Reversing many of the critical reforms initiated in 2009 that streamlined the H-2B application process, the U.S. Department of Labor has amended its regulations governing the certification of the employment of foreign workers performing temporary or seasonal non-agricultural labor or services under the H-2B visa program. The Final Rule will take effect on April 23, 2012. The H-2B visa program allows up to 66,000 visas each year for the entry of low-skilled, non-agricultural guestworkers.

The Final Rule significantly and fundamentally changes the H-2B visa program by imposing onerous and costly new conditions and requirements on H-2B employers. The changes mirror those introduced to the H-2A agricultural worker visa program in 2010. Major features of the Final Rule include the establishment of a national electronic job registry for all H-2B jobs to improve U.S. worker access to these temporary jobs, extension of H-2B worker protections to corresponding U.S. workers, and the “three-fourths guarantee” (employers must guarantee employment and wage payment for a certain period of time).

The Final Rule makes participation in the H-2B visa program more burdensome. These changes, in particular the “three-fourths guarantee” and extension of worker protections to corresponding workers, taken with the new prevailing wage determination methodology rule introduced in 2011, may lead some employers to consider abandoning the H-2B program for other options. As with many burdensome regulations, talented immigration counsel can make the difference between the seemingly impossible and the probable.

Prior to the April 23, 2012, implementation date, employers should consider taking the following steps:

1. File any “ready” H-2B labor applications under the current regulations;
2. Educate staff about the new rules and timelines involved so they can plan for filings once the changes take effect. Under the new bifurcated application process, employers will be required to begin the H-2B application process approximately seven months before the date when new H-2B workers are needed;
3. Develop a uniform H-2B policy that takes account of all financial arrangements with H-2B workers, such as employee relocation expenses and deductions for housing, and contains mechanisms for payment or reimbursement of transportation expenses and visa fees;
4. Review contracts or agreements with all staffing and recruitment companies to ensure they can pass muster or scrutiny under the new regulations with regard to prohibited payments by H-2B workers; and
5. Update document retention policies and procedures to ensure compliance with the proposed document retention requirements.