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DOL Publishes Final H-2B Rule

December 19, 2008

The U.S. Department of Labor has issued a final rule that enhances workers' protections and modernizes the application process under the H-2B temporary labor certification program. These changes and others finalized by the U.S. Department of Homeland Security fulfill the administration's August 2007 pledge to review and update the foreign worker program regulations.

"The H-2B final rule will provide greater protection for workers and improve the integrity and efficiency of the H-2B temporary labor certification program," said Secretary of Labor Elaine L. Chao.

The rule ends state workforce agency duplication of effort in processing applications. Instead of filing at both the state and federal levels, employers will submit their H-2B applications directly with the department's Employment and Training Administration. State workforce agencies will concentrate their efforts on helping employers recruit U.S. workers.

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 department 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 the Department'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 regulations also implement new enforcement authority delegated from the Department of Homeland Security, which allows the Department of Labor to now enforce the terms and conditions of H-2B employment. Finally, the Labor Department may also reinstate illegally laid off U.S. workers, assess civil monetary penalties up to $10,000 and award back wages for violations of the program.

The H-2B final rule will go into effect Jan. 18, 2009.