DOL Issues Final Rule on Temporary Foreign Workers
On Feb. 21, 2012, the U.S. Department of Labor’s Wage and Hour Division and Employment and Training Administration issued a final rule implementing stricter guidelines regarding the H-2B temporary nonagricultural worker program, a program that allows foreign workers to enter the U.S. on a temporary basis when qualified U.S. workers are not available and when employment of those workers will not adversely affect the wages and working conditions of U.S. workers. The rule will affect H-2B applications filed on or after April 23, 2012.
The final rule includes modifications to several aspects of the program in an effort to increase work opportunities for U.S. workers and strengthen worker protections. Modifications include: the creation of a national registry for all H-2B job postings; an increase in the amount of time during which U.S. workers must be recruited; the requirement to rehire former employees when they are available; the extension of H-2B program benefits to U.S workers performing substantially the same work as H-2B workers; and an increase in transparency throughout the employment process.
Modifications to worker protections include: the prohibition of employer requirements regarding restrictions or obligations on U.S. workers that are not imposed on H-2B workers; the requirement that employers contractually prohibit agents and recruiters from charging fees to prospective H-2B workers; a prohibition on employer and recruiter retaliation against workers who file a complaint, exercise their rights, or help other workers to do so; a requirement that employers provide at least 75 percent of the hours promised; and the prohibiting of temporary staffing agencies and job contractors from participating in the program, except in narrow circumstances.
To prepare for these new requirements, employers should develop a uniform H-2B policy that takes into account all of the financial arrangements with H-2B workers, such as employee relocation expenses and deductions for housing, and allow additional time overall for the application process.
A side-by-side comparison of the old and new regulations, several fact sheets and a summary of the final rule can be found here. For additional guidance, contact an employment immigration attorney familiar with H-2B issues.
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