Interim Final Rule: Temporary Non-agricultural Employment of H-2B Aliens in the United States

The Department of Labor Appropriations Act, 2016, Division H, Title I of Public Law 114-113 ("2016 DOL Appropriations Act"), provides that the Department of Labor ("Department") may not use any funds to enforce the definition of corresponding employment found in 20 CFR 655.5 or the three-fourths guarantee rule definition found in 20 CFR 655.20, or any reference thereto. See Sec. 113.This appropriations rider has been included in the continuing resolutions that have passed throughout FY2017 and FY2018, and the Department remains prohibited from enforcing these provisions, or any reference thereto. However, the 2016 DOL Appropriations Act and continuing resolutions did not vacate these regulatory provisions, and they remain in effect, thus imposing a legal duty on H-2B employers, even though the Department will not use any funds to enforce them until such time as the rider may be lifted.

On April 29, 2015, the U.S. Department of Labor (DOL) and the Department of Homeland Security (DHS) jointly issued an Interim Final Rule (“2015 IFR”) that immediately implements a strengthened H-2B program. The Departments also jointly issued a Final Wage Rule that establishes the prevailing wage methodology for that program.

The 2015 IFR strengthens U.S. worker protections, ensuring that U.S. workers have a fair shot at finding and applying for jobs for which employers are seeking H-2B workers. It also ensures that U.S. workers who are doing essentially the same jobs as H-2B workers have substantially the same rights and benefits as those workers. The new regulations strengthen worker protections with respect to wages, working conditions, and benefits that must be offered to H-2B and U.S. workers alike, and protect workers from retaliation when they seek to enforce their rights.

Major features of the 2015 IFR include the creation a national electronic job registry for all H-2B job orders to improve U.S. worker access to these temporary jobs. The 2015 IFR also enhances recruitment of U.S. workers from across the country, increases the amount of time for which U.S. workers must be recruited and hired, and requires the rehiring of recent former employees when available.

Under the Final Wage Rule employers generally must pay the mean wage for the occupation in the geographic area where the work is performed based on the Occupational Employment Statistics survey. Employer-provided surveys may be used in specified circumstances.

Additional Information on the Interim Final Rule and Final Wage Rule

• Interim Final Rule
• Final Wage Rule
• Side-by-Side Comparison of the 2008 and 2015 Rules
• Fact Sheet 78: General Overview of the H-2B Program
• Fact Sheet 78A: Corresponding Employment Under the H-2B Program
• Fact Sheet 78B: Recruiting Requirements under the H-2B Program
• Fact Sheet 78C: Wage Requirements under the H-2B Program
• Fact Sheet 78D: Deductions and Prohibited Fees under the H-2B Program
• Fact Sheet 78E: Job Hours and the Three-Fourths Guarantee
• Fact Sheet 78F: Inbound and Outbound Transportation Expenses, and Visa and Other Related Fees under the H-2B Program
• Fact Sheet 78G: Disclosure of the Job Order and Notice of Worker Rights under the H-2B Program
• Fact Sheet 78H: Retaliation Prohibited under the H-2B Temporary Visa Program
• Fact Sheet 78I: Record Retention Requirements under the H-2B Program
• Employee Rights Under the H-2B Program Poster (PDF)
  • Spanish Version Poster (PDF)

Additional Information on the H-2B Program

General Guidance:

• • Field Assistance Bulletin for Enforcing Provisions Applicable to H-2B Workers certified prior to January 18, 2009
  • Field Assistance Bulletin for Travel and Visa Expenses of H-2B Workers Under the FLSA
  • Immigration Nationality Act – H-2B Enforcement

Nonimmigrant Worker Related Agency Links:

• • Department of Homeland Security/U.S. Citizenship and Immigration Services
  • Department of Labor/Foreign Labor Certification
  • Department of State