H-2B Visa Program Updates: Registration Currently Inoperative & Emergency Guidance

Wilson Law Group recently commented on the new 2015 H-2B Interim Final Rules and how they impact the H-2B program and employers, including a new requirement of registration, recruitment procedures, and the crucial need to navigate the various phases of the process with meticulous attention to detail to timelines and requirements.  The H-2B program is continually evolving, and now is moving towards paralysis.  

The H-2B registration process is not yet operational.  The U.S. Department of Labor (DOL) has not yet released the necessary form (ETA Form 9155) for the H-2B registration process.  The DOL will announce in the Federal Register a separate transition period for the registration process.  Until that time, employers do not need to file registration requests in accordance with 20 C.F.R. § 655.11.   

The DOL also recently issued Emergency Guidance about the H-2B program following the 2016 Department of Labor Appropriations Act that was signed into law on December 18, 2015.  The Emergency Guidance provides various guidelines to employers about prevailing wage determinations and H-2B labor certifications applications.  Specifically, the Emergency Guidance reminds employers that, pursuant the 2016 Appropriations Act, the DOL is prohibited from enforcing the definition of ‘corresponding employment’ found in 20 CFR § 655.5 or the ‘three-fourths guarantee’ rule in 20 CFR § 655.20, although the Act did not actually vacate these rules, so they are still technically in effect and employers still have an obligation to comply with them.

The Emergency Guidance also noted that the DOL was in the process of revising Appendix B that must accompany an H-2B Application for Temporary Employment Certification (ETA Form 9142B).  As of January 5, 2016, the DOL announced that Office of Management and Budget (OMB) has now approved the new Appendix B for the H-2B labor certification application.  

This means the following for employers:

  1. For H-2B labor certifications applications pending or filed before February 1, 2016: applications containing the prior Appendix B version will receive a copy of the revised Appendix B at the time the DOL certifies the labor certification application.
  2. For H-2B labor certification requests filed on or after February 1, 2016: employers must submit a signed and dated copy of the new, revised Appendix B with their applications.

Wilson Law Group will continue to keep you updated on H-2B program developments as they evolve.  We meanwhile invite you to contact our office with your questions and interests in the H-2B program by calling our office at 612-436-7100 or online through our company website.