DHS and DOL Issue H-2B Rules with New Obligations for Employers

United States

The Department of Homeland Security and the Department of Labor have issued rules on how prevailing wages are set for H-2B temporary nonagricultural workers and how employers obtain DOL labor certification for prospective H-2B employees. 

The H-2B prevailing wage regulation is the latest version of a rule that has been the subject of lengthy litigation. A federal court struck down two previous versions of the regulation on the ground that DOL did not have the authority to issue the rule. The latest version rule establishes that, in the absence of a wage set by a collective bargaining agreement, the prevailing wage will be the mean wage for the occupation in the pertinent geographic area, derived from the Bureau of Labor statistics’ Occupational Employment Statistics OES survey. As an alternative, the rule permits the prevailing wage to be determined from an employer-provided wage survey. An earlier version of the regulation would have prohibited employer-provided surveys. 

When applying for temporary labor certification for prospective H-2B employees, employers will be required to register and demonstrate their need for temporary workers. They will be subject to expanded recruitment requirements, including an obligation to contact former U.S. workers about open positions and the requirement to conduct additional recruitment if a DOL officer believes it will identify qualified and available U.S. workers. 

The H-2B wage rule took effect immediately on April 29. The H-2B labor certification rule also took effect on April 29, but DOL will accept comments from the public through June 29, 2015.

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