Joint DOL/DHS H-2B Interim Final Rule Released

The Department of Homeland Security (DHS) and the Department of Labor (DOL) jointly issued an interim final rule, which became effective on August 1, 2016.  This rule increases the amount of penalties against employers who substantially fail to meet the terms and conditions of employing an H-2B worker or who make a willful misrepresentation in an H-2B petition. (81 FR 42983, 7/1/16).

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act) requires agencies to adjust the levels of civil monetary penalties for inflation. After an initial “catch-up” adjustment, the agencies must adjust their civil monetary penalties annually for inflation. Thus, pursuant to the Inflation Adjustment Act, DHS and DOL issued the above interim final rule on July 1, 2016. The increased penalty levels apply to any penalties assessed after the effective date of the increase on August 1, 2016. The civil monetary penalty for H-2B violations has risen to $11,940.00 per violation—previously $10,000.00 per violation. §§503.(b), (c) and (d).

Pursuant to 8 U.S.C. 1184(c)(1) and INA Section 214(c)(1), DHS is charged with the administration of the H-2B temporary worker program for non-agricultural workers. DHS regulations provide that an H-2B petition must be accompanied by an approved temporary labor certification from DOL. The INA also authorizes DHS to impose civil monetary penalties against an employer for substantial failure to meet terms and conditions of H-2B employment or for any willful misrepresentations of material fact.

The Office of Management and Budget (OMB) has issued guidance to ensure uniform implementation of these penalties across agencies.  For future charges, the OMB will issue guidance on or before December 15 of every year directing agencies to adjust their penalties on or before January 15 of the subsequent year, in line with the statutory formula.

The DOL maintains that these rules are designed to strengthen protections for U.S. workers by providing them 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. As rules continue to change and enforcement initiatives grow stronger, it is essential for employers to actively monitor compliance with relevant law when hiring foreign national employees.

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