Department of Labor Announces Changes to the H2B Program

On December 18, 2015, President Obama signed the 2016 Appropriations Act into law. The Appropriations Act made some significant changes to improve and streamline the H2B program.  Shortly after the law was signed, the Department of Labor issued emergency guidance that implements immediate changes to the H-2B program and allows employers to file and take advantage of the new changes.

First, and most important, the Act amended the Immigration and Nationality Act to reinstate the “returning worker” exception to the cap. H2B numbers are limited to 66,000 each year and that number is divided between the first half of the fiscal year (October 1^st through March 31^st) and the second half of the fiscal year (April 1^st through September 30^th).  The cap has been a challenge for employers who rely on the H2B program because there are many more applications filed each year than visa numbers available.  Furthermore, many employers rely on the H2B program year after year and it is an advantage to those employers to have workers who know the business and are willing to return every year.  The returning worker exception means that any worker who was counted against the cap for FY 2013 through FY 2015 will not be counted against the cap for fiscal year 2016.  The change applies to any application pending or filed after December 18, 2015.

The second significant change allows requires the Department of Labor to accept private wage surveys even when there is an available survey from the Department of Labor Occupational Employment Statistics (OES) office. The methodology in the survey must comport to DOL standards, but this is an area that has caused significant problems for employers who rely on industry-specific wage surveys for purposes of setting wages and hiring.

Finally, the Act changes the definition of temporary need from 9 months back to “one year or less” as defined in the regulations to allow for employers to seek workers for up to 12 months. Nevertheless, it has been our experience that the DOL applies a de-facto 10 month rule for H2B applications.

As an immigration law firm in Colorado, our firm is very aware of how reliant Colorado resorts, hotels, lodges and industries are on the H-2B program. We represent H2B employers in a variety of industries from resorts, hotels, construction, landscaping, rafting, and other industries.  Any employer seeking to bring H2B workers into the United States should consult with our firm for assistance in this complicated process.