Department of Labor (DOL) has announced that the new H-2B Final Rule will not be operative until April 27, 2012. It may be recollected that DOL had earlier published a guidance providing that applications postmarked on or after April 23, 2012 will be adjudicated in accordance with the requirements described in the Final Rule. However, DOL has recently revised that guidance and clarified that the Final Rule will not be operative until April 27, 2012.
Accordingly, 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. DOL has informed that any application filed under the current regulation that is postmarked on or after April 27, 2012 will be returned, and the employer (and its agent or attorney) informed of the need to file a new application in accordance with the provisions of the new H–2B Final Rule.
Note: DOL has revised the ETA Form 9142, Appendix B.1 and associated instructions in connection with the H-2B 2012 Final Rule. Employers filing H-2B applications under the 2012 Final Rule must use the revised ETA Form 9142 and Appendix B.1 starting with applications postmarked on or after April 27, 2012.DOL has also reiterated that 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.