eLABORate: Enforcement of Revised H-2B Program Rules Still on Hold

May 29, 2012

The H-2B program allows foreign workers to come to the United States to perform temporary nonagricultural work on a one-time, seasonal, peakload or intermittent basis.  The Department of Labor implemented a final rule amending the 2008 H-2B regulations on April 27, 2012.  77 Fed. Reg. 10038-10182 (Feb. 21, 2012).  The 2008 H-2B regulations utilized an attestation-based filing model where the employer conducted recruitment with no direct federal or state oversight.  However, on August 30, 2010 a Pennsylvania federal judge invalidated various provisions of the 2008 regulations.  See Comité De Apoyo A Los Trabajadores Agrícolas (CATA) v. Solis, 2010 WL 3431761 (E.D. Pa. 2010).  Thereafter, the DOL revised the H-2B program rules to change the invalidated provisions.  These changes included a shift to a compliance-based certification model with an electronic registry and added requirements to broaden the dissemination of job offer information.  The changes are summarized below. 

Pre-filing Procedures

1.     Employers must advertise a wage at least equal to the prevailing wage and must offer the prevailing wage to all similarly situated workers. An employer must request and receive a prevailing wage determination from the DOL before filing a job order to initiate recruitment for workers.

2.     Employers hiring H-2B workers on or after October 1, 2013 must show their need is temporary by filing an H-2B registration with the DOL.  The registration must include:

  • The number of positions that will be sought in the first year of registration;
  • The time period of need for the workers requested;
  • The nature of the employer's need;
  • The employer's original signature; and
  • Proof of filing no less than 120 calendar days and no more than 150 calendar days before the employer's date of need (except where the employer submits an emergency filing).  

3.     Upon approval of the H-2B registration, the employer is authorized to file an Application for Temporary Employment Certification for the specified period of up to three consecutive years unless:

  • The number of workers to be employed has increased by more than 20 percent (or 50 percent for employers requesting fewer than 10 workers) from the initial year;
  • The dates of need for the job opportunity have changed by more than a total of 30 calendar days from the initial year for the entire period of need;
  • The nature of the job classification and/or duties has materially changed; or
  • The temporary nature of the employer's need for services or labor to be performed has materially changed.  

Application for Temporary Employment Certification Procedures

1.     A registered employer seeking H-2B workers must file a completed Application for Temporary Employment Certification no more than 90 days and no less than 75 calendar days before the employer's date of need.  

2.     The employer must submit a job order to the state workforce agency serving the area of intended employment at the same time it submits the Application for Temporary Employment Certification.  

3.     If the DOL determines the Application for Temporary Employment Certification and job order meet the applicable requirements, the DOL will notify the employer of acceptance.

4.     Once an employer receives notice of acceptance, the employer may recruit Americans and direct the state workforce agency to circulate the job order.  

Recruitment Procedures

1.     After an Application for Temporary Employment Certification is accepted, the employer must recruit Americans to ensure there are no qualified Americans available for the position.

2.     The employer must recruit within 14 calendar days of acceptance.  Employers must consider Americans interested in the position until 21 days before the date of need.  

3.     The employer must prepare a recruitment report that specifies how recruitment was conducted and its results.

4.     All recruitment must advertise terms and conditions of employment that are not less favorable than those offered to H-2B workers.  

5.     If temporary labor certification is granted, the DOL will notify the employer via Final Determination letter.  Thereafter, the employer may proceed in hiring H-2B laborers.

Notwithstanding these changes, a Florida federal judge issued a preliminary injunction against the DOL, preventing the DOL from enforcing the new regulations.  Bayou Lawn and Landscape Services v. Solis, Case No. 3:12 cv183/MCR/CJK (N.D. Fla. Apr. 26, 2012).  According to the Florida court, the evidence did not establish that the DOL had rulemaking authority to revise the H-2B regulations in the manner proposed.  

Even though the court's decision prevented enforcement of the H-2B regulatory changes, the DOL still recommends that employers with a start date of need before October 1, 2013 support their applications as follows:

1.     Provide documentation to demonstrate that the job opportunity is bona fide, full-time (35 hours or more per week), and qualifies as nonagricultural;

2.     Provide documentation that the need for services or labor to be performed is temporary in nature;

3.     Provide documentation that the requested number of workers and period of need are justified;

4.     Provide monthly invoices from previous calendar years showing work will be performed for each month during the requested period of employment;

5.     Provide annualized and/or multi-year work contracts or work agreements showing the dates when work will commence and end and that work will be performed for each month during the requested period of employment; or

6.     Provide summarized monthly payroll reports in the occupation from previous calendar years showing total workers employed, total hours worked, and total earnings received.    

The DOL has revised the Form ETA 9142, Appendix B.1, and associated instructions.  Employers filing H-2B applications under the final rule must use the revised Form ETA 9142 and Appendix B.1.  We will keep you apprised of further developments regarding the H-2B program.  Additionally, please visit www.dol.gov for further information.