H-2B and the Department of Labor: The Current Big Wave

On February 10, the Department of Labor (DOL) issued a new rule regarding the issuance of H-2B visas, changing from an attestation system introduces in 2009 to a certification system, and adding protections for non-immigrant workers.   In 2009, the DOL issued a standard for determining that there are no U.S. workers willing, able, qualified, and available for the work an employer wanted temporary workers to perform, thus allowing the employer to merely attest that there were no U.S. workers, rather than providing proof for certification.

When an employer in, for example, the Maryland Crab Industry  wants to bring in workers from South and Central America to clean and pick crabs, they have to recruit workers in those countries and sponsor them for H-2B visas. In order to get an H-2B visa, the DOL has to establish that allowing the employer to import foreign workers will neither displace U.S. workers, nor harm their wages or working conditions. Before 2009, this was done through certification: once an employer provided proof that there were no workers in the area willing, able, or qualified to do the work. The employer could prove this by advertising for the jobs for a reasonable period of time, consulting relevant unions in the area, and establishing that the workers would be paid the “prevailing wage.” In 2009, this system was replaced by one allowing the employer to simply tell the DOL that there were no workers in the area, without having to do the legwork to prove it was really the case.

Under the old system, recruiters able to exact illegal fees from potential employees for recruitment and charge extra fees for filing the visa applications. Employees were also left to pay for their own transportation to the U.S., often incurring massive debt from loan sharks at ridiculous rates. Employment is generally located in isolated areas, with little access to cheap housing, safety information, or legal and health services. The workers often wind up living in poor quality housing provided by the employer, with fear that a complaint will result in discharge and therefore deportation (H-2B visas are only good for one employer, so workers can’t quit and get a job with someone else). Even worse, if the season is bad and there isn’t enough work for everyone, workers can wind up sitting in the U.S., earning no wages, waiting for work, with debts and bills piling up back home.

The new regulations were inspired by a Federal District Court opinion invalidating several of the 2009 provisions – not because they gave too much power to employers to mislead the DOL – but on a technicality: the final rule was too dissimilar from the proposed rule. Normally, the DOL could have merely republished the rule they initially issued as a “proposed rule” for a 60-day comment period, addressed the comments they received in whatever way they chose, and then issued the final rule again, exactly as-is.

In a truly inspiring move, rather than re-issuing the rule this way, the DOL truly took an opportunity to listen to the public. In response to overwhelming commentary, the DOL issued regulations that require employers to reimburse employees for visa and travel fees, and to pay at least ¾ of the wages promised, even when there is no work to be done. This move will protect both migrant workers who are severely disadvantaged compared to unionized U.S. workers and their employers. It will protect U.S. workers who don’t have to be guaranteed wages when there is no work.

I like to think that this is yet another sign that worker rights matter to agencies, and that rules like that issued in 2009 are the result of good intentions to save everyone time and money gone horribly awry. It also makes me excited to see what the next big wave of worker rights will be; though it would be nice if this wave included a little more outreach to the workers stuck in bad housing with little healthcare.

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