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H-2B Final Rule: DOL issues Guidelines on Transition Procedures
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On February 21, 2012, the Department of Labor (DOL) published a Final Rule amending H–2B regulations. The H–2B Final Rule becomes effective on April 23, 2012. All applications filed on or after that date will need to comply with all applicable program requirements.  To ensure that employers filing H–2B applications on or after April 23, 2012, have sufficient information to file appropriately, DOL has recently published guidelines providing transition procedures in which it has communicated that:

  • Applications filed under the current regulation must be sent to the Office of Foreign Labor Certification’s (OFLC’s) Chicago National Processing Center (CNPC) and postmarked no later than midnight April 22, 2012. An application filed up to the effective date of the H–2B Final Rule must still comply in full with the requirements of the current regulations.
  • Applications postmarked on or after April 23, 2012 will be adjudicated in accordance with the requirements described in the H–2B Final Rule.
  • Any application filed under the current regulation that is postmarked on or after April 23, 2012 or later will be rejected.

DOL has noted in the H–2B Final Rule that it would announce in the Federal Register a separate transition period for the registration process. 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. Employers filing H–2B applications on or after April 23, 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.

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