Proposed rule to re-engineer H-2B process

The Office of Foreign Labor Certification (OFLC) has published its advance copy of a proposed rule modifying the existing H-2B process, specifically the Temporary Labor Certification process. The proposed rule will re-engineer the H-2B filing and review into a centralized process.  Among other things, the rule proposes to enable employers to conduct pre-filing U.S. worker recruitment activities. Additionally, the rule also proposes introduction of post-adjudication audits and penalization of employers to enhance the integrity of the process. The rule is currently open for a 45-day comment period.

Advance Copy

Drawbacks of the Current Process

The proposed rule describes the process for obtaining a temporary labor certification as complicated, time-consuming, inefficient, and dependent upon the expenditure of considerable resources by employers.
Currently, the filing procedure for temporary labor certification starts with the State Workforce Agency (SWA) which reviews the application, compares the wage offer to the prevailing wage for the occupation, oversees the recruitment of U.S. workers, and then transfers the application to the applicable Employment and Training Administration (ETA) National Processing Center. This process has been criticized for its length, overlap of effort, and resulting delays.

Additionally, the current process puts a huge amount of workload on the Department, affecting efficient and timely processing of applications. While the actual H2B cap has not increased, the demand for temporary labor Certifications (LC) has gone up by 30% in FY 2007. Also, along with no fee being charged to employers for processing H-2B applications, appropriated funds either have not appropriated to cover the incurring expenses, leading to delays and backlogs. These are some of the major reasons cited in the rule for the proposed changes the administration of the H2B program.

Summary of the changes proposed:

The changes proposed will not substantially alter the current obligations and requirements of H2B employers. As the rule indicates, the proposals changes are mainly aimed at enhancing the efficiency and integrity of the process. The new proposals will also provide greater accountability for employers through penalties, up to and including debarment, to further protect against program abuse.

The redesigned process will change the application process as below:

  1. Employers will be required to first obtain a prevailing wage rate from the appropriate NPC directly.
  2. Employer will then follow recruitment steps similar to those required under the current program.
  3. Employers will be required to attest to and enumerate its recruitment efforts.
  4. Employers will then submit the paper application directly to ETA instead of being filed with SWA, by U.S. Mail using a new form. The application form will collect, in the form of attestations, information similar to that required by the current H-2B labor certification process.
  5. Employers will be required to keep records reflecting their compliance with all program requirements for 5 years from the date of certification.
  6. If an application requires additional information in order to be adjudicated, the NPC will issue a Request for Further Information (RFI), a process the program already employs.
  7. After full Departmental review, an application will be certified or denied.
  8. Audits will be conducted on adjudicated applications that meet certain criteria, as well as on randomly-selected applications. Failure to clear the audit could lead either to Departmental supervised recruitment in future applications or WHD investigations or debarment from the program.

Detailed Look at the Changes Proposed:

1.    Proposal to enact regulatory authority

The Department of Labor is currently in discussions with the Department of DHS regarding whether the two Departments can work out a mutually agreeable delegation of authority that would enable the Department to enforce the terms of an H-2B certification and petition. In the event such a delegation of authority can be worked out, this rule also proposes an enforcement process by which the Department will investigate employer compliance with H-2B attestations and impose remedies for violations that are found, if that delegation occurs.

Current regulations provide no substantive authority to ensure that employers fulfill their obligations concerning the terms and conditions of employment once the H-2B workers are employed.

2.    Prevailing Wage Obtained Prior to Commencing Recruitment

As part of the proposed reengineered process, employers will obtain the prevailing wage for the job opportunity directly from OFLC, instead of SWA. The Department is proposing to allow employers to file prevailing wage requests no more than 90 days in advance of the recruitment process and to clarify the validity period for the wage determination.

3.    Direct Filing with the NPC

The Rule proposes to eliminate the role of the SWA in accepting and reviewing H-2B applications, overseeing recruitment, and forwarding completed applications to the appropriate NPC. Instead, as with the permanent labor certification process, the employer will file applications directly with the specified NPC. However, employers will still be required to place a job order with the appropriate SWA as part of the pre-filing recruitment.

4.    Employer Conducted Pre-Filing Recruitment

The rule proposes that employers be required to conduct recruitment for U.S. workers prior to filing the new form currently in development, to be styled on the Application for Temporary Employment Certification.

5.    Paper Form Submission

The Department proposes initially to require employers to submit applications on paper, modified significantly from the current form to reflect an attestation-based filing process. In future, an electronic form may be made available.

6.    Attestation-Based Process

Under the new process, the employer will be required to attest, under penalty of perjury, that it has conducted the required recruitment, it has not found sufficient qualified U.S. workers, and it meets all of the requirements and obligations of the program, including temporary need and payment of the prevailing wages. Under this proposed rule, violations of attestations can be assessed in an amount not to exceed $10,000 per violation for a willful failure to meet conditions.

7.    Appeals

In a separate H-2B rulemaking, USCIS may propose to no longer consider any H-2B petition filed without an approved labor certification application from the Department. Accordingly, the Department is amending its regulations to eliminate references to so-called “non-determinations,” or a finding from the Department that no finding of unavailability and adverse impact can be made with respect to a particular Application for Temporary Labor Certification.

In addition, the Department is creating an appeal process whereby employers receiving application denials can file a request for review with the Department’s Board of Alien Labor Certification Appeals (BALCA). The BALCA’s determination will be based exclusively on the record available to the CO. No further evidence will be considered. In order to ensure expeditious adjudication of appeals, the proposed regulation provides relatively short time frames for the various parts of the appeal process.

8.    Amendments

The Department proposes to accommodate an employer’s requests for amendments to labor certification applications, including minor adjustments to a date of need. Any such requests for an amendment must be approved by the Department. In other words, unilateral amendments by other Federal agencies to the representations on the labor certification form will no longer be permitted.

9.    Post-Adjudication Audits

The Department will, based upon various selection criteria, identify applications for audit review after the application has been adjudicated. Additionally, applications will also be randomly selected for audit without regard to any triggering criteria. The proposed rule will enable the Department to perform directed and random audits on any application after it has been adjudicated, regardless of whether the Department issued a certification or denial of the application.

10.    Supervised Recruitment

Supervised recruitment may be ordered for a specified period for future applications submitted by that employer or on its behalf as a sanction for prior violations of the H-2B Program. Under supervised recruitment, the advertisements will instruct applicants to send resumes or applications directly to the Case Officer for referral to the employer. At the completion of the supervised recruitment efforts, the employer will be required to provide a written and signed report to the CO. Failure to provide so will result in denial of the application and possible subsequent supervised recruitment and/or program debarment.

11.    Debarment

The Department is proposing a mechanism allowing it to debar an employer / attorney / agent from the H-2B Program for a period of up to 3 calendar years for misrepresenting a material fact or to making a fraudulent statement on an H-2B application, for a material or substantial failure to comply with the terms of the attestations, for failure to cooperate with the audit process or ordered supervised recruitment, or if the employer/attorney/agent has been found by a court of law, WHD, DHS, or the DOS to have committed fraud or willful misrepresentation involving any OFLC employment based immigration program.

The OFLC Administrator will notify the debarred employer/attorney/agent in writing and will state the reason for the debarment findings. DHS, upon receipt of notification from the Administrator pursuant to this section, shall determine whether to deny petitions filed with respect to that employer and, if so, the time period of such denials. Additionally, DHS may pursue additional investigations to determine if additional penalties within DHS jurisdiction are appropriate.

12.    Reinstatement of illegally displaced U.S. workers

The WHD will seek reinstatement of similarly employed, permanent U.S. workers who were illegally laid off by the employer in the area of intended employment. Such unlawful terminations are prohibited if they occur less than 120 days before the date of requested need for the H-2B workers or during the entire period of employment of the H-2B workers.

The combination of modernized processing of applications, and replacement of the SWAs’ current role in the recruitment and referral of U.S. workers with pre-filing recruitment by the employer and audits by the Department, should yield a considerable reduction in the overall average time needed to process H-2B labor certification applications. This process will reduce past processing times which have exceeded our historical 60-day combined State and Federal processing window timeframe.