The H-2B nonimmigrant program permits employers to temporarily hire

nonimmigrants to perform nonagricultural labor or services in the United States.

The employment must be of a temporary nature for a limited period of time such
as a one-time occurrence, seasonal need, peakload need or intermittent need.
The H-2B program requires the employer to attest to the Department of Labor
that it will offer a wage that equals or exceeds the highest of the prevailing wage,
applicable Federal minimum wage, the State minimum wage, or local minimum
wage to the H-2B nonimmigrant worker for the occupation in the area of intended
employment during the entire period of the approved H-2B labor certification. The
H-2B program also establishes certain recruitment and displacement standards
in order to protect similarly employed U.S. workers.

The Wage and Hour Division has been delegated enforcement responsibility by
the Department of Homeland Security effective January 18, 2009, to ensure H-
2B workers are employed in compliance with H-2B labor certification
requirements. The Wage and Hour Division may impose administrative remedies
such as wage payments and civil money penalties against employers who violate
certain H-2B provisions.

Key News
• The Department of Labor Appropriations Act, 2016, Division H, Title I of Public Law
114-113 ("2016 DOL Appropriations Act"), provides that the Department of Labor
("Department") may not use any funds to enforce the definition of corresponding
employment found in 20 CFR 655.5 or the three-fourths guarantee rule definition
found in 20 CFR 655.20, or any reference thereto. See Sec. 113. This appropriations
rider has been included in the continuing resolutions that have passed throughout
FY2017 and FY2018, and the Department remains prohibited from enforcing these
provisions, or any reference thereto. However, the 2016 DOL Appropriations Act and
continuing resolutions did not vacate these regulatory provisions, and they remain in
effect, thus imposing a legal duty on H-2B employers, even though the Department
will not use any funds to enforce them until such time as the rider may be lifted.
• On April 29, 2015, in response to recent court decisions that have created significant
uncertainty around the H-2B temporary foreign nonagricultural worker program, the
U.S. Departments of Labor and Homeland Security announced an interim final rule to
reinstate and make improvements to the program and a final rule to establish the
prevailing wage methodology for that program.
These rules strengthen protections for U.S. workers, providing that they have a fair
shot at finding and applying for jobs for which employers are seeking H-2B workers,
while also providing that employers can access foreign workers on a temporary basis
when U.S. workers are not available. The rules include several provisions to expand
recruitment of U.S. workers, including more real-time recruitment efforts, requiring
employers to offer work to former U.S. employees first, and establishing a national
electronic job registry. They strengthen worker protections with respect to wages,
working conditions, and benefits that must be offered to H-2B and U.S. workers
covered by these regulations. They also establish the prevailing wage methodology
for the H-2B program, reinstating the use of employer-provided surveys to set the
prevailing wage in certain limited situations.