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Wage and Hour Division (WHD)

Final Rule: Temporary Non-agricultural Employment of H-2B Aliens in the United States

On February 21, 2012 the Department of Laborís Employment and Training Administration and Wage and Hour Division issued a Final Rule on the H-2B program that amends its regulations governing the certification of the employment of nonimmigrant workers performing temporary or seasonal non-agricultural labor or services and the enforcement of the obligations applicable to employers under the H-2B program. This Final Rule revises the process by which employers obtain a temporary labor certification from the Department for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2B status. The final rule also introduces new regulations that provide increased worker protections for both U.S. and foreign workers.

Major features of the final rule include the creation a national electronic job registry for all H-2B job orders to improve U.S. worker access to these temporary jobs. The final rule also enhances recruitment of U.S. workers from across the country, increases the amount of time for which U.S. workers must be recruited and hired, and requires the rehiring of former employees when available.

On April 26, 2012, the Temporary Non-agricultural Employment of H-2B Aliens in the United States, Final Rule, 77 FR 10038, Feb. 21, 2012 was preliminarily enjoined by the U.S. District Court for Northern District of Florida, Pensacola Division in Bayou Lawn & Landscape Services, et al. v. Hilda L. Solis, et al., 12-cv-00183-RV-CJK, and was never implemented. Therefore, for the present time employers should file their H-2B labor certification applications under the Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes, 73 FR 78020, Dec. 19, 2008. However, please be aware that this preliminary injunction necessarily calls into doubt the underlying authority of the Department of Labor to fulfill its responsibilities under the Immigration and Nationality Act and Department of Homeland Security regulations to issue the labor certifications that are a necessary predicate for the admission of H-2B workers.

The Department has published a Federal Register Notice providing further guidance on the injunction.

Additional Information on the Final Rule

H-2B Final Rule Stakeholder Briefing Materials, March and April, 2012

In March, 2012, the Department held three webinars intended to educate program users and other stakeholders on the changes to the H-2B program made by the H-2B Final Rule. These same materials were used during an in-person stakeholder briefing on April 17, 2012. The Department is now making available the briefing materials used in the webinar presentation:

Additional Information on the H-2B Program

General Guidance:

Nonimmigrant Worker Related Agency Links: