DOL Finalizes H-2B Rule, Modernizes Application Process

The U.S. Department of Labor has issued a final rule designed to enhance workers' protections and modernize the application process under the H-2B temporary labor certification program. The rule ends state workforce agency duplication of effort in processing applications. The rule also adopts an employer-attestation model that was successful in re-engineering the permanent foreign labor certification program in 2005. Under the threat of fines and other penalties, employers will attest that they have complied with all the H-2B program's requirements and submit evidence of their recruitment efforts along with their application.

The H-2B labor certification program establishes a means for U.S. nonagricultural employers who anticipate a shortage of domestic workers to bring temporary nonimmigrant foreign workers into the United States. H-2B eligibility requires that the job and the U.S. employer's need for the foreign worker be of a temporary nature. The need must be for one year or less and can be either a one-time occurrence, seasonal, peakload or intermittent. Temporary employment should not be confused with part-time employment which does not qualify for temporary (or permanent) labor certification.

Under the new rule, DOL may debar for up to three years employers, attorneys, and agents found to have committed fraud or willful misrepresentation concerning the H-2B employment-based immigration program, or failed to cooperate with labor department audits or investigations. Furthermore, consistent with DOL's recently announced reforms in the H-2A program, H-2B employers will be prohibited from passing along application and other costs to foreign workers participating in the program. The final rule will go into effect Jan. 18, 2009.

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