The U.S. Department of Labor (DOL) issued a final rule, effective January 18, 2009, to amend its regulations concerning the issuance of labor certifications to employers sponsoring H-2B nonimmigrants. The redesigned application process requires employers to complete recruitment prior to filing an application for labor certification. Once recruitment is complete, the completed application is to be submitted directly to the DOL, instead of to a state workforce agency (SWA), which will, instead, focus on assisting employers with the recruitment of U.S. workers. DOL has proposed a new application form, ETA Form 9142, to serve this purpose.
Before filing the application, the final rule requires employers to first obtain from the Chicago National Processing Center (NPC) a prevailing wage rate to be used in the recruitment of U.S. workers. To make the prevailing wage request, employers are instructed to use the new ETA Form 9141. An employer will then follow recruitment steps similar to those previously required. For instance, the final rule continues to require two advertisements, but also requires one of the advertisements to be placed in a Sunday edition of a newspaper closest to the area of intended employment. When an employer submits an application for a temporary labor certification, the employer will be required to attest to and explain its recruitment efforts, but will not be required to submit supporting documentation at that time. Nonetheless, an employer must retain documentation of its recruitment, as well as other documentation specified in the regulations, for three years from the date of certification in case of a request for additional information, an audit, or an investigation.
Although the final rule took effect on January 18, 2009, it phases in implementation on a gradual basis. Employers with a date of need on or after October 1, 2009, are governed by the new regulations. Employers with a date of need on or after the rule’s effective date, but prior to October 1, 2009, should obtain a prevailing wage determination from the SWA serving the area of intended employment, rather than the NPC, but must meet all of the other recruitment requirements outlined in the final rule before filing an application with the NPC. For prevailing wage requests made on or after January 1, 2010, the final rule also extends the new prevailing wage request processing model to the permanent labor certification program, as well as to certain other nonimmigrant programs.
Finally, the rule discusses the DOL’s authority to enforce the terms and conditions of H-2B employment, prohibits employers from passing on application and other costs to foreign workers, and requires employers to notify DOL if a worker separates or absconds from employment prior to the end date of employment listed in the labor certification.