DOL announces comprehensive final rule on H-2B foreign labor certification program

On February 10, 2012 the U.S. Labor Department announced that it had finalized a rule on H-2B foreign labor certification program which aims to make jobs more accessible to U.S. workers.  The H-2B program allows foreign non-immigrant workers to enter the United States for a temporary period to work in agricultural and other seasonal work.  Critics of the temporary worker program argue that these employees displace U.S. workers.  To address these concerns the H-2B program has established certain recruitment and displacement standards in order to protect similarly employed U.S. workers. The program is limited to a 66,000 visa cap per year and includes rules so that these foreign workers do not adversely affect the wages and working conditions of U.S. workers.

The final rule will be published on the February 21, 2012 edition of the Federal Register, and will go into effect April 23, 2012.  The rule was a response to comments received from employers and worker advocates.  The final rule creates a national registry for all H-2B job postings and increases the amount of time the employers must recruit from the U.S. workforce.  The rule also requires the rehiring of former employees with available.  Some of the H-2B program benefits will also be extended to U.S. workers performing substantially similar work as H-2B workers.  For example, H-2B workers are reimbursed transportation costs, because they have to travel from abroad.  Such transportation costs will be extended to U.S. workers.

The H-2B worker program is in dire need of protection for both U.S. workers and the foreign non-immigrant employees.  There needs to be more transparency in the employment process, in order to hold employers accountable.  Although the program is design to help businesses when there is a temporary shortage of U.S. workers, many employers have used the program in an effort to circumvent worker protection laws.  Foreign workers are less likely to complain about working conditions and are afforded less protections then U.S. workers.  This final rule hopes to improve the H-2B program but it is unclear how effective it will be.  Implementation of other rules associated with the H-2B program continue to be pending. However, this is a step forward in improving the protections of both U.S. and non-immigrant foreign workers.

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