Friday, April 22, 2011

Summary of Notice of U.S. Dept. of Labor Proposed Rulemaking (NPRM) for H-2B

As promised, we have read and are tackling a summary of the March 18, 2011 Notice of Proposed Rulemaking (NPRM) for the H-2B Temporary Non-agricultural Employment of Aliens in the United States. This NPRM is a beast – and there is no possible way for us to summarize it in totality therefore, we will cover it in bits and pieces. This first piece will cover the program changes in a side by side comparrison table. It will contrast the differences between the program as it is and how it will be if proposed changes are adopted. This should help you see how the changes would affect the way you prove your temporary need, hire and what you would be responsible for as an employer. Once you have had time to digest this piece of it – we will publish the procedural changes [Part 2] and follow up with the enforcement end of it [Part 3].
If you are not currently using the program we suggest you visit our website at for an overview of the H-2B program as the following series of papers will be focusing on the proposed changes. The deadline for public comment on these proposed changes is May 17, 2011 – and we encourage you to comment. We are not writing a canned response at this time; we feel each of you have unique needs, concerns and requirements therefore, some issues may cause you problems and others not. We would prefer to work with you individually; to help you understand how a particular issue will affect you and help you craft your response accordingly. Please call Lori and she will explain the changes (along with DOL reasoning) in depth and will work with you on a response that makes sense for you and your business.  



Attestation Based Model

Compliance Demonstration Model

Requires compliancy to program - however, rather than provide complete documentation of compliancy - signed statements attesting to compliancy is the norm.

Would require proof of program compliancy.  More paperwork and documentation (similar to the Pre-Bush Era Changes in 2008) to be submitted with applications.

Transportation benefits for Foreign Workers - employer pays transport of workers to place of employment from Workers home or if in US on previous visa - from previous place of employment. 

Transportation benefits for both foreign and domestic workers - employer would be responsible for  transport and sustenance for both foreign and domestic workers (domestic workers from across the US would have same consideration as foreign workers) to place of employment at beginning of contracted period and back home at end of contracted period.

Policy does not implicitly state that employer is responsible for ALL visa costs except the worker passport but it strongly implies it.

Policy states employer would be responsible for ALL costs to include Visa processing and Border Crossing.  The only cost employer would not responsible for in Visa process is worker passport.

For the purpose of Peakload and Seasonal need - temporary is considered 10 months or less.

For the purpose of Peakload and Seasonal need - temporary would be defined as 9 months or less.

For the purpose of Peakload and Seasonal need - Need may be based on seasonal or short-term demand. Short- term demand does not have to be based on the season of the year, rather has to be predictable and not subject to change from year to year; Generally predicated by a pattern or event.

For the purpose of Peakload and Seasonal need, NPRM proposes only allowing short term demand to be as a direct result of climatic, environmental or other natural conditions.

Few if any domestic applicants outside the area of intended employment contacted employer. MOST interviews were easily conducted face to face.

Domestic Applicants from across the U.S. would have availability (thru the inter/intra state clearing order and DOL  job registry) and interviews would have to be conducted in such a way as to not cost the possible worker money - (phone interviews and hires).

30 Hours considered full time

35 Hours would be considered full time

No 3/4 guarantee

3/4 Guarantee - Employers guarantee payment of wages for at least 3/4 of the contract period.  This would be calculated using 4 week periods for each guarantee.

Agents (non-attorneys) allowed to represent employers.

Agents would not be allowed to represent employers.  Or - at minimum - agent / employer agreements and recruiter / employer agreements would have to be submitted with Temporary Labor Certification (TLC) Applications.  DOL is requesting suggestions on the role of employer agents.

Job Contractors (Staffing Agencies) are discouraged and it is made difficult for them to get an approved Labor Certification, but is still possible (in theory).

No longer would allow Job Contractors (Staffing Agencies) to participate in the program.

Does not require employer to provide domestic or foreign workers copies of job order.

Would require employer to present to domestic and foreign workers copies of job order. Foreign worker would receive the job order no later than the time of application for visa and a domestic employee no later than the first day of hire. Document must be provided in a language the worker understands.

Employer signs attestation that workers are not paying recruitment costs. 

If recruiters or agents to be used for the recruitment or processing of foreign laborers, employer would have to submit agreement with TLC Applications.

Recruitment done prior to submitting applications to DOL and the State Workforce Agency (SWA) plays a fairly passive role in the program.  

Recruitment done after application and all supporting documents are "accepted" by U.S. Department of Labor (DOL).  SWA plays an active role in the program.

Employer opens job order with SWA.  Job order opened in employer state only.

SWA would open job order for Employer once directed to do so by DOL (by means of acceptance letter).  Both Inter and Intra State job orders opened [job seekers in multiple states will be referred]

No federal job posting registry requirement

DOL would post job on electronic job registry - (as is currently done with H-2A) 


Electronic Job Posting would be left active in job registry until 3 days prior to start date. Posting would be viewable after changed to inactive.


Electronic registry of employers who use the H-2B program.

No clear cut off date for acceptance of domestic applicants.

Acceptance of domestic applicants would be until 3 days prior to the actual start date or - the date the last foreign worker departs for the workplace - whichever is latest.

No requirement for employer to inform SWA if date foreign worker begins is later than the actual certified start date.

Would require employer to inform SWA of last date foreign worker will depart for place of employment if date different from certification start date.

Employer conducted recruitment begins approx. 120 days before date of need.

Employer conducted recruitment would begin with DOL acceptance letter and must be done within the prescribed 14 days per letter instructions.

Temporary Labor Certification (TLC) Process is single phase.

Temporary Labor Certification (TLC) Process would be 2 Phase.


Phase 1 would be the pre-filing process and done prior to actual application for TLC - purpose is to pre-qualify temporary need as justifiable and valid.


Phase 1 Cerificaiton could be valid for up to 3 years if no major changes in need dates (14 days either way) and no major change in number of workers (more than 20% if more than 10 workers) is requested.


DOL would review and could submit a Request For Additional Information (RFI) - Employer would have 7 days to respond.    If approved - DOL would provide employer a letter stating they were eligible to apply for TLC - if not may request an administrative review.

Single Phase - TLC Application

Phase 2 is the TLC Application

Must receive a Prevailing Wage Determination (PWD).

Would require a PWD PRIOR to opening a SWA Job order.

Employer opens own Job Order with SWA prior to TLC Application process. 

Employer would file application with a copy of the SWA Job Order requested to DOL at the same time the Job Order request was submitted to SWA.

No clear required date of submission.

Must be submitted between 90 and 75 days before initial date of need.

No SWA review in advance of opening job order.

SWA has 4 days to appraise DOL of any deficiencies in job order request.


DOL has 4 days to notify employer of any deficiencies to job order request.

Employer opens Job Order when ready to begin self directed recruitment [this is done prior to the application phase - see earlier discussion]

DOL would issue an acceptance letter to Employer and SWA. SWA would open Job order and DOL would activate job registry as described above.

Recruitment Report Submitted with TLC Application

Recruitment Report Submitted after prescribed 14 day recruitment complete.

Employment ad includes Company info, job description, details of job, frequency of pay and rate of pay.

Employment ad would include Company info, job description, details of job, frequency of pay and rate of pay - as well complete list of employer assurances and obligations.