An additional 15,000 H-2B visas will be released in response to industry demand. The USCIS will begin accepting petitions on July 19, 2017, for the fiscal year which ends on September 30, 2017. Petitions will be accepted until the 15,000 visas run out or until September 15, 2017, whichever comes first. This is only a one-time increase.

Although Secretary Kelly had been hesitant to release additional visas, Congress granted him the authority to increase the total number available in an effort to eliminate the hardship to U.S. businesses that have relied on these workers in the past, but were unable to fill temporary, seasonal positions because the visas ran out on March 13, 2017.

The additional 15,000 H-2B visas come with new requirements. In order to file the petition, the employer must:

  • Possess a certified Temporary Labor Certification (TLC) with a start date before October 1, 2017
  • Ensure the start date on the petition matches the start date on the TLC (if the TLC has a start date prior to June 1, 2017, a new recruitment must be conducted)
  • Submit an attestation stating the employer will suffer irreparable harm, defined as “permanent and severe financial harm” if it cannot hire all of the requested H-2B workers

Once the petition has been filed:

  • A job order must be posted with the State Workforce Agency for five days within one business day of the filing
  • One newspaper ad must be posted while the job order is running
  • Applicants must be interviewed and a recruitment report must be prepared and maintained

While evidence of irreparable harm is not required, submitting some documentation could be helpful. In any case, employers must maintain documentation of the harm for three years and present it if requested.

Once the petition is approved, the employee may need to obtain an H-2B visa before entering the U.S. Given the requirements, processing times, and the fact that new recruitments may have to be conducted, it can take up to eight weeks to put new H-2B workers on the payroll.

Although employers hoped for more, the 15,000 visas should provide some relief to those who are able to file quickly and satisfy the requirements of the new rule.

For help filing H-2B petitions, please reach out to your Jackson Lewis attorney.

DHS announced on July 17, 2017, a one-time increase of 15,000 H-2B visas – still short of the number Congress had authorized. Given visa processing times, it may already be too late for businesses that rely on the summer season.

The summer is half over and well-known vacation areas are in turmoil because companies have not been able to find enough seasonal workers to handle the influx of tourists. Restaurants and bakeries on Cape Cod, amusement parks in the Midwest, hotels on lake islands, and fisheries in Alaska have been looking for temporary workers to fill jobs usually taken by trusted, experienced workers who return to work for them seasonally, sometimes year after year, on H-2B visas.

The statutory limit on the number of H-2B visas available each year is 66,000. However, until last year, an exemption from the limit for “returning workers” allowed more. In 2016, Congress failed to renew that exemption. In March 2017, H-2B visas for seasonal workers ran out. This means that employers relying on such seasonal workers, particularly those that constitute the summer tourist industry, have been left in the lurch. Congressmen from states that need seasonal workers failed to gain enough support for legislation to reinstate the exemption. In May, however, a provision was added to the omnibus spending bill that authorized Secretary of DHS John Kelly to increase the number of visas available from 66,000 to as high as 129,000. Employers have been anxiously waiting for more visas, but, until July 17, none have been forthcoming, and time was running out for companies that need revenue from the summer season to stay in business.

In June, Congressman William Keating (whose district includes Cape Cod) reported Secretary Kelly stated that his sense of the omnibus resolution was that Congress did not want to expand the number. Keating responded that there was “huge bipartisan support for [the increase]” and that it would not come at the cost of any U.S. worker jobs.

Employers are continuing to struggle to find U.S. workers. Lacking sufficient staff, businesses have had to cut their hours of operation, creating a ripple effect among U.S. workers in the tourist industry who are losing hours as well. Some businesses are turning to overtime. For many, that is not a sustainable model.

At the end of June, DHS announced that Kelly would use the authority granted by Congress to increase the visa number limit. On July 11, Senator Thom Tillis (R-N.C.), who represents a state that uses more H-2B visas than any (besides Texas and Colorado), put a “hold” on President Donald Trump’s nominee for USCIS director, Lee Francis Cissna, until Kelly releases more H-2B visas.

If you are in need of H-2B workers, contact your Jackson Lewis attorneys for further information.

