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Foreign Labor Certification

The U.S. Department of Labor has published in the Federal Register a Final Rule amending the regulations governing the labor certification process for the temporary employment of H-2B foreign workers in the United States, codified at 20 CFR Part 655, and enforcement of employer obligations under the H-2B program, codified at 29 CFR Part 503. The new regulations will be effective April 23, 2012. The full text of the Final Rule is available at http://www.foreignlaborcert.doleta.gov/pdf/final_rule_2012-3058.pdf.

The reasons for this rulemaking, which were discussed at length in the Notice of Proposed Rulemaking, include expansion of opportunities for U.S. workers; evidence of violations of program requirements, some rising to a criminal level; need for better worker protections; need for an adequate test of the U.S. labor market to determine whether U.S. workers are available for the jobs; and a lack of understanding of program obligations. In the Final Rule, DOL proposes to:

• revert to the compliance-based certification model that had been used from the inception of the program until the 2008 Final Rule;
• add new recruitment and other requirements to broaden the dissemination of job offer information, such as introducing the electronic job registry and requiring the job offer to remain open to U.S. workers for a longer period and closer to the date of need;
• add worker protections, such as increasing the number of hours per week required for full-time employment and requiring that U.S. workers in corresponding employment who perform the same jobs at the same place as the H-2B workers receive the same wages and benefits as the H-2B workers, ensuring that the employment of H-2B workers does not adversely affect the wages and working conditions of U.S. workers.

Prevailing Wage Determinations

Foreign Labor Certification Related Web Sites

Please e-mail questions or comments to alienlabor@twc.state.tx.us