On December 18, 2015, the Consolidated Appropriations Act, 2016 (the Act) was signed into law. In addition to approving funding for a broad range of federal programs and agencies, the law also enacted a number of changes to the H–2B Temporary Non-Agricultural Workers Program that are likely to be welcomed by employers. Those changes include:

  • enabling flexible entry for H-2B workers in the seafood industry;
  • allowing employer-provided surveys for prevailing wage determinations;
  • prohibiting the use of FY2016 U.S. Department of Labor (DOL) funds
    • to enforce the three-fourths guarantee or corresponding employment; and
    • to conduct audit examinations and assisted recruitment (also known as “supervised recruitment”); and
  • reiterating the definition of “temporary need” under the regulations.

Individually and collectively these changes should ease some of the burdens for employers with workers under the H-2B program.

H-2B Workers in the Seafood Industry

The April 2015 Interim Final Rule (2015 IFR) had already implemented a statutory provision “to permit employers in the seafood industry flexibility with respect to the entry into the U.S. by their H–2B nonimmigrant workers” under the procedures set forth in 20 CFR 655.15(f). As such, the Act did not alter these provisions, but served to codify them. As a result, the Office of Foreign Labor Certification in the DOL’s Employment and Training Administration issued emergency guidance seeking to reassure employers that the current regulatory framework continues to hold.

The current regulatory framework provides for staggered entry of H–2B workers in the seafood industry at any time during the 120-day period on or after the certified start date “for which the employer is seeking the services of the [H–2B] nonimmigrants.” If, however, an employer wishes to utilize this staggered provision to bring in H–2B workers after the 90-day mark, it must conduct additional recruitment to identify qualified U.S. workers between 45 days and 90 days after the start date of need.

Employer-Provided Surveys for Prevailing Wage Determinations

The Act also permits the use of private wage surveys for prevailing wage determinations. The private wage surveys must be accompanied by the newly-revised Form ETA-9165 if filed after December 19, 2015. The DOL’s emergency guidance stated that the certifying officer will issue a request for information if the prevailing wage request is submitted without the new Form ETA-9165. The Act also requires the DOL to accept private wage surveys even if Occupational Employment Statistics (OES) surveys are available, unless the methodology and data of the private survey is not statistically supported.

Prohibition on Using DOL Funds to Enforce the Three-Fourths Guarantee or Corresponding Employment

Although the rules regarding the three-fourths guarantee and corresponding employment are still in effect, the Act prohibits using FY 2016 funds to enforce these regulatory provisions. One caveat mentioned in the emergency guidance is that the DOL is still permitted to enforce equal or greater wages and working conditions for U.S. workers hired during the recruitment period.

Prohibition on Using DOL Funds to Conduct Audit Examinations and Assisted Recruitment (also known as Supervised Recruitment)

One of the most significant changes from a practice perspective is the Act’s prohibition on using FY 2016 funds to enforce audit examinations and assisted recruitment (“supervised recruitment”). The guidance provided by the DOL indicates that not only are new audit examinations prohibited, but pending audit examinations and assisted recruitment (which result from violations the DOL has identified in audits) are rescinded. The DOL will be sending letters to employers currently undergoing audits and supervised recruitment to notify them of the discontinuation of those processes.

Reiteration of the Definition of Temporary Need

The Act reiterated that “temporary need,” as it is defined in 8 CFR 214.2(h)(6)(ii)(B), does not expressly define the duration of a temporary need. The regulation provides that “ [a]s a general rule, the period of the petitioner’s need must be a year or less, although there may be extraordinary circumstances where the temporary services or labor might last longer than one year.” 

Previously, the duration has been 9 or 10 months and the current 2015 IFR released by the DOL defines a temporary need as 9 months, except in the case of a one-time need. The DOL did not provide guidance on whether the 9-month definition in the 2015 IFR will be modified to accommodate longer durations of need.

The Effect for Employers

The Act provides reassurance to employers in the seafood industry that they may stagger entry for H–2B nonimmigrant workers in FY 2016, permits the use of alternative wage surveys in order to obtain more reasonable wages for workers, does not allow the use of DOL funds to enforce the three-fourths guarantee from recruitment efforts, and—perhaps most significantly—prohibits audits and supervised recruitment for FY 2016.