 

The H-2B visa program is used extensively in tourist locations to hire foreign workers for “the season” to do temporary nonagricultural work. There are 66,000 H-2B visas available annually – half for the summer season and half for the winter season. An exemption from the cap for “returning workers” was not renewed for fiscal year 2016. With no exemption and companies anticipating that the summer cap might be reached quickly, there was a 93% increase in the number of Labor Certifications filed with the Department of Labor for H-2B workers during the first week of January 2017. The summer season cap was reached on March 13. This was unprecedented. Companies that rely heavily on seasonal workers to bolster full-time staff during their peak seasons expect to be short of workers.

Representatives William Keating (D-Mass.), whose district includes Cape Cod, and Jack Bergman (R-Mich.) have introduced a bill in the House, “The Small Business Assistant Act of 2017,” that would exempt returning H-2B workers from the cap. If passed, the number of visas available may triple.

Hotels and restaurants on Cape Cod and other places that depend heavily on tourism dollars rely on H-2B foreign workers to do housekeeping, dishwashing, and grounds keeping. Others that depend upon the program include the crabbing industry on Maryland’s Eastern Shore, the Nantucket hospitality industry, Colorado’s skiing and recreational industries, the fishing industry in Alaska, and forestry operations and amusement and recreational parks nationwide.

Senator Thom Tillis (R-N.C.), with Senators Bill Cassidy (R-La.), Mark Warner (D-Va.), and former Senator Mikulski (D-Md.), introduced the “Save our Small and Seasonal Businesses Act of 2015,” also to reinstate the returning worker exemption. When seasonal businesses cannot open on time because they do not have enough foreign workers, their U.S. workers also are unemployed and the economies in these areas generally suffer. Senator Tillis stated that the bill would “continue to place a priority on both the American workforce and our local economies.” Even in Guam, the healthcare and construction industries are missing the H-2B visas they need.

As an interim measure, due to the time-sensitive nature of these visas, Senators have called on the USCIS to conduct an H-2B visa audit to ensure that all available visas actually have been utilized. Keating and close to 40 other Representatives have joined in that request.

Meanwhile, in Euskadia Inc. v. Kelly, No. 1:17-cv-00205, landscaping, construction, roofing, fencing and other companies have asked the U.S. District Court of the Western District of Texas to force the USCIS to continue to process their H-2B visa applications. The court found the plaintiffs were not entitled to preliminary injunctive relief. An amended complaint was filed on March 22. We will report on further developments.

In an effort to further streamline the H-2B application process and make it less burdensome for employers, the Department of Labor has announced procedural changes to reduce the amount of documentation to demonstrate “temporary need.”

To get approval to hire H-2B workers, an employer must establish that the need for H-2B workers is temporary in nature, i.e., “limited to one year or less, but in the case of a one-time event could last up to 3 years.’’ The temporary need must be a one-time occurrence, seasonal, peak load, or intermittent. The DOL H-2B regulations envisage a two-part application process: (1) the agency adjudicates whether the employer has a temporary need through the employer registration process and (2) adjudicates the employer’s actual application to hire H-2B workers. However, as the DOL has not implemented the registration requirements of its regulations, the agency is adjudicating the employer’s temporary need during its review of the actual H-2B labor application.

Employers must complete Form ETA-9142B, Section B, which requires a statement on the nature of the temporary need, duration of employment, number of workers sought, and standard of need. The employer must demonstrate the scope and basis of the temporary need to enable the certifying officer (“CO”) to determine whether the job offer meets the statutory and regulatory standards for temporary need. However, without a registration process, many employers have had to submit additional documentation, such as summarized monthly payroll records, monthly invoices, and executed work contracts with the Form ETA-9142B, to demonstrate temporary need. For recurrent users of the H-2B visa program who receive H-2B labor certification for year-to-year, based on their business cycle, the statement and information on temporary need does not change.

DOL has concluded, “The additional documentation submitted by many employers, which is substantially similar from year-to-year for the same employer or a particular industry, creates an unnecessary burden for employers as well as the CO, who must review all documents submitted with each application.”

The agency announced that, effective September 1, 2016,

To reduce paperwork and streamline the adjudication of temporary need, effectively immediately, an employer need not submit additional documentation at the time of filing the Form ETA-9142B to justify its temporary need. It may satisfy this filing requirement more simply by completing Section B “Temporary Need Information,” Field 9 “Statement of Temporary Need” of the Form ETA-9142B. This written statement should clearly explain the nature of the employer’s business or operations, why the job opportunity and number of workers being requested for certification reflect a temporary need, and how the request for the services or labor to be performed meets one of the four DHS regulatory standards of temporary need chosen under Section B, Field 8 of the Form ETA-9142B. Other documentation or evidence demonstrating temporary need is not required to be filed with the H-2B application. Instead, it must be retained by the employer and provided to the Chicago NPC in the event a Notice of Deficiency (NOD) is issued by the CO. The Form ETA-9142B filing continues to include in Appendix B, a declaration, to be signed under penalty of perjury, to confirm the employer’s temporary need under the H-2B visa classification (Appendix B, Section B.1.).

