Selected Regulatory History of the Temporary Alien Labor Certification Regulations

Last revised June 1, 2018
[Not a comprehensive listing]

Allowable charges for 2012 that employers seeking H-2A workers may charge their workers when the employer provides three meals a day, and the maximum meal reimbursement which a worker with receipts may claim. Clarification on the issue of overnight lodging costs as part of required subsistence, where necessary.

Announcement of a non-material change in the frequency of establishment surveys under the Farm Labor Survey used for determining Adverse Effect Wage Rates (AEWRs) for the H-2A temporary labor certification program.

 

Allowable charges for 2012 that employers seeking H-2A workers may charge their workers when the employer provides three meals a day, and the maximum meal reimbursement which a worker with receipts may claim. Clarification on the issue of overnight lodging costs as part of required subsistence, where necessary.

Revises the process by which employers obtain a temporary labor certification from the Department for use in petitioning the Department of Homeland Security to employ a nonimmigrant worker in H-2B status. Creates new regulations to provide for increased worker protections for both United States (U.S.) and foreign workers.

Delay in the effective date of the Wage Methodology for the Temporary Non-agricultural Employment H-2B Program to January 1, 2012 in response to legislation that prohibits any funds from being used to implement administer, or enforce the Wage Rule before January 1, 2012.

Delay in the effective date of the Wage Methodology for the Temporary Non-agricultural Employment H-2B Program to January 1, 2012 in response to legislation that prohibits any funds from being used to implement administer, or enforce the Wage Rule before January 1, 2012.

 

The effective date of the Wage Rule was originally set at January 1, 2012. This Final Rule revises the effective date of the Wage Rule to September 30, 2011.

 

Proposal to amend its regulations governing the certification of the employment of nonimmigrant workers in temporary or seasonal non-agricultural employment and the enforcement of the obligations applicable to employers of such nonimmigrant workers.

 

Final Rule revising the methodology by which the Department calculates the prevailing wages to be paid to H-2B workers and United States (U.S.) workers recruited in connection with a temporary labor certification for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2B status.

 

Final Rule to implement the Nursing Relief for Disadvantaged Areas Reauthorization Act of 2005 (NRDARA), which reauthorized the Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA), finalizing these rules for enforcement purposes. These Acts allowed certain health care facilities to file, and authorize the Department to review, approve and enforce, attestation applications to employ foreign workers as registered nurses in health professional shortage areas on a temporary basis under the H-1C visa. Facilities (hospitals meeting threshold criteria for the program) filed these forms with the Department as a condition for petitioning the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), for H-1C nurses.

 

Amendment of regulations governing the certification of temporary employment of nonimmigrant workers in temporary or seasonal agricultural employment and the enforcement of the contractual obligations applicable to employers of such nonimmigrant workers. Amendment of the regulations at 29 CFR part 501 to provide for enhanced enforcement under the H-2A program requirements.

 

Further amendment of regulations to extend the transition period of the application filing procedures currently in effect for all H-2A employers with a date of need before January 1, 2010, as established in the H-2A Interim Final Rule (IFR) published on April 16, 2009. The transition period is extended to include all employers with a date of need before June 1, 2010.

 

Proposal to amend DOL regulations governing the certification of temporary employment of nonimmigrant workers in temporary or seasonal agricultural employment and the enforcement of the contractual obligations applicable to employers of such nonimmigrant workers. This Notice of Proposed Rulemaking (NPRM or Proposed Rule) reexamines 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-2A status. The Department also proposes to amend the regulations at 29 CFR part 501 to provide for sufficient enforcement under the H-2A program so that workers are appropriately protected when employers fail to meet the requirements of the H-2A program.

 

DOL is suspending the H-2A Final Rule published on December 18, 2008 and in effect as of January 17, 2009. That Final Rule amended the regulations governing the certification for temporary employment of nonimmigrant workers in agricultural occupations on a temporary or seasonal basis, and the enforcement of contractual obligations applicable to employers of such nonimmigrant workers. To ensure continued functioning of the H-2A program, the Department is republishing and reinstating the regulations in place on January 16, 2009 for a period of 9 months, after which the Department will either have engaged in further rulemaking or lift the suspension.

