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The H-2B Temporary Visa Program for Employees

Stockwell Sievert Law Firm

For any employer familiar with the H-2B temporary visa program for employees – or for any employer interested in it, a major starting point to consider are the extremely strict and unforgiving timelines of the Labor Certification process. The H-2B program encompasses temporary labor needs that fall into one of the following categories: seasonal, peak load, intermittent or a one-time occurrence.

A major concern of employers is what is known as the Prevailing Wage. The wage for any position, in which an H-2B employee is sought, is set by the National Processing Center. Because the Immigration and Nationality Act requires that a foreign worker’s wages will not adversely affect the wages and conditions of other U.S. workers employed in the position, setting a “Prevailing Wage” for said occupation is vested in the Department of Labor, specifically, the Office of Foreign Labor Certification, National Processing Center.

Step one in the H-2B process is therefore filing a Request for a Prevailing Wage on Form ETA 9141. The request includes the employer information, job title, job duties and any employment or educational requirements for the position.  Under 20 C.F.R. §655.10(b)(6), the National Processing Center is to make a determination within 30 days. Upon receipt of the set wage, employer may begin advertising for the position and then, must file the application for certification for a certain number of foreign workers at least 60 days before the start date of need.

This year, many employers faced serious delays with their prevailing wage requests. Employers cannot start their season or even begin to process their foreign labor certifications or visas without the Prevailing Wage Determination. For employers in any business surrounding a seasonal need, such as crawfish trap making for crawfish season and alligator, shrimp, crab or other seafood processing, the seasons wait for no one. What were employers to do? The delays were caused by the onset and then delays of a new wage rule (Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Final Rule, 76 Fed. Reg. 45667 [Aug. 1, 2011]; Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Notice of Proposed Rulemaking, 76 Fed. Reg. 37686 [June 28, 2011]; Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Final Rule, 76 Fed. Reg. 3452 [Jan. 19, 2011]; Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Notice of Proposed Rulemaking 75 Fed. Reg. 61578 [Oct. 5, 2010]). The implementation of the these new regulations was followed by many separate lawsuits by employers and associations against the Department of Labor.

In a nutshell, the “New Wage Rule,” as it is casually called, would create an average wage for H-2B job positions, as opposed to the previous system, where each occupation was broken into levels depending on experience and other factors. In reality, and the basis of many lawsuits, the New Wage Rule would set H-2B wages in the $12.oo -$15.oo per hour category for unskilled positions that previously held a $7.oo to $9.oo wage. The new wage would be required to be paid to all H-2B employees and any U.S. worker recruited into that occupation.  The Department of Labor, by its own admissions, was extremely backlogged in the fall of 2011, as it had to re-issue new, higher wages to thousands of employers under the new wage system.

Understandably, the Department of Labor was delayed in issuing prevailing wages. But, for an employer who requested a prevailing wage in July, and had not received his wage by the end of September, how long can an employer wait? Employers who are experiencing extended delays waiting on their Prevailing Wage Determinations to be issued can seek some solace in Matter of GULF COAST CRAWFISHING SUPPLY, LLC, 2012-TLN-00003, Dec. 1, 2011.

Due to the extreme delays with Prevailing Wage Determinations, employer’s Labor Certification was ultimately certified, even though employer had to begin advertising for the position before the actual Prevailing Wage Determination was issued.  Employer simply could not wait indefinitely for a determination to be issued, as the crawfish season was imminent.  Employer made every attempt to comply with the regulations, including alerting U.S. applicants of the fact that the wage rate was likely to change upon receipt of the prevailing wage and under the new wage rules.  Ultimately, BALCA recognized that when the Department of Labor failed to follow the 30-day guideline for issuing wage determinations, employer was left with no option but to continue with the labor certification process as best it could, given the circumstances and the extreme delays in getting the actual required wage for the position.

(See this document) "[I]t is clear that the Employer in this case made every effort to comply with Section 655.10(a)(2), but was simply unable to comply with the regulation and file its application in time for its season as a result of the NPWC’s delay in issuing the PWD. ... Employer’s noncompliance with Section 655.10(a)(2) was justifiable and excusable. ... Accordingly, the CO’s denial of certification is vacated and remanded for further processing.")

by: Ashley N. Foret 

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