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11/18/2011

H-2B visa wage rule effective date now Jan. 1, 2012

No federal funding can enforce new H-2B visa wage rule before Jan. 1, 2012

President Obama signed into law Nov. 18 a "minibus" appropriations package (H.R. 2112), which includes language that prohibits any FY2012 federal funding to be used to implement, administer or enforce the new H-2B visa wage rule prior to Jan.1, 2012. The rule was previously scheduled to go into effect Nov. 30. The "minibus" package also includes a continuing resolution extension that keeps the federal government funded through Dec. 16 of this year.

The package also includes the FY2012 Agriculture Appropriations Bill; the Commerce, Justice and Science Appropriations Bill; and the Transportation, Housing and Urban Development (THUD) Appropriations Bill.

The U.S. Senate approved a conference committee report by a 70-30 vote on Nov. 17, hours after it passed the U.S. House of Representatives, 298-121. H.R. 2112 contains the following legislative language regarding implementation of the new H-2B visa wage rule:

    None of the funds made available by this or any other Act for fiscal year 2012 may be used to implement, administer, or enforce, prior to January 1, 2012, the rule titled, "Wage Methodology for the Temporary Non-agricultural Employment H-2B Program" published by the Department of Labor in the Federal Register on January 19, 2011 (76 Fed. Reg. 3452 et seq.).

A Joint Explanatory Statement from the minibus conference committee report also states:

    Section 546 prohibits any funds from being used to implement, administer, or enforce the "Wage Methodology for the Temporary Non-agricultural Employment H-2B Program" prior to January 1, 2012, to allow time for Congress to address this rulemaking. In making prevailing wage determinations for the H-2B nonimmigrant visa program for employment prior to January 1, 2012, the conferees direct the Secretary of Labor to continue to apply the rule titled, "Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers); and Other Technical Changes" published by the Department of Labor on December 19, 2008 (73 Fed. Reg. 78020 et seq).

GCSAA will continue to work with the H-2B Workforce Coalition to help pass a more permanent fix to the new H-2B wage rule.