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SWA Referral Requirements Differ Between PERM and H-2B Cases

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AILA Minutes from DOL H-2 Stakeholders Meeting: March 7, 2017

The American Immigration Lawyers Association (AILA) released minutes from the H-2 stakeholders meeting with the Department of Labor (DOL) from March 7, 2017.

The DOL reported that it continues to operate with limited funding resources and does not expect funding to increase for the next twelve months. There has been a 92% increase in H-2B filings, and a 30% increase since January in overall applications. The DOL anticipates “major problems” if the case load continues to increase without additional resources or changes to the filing system. The DOL noted that State Workforce Agencies (SWAs) are also suffering from shortages of resources and staff, which affects H-2 filings.

There are no emergency procedures in place this year for H-2B processing. The emergency procedures were put in place last year in response to the temporary shutdown of the H-2B program in December 2015, and are not deemed necessary at this time in spite of the increase in applications.

Notices of Deficiency (NOD) have decreased from six out of ten cases filed last year that received NODs to four out of ten cases that currently receive them. AILA’s DOL Liaison Committee questioned why so many NODs were being assessed for “fail[ing] to establish temporary need for the number of workers requested” even when the employer has explained the reason for an increase in the number of workers requested from previous years. The DOL responded that an employer must “prove” the necessity for the increase in workers requested and not merely explain it.

H-2A applications are being processed as usual. AILA questioned whether the DOL would revise the regulations that require advertisements to be placed in print newspapers given that “newspaper ads have become significantly more costly and increasingly irrelevant in terms of actually bringing potential U.S. workers to growers.” The DOL replied that it “cannot move away from print ads without regulatory changes.”

The full minutes can be viewed here.

DOL and Homeland Security Publish New H-2B Regulations

From: USADNEWS Volume IX, Issue 2 April/May 2015

As a result of the March decision in the Florida court case Perez v Perezwhich vacated the Department of Labor’s (DOL) 2008 H-2B regulations, the Department of Labor (DOL) and Homeland Security released new interim regulations on April 29, 2015, to be effective immediately. The federal district court in the Northern District of Florida vacated the previous regulations on the grounds that the DOL lacks authority under the Immigration and Nationality Act to issue regulations in the H-2B program. Consequently, US Citizenship and Immigration Services (USCIS) suspended the adjudication of H-2B petitions until new regulations could be established.

The DOL and Homeland Security announced in an April 28 press release that they were releasing a comprehensive interim final rule to “reinstate and make improvements to the program” as well as a final rule “to establish the prevailing wage methodology for that program.” The new rules include provisions that are intended to protect both U.S. workers and employers. They expand the recruitment of U.S. workers through more “real-time recruitment efforts, requiring employers to offer work to former U.S. employees first, and establishing a national electronic job registry.” They also strengthen worker protections related to wages and working conditions. However, the Departments make it clear that they intend the new rules to provide “certainty, stability, and continuity to the program in reaction to litigation on multiple fronts that has threatened to terminate employers’ ability to use H-2B workers.” The prevailing wage final rule reinstates the use of employer-provided surveys in determining the prevailing wage in limited situations. The new rules also provide interim transition procedures to allow employers time to adjust to the new rules.

There are several major differences between the old rules and the new interim rules. One is that the employer’s advertisements are now required to direct applicants to apply for the position at the nearest State Workforce Agency (SWA) office as opposed to applying directly to the employer. The interim rules have also eliminated the employer’s option to replace one of the two required newspaper advertisements with an advertisement in a professional, trade or ethnic newspaper. However, they now require the employer to advertise in a language other than English “where the CO determines it is appropriate.”  The rules also contain guidelines on specific language that should be used in the advertisements.  Furthermore, the interim rules clearly establish the Departments’ position that newspapers of general circulation “remain an important source for recruiting U.S. workers,” especially for the positions typically found in the H-2B program, thus allaying some of the uncertainty around the future of print advertising.

The Departments are requesting feedback on the interim rules through an open comment period that ends on June 29, 2015.  The new rules are available online at the Federal Register:

Comprehensive Interim Final Rule
Wage Final Rule