Department of Labor Finalizes Changes to H-2B Visa Program

On February 21, 2012 the Department of Labor (DOL) issued a final rule concerning the H-2B temporary guest worker program. This new rule, which will go into effect on April 23, 2012, will make significant changes to the way the H-2B program operates for all employers including those in the horse industry.

“Anyone in the horse industry who uses the H-2B program needs to be aware of this new rule. It makes major changes to the responsibilities of employers using the program and if the new guidelines aren’t followed employers could be fined and barred from using the program,” said AHC President Jay Hickey.

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.

The AHC believes the new rule will make the H-2B program more costly and burdensome for employers who are forced to use the program and has opposed the new rule. “It is unfortunate the DOL decided to finalize this rule,” said AHC Legislative Director Ben Pendergrass. “This rule will make it difficult for trainers and others in the horse industry to use the program and could impact American jobs. The current rule was working well for the industry and included many protections for foreign and American workers.” 

The final rule, among other things, will:

• Require an employer to pay most inbound and outbound travel expenses for H-2B workers.
• Extend H-2B program benefits, such as reimbursement of transportation cost, to American “corresponding workers” that work alongside H-2B workers and perform substantially the same work.
• Require employers to provide documentation that they have taken appropriate steps to recruit U.S. workers, rather than permitting employers to attest to such compliance.
• Increase the amount of time employers must try to recruit U.S. workers.
• Prohibit job contractors from using the program.
• Define temporary need as 9 months, previously it was 10 months.
• Define full time employment as 35 hours a week, previously it was 30 hours.

“This final rule is complex and has many new provisions and changes. If you are an employer who uses the program you should review the new guidelines and contact the lawyer or agent you use to process H-2B applications to ensure you are in compliance with the new rule when it goes into effect on April 23,” said Pendergrass. 

DOL guidance and the complete rule can be found on the Department of Labor’s website at http://www.dol.gov/whd/immigration/H2BFinalRule/index.htm. 

“Many Members of Congress are also displeased with this new rule and believe it could hurt industries in their states. The AHC is going to continue to work with those Members to try and roll back this new rule. Unfortunately, gridlock in Washington will prevent any quick action by Congress and the horse industry will have to comply with the new rule for the foreseeable future,” said Hickey.

The AHC encourages members of the equestrian community to visit its website www.horsecouncil.org  to learn how federal legislation and regulations impact them and how they can get involved.