May 30, 2008

Department of Labor Proposal to Modify H-2B Program

On May 22, 2008 the Employment and Training Administration (ETA) of the Department of Labor published a proposed rule with the stated goal of modernizing the H-2B labor certification process. The new rules would change the procedure for the issuance of H-2B labor certifications. These changes will affect the H-2B program, which is for non-immigrants admitted to perform temporary non-agricultural labor or services. The H-2B program is meant to allow employers to hire workers for seasonal, peak-load, one-time, or temporary needs, for example a resort that is short-staffed in the summer or peak season. In an effort to streamline the application filing and review process, the proposal calls for centralizing processing and allowing U.S. employers to conduct pre-filing worker recruitment activities. The proposed changes also seek to improve the integrity of the H-2B program by providing for post-adjudication audits and penalizing employers that do not adhere to program requirements. The proposed rule will not only affect the H-2B program. Technical changes are also proposed to the H-1B and permanent labor certification regulations. Readers should note that by law the Department of Homeland Security (DHS) has the authority to enforce the H-2B program requirements- DOL can only exercise that authority pursuant to a delegation from DHS. Thus the proposed rule notes that DOL is seeking to obtain a delegation to enforce the proposed H-2B changes. Such delegations have been common historically. The proposed rule will be open for comment at www.regulations.gov until July 7, 2008.