The Department of Labor (DOL) recently issued several new rules governing H-2A and H-2B visas, and the Davis-Bacon Act. 

H-2A Rule.  On December 18, 2008, theU.S. Department of Labor’s Employment and Training Administration (ETA) and Employment Standards Administration (ESA) published a final rule amending the H-2A program for employing foreign workers in temporary or seasonal agricultural jobs. The final rule re-engineers the process by which employers obtain a temporary labor certification from the DOL for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2A (agricultural temporary worker) status. The final rule utilizes an attestation-based application process based on pre-filing recruitment and eliminates duplicative H-2A activities currently performed by State Workforce Agencies (SWAs). 

The H-2A temporary agricultural visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. to perform agricultural labor or services of a temporary or seasonal nature. “Temporary or seasonal nature” means employment performed at certain seasons of the year, usually in relation to the production and/or harvesting of a crop, or for a limited time period of less than one year when an employer can show that the need for the foreign workers is truly temporary.

Under the new process, employers must complete a general attestation stating that they will abide by the H-2A process. Additionally, employers must take four positive recruitment steps: (1) submit a job order to the SWA serving the area of intended employment; (2) run two print advertisements (one of which must be on a Sunday); (3) contact former U.S. employees who were employed within the last year; and (4)  recruit in all states currently designated, based on an annual determination made by Secretary of Labor, as a state of traditional or expected labor supply with respect to each area of intended employment in which the  employer’s work is to be performed. Finally, employers must submit a job order to the applicable SWA. 

The rule also establishes enhanced penalties for violations and new tools to ensure employer compliance, including audits, revocation of approved labor certifications, increased debarment authority and substantial increases in fines - up to $100,000 for violations resulting in serious injury or death of a worker. The rule also will prohibit employers and recruiters from charging fees to workers for access to jobs, a practice that in the past has led to many reported abuses.  The rule will go into effect on January 17, 2009.

H-2B Rule.  On December 18, 2008, the U.S. Department of Labor’s Employment and Training Administration (ETA) and Employment Standards Administration (ESA) published a final rule amending the H-2B program for employing foreign workers not working in agricultural jobs. The final rule re-engineers the process by which employers obtain a temporary labor certification from the DOL for use in petitioning the DHS to employ a nonimmigrant worker in H-2B status.

The H2B working visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. temporarily and engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. 

To show a “one time occurrence,” the employer must establish that the employer has not employed workers to perform the services or labor in the past and the petitioner will not need workers to perform the services in the future, or that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary occurrence. 

To show a “seasonal need,” the employer must establish that the services or labor is traditionally tied to a season of the year by an event or pattern and is of a recurring nature. 

To show a “peak load need,” the employer must establish that it regularly employs permanent workers to perform services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short term demand and that the temporary additions to staff will not become a part of the employer’s regular operation.

Similar to the new process for H-2A visas described above, the new H-2B visa rule also adopts an employer-attestation model. Under the threat of fines and other penalties, employers will attest that they have complied with all the H-2B program’s requirements and submit evidence of their recruitment efforts along with their application.  The DOL may debar for up to three years employers, attorneys and agents found to have committed fraud or willful misrepresentation concerning the H-2B employment-based immigration program, or failed to cooperate with Labor Department audits or investigations.

The regulations also allow the DOL to reinstate illegally laid off U.S. workers, assess civil monetary penalties up to $10,000 and award back wages for violations of the program.  The final rule is effective on January 18, 2009.

Davis-Bacon Rule. On December 19, 2008, the DOL’s Wage and Hour Division (WHD) published a final rule revising regulations under the Davis-Bacon and related Acts (DBRA) and the Copeland Anti-Kickback Act to discontinue the reporting of employee social security numbers and personal addresses on weekly certified payrolls. Instead, employers will be required to use individual identifying numbers for employees that, “in virtually all cases,” will be the last four digits of each employee’s social security number. 

The Davis Bacon and Related Acts (DBRA) requires all contractors and subcontractors performing work on federal or District of Columbia construction contracts or federally assisted contracts in excess of $2,000 to pay their laborers and mechanics not less than the prevailing wage rates and fringe benefits for corresponding classes of laborers and mechanics employed on similar projects in the area. The prevailing wage rates and fringe benefits are determined by the Secretary of Labor for inclusion in covered contracts.

Employers working under DBRA-covered contracts should redact this personal information from weekly submissions to the WHD.  The final rule is effective on January 18, 2009.