The H-2B temporary worker program provides some employers in seasonal and certain other industries access to temporary foreign workers when there is a shortage of U.S. workers to fill temporary, non-agricultural jobs.
In previous years, employers had to file at both the state and federal levels. Now, employers will submit their H-2B applications directly with the DOL’s Employment and Training Administration, according to a spokesperson for the department.
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The law requires adequately looking for U.S. workers first before resorting to foreign workers for employers.
Employers will be required to attest, under threat of penalties, including fines, revocation of certification and program disbarment that they have fully complied with all the programs requirements.
Then, employers will file their H-2B application directly with DOL instead of first filing with the workforce agency and then later to the DOL. The DOL will render a decision on the application 30 days before the date the employer needs workers.
Another change is that wage determinations will be federalized at DOL, no longer through the workforce agencies.
There is also new enforcement through the Department of Homeland Security (DHS), who has delegated its enforcement authority to DOL. This change enables the DOL to investigate employer compliance with the program and enforce the terms for the first time.
Previously, “temporary” was generally limited to one year. The new rule recognized that temporary needs might be up to three years. Those needing work longer than one year will be required to reapply each year, obtaining an approved petition at the DHS and visa at the Department of State.
The new changes, however, do not affect the annual cap on H-2B visas set by Congress, which is at 66,000 per year.
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