In December 2008, the DOL issued a final regulation modifying the H-2B temporary labor certification process and the enforcement of the H-2B program. This regulation became effective on January 18, 2009. Although the DOL has withdrawn its previously released H-2A regulations, the DOL has not indicated that it will be withdrawing the new H-2B regulations. Instead, the DOL has recently released guidance about how to interpret various provisions of the new regulation.  

The following are some of the highlights from the guidance:  

  1. The DOL confirmed that employers will need to request a prevailing wage from the federal DOL and not the State Workforce Agencies (SWA) for any H-2B temporary labor certification requesting an employment need on or after October 1, 2009. Because employers are allowed to file applications 120 days prior to the requested need, most H-2B employers will need to begin to request prevailing wage determinations from the DOL on Form ETA 9041 beginning in June. The DOL has previously stated that it may take up to 30 days for the DOL to process a prevailing wage request.  
  2. The DOL confirmed that an employer may not commence the recruitment process until it has received a prevailing wage determination. After it receives the prevailing wage determination, it can submit a job order to the SWA serving the area of intended employment and then publish print advertisements, one of which must be on a Sunday unless no Sunday edition exists.  
  3. If an employer has laid off any employees in the same job occupation within 120 days of the date of the requested need, the employer must document that it has notified or will notify each laid-off worker of the job opportunity and has considered or will consider each laid-off worker who has expressed an interest in the opportunity.  
  4. As part of the process, the employer is required to prepare a Recruitment Report which is submitted with the application to the DOL. However, the Recruitment Report can not be prepared any earlier than two calendar days after the last day on which the job offer was posted and no earlier than five calendar days after the last newspaper advertisement was published.  
  5. The DOL confirmed that the job order which is required as part of the recruitment process must be posted with the SWA in the area of intended employment for no less than ten full days. The newspaper advertisements must be published while the job order is posted.  
  6. The DOL stated that the job offer must state that it is being filed in support of the future H-2B application.
  7. If the SWA requires that the job order remain active for more than ten days, the employer can not submit the application and the Recruitment Report to the DOL until at least two calendar days after the last date on which the job order was posted.  
  8. The employer is not required to submit the newspaper advertisement tearsheets or copies of resumes or applications from applicants with the application and the Recruitment Report. However, the employer must maintain this documentation for three years from the date of certification in the event of an audit.  
  9. The DOL confirmed that employers and their attorneys or agent are prohibited from seeking or receiving payment of any kind from the potential employee, including payment of the employer’s attorney or agent fees or recruitment costs.