The Department of Homeland Security (DHS) and the Department of Labor have jointly announced a new interim final rule governing the certification of the employment of nonimmigrant workers in temporary or seasonal non-agricultural employment under the H-2B visa category. The new rule comes in response to a federal court decision1 that held the Department of Labor lacked authority to implement the 2008 regulations previously used to certify H-2B temporary labor certifications. That court had issued a temporary stay of its order until April 15, 2015 and then extended this stay until May 15, 2015. 

The new rule tracks the 2012 final rule, which was never implemented. Key components on the new rule includes: introduction of electronic job registry, longer recruitment periods for U.S. workers, and a longer registration period of three years intended to shorten the employer certification process for future years. 

The new rule also seeks to add certain protections for H-2B workers, such as increasing the number of hours per week required for full-time employment, and offesr other protections with respects to wages, working conditions, and benefits that must be offered to H-2B workers. 

For employers that have filed or are intending to file temporary labor certifications, the following should be noted:

  • USCIS and DOL will adjudicate all applications filed on or after April 29, 2015 under the 2008 final rule;
  • Emergency procedures have been instituted for applications submitted after April 29, 2015 but have a start date prior to October 1, 2015;
  • For applications with start dates after October 1, 2015, the employer must a) register (the Federal Register notice on registration has not yet been released) b) obtain a prevailing wage determination, and c) file a job order and H-2B application.

The Interim Final Rule was published on April 29, 2015 in the Federal Register for public comment.  This rule will be open for public comment for 60 days, after which time DHS and DOL may move forward with implementation of the final rule.