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H2B Visa Update – US Labor Department issues proposed rule revising H-2B program

This was expected and here is the latest update. The U.S. Department of Labor’s Employment and Training Administration and its Wage and Hour Division today announced the publication of a proposed rule that seeks to improve the H-2B temporary nonagricultural worker program. The proposed rule, to be published in the March 18 edition of the Federal Register, includes changes to several aspects of the program to ensure that U.S. workers receive the same level of protections and benefits as temporary foreign workers recruited under the H-2B program, and to provide better access for employers with legitimate labor needs.

The H-2B nonimmigrant visa program permits employers to hire foreign workers to come to the U.S. and perform temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent and there are no qualified and willing U.S. workers available for the job. Note that this visa is not available for “temporary” agencies or other work placement agencies.

There is a 66,000 per year limit on the number of foreign workers who may receive H-2B status during each USCIS fiscal year (October through September). The process for obtaining H-2B certification is similar to, but less extensive and time consuming, than permanent certification. You are eligible for the H-2B Visa provided that you have a valid job offer from a US employer to perform temporary or seasonal non-agricultural work and that you intend to return to your home country on expiration of the visa.

In order to streamline and improve the program for employers, the proposed rule would create an H-2B registration process that would allow employers to conduct labor market tests closer to their date of need before applying for a certification. It also would eliminate job contractors as users of the program.

The department further proposes to improve U.S. workers’ access to jobs and increase worker protections by creating a national job registry for all H-2B job postings; requiring employers to provide documentation that they have taken appropriate steps to recruit U.S. workers, rather than permitting employers to attest to such compliance; enhancing transparency by requiring employers to submit agency agreements and through the use of foreign recruiters; reinstating the role of state workforce agencies in providing expertise on local labor market conditions and recruitment patterns; and increasing the amount of time during which U.S. workers must be recruited.

Additionally, the department proposes to extend H-2B program benefits to workers employed alongside those recruited under the H-2B program; require employers to pay transportation costs and other fees; and enhance enforcement by giving the department’s Wage and Hour Division independent debarment authority.

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