The Department of Labor has issued a Final Rule amending the regulations governing the labor certification process for the temporary employment of H-2B foreign workers in the U.S. The new regulations will go into effect on April 23, 2012, and until April 23, 2012, the H-2B application process will be administered in accordance with the current regulations.
The new rule contains many significant changes from the current regulations. Under the new rule, the 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 registration would be valid for a period of up to 3 years, enabling employers to begin the application process at the second phase without having to reestablish temporary need for the second and third years of registration if there is no significant change in conditions.
Under the new rule, the employer must demonstrate, and not merely attest, that it was unable to locate sufficient number of U.S. workers. The Employer is also required to pay or reimburse to the beneficiary, the full cost of visa and visa-related expenses.DOL has communicated that OFLC will be posting additional information and materials relating to the new regulation. We at VisaPro are closely studying the new rule and will soon publish guidance to employers on the changes contained in the new rule.