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Department of Labor Finalizes Changes to H-2B Visa Program

On February 21, the Department of Labor (DOL) issued a final rule concerning the H-2B temporary guest worker program. This final rule will make significant changes to the way the H-2B program operates for all employers including those in the horse industry. This new rule will go into effect on April 23, 2012.

The American Horse Council (AHC) in conjunction with a broad coalition of H-2B users has opposed implementation of this new H-2B rule. The AHC believes this new rule will make the H-2B program even more costly and burdensome for employers who are forced to use the program.

The H-2B program is used by members of the horse industry, principally horse trainers and owners who cannot find American workers to fill semi-skilled jobs at racetracks, horse shows, fairs and in similar non-agricultural activities.

Previously, in January 2009 the Bush Administration issued a new rule governing the H-2B program. That rule made major changes to the H-2B program by implementing an "attestation-based" labor process in place of the previous "labor certification" process. This change among others was intended to make the H-2B program more usable and efficient while still providing protections for American and foreign workers.

However, the Obama Administration did not believe the 2009 rule provided adequate protections for American or foreign workers and on March 18, 2011 the DOL issued a new proposed rule concerning the H-2B program temporary guest worker program.

The AHC opposed the proposed rule and submitted comments detailing its concerns.

Final Rule

The final rule will make significant changes to the H-2B program and will roll back many of the positive provisions of the 2009 rule. Along with other changes the new rule will:

  • Require an employer to pay for inbound travel, including daily subsistence expenses, for workers who complete 50% of the job order, and outbound travel, including daily subsistence expenses, for workers who work until the end of the job order or are dismissed early.
  • Extend H-2B program benefits to American "corresponding workers" employed alongside H-2B workers such as reimbursement of certain transportation costs and other benefits. (Corresponding workers are defined as American non-H-2B workers employed by an employer that has a certified application who performs either substantially the same work included in the job order or substantially the same work performed by the H-2B workers.)
  • Require employers to provide documentation that they have taken appropriate steps to recruit U.S. workers, rather than permitting employers to attest to such compliance.
  • Increase the amount of time employers must try to recruit U.S. workers.
  • Give the DOL's Wage and Hour Division independent debarment authority.
  • Prohibit, job contractors from using the program.
  • Define temporary need as 9 months. Under the 2009 rule it was 10 months.
  • Define full time employment as 35 hours a week. Under the 2009 rule it was 30 hours.

The complete rule can be viewed here.

This final rule is very complex and technical. The AHC encourages employers who use the H-2B program to contact qualified individuals to ensure they are in compliance when the new rule goes into effect on April 23.

Congressman Rodney Alexander has introduced a resolution expressing Congressional disapproval of the DOL rule (H.J.RES.104). The AHC urges users of the H-2B program to contact their members of Congress and ask them to become co-sponsors of this resolution.

If you have any questions please contact the AHC.