DOL clarified that its certifying officer would review the employer’s statement of temporary need and recent filing history to determine whether “the nature of the employer’s temporary need on the current application meets the standard for temporary need under the regulations. If the job offer has changed or is unclear, or other employer information about the nature of its need requires further explanation, a NOD requesting an additional explanation or supporting documentation will be issued.”

For more information on H-2B visas, H-2B labor certification applications, DOL H-2B audits or investigations, please contact your Jackson Lewis attorney or any member of the Jackson Lewis Immigration Practice Group.

 

The U.S. Court of Appeals, in Denver, has issued an opinion putting the entire H-2B labor certification and visa process in jeopardy.

The Tenth Circuit found that the U.S. Department of Labor is not a subordinate agency of the U.S. Department of Homeland Security, and, therefore, could not promulgate H-2B regulations. Only DHS, as administrator of the Immigration and Nationality Act, has the authority to propose and implement regulations that govern the issuance of H-2B visas. Because DOL is not a sub-delegate of DHS, it did not have the power to issue H-2B-related regulations.

The Court’s decision puts the agency’s April 2015 H-2B regulations at jeopardy. The agency has not made any statements about the decision. Industries that rely upon temporary foreign labor (e.g., commercial landscaping, oil-and-gas craft services, and sea farming) should expect stop-gap, then long-term rule-making that will result from the Court’s decision. Labor certifications that either have been issued or are in process for the October 1, 2015 visa allotment may be invalid.

We will report on the agency reaction to the Court’s opinion.

The Department of Homeland Security (DHS) has announced that it will resume adjudications of H-2B petitions, even though it will continue to suspend premium processing until further notice.

The March 17, 2015, announcement follows the filing of an unopposed motion on March 16 by DOL to stay until April 15the U.S. District Court ruling in Perez v. Perez. That order vacated DOL’s H-2B regulations on the grounds that DOL had no authority under the Immigration and Nationality Act to issue them. DHS suspended H-2B adjudications while it reviewed the decision. As stated in the motion, DHS will resume adjudicating H-2B petitions based on temporary labor certifications issued by DOL.

The DHS announcement follows pressure mounted by stakeholders to resume processing of H-2B petitions already filed, and to accept and process H-2B petitions supported by temporary labor certifications issued prior to March 4, 2015. The court in Perez enjoined DOL from enforcing DOL’s 2008 H-2B regulations. It did not invalidate H-2B temporary labor certifications already issued by the DOL, nor did it direct USCIS to end processing of H-2B petitions supported by previously issued temporary labor certifications. The stakeholders have argued that Perez does not require USCIS to cease processing of their H-2B petitions. They have lamented that the suspension of processing could potentially have a significant impact on a wide range of industries, including resort and hospitality, seafood, landscaping, grounds maintenance, and forestry, to name but a few. Businesses that use the H-2B program to supplement workforce needs will face serious labor shortages, and the potential for significant economic loss across several industries is tremendous.

To fill the regulatory gap occasioned by the court order, DOL and DHS announced on March 13, that they intend to issue a joint interim final rule by April 30, 2015.

The Department of Labor lacks authority under the Immigration and Nationality Act to issue regulations in the H-2B program, a Florida federal district court has ruled, vacating the DOL’s 2008 H-2B regulations establishing standards and procedures for certifying employers’ requests to import H-2B workers and calculating the prevailing wage rates for temporary foreign workers. Perez v. Perez, No. 3:14-cv-682 (N.D. Fla. Mar. 4, 2015).

DOL therefore announced that, effective immediately, it will no longer accept or process requests for prevailing wage determinations or applications for labor certification in the H-2B program while it considers its options in light of the court’s decision.

This decision follows an earlier one issued by the same court in Bayou Lawn & Landscape Servs. v. Perez, No. 3:12cv183/MCR/CJK (N.D. Fla. Dec. 18, 2014), vacating the DOL’s proposed 2012 H-2B regulations. DOL has appealed this case. These decisions are in direct conflict with the 11th Circuit’s decision upholding DOL’s authority to promulgate H-2B regulations in La. Forestry Ass’n v. Sec’y United States DOL, 2014 U.S. App. LEXIS 2167 (3d Cir. Feb. 5, 2014). If the 11th Circuit upholds the Florida district court’s decision, then we may have an intercircuit conflict that may come before the U.S. Supreme Court.

