The Department’s comprehensive program rule to govern the H-2B visa program was published after the April 2011 collection of comments on regulatory reform. This rule, also published at 20 CFR Part 655, creates a burdensome and unworkable construct for legally employing temporary foreign workers. In fact the program rules were a blatant attempt by DOL to simply graft the requirements the agency had imposed in the H-2A program for agricultural workers on non-agricultural workers in completely different settings. These rules have never been implemented because of a federal court injunction, based on a finding that DOL’s program rule was beyond the statutory authority of the Department of Labor to consult and advise the Department of Homeland Security regarding the impact of H-2B workers on the domestic workforce. In addition to being beyond DOL’s authority, these rules are out of touch with business reality and several aspects of the comprehensive program rule would have a dire impact on the very businesses trying to play by the rules and hire a legal workforce.
The Department of Labor should withdraw the failed program rule and concede that the Department of Homeland Security is the agency with jurisdiction over the programmatic regulations for the H-2B visa program, allowing DHS to move forward with a new Notice of Proposed Rulemaking regarding the terms and conditions of the H-2B visa program.