In response, the department suspended the processing of all Form I-129 petitions, along with all prevailing wage determinations or applications for temporary labor certification in the H-2B program. Less than two months after the decision, the department, along with the Department of Homeland Security, jointly issued an interim final rule that would allow the resumption of H-2B processing. The department touted the new rule as creating a “strengthened H-2B program.”

The modified program moves to a certification-based model as opposed to relying on employer attestations. This certification-based model was the same one that existed prior to the 2008 rule that the recent court case invalidated. The new rule installs extra worker protections, such as the establishment of a national electronic job registry for all H-2B job orders that, according to the department, will help U.S. workers by improving their access to temporary jobs. It also establishes longer recruitment periods for U.S. workers.

Additionally, employers must now provide workers with earnings statements, which must have hours worked and offered and deductions clearly specified, must give workers copies of the job order, and must also display a poster describing employees’ rights and protections. The Interim Final Rule makes changes to some definitions as well. Under the new rule, “full-time” employment is defined as 35 hours per week instead of 30, and it reduces the definition of “temporary” from 10 months down to nine.

Of course, these enhancements in terms of recruiting and worker protections have led some groups to opine that the new rule may harm certain employers, making the the H-2B program more complicated, expensive, and burdensome to use. Employers should make sure they inform and train their staff regarding the new rule.

Dealing with the H-2B and other visa programs requires detailed knowledge of the law and regulations to ensure complete compliance. For answers and advice about any of the federal government’s visa programs, talk to the knowledgeable Florida immigration attorneys at Stok Kon + Braverman. Our experienced, hardworking attorneys can help you better understand all of the rules related to the H-2B and other visa programs, and how they affect you.

Contact us online or by calling (954) 237-1777 to schedule a consultation.

More blog posts:

SEC, Homeland Security Launch Probes in EB-5 Visa Application Practices, Florida Business Lawyers Blog, March 20, 2015

Federal Judge Puts Temporary Halt to Expanded Immigration Programs, Florida Business Lawyers Blog, Feb. 26, 2015

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