Employers who rely upon the H-2B program for craft workers and temporary/seasonal employees (e.g., landscapers, housekeeping, ski instructors, commercial painters, welders, pipefitters, and machinists) should contact their Jackson Lewis attorney for further guidance. The DOL likely will take four to six weeks to respond to Perez and employers’ obligations to pay certain wages and to ensure the consistent application of employment policies may be impacted in the short-term.

Calling the Department of Labor regulations authorizing employers to use employer-provided wage surveys for prevailing wage determinations (PWDs) for H-2B workers arbitrary and capricious, and finding that they  violate  of the Administrative Procedure Act, the U.S. court of appeals  in Philadelphia has vacated the DOL regulations at 20 CFR §655.10(f) and the Department’s 2009 H-2B Wage Guidance. Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, No. 14-3557 (3d Cir. Dec. 5, 2014).

Responding to this decision, DOL announced that, effective December 8, 2014, it will no longer issue H-2B PWDs based on employer-provided wage surveys. DOL advised that pending PWDs seeking to utilize employer-provided surveys will be given the appropriate Occupational Employment Statistics wage for the requested occupation. Further, employers whose prevailing wage determination was based an employer-provided wage survey, but whose H-2B Applications for Temporary Employment Certification have not yet resulted in a final determination by the Chicago National Processing Center, will be notified of their new wage obligation along with their certification letters.

The DOL announcement is devastating news to employers that utilize H-2B temporary foreign workers to meet their seasonal labor shortage needs, as DOL’s default OES-based wage determinations set the mandatory minimum wage prohibitively high – as much as $4-$5/hour higher than the market wages reflected in private wage surveys.  Because the DOL’s wages do not appear to reflect accurately the actual industry/market wage, H-2B employers particularly in the landscaping and seafarming industries have been relying on private surveys to establish a fair prevailing wage for their seasonal workers.  This decision essentially nullifies this practice, creating a significant wage differential that ultimately will make many contract bids unprofitable.

The administration of the H-2B program, particularly the determination of H-2B prevailing wages, has been much litigated.  Although previous litigation had caused DOL to abandon the four skill-level provisions of the regulation and Guidance for setting OES prevailing wages for the H-2B program in favor of the a mean-OES prevailing wage, the agency continued to evaluate and approve private wage surveys using the skill-level definition of prevailing wage, which continued use was challenged in this case.

The Third Circuit found DOL’s “continued approval of skill-level wages submitted based on employer wage surveys is not only adversely affecting the wages of similarly employed United States workers, but the H-2B program as now administered is leading to unjustified disparities between employers who submit private wage surveys and otherwise similarly situated employers who do not submit surveys and who therefore must pay the OES prevailing wage.”  It added that the DOL practice “creates a system that permits employers who can afford private surveys to bring H-2B workers into the country for employment at lower wages than employers who cannot afford such surveys and who therefore must offer the higher OES prevailing wage.”  The Court also found that “when evaluating wage surveys based on skill levels pursuant to the 2009 Wage Guidance, DOL directly contradicts the current prevailing wage definition in 20 C.F.R. § 655.10(b)(2) (2013), … which rejects skill-level considerations.”

The Temporary Non-agricultural Employment 2011 H-2B Wage Rule for calculating the prevailing wage rates (“Rule”) has cleared one of the last hurdles to implementation by the U.S. Department of Labor, with a ruling by a federal appeals court in Philadelphia upholding the regulation.  The U.S. Court of Appeals for the Third Circuit held on February 5 that the DOL has authority to make rules regulating the H-2B program, that the Rule was lawfully promulgated and that it did not violate the Administrative Procedure Act or the Immigration and Naturalization Act.  The lawsuit was brought by employer associations that recruit H-2B workers and stand to face higher labor costs as a result of the Rule.  The case is La. Forestry Ass’n v. Sec’y United States DOL, 2014 U.S. App. LEXIS 2167 (3d Cir. Feb. 5, 2014).

