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Thursday, March 29, 2012

Changes to the Temporary Guest Worker Program Effective April 23, 2012

The U.S. Department of Labor has issued a final rule that makes significant changes to the way the H-2B Certification for Temporary Non-Agriculture Work operates. The changes, which affect all employers participating in the program, are summarized as follows: 

  • “Temporary need” is now defined as 9 months (under prior law it was 10 months) and “full-time” is now defined as 35 hours per week, an increase from 30 hours. 

  • Employers may now submit the Application for Certification before they have completed the requisite recruitment of U.S. workers; however, the recruitment efforts themselves are more extensive. Also, under prior law, employers could attest that they had conducted sufficient recruitment, whereas they must now provide documentation establishing this fact.

  • Employers are required to pay for inbound travel, including daily subsistence expenses, for workers who complete 50% of the job order and outbound travel, including daily subsistence expenses, for workers who work until the end of the job order or are dismissed early.

  • Corresponding workers who work alongside H-2B workers generally must receive the same benefits as H-2B workers. This could include reimbursement of certain transportation costs. Corresponding workers are defined as non-H-2B workers who perform either substantially the same work as that included in a H-2B job order or substantially the same work as the H2-B workers.

  • H-2B workers must be reimbursed for visa costs and related expenses in the first workweek.

  • All tools, supplies and equipment needed to perform the job must be provided by the employer without charge or deposit.

  • Employers must guarantee employment for at least three-fourths of the workdays in every 12-week period.  

  • Job contractors are only allowed to use the H-2B program to fill their own temporary needs that comply with the program.

  • Under the new rule, the Department of Labor’s Wage and Hour Division has independent authority to investigate violations of the rule and bar employers from participation in the program for 1-5 years.

            This is only a partial list of the changes that go into effect on April 23, 2012. Other provisions of the rule address the manner and timing of wage payments, layoffs, separations from service and administrative compliance.

            If you would like additional information regarding your obligations under the temporary guest worker program, Elizabeth Palmer can be reached at epalmer@dpf-law.com.