In response to recent court decisions that have created significant uncertainty around the H-2B temporary foreign nonagricultural worker program, the U.S. Departments of Labor and Homeland Security today announced an interim final rule to reinstate and make improvements to the program and a final rule to establish the prevailing wage methodology for that 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. 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. They strengthen 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. They also 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.
The Departments intend these rules to support our nation’s businesses and the U.S. economy by expeditiously reinstating the H-2B program and bringing certainty, stability, and continuity to the program in reaction to litigation on multiple fronts that has threatened to terminate employers’ ability to use H-2B workers. The new rules also provide interim transition procedures so that employers have time to adjust to the new rules.
The new rules are available at the Federal Register through the following links:
- Comprehensive Interim Final Rule:
- Wage Final Rule: