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Labor Dept. Issues Emergency Guidance on H-2B Changes


Responding to new requirements contained in the 2016 Department of Labor Appropriations Act, which was signed into law on December 18, 2015, as part of the omnibus spending bill mentioned in the prior article, the Labor Department’s Office of Foreign Labor Certification (OFLC) has provided emergency guidance (PDF) to employers seeking to employ nonimmigrant workers in H-2B temporary or seasonal nonagricultural employment. The operational guidance is for employers seeking to obtain prevailing wage determinations (PDF) and temporary labor certifications under the H-2B nonimmigrant visa classification.

Among other things, the guidance notes that certain provisions in the Appropriations Act require non-substantive modifications to ETA Form 9165. To comply with the law, OFLC has requested emergency approval from the Office of Management and Budget (OMB) on non-substantive changes to the form. The guidance states that until a notice of action is issued by the OMB, the Certifying Officer (CO) cannot issue a prevailing wage determination where use of a private survey has been requested.

The new provisions also require non-substantive modifications to Appendix B of the Form ETA-9142B. Specifically, the current Appendix B contains references to an employer’s compliance with the wage offer guarantee, corresponding employment, three-fourths guarantee, and the definition of temporary need under 20 CFR § 655.6. To comply with the new law, OFLC has requested emergency approval from OMB on non-substantive changes to the Appendix B. Until a notice of action is issued by OMB, the CO cannot issue any certification determinations on H-2B applications for temporary labor certification.

When a certification decision is issued, the CO will provide the employer with a copy of the revised Appendix B approved by OMB as well as a Final Determination Letter containing instructions for submitting all appropriate documentation to U.S. Citizenship and Immigration Services. Until OMB approves a revised Appendix B, employers may continue to file H-2B applications with the prior version of Appendix B. After receipt of the notice of action from the OMB, the OFLC will provide a revised Appendix B to the employer with a certification decision.

The OFLC said it will issue a further announcement as soon as the agency has received the notices from the OMB. 

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