The rules affecting visas for temporary H-2B workers go into effect immediately and amount to a full program overhaul—and “not in a good way” for club and resort properties, according to the National Club Association.
The “other shoe” has finally dropped on the H-2B visa program, the National Club Association (NCA) has reported—and after a month of delays and a brief shutdown of the program the new rules, as outlined by the Department of Labor (DOL) and Department of Homeland Security (DHS), amount to an overhaul of the entire program—and “not in a good way” for properties that have many employees who use temporary visas to work at clubs and resorts around the U.S., the NCA said.
Most importantly, the NCA noted, the new rules go into effect immediately, applying not only to H-2B workers currently at club and resort properties, but also those who will coming to them to help with the new season.
C&RB reported on the pending changes last month http://clubandresortbusiness.com/2015/04/14/litigation-could-shut-down-h-2b-visa-program/
There are a significant number of new mandates under the newly released rules, the NCA noted, and the organization advised its membership to “begin discussing [their] effects with their local counsel immediately.”
Some “specific areas of great concern” surrounding the new rules, the NCA noted, included these changes:
- Establishment of a “corresponding employment” requirement that requires employers to increase a U.S. worker’s wages to the H-2B prevailing wage, if that worker does “substantially the same work” as an H-2B worker.
- A mandate that properties must now provide a guaranteed number of hours and pay to their H-2B employees. Specifically, they must pay their H-2B workers (and corresponding employment workers) 75% of their hours during a 12-week period—even if they do not work due to inclement weather or other unforeseen circumstances.
- A change in the number of hours an H-2B worker must work from 30 to 35 hours per week.
- A requirement for employers to pay all transportation, visa, food, and lodging costs for their H-2B workers (and all U.S. workers coming from another location within the U.S.) as they travel from their hometown, to their home country’s consular city, to the property where they will work, and then to their home again.
- A requirement that employers recruit U.S. workers by: contacting all former workers who worked at the club within the last year (other than those fired for cause), contacting the union (if a union operation), and by posting a notice of the job openings for 15 consecutive business days in two conspicuous places throughout the workplace (the notice may also be posted online)
- A mandate that recruitment for U.S. workers begin within 14 calendar days from the date a property receives its labor certification, and that properties must continue to hire U.S. workers up to 21 days before their H-2B workers start.
- A requirement that employers display an “Employee Rights” poster issued by DOL.
The new rules are in addition to an H-2B Wage Rule that has also gone into effect, which includes a higher prevailing wage-determination process, the NCA reported. Taken together, all of the new rules will “place a tremendous burden on [properties] that utilize the H-2B visa program,” the NCA said.
The NCA said that is would be “actively working with our allies on the H-2B Workforce Coalition and on Capitol Hill to stop [the new rules],” added that helping to bring about any change “may be a difficult task.”
“Congressional action will take months to complete, and there is little chance the president will sign it,” the NCA said. “Removing funding for the rule is also another option, but that would only occur in FY16, and it will still require the president to sign off.
“If action in Congress cannot fix this problem, we will likely file a lawsuit to stop the rules; however, there is a risk pursuing a legal remedy,” the NCA added. “Should we succeed in getting the rule stayed, DOL and DHS have indicated they will have to stop the entire program, for lack of a valid set of operating regulations.
“As such, our options are limited, but we will pursue all avenues to relieve the pressure clubs are feeling under this new rule,” the NCA said.
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