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DOL Publishes Final Rule on Labor Certifications for H-2B Temporary Nonagricultural Employment

The Wage and Hour Division (WHD) of the Department of Labor's (DOL) Employment and Training Administration published a final rule effective April 23, 2012, revising the process by which employers obtain a temporary labor certification from the DOL for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2B status. WHD chose to revert to a compliance-based rather than the current attestation-based certification process. The regulations are also intended to provide increased worker protections for both U.S. and foreign workers.

The final rule creates a national registry for all H-2B job postings and increases the recruitment period for U.S. workers. The rule also requires the rehiring of former employees when available. In addition, the rule extends H-2B program benefits, such as transportation costs and wages, to U.S. workers performing substantially the same work as H-2B workers.

WHD received a large number of comments from the ski industry requesting an exemption from the regulations. Many of the commenters believed that because ski instructors require skills or experience, under the new rules they would be ineligible for the H-2B program. Generally, job positions certified under the H-2B program are low-skilled, WHD explained, requiring little or no experience. "We do recognize, however, that there are some occupations and categories under the H-2B program that may require experience and/or training. Employer applicants demonstrating a true need for a level of experience, training or certification in their application have never been prohibited in the H-2B program, given the breadth of the definition of H-2B under the INA," WHD noted. The agency said it has determined that an exemption for the ski industry "is not appropriate as the commenters presented no valid argument as to why exemption is necessary. There is nothing about the workers they seek to hire that prevents them from participating in the H-2B program. Ski resorts are fixed-site locations that run on a seasonal basis with standard operating procedures." 

The final rule was published in the February 21 edition of the Federal Register. The H-2B program is limited by law to a cap of 66,000 visas per year.

The final rule is available here. The announcement is available here. Fact sheets and other information are available here and here.

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