The U.S. Department of Homeland Security and the U.S. Department of Labor released new H-2B visa regulations last week after previous versions were struck down by a federal judge. The new rules go into effect this week.
While larger employers may be able to follow the rules, added requirements may make it more difficult for smaller employers to use the H-2B program, said Daniel Kowalski of the Fowler Law Firm in Austin, Texas.
The new interim final rule is very similar to the 2012 final rule, but includes new recruitment requirements and mandates that a job remain available to U.S. workers until 21 days before the employer needs to fill the job. The rule also adopts a registration process for employers that mandates they show their temporary labor need, reinstates a “compliance-based certification model” that was used before the 2008 rule, and adds “worker protections,” like upping the number of hours needed for full-time employment status.
“An unintended consequence of this will be to fuel, or refuel, the shadow economy,” Kowalski said. He noted that these new regulations may also prompt further litigation, since the 2012 rule was also laborious for small businesses to follow. The only way to achieve real H-2B relief is to force Congress to amend the statute to be more workable and specific, Kowalski said.
Last month, AmericanHort issued an action alert asking members of the green industry to urge federal officials to fix the H-2B program. “Even if you don’t use the program, it hurts the whole green industry when we suffer from labor shortages resulting from bureaucratic dysfunction and visa program chaos,” said Craig Regelbrugge, AmericanHort’s senior vice president in charge of public policy and government relations.
If this issue directly affects your company, AmericanHort recommends calling your members of Congress through the U.S. Capitol switchboard at 202-225-3121 and request to set up an appointment with your representative or their staff.