U.S. DOL Proposes H-2B Changes

The U.S. Department of Labor last week proposed new rules for the H-2B guest worker program, including improvements to the application process and increased worker protections.

"These proposed improvements will give the department additional tools to protect workers and remove duplicative bureaucracy," said Secretary of Labor Elaine L. Chao in a news release.

The changes are in response to the administration’s promise last August to review and update guest worker programs. They were announced the same day the Senate stripped an amendment to exempt returning workers from the program’s cap of 66,000 from the Iraq War Funding Bill.

The proposed rules appear in the May 22 Federal Register (http://edocket.access.gpo.gov/2008/pdf/E8-11214.pdf). The period for public comment will close July 7. The proposed rule would:

• Reform the application process so that employers would attest, under threat of fines and other penalties, they have complied with all the program's requirements. These proposals would alter the current certification process, following a model similar to that adopted in the successful re-engineering of the permanent labor certification program in 2005.

• Eliminate duplication of effort by state workforce agencies (SWAs) and the Department of Labor's Employment and Training Administration (ETA). Instead of applying first with their SWAs, employers would file their H-2B applications directly with ETA under the proposed process. Also, employers would obtain the applicable prevailing wage determinations from the Labor Department instead of SWAs.

• Enhance protections for U.S. and foreign workers. For instance, employers would be prohibited from passing along application and other costs to foreign workers participating in the H-2B program. The Department of Labor also proposes to debar for up to three years employers, attorneys and agents found to have committed fraud or willful misrepresentation concerning the H-2B employment-based immigration program, or failed to cooperate in Labor Department audits or investigations.

• Add a new H-2B enforcement program in the event the Department of Homeland Security delegates its statutory authority for enforcing the H-2B program to the Department of Labor. Congress vested the Department of Homeland Security with H-2B enforcement authority in 2005.

Interested parties may submit comments via one of the methods below. Use Regulatory Information Number 1205-AB54.

• Federal e-Rulemaking Portal www.regulations.gov. Follow the Web
site instructions for submitting comments.

• Mail/Hand Delivery/Courier: Please address all written comments (including
disk and CD–ROM submissions) to Thomas Dowd, Administrator, Office of
Policy Development and Research, U.S. Department of Labor, 200 Constitution
Avenue, NW., Room N–5641, Washington, DC 20210.