[Note: See North Carolina Growers' Association, Inc. v. Solis, No. 1:09-CV-411 (M.D.N.C. July 1, 2009) (order granting preliminary injunction against DOL from temporarily suspending rule) PDF | HTML

 

 

Proposal to suspend for 9 months the H-2A regulations published on December 18, 2008, which became effective on January 17, 2009, that amended the rules governing the certification for temporary employment of nonimmigrant workers in agricultural occupations on a temporary or seasonal basis, and the enforcement of contractual obligations applicable to employers of such nonimmigrant workers. To avoid the regulatory vacuum, DOL proposes to reinstate on an interim basis the rules that were in place on January 16, 2009.

 

Amendments to modernize the procedures for the issuance of labor certifications to employers sponsoring H-2B nonimmigrants for admission to perform temporary nonagricultural labor or services and the procedures for enforcing compliance with attestations made by those employers.

 

Amendments regarding temporary labor certification for nonimmigrant workers in agricultural occupations on a temporary or seasonal basis, and the enforcement of the contractual obligations applicable to employers of such nonimmigrant workers. Rule re-engineers the process by which employers obtain a temporary labor certification from the Department for use in petitioning the DHS to employ a nonimmigrant worker in H-2A (agricultural temporary worker) status.

 

Proposed amendments to modernize procedures for the issuance of labor certifications issued in connection with H-2B nonimmigrants admitted to perform temporary nonagricultural labor or services, and procedures to enforce compliance with attestations made by sponsoring employers.

 

Proposed amendments regarding the certification of temporary employment of nonimmigrant workers employed in temporary or seasonal agricultural employment and the enforcement of the contractual obligations applicable to employers of such nonimmigrant workers.

Amendments to implement H-1B1 visa category relating to the United States-Chile Free Trade Agreement and the United States-Singapore Free Trade Agreement.

Amendments of existing regulations to update obsolete non-substantive or nomenclature references. Among other technical changes, updates the regulations to reflect the change of the name of the "Division of Foreign Labor Certification"; to the "Office of Foreign Labor Certification (OFLC)." Also updates references to the "State Employment Security Agencies" to reflect their current nomenclature of "State Workforce Agency."

  • DHS and DOL/ETA, Temporary Rule, Exercise of Time-Limited Authority To Increase the Fiscal Year 2018 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program, 83 Fed. Reg. 24905 (May 31, 2018) PDF

    Temporary rule to increase the numerical limitation on H-2B nonimmigrant visas to authorize the issuance of up to an additional 15,000 through the end of Fiscal Year 2018. Addresses DOL role in additional advertising involved as well as enforcement actions and investigations. Amends 20 C.F.R. 655.64 (special eligibility provisions) and 655.66 (special document retention provisions)

  • DHS and DOL/WHD, Final Rule, Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for the H-2B Temporary Non-agricultural Worker Program, 82 Fed. Reg. 14147 (Mar. 17, 2017) PDF

    Final rule adjusting for inflation the civil monetary penalties assessed or enforced in connection with the employment of temporary nonimmigrant workers under the H-2B program pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.

  • DHS and DOL/ETA, Interim Final Rule, Temporary Non-Agricultural Employment of H-2B Aliens in the United States, 80 Fed. Reg. 24042 (Apr. 29, 2015) PDF

    Establishes the process by which employers obtain a temporary labor certification from DOL for use in petitioning DHS to employ a nonimmigrant worker in H-2B status.

  • DHS and DOL/ETA, Final Rule, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, 80 Fed. Reg. 24146 (Apr. 29, 2015) PDF

    Sets the methodology for calculating the prevailing wages to be paid in connection with applications for temporary labor certification.

  • Office of the Secretary, Notice of Intent To Issue Declaratory Order, 80 Fed. Reg. 2445 (Jan. 16, 2015) PDF

    Extension of comment period.

