In response to recent litigation that created significant uncertainty around processing of applications for H-2B temporary foreign workers, the Department of Labor and Department of Homeland Security recently issued a federal regulation that changes the application process and assigns employers additional obligations in 2015.
The H-2B program allows U.S. employers to hire foreign workers when facing a temporary, seasonal, or peakload need. In previous years, employers were required to test the American labor market by conducting an elaborate advertising and recruitment scheme to find qualified, willing, and able American workers to fill such positions. An application for temporary labor certification, which allows an employer to hire H-2B workers, was only approved by the Department of Labor (“DOL”) if the employer attested that it conducted the mandatory advertising and no qualifying American workers applied or were hired. The new regulation essentially ends the use of the attestation model (which includes pre-filing recruitment) and returns to the certification model, under which H-2B recruitment takes place after filing the H-2B temporary labor certification with the DOL.
For employers whose H-2B workers are scheduled to begin employment prior to October 1, 2015, an employer must now register with the DOL (the details of how to do so are not yet available), and then apply for temporary labor certification before conducting required recruitment within a mere 14 day period. To further apprise U.S. workers of available positions, the job order listed in the State Workforce Agency (“SWA”) will now be public for up to two months, and must also be filed between 75 and 90 days before the H-2B workers’ prospective first day. The DOL is also creating an electronic job registry that displays all H-2B job postings nationwide. As with previous years, DOL approval is a prerequisite to applying for visas with the Department of Homeland Security.
In addition to the stricter advertising requirements and timeframes, employers now face additional responsibilities in relation to H-2B workers. For example, employers must now pay for inbound travel, per diem, and any visa-related expenses incurred by H-2B workers, and also provide them with copies of the job orders in their native language. H-2B workers must also be offered at least 35 hours of work per week, instead of the previous requirement of 30 hours.
H-2B employers also have additional obligations to their American workers. Employers must now hire qualified workers referred by the SWA or DOL job orders, and must also contact U.S. workers who previously filled similar positions. H-2B employers are also now prohibited from any layoffs of U.S. workers for 120 days prior and 120 days following the dates of need and, if a layoff is necessary, must first layoff H-2B workers before any similarly-situated American workers. The employer must also accept referrals and hire U.S. workers who apply up until three weeks prior to the first date of need, and update the DOL about any U.S. applicants and interviews.
In order to ensure compliance with strict timeframes, recordkeeping, and document retention requirements, employers should consider updating their staff on these developments, and should plan to begin the H-2B application process six months prior to the date that H-2B workers are needed.
