US Department of Labor: Spring Regulatory Agenda 2010
Employment and Training Administration (ETA)
Topic: H-2B Temporary Nonagricultural Worker Program
Notice of Proposed Rulemaking
Statutory and Regulatory Authority
The Immigration and Nationality Act (INA) provides that the Secretary of the Department of Homeland Security (DHS) must consult with “appropriate agencies of the Government” before granting any H-2B visa petitions. 8 U.S.C. 1184(c)(1). The INA also provides DHS with the authority to enforce any conditions concerning the employment of H-2B workers and to delegate such authority to DOL. 8 U.S.C. 1184(c)(14)(A) and (B). Through regulation, DHS delegated to DOL labor certification and enforcement authority for the H-2B program.
As part of its labor certification responsibilities, the Department certifies whether U.S. workers capable of performing the jobs for which employers are seeking foreign workers are available, and whether the employment of the foreign workers will adversely affect the wages and working conditions of U.S. workers similarly employed. As part of its enforcement responsibilities, through the Wage and Hour Division (WHD), the Department enforces compliance with the conditions of an H-2B petition and Department of Labor-approved temporary labor certification.
The Need for Regulatory Change
The Department believes there are insufficient worker protections in the current attestation-based labor certification model. The proposed rule will address the critical issue of U.S. worker access to the jobs for which employers seek H-2B workers through a re-engineered program design which focuses on enhanced U.S. worker recruitment and strengthened worker protections.
Key Areas to be Addressed by the Proposed Rule
The proposed rule will seek to ensure that only those employers who demonstrate a temporary need for foreign workers will have access to the H-2B program. The proposed rule also will seek to provide U.S. workers with greater access to the jobs employers wish to fill with temporary H‑2B workers.
The Department is considering increasing State Workforce Agency oversight of the recruitment process. The Department is also considering more robust recruitment by employers to demonstrate the unavailability of U.S. workers. The Department intends to review the current wage determination methodology to ensure that wages are not being adversely affected across industries and occupations.
Lastly, the proposed rule will propose strengthening existing worker protections, establishing new protections, and enhancing ETA program integrity measures and WHD enforcement to ensure adequate protections for both U.S. and H-2B workers. The Department will also review the current remedies and enforcement procedures to evaluate whether they are adequate to ensure compliance.