  • Office of the Secretary, Notice of Intent To Issue Declaratory Order, 79 Fed. Reg. 75179 (Dec. 17, 2014) PDF

    Secretary's notice that he is considering issuing on his own motion a declaratory order confirming that he has exclusive authority to make legal and policy determinations based on his statutory and regulatory authority to administer and enforce the H-2B temporary labor certification program. Such a declaratory order have the purpose of removing uncertainty about that authority created by a decision of the Board of Alien Labor Certification Appeals in Island Holdings LLC, 2013-PWD-2 (BALCA Dec. 3, 2013) (en banc).

     

  • ETA, Notification of Status of the 2011 H-2B Wage Rule, 79 Fed. Reg. 14450 (Mar. 14, 2014) PDF

    Notice that DOL intends to publish a notice of proposed rulemaking on the proper wage methodology for the H-2B program, working off of the 2011 Wage Rule as a starting point. Until such time as DOL finalizes a new wage methodology, the current wage methodology contained in 20 CFR 655.10(b), as set by Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Part 2, 78 FR 24047 (Apr. 24, 2013) (2013 IFR), will remain unchanged and continue in effect.

     

  • ETA Final Rule; Indefinite Delay of Effective Date, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, 78 Fed. Reg. 53643 (Aug. 30, 2013) PDF

    Notice that DOL is delaying indefinitely the effective date of the Wage Methodology for the Temporary Non-agricultural Employment H-2B Program final rule (2011 Wage Rule), in order to comply with recurrent legislation that prohibits us from using any funds to implement it. The effective date of the 2011 Wage Rule is delayed indefinitely. This rule does not affect the Interim Final Rule, 78 FR 24047, published on April 24, 2013, establishing the current prevailing wage methodology for the H-2B program; that rule remains in effect.

     

  • DHS, USCIS and USDOL, ETA Interim Final Rule, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Part 2, 78 Fed. Reg. 24047 (Apr. 24, 2013) PDF

    Amendment to regulations governing certification for the employment of nonimmigrant workers in temporary or seasonal nonagricultural employment. This interim final rule revises how DOL provides the consultation that DHS has determined is necessary to adjudicate H-2B petitions by revising the methodology by which DOL calculates the prevailing wages to be paid to H-2B workers and U.S. workers recruited in connection with the application for certification. The joint issuance is issued in response to the court's order in Comite de Apoyo a los Trabajadores Agricolas v. Solis. The rule also contains certain revisions to DHS's H-2B rule to clarify that DHS is the Executive Branch agency charged with making determinations regarding eligibility for H-2B classification, after consulting with DOL for its advice about matters with which DOL has expertise, particularly, in this case, questions bout the methodology for setting the prevailing wage in the H-2B program.

     

  • ETA, Final Rule, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program; Delay of Effective Date, 78 Fed. Reg. 19098 (Mar. 29, 2013) PDF

    Delay of the effective date of the January 19, 2011 Wage Methodology for the Temporary Non-agricultural Employment H-2B Program final rule in order to address legislation that prohibits any funds from being used to implement the Wage Rule for the remainder of Fiscal Year 2013.

     

  • ETA, Notice and clarification of policy, Labor Certification Process for the Temporary Employment of Aliens in Agriculture in the United States: 2012 Allowable Charges for Agricultural Workers' Meals and Travel Subsistence Reimbursement, Including Lodging, 77 Fed. Reg. 13635 (Mar. 7, 2012) HTML | PDF
  • ETA, Announcement of non-material change, Labor Certification Process for the Temporary Employment of Aliens in Agriculture in the United States; Announcement of Non-Material Change to the Farm Labor Survey Used for Determining the Adverse Effect Wage Rate, 77 Fed. Reg. 12723 (Mar. 2, 2012) HTML | PDF
  • ETA, Notice and clarification of policy, Labor Certification Process for the Temporary Employment of Aliens in Agriculture in the United States: 2012 Allowable Charges for Agricultural Workers' Meals and Travel Subsistence Reimbursement, Including Lodging, 77 Fed. Reg. 12882 (Mar. 2, 2012) HTML | PDF
  • ETA, Final Rule, Temporary Non-Agricultural Employment of H-2B Aliens in the United States, 77 Fed. Reg. 10038 (Feb. 21, 2012) HTML | PDF
  • ETA, Final Rule, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program; Delay of Effective Date, 76 Fed. Reg. 73508 (Nov. 29, 2011) HTML | PDF
  • ETA and Wage and Hour Div., Guidance, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program; Delay of Effective Date; Impact on Prevailing Wage Determinations, 76 Fed. Reg. 73509 (Nov. 29, 2011) HTML | PDF
  • ETA, Final Rule, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program; Amendment of Effective Date, 76 Fed. Reg. 45667 (Aug. 1, 2011) HTML | PDF
  • ETA and Wage and Hour Division, Proposed Rule,Temporary Non-Agricultural Employment of H-2B Aliens in the United States; 76 Fed. Reg. 15130 (Mar. 18, 2011) HTML | PDF
  • ETA, Final Rule, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, 76 Fed. Reg. 3452 (Jan. 19, 2011) HTML | PDF
  • ETA and Wage and Hour Division, Final Rule, Attestation Applications by Facilities Temporarily Employing H-1C Nonimmigrant Foreign Workers as Registered Nurses; 75 Fed. Reg. 10395 (Mar. 5, 2010) HTML | PDF
  • ETA and Wage and Hour Division, Final Rule, Temporary Agricultural Employment of H-2A Aliens in the United States, 75 Fed. Reg. 6883 (Feb. 12, 2010) HTML | PDF
  • ETA, Interim Final Rule, Temporary Agricultural Employment of H-2A Aliens in the United States, 74 Fed. Reg. 59069 (Nov. 17, 2009) HTML | PDF
  • ETA & Wage and Hour Division, Proposed Rule, Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 45905 (Sept. 4, 2009) HTML | PDF
  • ETA & Wage and Hour Division, Final Rule, Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 25972 (May 29, 2009) HTML | PDF
  • ETA & Wage and Hour Division, Proposed Rule, Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 11408 (Mar. 17, 2009) HTML | PDF
  • ETA, Final Rule, 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 Fed. Reg. 78020 (Dec. 19, 2008) HTML | PDF
  • ETA & Wage and Hour Division, Final Rule, Temporary Agricultural Employment of H-2A Aliens in the United States; odernizing the Labor Certification Process and Enforcement, 73 Fed. Reg. 77110 (Dec. 18, 2008) HTML | PDF
  • ETA, Proposed Rule, 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 Fed. Reg. 29942 (May 22, 2008) HTML | PDF
  • ETA, Proposed Rule, Temporary Agricultural Employment of H-2A Aliens in the United States; odernizing the Labor Certification Process and Enforcement, 73 Fed. Reg. 8538 (Feb. 13, 2008) HTML | PDF

  • ETA, Final Rule, Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion Models; Labor Attestations Regarding H-1B1 Visas, 71 Fed. Reg. 37801 (June 30, 2006) HTML | PDF

  • ETA, Final Rule, Technical Amendments, Department of Labor Regulatory Review and Update, 71 Fed. Reg. 35511 (June 21, 2006) HTML | PDF

  • ETA and ESA, Wage and Hour Div., Joint interim final rule, Attestations by Employers for Off-Campus Work Authorization for Foreign Students (F-1 Nonimmigrants), 59 Fed. Reg. 64776 (Dec. 15, 1994) HTML

     

  • ETA and ESA, Wage and Hour Div., Final Rule, Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion Models, 59 Fed. Reg. 65646 (Dec. 20, 1994) HTML

     

  • ETA and ESA, Wage and Hour Div., Interim Final Rule, Attestations by Employers Using Alien Crewmembers for Longshore Activities in U.S. Ports, 60 Fed. Reg. 3950 (Jan. 19, 1995) HTML | PDF

     

  • ETA, Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion Models, 60 Fed. Reg. 4028 (Jan. 19, 1995) HTML | PDF

     

  • ETA and ESA, Wage and Hour Div., Joint Interim Final Rule, Attestations by Employers for Off-Campus Work Authorization for Foreign Students (F-1 Nonimmigrants), 60 Fed. Reg. 34132 (June 30, 1995) HTML | PDF

     

