After much discussion, the Departments of Labor (DOL) and Homeland Security (DHS) have finalized the proposed changes to regulations governing the H-2B visa program. These regulations have been reviewed by the new Obama Administration and they are now in effect.
The New DOL Rules:
The DOL has streamlined the temporary labor certification application process that employers must go through before they may file for an H-2B visa. The new “employer attestation and audit process” will be handled completely through DOL and employers will now submit online applications to DOL’s Chicago National Processing Center rather than a State Workforce Agency.
This new process also allows an employer to apply for its labor certification without having to submit recruitment documentation or other required documents traditionally included with its application. By removing these documents from the application, the approval process should speed-up significantly.
The downside to this streamlining process is that DOL now has the right to conduct an audit of the employer to ensure the employer would have satisfied all requirements had the original documentation been submitted with the application. These audits may be performed randomly, before or after a labor certification has been granted, and will force employers to retain all of their recruitment documents in an audit file for a minimum of five years.
Should an audit reveal a “willful” failure to meet the conditions of an H-2B labor certification application or a “willful misrepresentation” of a material fact on the application or a failure to cooperate with a DOL audit or investigation, the employer could be assessed a monetary penalty of up to $10,000 and could face debarment from the program for up to three years.
NCA is pleased that DOL has made the application process more user friendly, but we caution all NCA members to be certain that their paperwork is in order in the event an audit comes. DOL staff has made it clear the department will come down hard on those who have failed to cross the “t’s” and dot the “i’s.”
The New DHS Rules:
While DOL’s rules seem to help the H-2B process, DHS’ new requirements may not be as helpful. Specifically, DHS now mandates that:
- Employers may only select H-2B workers from designated countries established by DHS and published annually in the Federal Register;
- Employers may not file for an H-2B petition unless they have actually received their labor certification from DOL;
- Employers may not change the start date of an H-2B worker and the employer must attest that there will be no changes to the H-2B worker’s duties, place of employment or other aspects of employment after filing the petition;
- Employers and recruiters are prohibited from charging the worker a recruitment or similar employment service charge or fee. Should an employer charge a fee or if the employer knows that a recruiter has charged such a fee, the employer may have its petition denied or revoked and the employer must reimburse that fee to the worker to become eligible to use the program again; and
- Employers must notify DHS within two (2) work days:
- If the H-2B worker fails to report for work within five days of the employment start date;
- If the work the H-2B worker was hired for is completed more than 30 days before the end date on the petition; or
- If the worker is fired or leaves the worksite prior to the completion of the job.
Though the DHS rules may seem a bit harsh, there are aspects to the new rules that could be a benefit to employers.
- The new rules remove the requirement that the employer state on its petition the names of the prospective H-2B employees;
- The new rules reduce from six months to three months the time that an H-2B worker must spend outside the country after his three-year limit has been reached; and
- The new rules alter the definition of “temporary service or labor period” to include a period of up to three years.
As with DOL’s rules, should an employer “substantially” fail to comply with these new requirements or “willfully misrepresent” a material fact on a petition, financial penalties may be levied and DHS may deny an H-2B petition for at least one, but not more than five years.
It is clear that these new DHS regulations can place significant burdens on clubs that use the H-2B program. As such, it is imperative that you make certain your club is prepared to follow these new rules before submitting a petition for an H-2B worker.