Will DHS resume VIBE program

The Department of Homeland Security and USCIS instituted a verification program called VIBE or Validation Instrument for Business Enterprises.  VIBE was designed to assist USCIS in verifying information about business and farms provided on some employment based petitions like those for H-2A and H-2B. The VIBE program used a private information provider called Dun and Bradstreet (D&B). D&B probably sounds familiar to you because some of you found yourselves in the middle of lengthy telephone conversations with D&B or trying to navigate complicated account updates on their website.

The VIBE program caused significant delays for H-2 users across the country and sparked a rash of complaints. Because of these complaints, USCIS decided to temporarily suspend the VIBE program in late May for H-2A petitions to give USCIS time to re-evaluate the program. In an email from USCIS on June 2nd, USCIS explains that they plan to resume VIBE on July 18th.

We have not received any further updates from USCIS and have not seen any delays–yet. We of course can only hope they have thoroughly re-evaluated the program and have prevented it from causing any other future delays for H-2 employers.

 

State E-Verify Laws Popular

Some states have very quietly passed mandatory E-verify legislation like North Carolina and Tennessee and some have been much louder making national headlines like Georgia and Arkansas.

As the list of states who are passing E-verify laws for all employers continues to grow, we thought it would be helpful to compile a list of of those states that have passed this type of law,

The reach of the legislation varies from state to state, some laws only apply to government contractors and the start and conditions of enforcement vary. If you’d like to see a summary of the law in your state click here and then select your state on the map.

The enforcement date listed on our chart is the date the law will be enforced for employers that have a smaller workforce.

State Name Bill ID Date Effective  All Employers
Idaho Exec Order 2006-40 3/11/2006 NO
Nevada AB 383 6/2/2007 YES
Arizona HB 2779 1/1/2008 YES
Utah SB 251 7/1/2010 YES
Colorado HB 06-1343 8/7/2006 NO
Nebraska LB 403 10/1/2009 NO 
Oklahoma HB 1804 11/1/2007 NO
Texas HB 1196 9/1/2007 NO
Minnesota Exec Order 08-01 1/29/2008 NO
Iowa SF 562 7/1/2007 NO
Missouri HR 1549 1/1/2009 NO
Arkansas HB 1024 8/1/2007 NO
Louisana SB 753 6/23/2006 NO
Illinois HB 1744 1/1/2008 TBD
Tennessee HB 1378 7/1/2013 YES 
Mississippi SB 2988 7/1/2008 YES
Indiana SEA 590 7/1/2011 YES 
Michigan SB 229 10/31/2007 NO
Alabama HB 56 6/9/2011 YES
Georgia HB 87 7/1/2013 YES
S. Carolina S 20 6/27/2011 YES
N. Carolina HB 36 6/23/2011 YES 
Virginia HB 737 3/11/2008 NO
West Virginia WV Code 21-1B-2 4/19/2007 YES
Pennsylvania HB 2319 7/1/2006 NO
Connecticut SB 931 10/1/2007 NO
Massachusetts Exec Order 481 2/23/2007 NO
N. Hampshire HB 1278 1/1/2007 YES
Hawaii HB 1750 7/1/2007 YES

Some helpful links concerning E-verify,

Start using E-verify here

USCIS defines E-Verify

USCIS FAQs about E-verify

Questioning Wage Hour

In a recent web chat with Wage Hour Division personnel, these are the kinds of questions H-2B employers were asking,

[Comment From Bill Zammer Bill Zammer: ] 

Is the Dept of Labor trying to end the H2B program? if not why these onerous new regulations?

  WHD: Thank you for your question, Bill. The Department’s responsibility for the H-2B program is administration and enforcement of the program provisions. The Department is statutorily required to ensure the employment of H-2B workers does not adversely affect the employment of similarly employed U.S. workers. We encourage you to join tomorrow’s web chat with the Employment and Training Administration at 1:30 ET. 

 

 
  [Comment From Elizabeth HeadCan you please give me the names of those in DOL who are working on the proposed rule changes, or should I just speak with my Congressional Representatives and Senators?

 

Wednesday July 13, 2011 1:22 Elizabeth Head

 

 
  [Comment From Mike KennedyI am in the lodging business. We are a seasonal operation. Without H2b workers we are out of business. Is the labor department trying to shut down that program.

 

Wednesday July 13, 2011 1:22 Mike Kennedy

 
   [Comment From JesusThe H2B Program – Why do you want to eliminate the program? Your are asking for comments but you don’t take any consideration of them.

 

Wednesday July 13, 2011 1:22 Jesus

   WHD: Elizabeth, Mike, and Jesus, please see the response provided above for Bill at 1:20 

Wednesday July 13, 2011 1:23 WHD

 
   [Comment From Paul FredellI discourage DOL from moving forward with costly and restrictive new H2B regulations, it will close down my landscape business and it will have an economic impact as well.

 

Wednesday July 13, 2011 1:37 Paul Fredell

 

1:37
  [Comment From VandraCan you touch upon any changes that may impact the H2B employers?