  • ETA and ESA, Wage and Hour Div., Joint Interim Final Rule, Attestations by Employers for Off-Campus Work Authorization for Foreign Students (F-1 Nonimmigrants), 60 Fed. Reg. 38958 (July 31, 1995) HTML | PDF

     

  • ETA and ESA, Wage and Hour Div., Proposed Rule, Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion Models, 60 Fed. Reg. 49505 (Sept. 26, 1995) HTML | PDF

     

  • ETA and ESA, Wage and Hour Div., Interim Final Rule, Attestations by Employers for Off-Campus Work Authorization for Foreign Students (F-1 Nonimmigrants), 60 Fed. Reg. 49753 (Sept. 27, 1995) HTML | PDF

     

  • ETA and ESA, Wage and Hour Division, Proposed Rule, Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion Models, 60 Fed. Reg. 55339 (Oct. 31, 1995) HTML | PDF

     

  • ETA, Proposed Rule, Labor Certification for Temporary Employment of Nonimmigrant Aliens in Agriculture; Administrative Measures To Improve Performance, 63 Fed. Reg. 53244 (Oct. 2, 1998) HTML | PDF

     

  • USDOJ, INS, Proposed Rule, Delegation of Adjudication of Certain H-2A Petitions to DOL, 63 Fed. Reg. 67431 (Dec. 7, 1998) HTML | PDF

     

  • ETA, Labor Condition Applications & Requirements for Employers Using Nonimmigrants on H-1B Visas; Proposed Rule, 64 Fed. Reg. 627 (Jan. 5, 1999) HTML | PDF

     

  • ETA, Notice, Proposed Information Collection Request; Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion Models, 64 Fed. Reg. 29894 (June 3, 1999) HTML | PDF

     

  • ETA, Final Rule, Labor Certification Process for the Temporary Employment of Nonimmigrant Aliens in Agriculture in the U.S.; Administrative Measures To Improve Program Performance, 64 Fed. Reg. 34957 (June 29, 1999) HTML | PDF

     

  • ETA, Attestations by Facilities Temporarily Employing H-1C Nonimmigrant Aliens as Registered Nurses; Interim Final Rule, 65 Fed. Reg. 51137 (Aug. 22, 2000) HTML | PDF

     

  • ETA, Interim Final Rule, Attestations by Facilities Temporarily Employing H-1C Nonimmigrant Aliens as Registered Nurses, 65 Fed. Reg. 57902 (Sept. 21, 2000) HTML | PDF

     

  • ETA, Final Rule, Temporary Employment in the U.S. of Nonimmigrants under H-1B Visas, 65 Fed. Fed. Reg. 80109 to 80158 (Dec. 20, 2000) [Part 1 of 3] HTML | PDF

     

  • ETA, Final Rule, Temporary Employment in the U.S. of Nonimmigrants under H-1B Visas, 65 Fed. Fed. Reg. 80109, 80159-80208 (Dec. 20, 2000) [Part 2 of 3] HTML | PDF

     

  • ETA, Final Rule, Temporary Employment in the U.S. of Nonimmigrants under H-1B Visas, 65 Fed. Fed. Reg. 80109, 80209-80254 (Dec. 20, 2000) [Part 3 of 3] HTML | PDF

     

  • ETA, Correction, Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United States, 66 Fed. Reg. 1375 (Jan. 8, 2001) HTML | PDF

     

  • ETA, 20 CFR Part 655, Final Rule, Electronic Filing of LCA, 66 Fed. Reg. 63297 (Dec. 5, 2001) HTML | PDF

     

  • ETA, Proposed Rule, Post Adjudication Audits of H-2B Petitions in All Occupations Other Than Excepted Occupations in the U.S., 70 Fed. Reg. 3993 (Jan. 27, 2005) HTML | PDF

     

  • ETA, Information Regarding the Transfer of Temporary Program Cases to the Atlanta and Chicago National Processing Centers, 70 Fed. Reg. 41430 (July 19, 2005) HTML | PDF

     

  • ETA, Final Rule, Technical Amendments, Regulatory Review and Update, 20 CFR Parts 601 et seq., 71 Fed. Reg. 35511 (June 21, 2006) HTML | PDF