The U.S. Departments of Labor and Homeland Security released an interim final rule to reinstate and make improvements to the H-2B temporary foreign nonagricultural worker program. A final rule was established regarding the prevailing wage method for the program.

The H-2B visa program allows employers or agents in the US who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs. To qualify for H-2B nonimmigrant classification, an employer must establish—among other things—that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work. Generally, H-2B petitions may only be approved for nationals of countries that are designated as eligible to participate in the H-2B program.
New Program Rules

Highlights of the new rules include the following:

  • New recruitment and other requirements to broaden the dissemination of job offer information (such as by introducing the electronic job registry and the possibility of additional required contact with community-based organizations);
  • A requirement that a job offer remain open to S. workers until 21 days before the employer’s start date of need;
  • An employer registration process that requires employers to demonstrate their temporary need for labor or services before they apply for a temporary labor certification;
  • Requirements that U.S. workers in corresponding employment receive the same wages and benefits as the H–2B workers, and that employers guarantee employment for a total number of work hours equal to at least three-fourths of the workdays in specific periods for both H–2B workers and workers in corresponding employment;
  • Requirements that employers disclose their use of foreign labor recruiters in the solicitation of workers; provide workers with earnings statements (with hours worked and offered and deductions clearly specified); provide workers with copies of the job order; display a poster describing employee rights and protections; and
  • In the absence of a wage set in a valid and controlling collective bargaining agreement, the prevailing wage will be the mean wage for the occupation in the pertinent geographic area derived from the Bureau of Labor Statistics’ Occupational Employment Statistics survey (unless the H–2B employer meets the conditions for requesting that the prevailing wage be based on an employer-provided survey).

Both rules are effective as of April 29, 2015. Employers that are affected by these changes may wish to review the interim final rule and final rule.

A version of this article was originally published by

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