The Rule (76 Fed. Reg. 3,452 (Jan. 19, 2011) (codified at 20 C.F.R. § 655.10)) eliminated the “four-tier wage methodology” in favor of the mean Occupational Employment Statistics (OES) wage for each occupational category, and established a wage calculation regime wherein the prevailing wage is the highest of the applicable collective bargaining agreement(s), the rate established under the DBA[???] or Service Contract Act, or the OES mean.  It also barred use of employer-submitted surveys if the prevailing wage can be determined based on OES data or the rates established under the DBA or SCA. According to DOL’s estimates, “the change in the method … will result in a $4.83 increase in the weighted average hourly wage for H-2B workers and similarly employed U.S. workers[,]” and a total annual transfer cost of $847.4 million.

This Third Circuit decision is welcomed by DOL, which has faced numerous court challenges in its efforts to promulgate new H-2B rules since 2008.  The 2011 H-2B Wage Rule was published in response to an August 2010 court order enjoining the agency from implementing its 2008 H-2B wage rule on the ground that it violated the APA, promulgated without seeking public comment.   The court ordered the DOL to promulgate new, APA-compliant rules.

Even though DOL published the 2011 Rule within the time ordered, its implementation has been held up by court action and by Congressional “appropriations concerns” denying DOL funding.  DOL continued to use its 2008 rule.  This was challenged and in March 2013, a federal district court vacated the 2008 wage rule and permanently enjoined the agency form implementing it (see www.globalimmigrationblog.com/2013/03).  The court gave the DOL 30 days to comply.  As a result, DOL and USCIS published a joint interim final rule in April 2013 that established a new methodology for calculating H-2B prevailing wages (see www.globalimmigrationblog.com/2013/04), which DOL indicated would be effective only until the 2011 H-2B Wage Rule took effect.

Since Congress lifted the appropriations ban on the Rule when it enacted the DOL Appropriations Act, 2014 (see Pub. L. 113-76, Div. H, Title I (2014)), we anticipate DOL will now apprise the public of the status of H-2B prevailing wages and the effective date of the Rule by publishing a notice in the Federal Register.

The Third Circuit recognized its decision may lead to  a rift in the courts of appeals.   In Bayou Lawn & Landscape Servs. v. Sec. of Labor, 713 F.3d 1080 (11th Cir. 2013), the Atlanta court affirmed an injunction barring implementation of the interim rule preliminarily, finding DOL had no rulemaking authority over the program.  The Third  Circuit cautioned, however,   that Bayou may not be the last word on the subject from its sister circuit: “The three-member panel in Bayou opined only on whether the District Court abused its discretion…, not on whether the DOL actually has that authority or not….”

For more information on H-2B visas, H-2B labor certification applications, DOL H-2B audits or investigations, please contact your Jackson Lewis attorney or any member of the Jackson Lewis Immigration Practice.

The National Prevailing Wage Center (NPWC) has acknowledged that the October 2013 government shutdown and the significant increase in wage survey-based prevailing wage requests from H-2B employers has delayed processing of Prevailing Wage Determination requests. These undue delays by the Department of Labor (DOL) and NPWC in adjudicating cases are prohibiting employers from filing their temporary labor certification applications in a timely manner.

The increase in wage survey-based prevailing wage requests is a direct result of the joint interim regulations that mandate a mean Occupational Employment Statistics (OES) wage be used for all H-2B cases, regardless of the complexity of the position at issue. In most cases, the mean wage is the equivalent of a Level 3 OES wage, which is usually prohibitively high for employers. It would price them out of their respective markets and impact their ability to get contracts and retain existing customers. As a result, many employers are choosing to use privately obtained wage surveys that reflect wages in a particular market or industry much more accurately; hence the increase in private wage survey-based prevailing wage determination submissions to the DOL/NPWC for H-2B cases.

While it can be argued that the DOL/NPWC should have foreseen this increase in wage survey submissions, it appears that the DOL and NPWC did not. In an attempt to alleviate their burden, they are now allowing employers to change their pending wage survey-based requests to regular prevailing wage requests, which would result in a faster determination and an OES median wage assignment. However, the possibility of receiving a quick wage determination will not be incentive enough for many employers to agree to a prohibitively higher wage for seasonal workers. Accordingly, we do not anticipate this will speed up the processing of prevailing wage determinations in a meaningful way.

Employers that want to continue utilizing the H-2B program will need to begin the process as early as possible to account for the delays in wage determinations. Our attorneys are monitoring this issue and working with clients to accommodate delays and obtain timely H-2B certifications for their seasonal needs.