The H2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs. Under the regulations, an intending employer must first apply for a temporary labor certification from the Department of Labor (DOL) before filing an H2B petition with the USCIS. That certification informs USCIS that there are no available U.S. workers capable of performing the services or labor, and that the employment of the foreign worker(s) will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The DOL has recently amended its regulations governing the certification of the employment of foreign workers in temporary or seasonal non-agricultural employment under the H2B program. Under the new final rule, the temporary labor certification process has been revised. According to the DOL, the new provisions have been created to provide for increased worker protections for both U.S. and foreign workers.
The new H2B Final Rule was set to become operative on April 27, 2012. According to the new rule, applications postmarked on or after April 27, 2012 will be adjudicated in accordance with the requirements described in the Final Rule, and applications filed under the current regulation must be sent to the CNPC and postmarked no later than midnight April 26, 2012. Furthermore, the DOL has revised the ETA Form 9142, Appendix B.1 and associated instructions in connection with the H-2B 2012 Final Rule, and employers filing H-2B applications under the H2B Final Rule 2012 must use the revised ETA Form 9142 and Appendix B.1 starting with applications postmarked on or after April 27, 2012.
On April 26 2012, however, before the rule could go into effect, a District Judge in Florida ordered a preliminary injunction preventing the 2012 Final Rule from being implemented for at least 60 days. Several business and associations sued DOL in the Northern District of Florida over the H2B final rule, alleging that DOL lacks rulemaking authority, and asking the court to vacate the rule and to issue a preliminary injunction. The Plaintiffs alleged that the DOL’s issuance of the Final Program Rules were in excess of their authority and must be vacated. As the injunction was just issued, it is unclear what effect this will have on the implementation of the new rule.
With a view to help employers and H-2B program participants better understand the new regulations, we present here, a brief snapshot of some of the major changes brought about under the new regulation.
Salient Features of the New H2B Regulations 2012
- The new regulations eliminate the attestation-based model followed under the 2009 regulations, and revert to a compliance-based model that was followed prior to the 2009 regulations. Under the new regulations, an employer completes the required recruitment after filing the Application and must demonstrate (not merely attest) that it was unable to locate sufficient number of U.S. workers. The employer must then submit a recruitment report to the ETA after filing, according to instructions from the Certifying Officer.
- The current application process is bifurcated into a Registration phase, which addresses the employer’s temporary need, and an Application phase, which addresses the labor market test. Employers are required to submit an H-2B Registration and receive an approval before submitting an Application for Temporary Employment Certification and conducting the U.S. labor market test.
The H-2B Registration is non-transferrable. For Registration, employers will be required to document the number of positions the employer desires to fill in the first year of registration; the period of time for which the employer needs the workers; and that the employer’s need for the services or labor is non-agricultural, temporary and is justified as either a one-time occurrence, a seasonal need, a peakload need, or an intermittent need.
If approved, the registration is valid for a period of up to 3 years, absent a significant change in conditions, enabling an employer to begin the application process at the second phase without having to re-establish temporary need for the second and third years of registration.
Note 1: Provisions relating to registration of employers do not take effect immediately. A regulatory provision has been added to allow for the transition of the registration process through a future announcement in the Federal Register. Until such time the Certifying Officer will adjudicate temporary need through the application process.
Note 2: Employers who file H–2B applications with a start date of need before October 1, 2013 will not be required to obtain the pre-approved H–2B registration, and DOL will continue to adjudicate temporary need during the processing of applications by reviewing the employer’s statement of temporary need in Section B of the ETA Form 9142. However, employers with H–2B applications postmarked on or after April 27, 2012 with a start date of need on or after October 1, 2013, must comply with all the requirements contained in the registration process unless the OFLC publishes additional guidance in the Federal Register. (With the implementation of the preliminary injunction, we are awaiting additional instructions from the DOL and the OFLC regarding the next steps).
- Procedure under the new regulations:
- Employer must submit and receive a prevailing wage determination from the DOL;
- The employer must then submit an H2B Registration (after the transition period), from which the ETA certifies temporary need for up to three years.
- Thereafter, each season, the employer may submit an Application (ETA Form 9142), a copy of the job order, and additional documentation from which the ETA would access the employer’s job opportunity and then order recruitment to ensure a thorough test of the labor market.
- The ETA Form 9142 and required documents must be submitted 75 - 90 calendar days before the employer’s date of need.
Note: The Certifying Officer may waive the normal filing timeframe of 75 – 90 days. So long as there is enough time to test the labor market and provided that the employer can demonstrate a good and substantial cause, the employer may simultaneously file the H2B Registration application, and job order less than 75 calendar days before its start date of need.
- The definition of full-time employment has been changed from 30 or more hours of work per workweek to 35 or more hours of work per week. H–2B employers are and will remain required to accurately represent the actual number of hours per week associated with the job.
