June 2022 Government Affairs Update

DHS and DOL Announce Availability of Additional H-2B Visas

The Department of Homeland Security (DHS) and the Department of Labor (DOL) recently announced the availability of an additional 35,000 H-2B temporary nonagricultural worker visas during the second half of fiscal year (FY) 2022. These visas are for U.S. employers seeking to employ additional workers on or after April 1, 2022, through Sept. 30, 2022.

The supplemental H-2B visa allocation consists of 23,500 visas available to returning workers who received an H-2B visa or were otherwise granted H-2B status during one of the last three fiscal years. The remaining 11,500 visas are reserved for nationals of El Salvador, Guatemala, Honduras, and Haiti, regardless of whether they are returning workers. The semiannual cap of 33,000 visas for the second half of FY 2022 was reached on February 25, 2022.  

The H-2B program permits employers to temporarily hire noncitizens to perform nonagricultural labor or services in the United States. The employment must be for a limited period of time, such as a one-time occurrence, or seasonal or intermittent need. Employers seeking to hire H-2B workers must take a series of steps to test the U.S. labor market. They must provide certification from DOL that proves there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work for which they seek a prospective foreign worker, and that employing the H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. 

Work Opportunity Tax Credit Available to Hire Workers

With many businesses facing a tight job market, BSCAI would like to remind members of a valuable federal tax credit available to employers for hiring long-term unemployment recipients and other groups of workers facing significant barriers to employment.

The Work Opportunity Tax Credit is long-standing tax benefit encourages employers to hire workers certified as members of any of ten targeted groups facing barriers to employment. With millions of Americans out of work at one time or another since the pandemic began, the IRS notes that one of these targeted groups is long-term unemployment recipients who have been unemployed for at least 27 consecutive weeks and received state or federal unemployment benefits during part or all of that time. The WOTC is available for wages paid to certain individuals who begin work on or before December 31, 2025.

To qualify for the credit, an employer must first request certification by submitting IRS Form 8850, Pre-screening Notice and Certification Request for the Work Opportunity Credit, to their state workforce agency (SWA). It must be submitted to the SWA within 28 days after the eligible worker begins work. Employers should not submit Form 8850 to the IRS.

Eligible businesses then claim the WOTC on their federal income tax return. It is generally based on wages paid to eligible workers during the first year of employment. This is a one-time credit for each new hire and an employer cannot claim the WOTC for employees who are rehired. The credit is first figured on Form 5884, Work Opportunity Credit, and then claimed on Form 3800, General Business Credit.

DOL Announces Rulemaking on Independent Contractor Status

The Department of Labor (DOL) recently announced plans to engage in rulemaking on determining employee or independent contractor status under the Fair Labor Standards Act (FLSA). The Biden Administration is seeking to ensure that employees are recognized correctly when they are employees so that they receive the protections under the FLSA.

In January of 2021, the Trump Administration issued a final rule on the classification of independent contractors which provided additional flexibility to employers. However, the Biden Administration has been attempting to reverse the final rule since last year. The DOL has not indicated when they plan to issue a Notice of Proposed Rulemaking (NPRM) on the classification of independent contractors. BSCAI will be closely monitoring that status of this rulemaking and will keep members updated on the latest developments.

DOL Publishes Updated FMLA Guidance on Mental Health

The Department of Labor’s (DOL) Wage and Hour Division is providing additional resources for workers on their rights to take leave for serious mental health conditions and for employers to better understand how to comply with the Family and Medical Leave Act (FMLA).

An eligible employee may take FMLA leave for their own serious health condition or to care for a spouse, child or parent because of their serious health condition. A serious health condition can include a mental health condition.

Mental and physical health conditions are considered serious health conditions under the FMLA if they require inpatient care or continuing treatment by a healthcare provider, such as an overnight stay in a treatment center for addiction or continuing treatment by a clinical psychologist.

The newly published guidance from DOL includes Fact Sheet # 28O: Mental Health Conditions and the FMLA and Frequently Asked Questions on the FMLA’s mental health provisions.

DOL to Offer Prevailing Wage Webinars for Federal Contractors

The Department of Labor (DOL) will offer online compliance seminars for contracting agencies, contractors, unions, workers and other stakeholders to provide information on the requirements governing payment of prevailing wages on federally funded construction and service contracts.

Offered by the department’s Wage and Hour Division, the seminars are part of the division’s ongoing effort to increase awareness and improve compliance with federal prevailing wage requirements. The seminars will include on-demand video training on many Davis-Bacon and Related Acts and McNamara-O’Hara Service Contract Act topics. In addition, online Question & Answer sessions on DBRA and SCA compliance will be offered live in June and September.

Davis-Bacon Act compliance Q&As are scheduled on June 14 and Sept. 13, and Service Contract Act compliance Q&As are scheduled on June 15 and Sept. 14, from 1:30 to 3:30 p.m. EDT. While seminar attendance is free, registration is required. Register to attend the Prevailing Wage seminar here.