 

Wednesday July 13, 2011 1:37 Vandra

 
    [Comment From MargeMy company is a seasonal employer which utilizes the H-2B visa program. According to the updated FLC Wage Library for Prevailing Wages – a Mean Wage (H-2B) has been added for the OES/SOC code of 37-3011 will this be the prevailing wage for all H-2B visas regardless of the experience or education requirements of the employer.

 

Wednesday July 13, 2011 1:37 Marge

 

 
  [Comment From JesusH2B Program – Small business owners are screaming for a real open discussion. You don’t have any idea of what’s going on. When are you going to address the economic impact of the new regulations? Small Businesses are going to shut down because of your lack of vision

 

Wednesday July 13, 2011 1:37 Jesus

 
   [Comment From JoshIn regards to the H2B program, and effect that it will have on the economy. Can you please explain how the department of labor came to the conclusion that the wage increase will not impact the economy more than 100 million dollars

 

Wednesday July 13, 2011 1:37 Josh

[Comment From G Stanek ] 

As the owner of a landscaping business who expends great effort and expense to host legal guest workers for seasonal positions, I don’t understand how recent changes to the H2-B program will be beneficial for anybody; least of all employers who are trying to maintain their businesses and employees during this time of economic upheaval.

[Comment From Theresa

Why did the DOL increase the wages of H2B workers with no relation to economic condidtions & then accelerate this increase by 3 months, making it effective Oct 1st, 2011 instead of Jan 1, 2012. It seems that the effort is to make the H2B program unusable when small businesses like mine depend on it.

I think you get the idea. With no real answers or relief in sight it is now more important than ever for H-2B employers to unite and collectively fight.

USDOL Announces New H-2B rules

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

comments.

• 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,

 http://www.foreignlaborcert.doleta.gov/pdf/2011_6152.pdf

2010 H2B Cap Count Update

H2B cap data taken from USCIS website.

Fiscal Year 2010 H-2B Cap Count

Cap Type Cap Amount Beneficiaries Pending Beneficiaries Target 1  Total
Date of Last Count
H-2B 1st Half 33,000 2,256 47,000  31,186 12/11/09
H-2B
2nd Half
33,000 2 2,537 —– 2,537 12/11/09

Visa Fees Slated to Increase

The U.S. Department of State has published a proposal in the Federal Register suggesting an increase in fees for petition-based visas– that includes H2A and H2B visas.  The increase would be from $131.00 to $150.00.

The Department of State suggests that the costs of processing visas is increasing and the current fee which has been unchanged since January of 2008, was no longer sufficient to cover the costs they were experiencing. The proposal will be subject to public comment, refer to www.regulations.gov for the final rule.

Participants in the  H2B programs should take note considering the Wage & Hour Field Assistance bulletin released in August of this year concerning an H2B employer’s responsibility to pay the fees workers incur to get an H2B job.  H2A employers should take notice considering the recommendation to cover the costs to protect themselves from Arriaga-style litigation.

View the State Department’s press release here.

Click for H2B USDOL Wage & Hour H2B Arriaga bulletin Aug 09

Recommendations concerning Swine Flu from CDC

As many of you know from the extensive media coverage recently, an influenza outbreak that originated and is largely a problem in Mexico is cause for serious concern but not panic.  The strain of flu H1N1, also known as “swine flu”, has made some people sick and in a limited number of cases caused death.  Public health officials have stressed that most current cases of influenza are not “swine flu”.  Those same officials encourage everyone to be alert and utilize good health and sanitation practices. 

As always, any specific questions or concerns about flu or other illnesses should be directed to a medical professional. We cannot give medical advice or provide medical services but we do encourage our clients, their employees and everyone else out there to follow the prevention tips from the Center for Disease Control (CDC) website:

1. Avoid close contact.

Avoid close contact with people who are sick. When you are sick, keep your distance from others to protect them from getting sick too.

2. Stay home when you are sick.

If possible, stay home from work, school, and errands when you are sick. You will help prevent others from catching your illness.

3. Cover your mouth and nose.

Cover your mouth and nose with a tissue when coughing or sneezing. It may prevent those around you from getting sick.

4. Clean your hands.

Washing your hands often will help protect you from germs.

5. Avoid touching your eyes, nose or mouth.

Germs are often spread when a person touches something that is contaminated with germs and then touches his or her eyes, nose, or mouth.

6. Practice other good health habits.

Get plenty of sleep, be physically active, manage your stress, drink plenty of fluids, and eat nutritious food.

7. What to do if you have a sick worker.

Just to be prudent, if one of your workers gets sick it is a good idea to take them to the doctor immediately.  You should provide an N-95 respiratory mask to the sick worker and whoever drives the worker to the doctor.  To reiterate, just because someone is sick does not mean they have “swine flu”.  However, it is best to let a medical professional examine the sick worker.  At this time only the lab located at the Centers for Disease Control in Atlanta, Georgia has the ability to determine if a sick person has “swine flu”.  Your local doctor or health care provider can interface directly with the CDC.