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DOL Proposes Changes to H2B and Prevailing Wage Determination Procedures
The Department of Labor (DOL) has published a proposed rule that, if implemented, would significantly revise the procedures used by employers to petition for H-2B temporary nonagricultural workers. The proposed regulation would also change how employers obtain prevailing wage determinations for permanent labor certification applications and for H-1B, H-1B1, and E-3 temporary workers. DOL would also introduce new and revised temporary labor certification forms. The proposed rule will not take effect until further notice. DOL will accept public comments on the rule until July 7, 2008, and public comments on the forms until July 21, 2008.
CHANGES TO THE H-2B PROCESS
The proposed rule would centralize and reengineer the H-2B application process so that it would resemble the process employers use when applying for a permanent labor certification under PERM.
Centralized prevailing wage determinations and application procedure. The proposed rule would largely remove state workforce agencies (SWAs) from the H-2B process. Employers would obtain a prevailing wage determination from the DOL's Chicago National Processing Center (NPC), rather than from a SWA. In addition, employers would submit temporary labor certification applications directly to the Chicago NPC, rather than to the SWAs.
Change to an attestation-based filing procedure. The proposed rule would change how employers demonstrate their efforts to recruit United States workers. Employers would no longer be required to submit recruitment documentation with their temporary labor certification applications. Rather, an employer would submit the application with an attestation stating it had conducted the required recruitment efforts. DOL would enforce the recruitment requirements through requests for information and through an audit program, much like it currently does for permanent labor certifications.
New enforcement mechanisms. The proposed rule would also give DOL more investigative and sanction authority over the H-2B program. These authorities would largely mirror those held by DOL concerning permanent labor certifications: DOL could conduct pre- and post-adjudication audits and it could order supervised recruitment. The agency would also be authorized to debar fraudulent employers, agents, and attorneys from the H-2B program.
CHANGES TO THE PREVAILING WAGE DETERMINATION PROCESS
The proposed rule would extend the new prevailing wage determination process discussed above to all immigration categories that require prevailing wage determinations, namely permanent labor certifications and H-1B, H-1B1, and E-3 temporary workers. Employers would submit all prevailing wage determination applications directly to the DOL's National Processing Centers rather than to the SWAs. Note, however, that the proposed rule would not make any substantive changes to how prevailing wages would be determined. Employers would still be able to use independent authoritative wage sources and supplemental wage information, provided such information qualified under existing rules.
Labor Certification Processing Times Update (November 7, 2006)
View the latest Labor Certification Processing Times - DOL Processing Times.
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