Changes to the H2B Program for FY 2016

 

Introduction: Statutory Changes to the H2B Program (Effective Jan 1, 2016)

h2b 2016On December 18, 2015, President Barack Obama signed the 2016 Consolidated Appropriations Act (Public Law 114-113) into law. It contains provisions affecting the H2B non-agricultural visa program. The Department of Labor Office of Foreign Labor Certification (OFLC) released an “Emergency Guidance” on January 5, 2016, to quickly create policies for implementing the changes to the H2B statutes [PDF version]. This article will discuss the changes to the H2B program and how the OFLC has indicated that the changes will be implemented. To learn about the H2B program in general, please follow this link. To see the list of H2B countries for FY 2016, please follow this link.

Returning Worker Exception

Title V, Section 566 of the Department of Homeland Security (DHS) Appropriations Act amended section 214(g)(9)(A) of the Immigration and Nationality Act (INA) to provide a “returning worker exception” for FY 2016. Accordingly, any H2B alien who was counted toward the H2B cap for FY 2013, 2014, or 2015 will not be counted toward the H2B cap for FY 2016. Employers seeking entry or change of status for an H2B returning worker should clearly indicate that the I-129 petition beneficiary is a returning worker who is cap exempt for FY 2016.1

Provisions in the Department of Labor Appropriations Act

The rest of the new provisions of the omnibus legislation affecting the H2B program are found in sections 111-114 of the 2016 Department of Labor (DOL) Appropriations Act.

Section 111 — Seafood Industry

Section 111 sets forth the manner in which employers in the seafood industry may stagger the entry of H2B nonimmigrants with approved H2B petitions.

Sections 111(a)(1) state that if an H2B petition filed by an employer in the seafood industry is granted, the employer may bring the H2B nonimmigrant for whom the petition was approved into the United States at any time during the 120-day period beginning on the start date for which the employer is seeking the services of the H2B employees without filing a new petition. However, section 111(a)(2) requires that an employer in the seafood industry may not bring employees in after the date that is 90 days after the start date unless the employer:

  • (A) completes a new assessment of the labor market by-
    • (i) listing job orders in local newspapers on 2 separate Sundays; and
    • (ii) posting the job opportunity on the appropriate Department of Labor Electronic Job Registry and at the employer's place of employment; and
  • (B) offers the job to an equally or better qualified United States worker who-
    • (i) applies for the job; and
    • (ii) will be available at the time and place of need.

Section 112 — Prevailing Wages

Section 112 required the DOL to accept private wage surveys even when Occupational Employment Statistics (OES) survey data are available. However, the private wage survey may be rejected if it is determined that the methodology and data in the survey are not statistically supported.

Section 112 states that the determination of the prevailing wage for H2B program purposes shall be the greater of -

  1. the actual wage level paid by the employer to other employees with similar experience and qualifications for such position in the same location; or
  2. the prevailing wage level for the occupational classification of the position in the geographic area in which the H2B nonimmigrant will be employed based on the best information available at the time of filing the petition.

DOL's Implementation of Section 112

The DOL made non-substantive changes to the Form ETA-9165 in order to comply with section 112. All employer requests for a prevailing wage determination based on a private wage survey submitted on or after December 19, 2015, must use the revised Form ETA-9165. The certifying officer (CO) will issue a Request for Evidence (RFE) if the request is submitted without the revised Form ETA-9165. The revised Form ETA-9165 and instructions may be found at https://www.foreignlaborcert.doleta.gov/form.cfm (link)

In a DOL fact sheet [PDF version] on section 112, the DOL stated that the provision will not apply retroactively to petitions filed before December 19, 2015. Therefore, survey wage requests to amend petitions filed before that date will not be accepted.

Section 113 — No Funds to Enforce Certain Regulatory Provisions and Definition of “Temporary”

Section 113 states that no funds allocated to the DOL shall be used to enforce the definition of corresponding employment found in 20 C.F.R. 655.5 or the three-fourths guarantee rule definition found in 20 C.F.R. 655.20. It further states that for the purpose of regulating admission of temporary workers under the H2B program, that DOL must use the definition of “temporary” found in 8 C.F.R. 214.2(h)(6)(ii)(B).

