The U.S. Department of Labor's Employment and Training Administration has announced a 60-day postponement of the effective date for the final rule concerning the wage methodology for the temporary nonagricultural employment H-2B program, until November 30, 2011. The delay is to permit the various courts involved in ongoing litigation surrounding the implementation of the rule to determine the appropriate venue for the resolution of all claims and allow the department to avoid the possibility of administering the H-2B program under potentially conflicting court orders.
Background on the H-2B Program
The H-2B program allows the entry of foreign workers into the U.S. when qualified U.S. workers are not available and the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The H-2B program is limited by law to a cap of 66,000 visas per year.
H-2B Wage Rate Requirements
The final rule requires employers to pay H-2B and U.S. workers recruited in connection with an H-2B job application a wage that meets or exceeds the highest of the following: the prevailing wage, the federal minimum wage, the state minimum wage or the local minimum wage.
Effective Date for Wage Calculations for H-2B Program Postponed
The Employment and Training Administration published a final rule on January 19, 2011, that revised the wage methodology for the H-2B program and set the effective date of the wage rule as January 1, 2012. In response to a court challenge, the effective date was later amended to September 30, 2011.
As a result of the most recent announcement, the effective date of the rule is postponed from September 30, 2011, until November 30, 2011.
For More Information
To read the final rule in its entirety, please click here. You may view the press release announcing postponement of the effective date by clicking here. For additional information about the requirements for hiring foreign workers, please visit our page covering the Immigration Reform and Control Act.