New Proposed Rule Governing the H-2B Visa Program

The American Horse Council (AHC) has submitted comments to the Department of Labor (DOL) on a proposed rule governing the H-2B program temporary guest worker program.

The H-2B program is used by members of the horse industry, principally horse trainers and owners who cannot find American workers to fill semi-skilled jobs at racetracks, horse shows, fairs and in similar non-agricultural activities.

Background

In 2008 the Bush administration issued new rules governing the H-2B program (2008 rule)   The 2008 rule made major changes to the H-2B program by implementing an “attestation-based” labor process in place of the previous “labor certification” process.  This change among others was intended to make the H-2B program more usable and efficient while still providing protections for American and foreign workers.

The Obama Administration has stated it does not believe the 2008 rule provides adequate protections for American or foreign workers and believes a new H-2B rule is necessary. Because of these concerns the DOL published a new H-2B proposed rule on March 18, 2011. Comments on the proposed rule were due May 17.

Proposed Rule

The proposed rule if adopted would make significant changes to the H-2B program and would roll back many of the provisions of the 2009 rule.  The proposed rule would:

• Require employers to document that they have taken steps to recruit U.S. workers, rather than permitting employers to attest to such compliance.
• Reinstate the role of state workforce agencies in providing expertise on local labor market conditions and recruitment patterns.
• Increase the amount of time employers must try to recruit U.S. workers.
• Extend H-2B program benefits to workers employed alongside those H-2B workers such as reimbursement of transportation costs and other benefits.
• Give the DOL’s Wage and Hour Division independent debarment authority.
• Create a national job registry for all H-2B job postings.
• Prohibit job contractors from using the program.

The proposed rule can be viewed at http://www.regulations.gov/#!documentDetail;D=WHD_FRDOC_0001-0020

AHC comments

In its comments the AHC pointed out that despite substantial efforts to recruit and train U.S. workers, horse owners, trainers, and competitors must use the H-2B worker program to bring aliens into the country as temporary, non-immigrant workers.  The AHC made clear that horse industry employers use the H-2B program not by choice but because of an inability to find American workers to fill these jobs and without these foreign workers the horse industry could not continue to operate as it does now.

The AHC stated its belief that substantial improvements were made to the H-2B program by the 2008 rule that made it more usable and efficient. The AHC expressed its disappointment the DOL proposed rule would roll back most of the positive provisions of the 2008 rule and would add new and burdensome requirements.

Additionally, the AHC reminded the DOL that horse industry employers who are forced to utilize H-2B workers are very often small businesses and will be hard pressed to absorb any increase in costs the proposed rule could produce.   Furthermore, the AHC stated its fear that if the proposed rule is made final in its present form the H-2B program could become unusable for many horse industry employers.

The AHC offered extensive comments on specific provisions of the proposed rule that the horse industry opposes as currently written, including:

• Abolishment of the attestation methods and reverting to the prior, time-consuming directed recruitment methods, including recruitment up to 3 days before the date of need;
• Added administrative procedure of bifurcation of the registration phase that addresses the employer’s temporary need and an application phase that addresses the labor market test;
• Requirement to compensate corresponding employees (US workers) in the same manner as H-2B workers;
• Three-fourths guarantee of payment of wages;
• A requirement to pay additional transportation cost and daily subsistence;
• New definitions for “full-time, seasonal work”; and
• New liability standards.

Lastly, AHC urged the DOL to retain the current rule for H-2B program or at least consider making changes to the proposed rule based on the concerns of users of the program. The complete AHC comments can be viewed at; http://www.horsecouncil.org/regulations/AHC_Comments_H-2BPR.pdf

Congressional Action

Congressman Rodney Alexander(R-LA) has introduced H.R. 3162 that would prohibit DOL from implementing, amending or enforcing the H-2B wage rule or the proposed rule that would make changes to the entire program.

Status

The comment period for the proposed rule is closed.  The DOL will review the submitted comments and issue a final rule

AHC Position

The AHC is opposed to the proposed rule as it is currently written and supports H.R. 3162.