New H-2B Visa Program Rules Released

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On April 29, 2015, the Department Homeland Security (DHS) and Department Labor (DOL) issued a final interim H-2B temporary guest worker program rule and a final wage rule. This final interim H-2B rule is almost identical to a 2012 H-2B program rule that has been blocked by a federal court since its release and was opposed by the American Horse Council and other industries that rely on the H-2B program. Both rules are effective immediately.

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.

Final Interim Rule

The AHC, in conjunction with a broad coalition of H-2B users, is opposed to implementation of this new interim final H-2B rule and final wage rule. The AHC believes these rules will make the H-2B program even more costly and burdensome for employers who are forced to use the program.

The final rule will make significant changes to how the H-2B program currently functions, including new requirements regarding corresponding American workers, reimbursement of transportation costs, and recruitment efforts. Most of the changes to the program will make it more difficult for most employers to use the program.

More details about the rule can be found at the AHC website here: http://www.horsecouncil.org/regulations/h-2b-final-interim-rule-and-wage-rules-details.

The complete rule can be viewed at: https://www.federalregister.gov/articles/2015/04/29/2015-09694/temporary-non-agricultural-employment-of-h-2b-aliens-in-the-united-states.

Although the rule is currently in effect, there is a 60-day comment period that is open until June 29th.

Wage Rule

The final wage rule sets the methodology for determining wages for H-2B workers and is similar to a 2013 interim final H-2B wage rule, with new restrictions on the use of private wage surveys. The final wage rule will continue to use the mean wage rate established by the Occupational Employment Statistics (OES) wage survey for an occupation in the area of intended employment. Such a methodology artificially increases H-2B hourly wages and is opposed by the AHC and other H-2B visa users. For many years a four-tier wage structure based on skill level was used to determine the prevailing wage in most circumstances.

Additionally, the final wage rule will restrict when an employer-provided survey can be used instead of the OES wage survey for establishing a prevailing wage.

The complete rule can be viewed at:
https://www.federalregister.gov/articles/2015/04/29/2015-09692/wage-methodology-for-the-temporary-non-agricultural-employment-h-2b-program

Note: This final interim program and wage rule are 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 rules.