Nancy Dale, Ph.D. Author: June 26, 2013 - H-2b nonimmigrant program for temporay hire (US DEPT OF LABOR)

Monday, June 24, 2013

June 26, 2013 - H-2b nonimmigrant program for temporay hire (US DEPT OF LABOR)

Wage and Hour Division (WHD)
H-2B Program
Overview
The H-2B nonimmigrant program permits employers to temporarily hire nonimmigrants to perform nonagricultural labor or services in the United States. The employment must be of a temporary nature for a limited period of time such as a one-time occurrence, seasonal need, peakload need or intermittent need. The H-2B program requires the employer to attest to the Department of Labor that it will offer a wage that equals or exceeds the highest of the prevailing wage, applicable Federal minimum wage, the State minimum wage, or local minimum wage to the H-2B nonimmigrant worker for the occupation in the area of intended employment during the entire period of the approved H-2B labor certification. The H-2B program also establishes certain recruitment and displacement standards in order to protect similarly employed U.S. workers.
The Wage and Hour Division has been delegated enforcement responsibility by the Department of Homeland Security effective January 18, 2009, to ensure H-2B workers are employed in compliance with H-2B labor certification requirements. The Wage and Hour Division may impose administrative remedies such as wage payments and civil money penalties against employers who violate certain H-2B provisions.
Key News

On April 26, 2012, the Temporary Non-agricultural Employment of H-2B Aliens in the United States, Final Rule, 77 FR 10038, Feb. 21, 2012 was preliminarily enjoined by the U.S. District Court for Northern District of Florida, Pensacola Division in Bayou Lawn & Landscape Services, et al. v. Hilda L. Solis, et al., 12-cv-00183-RV-CJK, and was never implemented. Therefore, for the present time employers should file their H-2B labor certification applications under the Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes, 73 FR 78020, Dec. 19, 2008. However, please be aware that this preliminary injunction necessarily calls into doubt the underlying authority of the Department of Labor to fulfill its responsibilities under the Immigration and Nationality Act and Department of Homeland Security regulations to issue the labor certifications that are a necessary pre dicate for the admission of H-2B workers.

The Department has published a Federal Register Notice providing further guidance on the injunction.
On February 21, 2012 the U.S. Department of Labor's Employment and Training Administration and Wage and Hour Division issued a Final Ruleon the H-2B program that amends its regulations governing the certification of the employment of nonimmigrant workers performing temporary or seasonal non-agricultural labor or services and the enforcement of the obligations applicable to employers under the H-2B program. This Final Rule revises the process by which employers obtain a temporary labor certification from the Department for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2B status. The final rule also introduces new regulations that provide increased worker protections for both U.S. and foreign workers. More information is available at the Final Rule Website.
The U.S. Department of Labor’s (DOL) Employment and Training Administration, in concurrence with the Wage and Hour Division, published a final rule (PDF) to modernize procedures for issuing H-2B labor certifications, including procedures the Department will institute pursuant to an agreement with the Department of Homeland Security delegating H-2B enforcement to DOL. The final rule is effective on January 18, 2009.