DOL's Implementation of Section 113

DOL has made non-substantive modifications to the Appendix B of the Form ETA-9142B to bring it into accordance with Section 113. The revised Form ETA-9142B can be found at https://www.foreignlaborcert.doleta.gov/form.cfm (link)

Prior to February 1, 2016, employers with either a pending H2B application or who file with the previous Appendix B will be provided with a copy of the revised Appendix B at the time the CO issues a certification decision. For applications filed after February 1, 2016, employers must submit the revised Appendix B.

No Funds to Enforce Corresponding Employment and Three-Fourths Guarantee Rules

The 20 C.F.R. 655.5 and 655.20 require that the employer of H2B workers:

  • Must provide at least the same wages and other working conditions that they provide to H2B workers and certain U.S. workers performing substantially the same work identified in the labor certification or performed by other H2B workers.
  • Must offer workers full-time employment for a total number of work hours equal to at least three-fourths of the workdays of each 12-week period (or 6-week period if the job order is less than 120 days).

The DOL states that while it will not use FY 2016 funds to enforce the provisions, it will continue to enforce “the requirement that employers must offer at least the same wages and working conditions to U.S. workers who are hired during the recruitment periods for positions covered by the relevant H2B Application for Temporary Employment Certification, Form ETA-9142B.”

The DOL states that it will not use FY 2016 funds to require employers to offer the three-fourths guarantee as part of the:

  • Assurance and content of job orders submitted to the State Workforce Agency under 20 C.F.R. 655.18(b)(17); or
  • Content for advertising the job opportunity under 20 C.F.R. 655.41 for all positive recruitment conducted under 20 C.F.R. 655.40-46.

When issuing a Notice of Acceptance, the CO will remind the employer of its obligation to offer H2B workers and U.S. workers who are hired during the recruitment period covered by the application a wage that equals or exceeds the prevailing wage determination provided by the National Prevailing Wage Center (NPWC).

Definition of Temporary Need

The DOL had been relying on 20 C.F.R. 655.6(c) which defined “temporary” at 9 months. Section 113 will require DOL to use the definition of “temporary” found in 8 C.F.R. 214.2(h)(6)(ii)(B) which is “one year or less.” This means that employers petitioning for H2B nonimmigrants may seek up to 12 months of employment. However, it remains to be seen how the DOL will implement the “one year or less” limit.

Section 114 — Blocking Implementation of 20 C.F.R. 655.70 and 20 C.F.R. 655.71

Section 114 prevents funds provided by the Act for FY 2016 to be used to implement 20 C.F.R. 655.70 and 20 C.F.R. 655.71.

Accordingly, the Office of Foreign Labor Certification (OFLC) will not issue any new H2B audit or assisted (also known as supervised) recruitment requests in FY 2016. Furthermore, it will suspend the processing of any pending requests. OFLC will issue discontinuation notices on all pending requests to which H2B employers will not be required to respond.

Conclusion: Changes to the H2B Program for FY 2016

The new laws regarding the H2B program are beneficial to employers seeking to bring H2B nonimmigrants to the United States. However, as with any new law or regulation, it remains to be seen how the implementation will affect H2B adjudications in practice. An employer seeking to bring H2B nonimmigrants to work in the United States should consult with an experienced immigration attorney for assistance throughout the process and guidance in petitioning under the new laws discussed in this article.

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  1. Practice Alert: Impact of the 2016 DOL Appropriations Bill on the H-2B Program,” (Jan 8, 2016), Published on AILA InfoNet at Doc. No. 16010803

Resources and Materials:

“Practice Alert: Impact of the 2016 DOL Appropriations Bill on the H-2B Program,” (Jan 8, 2016), Published on AILA InfoNet at Doc. No. 16010803