Understanding the Government’s New H-2B Seasonal Visa Regulations

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2015 has been a hard year for seasonal businesses that rely on the H-2B visa. After three months of highs and lows where seasonal businesses saw the H-2B visa be the center of a federal lawsuit, have its processing temporarily suspended, be subjected to a lack of clarity with the process, and unforeseen delays, the industry was rocked again with the issuance of a new Interim Rule that drastically changed the H-2B visa requirements. These regulations went into effect on April 28, 2015 and affect any company with October 1, 2015 start dates and later.

With so many organizations in the club and hospitality industries relying on foreign nationals to work during busy months, HFTP organizations are now scrambling to understand these new regulations. So, how did the April 2015 Interim Rule change what is required of seasonal employers?

Below are some important changes made by the April 28 announcement that drastically change the H-2B visa process for HFTP organizations that we feel are most relevant to your H-2B visa petitions:

Changes to H-2B Visa Petition Process

 

Matter Previously Now
Maximum Length of H-2B visa Ten (10) months Nine (9) months
Required Hours per week 30 hr/week 35 hr/week
Proof of temporary need Submit evidence of temporary need every year. Submit evidence of temporary need in first year through “employer registration process.”  Approval of temporary need will be valid for three (3) years. Employers must re-register and re-prove temporary need in fourth year OR if number of workers requested or job opportunity changes significantly.*The employer registration process is not yet in effect and the government plans to announce registration procedures at a later date.
Recruitment Occurs prior to submitting H-2B Application to DOL.SWA Job Order must remain active for 10 consecutive days. Two (2) newspaper ads are published (one on Sunday). Occurs after submitting H-2B Application to DOL. Enhanced recruitment SWA Job Order must remain active until 21 days prior to Employment Start Date.Two (2) newspaper ads are published (one on Sunday).Employer must contact collective bargaining representative (if any).

 

Posting Notice is placed at worksite in two locations for 15 consecutive business days (if no collective bargaining agreement exists).

 

DOL may require additional recruitment efforts in specific cases.

Contacting former U.S. workers with employment opportunity Employer must offer position to former U.S. workers who were employed in the same position within the previous 120 days. Employer must offer position to former U.S. workers who were employed in the same position within the previous twelve (12) months.This does not include workers who were fired for “good cause”.The DOL now strictly requires documentation that former U.S. workers were actually contacted by the Employer, in case of audit.
Notifying government of separation of “corresponding” US workers Employer must notify USCIS and ETA within two workdays of separation from employment of an H-2B worker. Employer must notify USCIS and ETA within two workdays of separation from employment of an H-2B worker AND separation of a “corresponding” US worker (i.e., a US worker employed in a similar role as the H-2B worker).
Timing of Petition with DOL No specifications required The employer must submit the DOL petition between 75 and 90 days before the date of need.

 

 

 

Wages

 

Matter Previously Now
Forms of payment No specifications regarding form of payment (benefits such as lodging and rental cars could be counted towards wages) Employer must pay at least the offered wage, either in cash or check, “free-and-clear” of any conditions on payment.If lodging is provided as part of wage, must be clearly deducted from paycheck. Any such deductions must be stated in the job order. Rental cars, etc. are not permitted as forms of payment.
Frequency of pay No specifications required Employer must pay the more frequently of every two weeks or according to prevailing practice in the area of intended employment.
Guarantee of payment to H-2B workers, regardless of whether they work No specifications required Employer must guarantee to offer wages for a total number of work hours equal to at least three-fourths of the workdays in every 12-week period (or, for job orders lasting less than 120 days, 6-week period).
Earnings statements No specifications required Employer must keep accurate pay and hours records and supply workers with earnings statements on or before each payday.

 

 

 

Fees & Additional Expenses

 

Matter Previously Now
Inbound travel expenses (to U.S.) No specifications required Employer must pay for or reimburse H-2B employees for travel from home country to U.S., including related daily subsistence, for all employees who complete at least 50% of the employment period. *Reimbursement for inbound travel must be given to H-2B employees within first work week.
Outbound travel expenses (back to home country) Employer must pay for outbound travel only when worker is dismissed prior to employment end date Employer must pay for or reimburse H-2B employees for travel from U.S. to home country, including daily subsistence, for all employees who are dismissed prior to employment end date OR worked until Employment End Date.
Visa and visa-related fees No specifications required Employer must pay or reimburse ALL visa and related fees, including Visa Interview fees at U.S. Consulate (usually $190 per applicant) and travel to U.S. Consulate (if bus, train or flight is required).
Job-related supplies and tools No specifications required Employer must provide all tools, supplies and equipment needed to perform the job.
Inbound and outbound travel for U.S. workers in same occupation as H-2B workers No specifications required Employer must provide or reimburse inbound and outbound travel and subsistence during travel for all U.S. workers in same occupation who are not reasonably able to return to their residence within the same workday.

 

*Please note that the above charts do not encompass all of the changes in the H-2B process and regulations. For example, substantial changes have been implemented for employers who use H-2B recruiters. Instead, the charts above are intended to highlight the changes that are most relevant to HFTP organizations.

In summary, April 2015 was again a stressful one for those operating seasonal businesses due to the surprises caused by the sudden change in the H-2B seasonal visa process. In speaking with government representatives and Congressional liaisons, it seems that these regulations are here to stay. For those going through the H-2B visa process for the first time in the coming months, be sure to note the important changes highlighted above. Please do not hesitate to contact us with any questions as you navigate the new H-2B visa process.

 

Pabian_KeithwKeith A. Pabian (@PabianLaw) is an immigration attorney at Pabian Law, LLC.  He has developed a unique niche in representing organizations in the club and hospitality industries across the nation in visa and immigration matters.  He can be reached at keith@pabianlaw.com or (617) 939-9444.  This article was prepared for educational purposes only.

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