Last week the U.S. Departments of Labor and Homeland Security announced an interim final rule to reinstate and make improvements to the H-2B Visa program, and a final rule to establish the prevailing wage methodology to be utilized for the H-2B program. The joint announcement came in response to recent court decisions that have created significant uncertainty around the H-2B temporary foreign nonagricultural worker program.

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.

Moreover, the rules include several provisions to expand recruitment of U.S. workers, including more real-time recruitment efforts, requiring employers to offer work to former U.S. employees first, and establishing a national electronic job registry.  The rules propose strengthening worker protections with respect to wages, working conditions, and benefits that must be offered to H-2B and U.S. workers covered by these regulations, and 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.  They also provide interim transition procedures so that employers have time to adjust to the new rules.