New H-2B Visa Program Rules Released

Blood-Horse

The Department Homeland Security and Department Labor have 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, the AHC said in a May 5 press release. Both rules are effective immediately.

The H-2B program is used by members of the horse industry, principally horse trainers and owners who say they 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 the new interim final H-2B rule and final wage rule. The AHC said it 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, the AHC said. 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 for more info.

The complete rule can be viewed here for more info.

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

Wage Rule

The AHC said 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 here for more info.

The AHC advises the final interim program and wage rule are very complex and technical and and encourages employers who use the H-2B program to contact qualified individuals to ensure they are in compliance when the new rules.