Final Rule on Employing H-2B Workers

The federal Department of Labor (DOL) issued a final rule on the H-2B non-agricultural temporary worker program. This program allows U.S. employers to bring foreign nationals into the U.S. to fill temporary non-agricultural jobs.

The final rule revises the processes for employers to follow when obtaining a temporary labor certification from the DOL and when petitioning the Department of Homeland security to employ a non-immigrant worker in H-2B status. Major revisions include creating a national electronic job registry where employers must post all jobs they seek to fill with H-2B workers.

There has been division surrounding the new rules: Some employers see the new rules as cumbersome for their seasonal businesses, but other employers praise the rules as protecting American jobs.

The final rule also increases the length of time during which employers must first recruit U.S. workers. Employers must continue to recruit and accept U.S. applicants until 21 days before the date of need. Employers can no longer simply assert that they searched for U.S. workers, but now must submit a recruitment report that demonstrates that they were unable to locate a sufficient number of U.S. workers for the job.

More information on the final rule is available on DOL’s final rule website.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel