Emergency Adjustments to H-2B Program

Employers currently processing H-2B applications for job starts in the coming months for seasonal non-agricultural employment need to take note of Emergency Guidance published by the Office of Foreign Labor Certification (OFLC) on December 29, 2015. Important components of the program have been suspended while OFLC works to bring its procedures and forms into compliance with legislation signed into law on December 18, 2015.

This action continues a period of instability for the H-2B program, which is still integrating changes from comprehensive new regulations that went into effect on April 30, 2015. Earlier in 2015, the entire H-2B program was suspended while the U.S. Department of Labor (DOL) came into compliance with court orders requiring major program changes after years of litigation.

As a result of the recent legislative action, the following portions of the H-2B program are suspended while OFLC seeks emergency approval to modify its forms to bring the H-2B program into compliance with this new law:

  • Prevailing Wage Determinations where use of a private survey was requested.
  • Certification determinations on H-2B applications for temporary labor certification.

OFLC encourages employers to continue to file applications and indicates it will process them but cannot issue final determinations until it has received approval to change the forms.

In addition, pending audits or notices of assisted recruitment will be withdrawn or suspended. The new law also prohibits the DOL from expending funds to enforce the new regulations’ provisions concerning the three-quarter guarantee and corresponding worker obligations, but DOL’s emergency guidance reminds employers that the underlying rules remain in effect and employers should comply with the regulations as promulgated.