House DOL Spending Bill Withholds H-2B Visa Approvals Due to Employment Law Violations

July 16, 2021

The House Appropriations FY 2022 DOL funding measure would prohibit approval of H-2B temporary worker visa petitions in the event of labor or employment law violations by the petitioning employer and its contractors within the previous three years.  The measure is the most recent example of an attempt to shape the nation’s labor laws through other measures.

H-2B visas are issued to workers who fill temporary, non-agricultural jobs, often in hospitality, construction, landscaping, manufacturing, food packaging, and retail.  The measure is intended to “protect American and temporary workers and hold bad actors accountable,” according to a press release by the Appropriations Committee. 

“None of the funds made available by this Act shall be used by the Office of Foreign Labor Certification to process or approve an Application for Temporary Employment Certification submitted by or on behalf of a petitioning employer that has had an administrative merits determination, arbitral award or decision, or civil judgment, rendered against it in the preceding three years for violations of”:

  • The Fair Labor Standards Act,  
  • The Occupational Safety and Health Act, 
  • The National Labor Relations Act, 
  • The Davis-Bacon Act, 
  • Executive Order 11246, 
  • The Family Medical Leave Act, 
  • Title VII of the Civil Rights Act, 
  • The Americans with Disabilities Act, 
  • The Age Discrimination in Employment Act, OR 
  • Equivalent state or local laws—among several other statutes. 

“Petitioning employer” very broadly defined:  The legislation states that “the term ‘petitioning employer’ shall also include”: 

  • Any businesses in which the employer has involvement or over which it has any level of interest, ownership or control; and 

  • Any businesses in which any principal of the employer has any level of interest, ownership, or control.

What it means:  As noted above, the House Appropriations bill is an attempt to shape the nation’s labor laws through other measures, even in less obvious areas such as nonimmigrant work visas.  With passage of the PRO Act unlikely under current Senate rules, this trend will continue.