On March 18, 2011, the United States Department of Labor published a Notice of Proposed Rulemaking for the H-2B program. If your reaction is—again? I thought we just went through this in 2008, you’re not alone.
Notice of Proposed Rulemaking means that USDOL is announcing their new rules for the program and allowing public comment for 60 days. They are only proposed rules and have not gone into effect.
A summary of the proposed rules,
- Excludes job contractors from using the program
- Requires a registration process in which employers must prove temporary need before applying for a labor certification. Registration is valid for three years
- Temporary need is defined as no more than 9 months
- Requires each employer to offer each worker employment that is a total number of work hours equal to at least ¾ of the workdays of each 4-week period…this means you must offer the worker (foreign or domestic) ¾ of the total contract hours each month and a contract may not be written for less than 35 hours per week, this is considered full time
- Employer must present a detailed wage earnings statement to workers at each pay period
- Requires employer to have a written agreement from agent and recruiter that neither will charge or accept fees from workers
- Job order at employment service will remain open until 3 days before date of need or when the last H-2B worker has departed from their home
- Requires employer to pay all inbound and outbound transportation expenses, subsistence costs (meals while traveling) and visa fees within the first week of work
- Requires employer to provide daily transportation from housing to worksite
- USDOL may subject employers in high areas of unemployment to “enhanced recruitment”
- USDOL can subject employer to additional domestic recruitment methods including print ad, advertising on the employers website, contact with community based organizations, additional contact with labor unions, contact with faith based organizations, radio advertisements
- Forestry employers will be required to provide housing free of charge
- Employer can apply for extension of contract
- Strengthening debarment authority by also allowing the Wage & Hour Division debarment authority and provides revocation authority to USDOL
The most significant changes occurred in the domestic recruitment process. Domestic recruitment obligations have been expanded and the Department has afforded itself some space to require broadened domestic recruitment activity if it deems necessary.
We encourage all of you to make comment on these rules, however abbreviated or not. Comments should be submitted on or before May 17, 2011. They can be submitted in only one of the following ways:
Federal e-Rulemaking Portal
http://www.regulations.gov. Follow the Web
site instructions for submitting
Mail or Hand Delivery/Courier:
Please submit all written comments
(including disk and CD–ROM
submissions) to Michael Jones, Acting
Administrator, Office of Policy
Development and Research,
Employment and Training
Administration, U.S. Department of Labor, 200 Constitution Avenue NW.,
Room N–5641, Washington, DC 20210.
We consider the e-Rulemaking Portal to be the preferred method. Other comments can be viewed there. Do not put any personal or contact information in your comments because they will be available for public view.
To read the proposed rules in their entirety visit this link,