- Job Contractors: Only those contractors that demonstrate their own temporary need, not that of their employer-clients, are permitted to continue to participate in the H–2B program. Job contractors will only be permitted to file applications based on seasonal need or a one-time occurrence. In order to participate in the H–2B program, a job contractor would have to demonstrate:
- If based on a seasonal need, that the services or labor that it provides are traditionally tied to a season of the year, by an event or pattern and is of a recurring nature; or
- if based on a one-time occurrence, that the employer has not employed workers to perform the services or labor in the past and will not need workers to perform the services in the future or that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
- “Temporary need” is defined as 9 months in duration, except in the event of a one-time occurrence - a decrease from 10 months under the previous regulations.
- Employers or their agents or attorneys, as applicable, are required to provide DOL with a copy of all agreements with any foreign labor recruiter. In addition, the employer and its agent and attorney must provide the names and locations of sub-contractors hired by the recruiter who will recruit H2B workers.
- The number of days within which the employer must request review of a Prevailing Wage Determination (PWD) by the National Prevailing Wage Center (NPWC) Director has been reduced from 10 calendar days to 7 business days from the date of the PWD. The employer will have 10 business days from the date of the NPWC Director’s final determination within which to request review by the BALCA.
- The State Workforce Agency (SWA) job posting and DOL’s electronic job registry job posting will remain active and employers must continue to accept U.S. applicants until 21 days before the date of need.
- Employers must disclose the job order to all H2B and corresponding workers, in a language that is understood by the workers.
- Employers are required to file the Application for Temporary Employment Certification, with original signature(s), copies of all contracts and agreements with any agent and/or recruiter executed in connection with the job opportunities, and a copy of the job order with the Chicago NPC at the same time it files the job order with the SWA. The employer must submit this filing no more than 90 days and no fewer than 75 days before its date of need.
Note: The requirement of filing of an Application for Temporary Employment Certification in a paper format will be continued until such time as an electronic system can be fully implemented. If and when the Application for Temporary Employment is permitted to be filed electronically, the employer must print and sign it after receiving a determination to satisfy the original signature requirement.
Employers are required to file separate applications when there are different dates of need for the same job opportunity within an area of intended employment.
- The required recruiting includes:
- SWA job posting until 21 days before the date of need;
- Newspaper advertisements on 2 days, which includes one on a Sunday;
- the call-back of, and offer of re-employment to, former U.S. workers from the previous year, including workers who were laid off;
- contacting the bargaining representative, or if there is no bargaining representative, posting the job for 15 business days at 2 conspicuous locations at every place of employment; and,
- any other recruiting activities as directed by Certifying Officer.
- The employer is responsible for the reasonable cost of inbound travel, including daily subsistence expenses, for workers who complete 50% of the job order, and outbound travel, including daily subsistence expenses, for workers who work until the end of the job order or are dismissed early.
- The employer is required to pay or reimburse in the first workweek the full cost of visa and visa-related expenses to the H2B worker.
- The employer must post a workers’ rights poster in English, provided by WHD, and in other languages as needed and provided by WHD.
- The ETA may revoke a labor certification for a variety of reasons, including fraud; willful misrepresentation of a material fact; substantial failure of a term or condition of employment; failure to cooperate with DOL or law enforcement; or failure to comply with DOL remedies, sanctions, or decisions.
The above are only a few major changes and additions incorporated by the new H2B regulations 2012 and are not exhaustive. The new regulations contain many provisions that are either significantly different from the current provisions or are new additions, including provisions subjecting employers to new restrictions. Examples include employers may not impose restrictions or obligations on U.S. workers that are not imposed on H2B workers and employers must keep accurate pay and hours records and supply workers with earnings statement on or before each payday, and many more.
The DOL has recently posted a first round of FAQs to assist employers, workers, and other interested parties in interpreting theH2B 2012 Final Rule. While the DOL continues to engage with program users and other interested stakeholders, educating them on the requirements of the H2B Final Rule 2012, it may take some time for employers to fully appreciate the changes brought about under the regulations, especially considering that the new regulations revert back to a compliance-based model. In fact there has been push-back against the implementation of the new regulations. Some employers feel that the new regulation unfairly increases the economic burden on the employers. The new regulation has already seen a lawsuit filed against the Department of Labor and a federal judge in Florida has placed a 60-day preliminary injunction blocking the law from going into immediate effect.
It is therefore strongly advised that employers get in touch with an experienced Immigration Attorney and review their situation and requirement under the H2B program to be clear about how the regulations affect their eligibility and what change in procedures need to be adopted under the new regulations.
Contact VisaPro if you have any queries about the new H2B Final Rule 2012 or if you need any assistance with H2B filings. Our Experienced Immigration Attorneys will be happy to help you.
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