labor lawAdivision of labor law center

The US Department of Labor proposed new rules in May to modernize the application process for H2B visas. The DOL says that the new procedures will enhance worker protection under the temporary labor certification program.  The public can comment on the changes until July 7.

 

In one of the most important changes, employers would be prohibited from passing on application and other related costs to foreign workers in the H2B program. These changes are just the latest step in the department’s program to renew and update foreign worker program regulations at all levels, which began in August 2007.

 

“These proposed improvements will give the department additional tools to protect workers and remove duplicative bureaucracy,” said Secretary of Labor Elaine L. Chao.

 

The H2B visa program permits employers to import workers for non-agricultural jobs to fill temporary or seasonal needs when a shortage of qualified US workers can be demonstrated. Often, workers with H2B visas are then sponsored by their employers for permanent labor certification or “green card” status.

 

The proposed new rule would reform the application process so that employers could attest that they have complied with all of the program’s requirements, instead of being inspected by officials. Employers would face fines and other penalties if they were found to have lied about their compliance. Attorneys and agents, as well as employers, would face debarment for 3 years if they are found to have committed fraud or willful misrepresentation. The same penalties apply if they are found to have not cooperated in a DOL investigation or audit.

 

This change would follow a model similar to that adopted in the permanent labor certification program. However, as reported in a recent article, that process has recently come under question as some immigration attorneys seem to be abusing it.

 

The new regulations would also eliminate red tape by avoiding duplication between state agencies and the US  DOL Employment and Training Administration or ETA. Employers would file H2B applications directly with the ETA, without having to go through a state agency first.

 

The proposed rule can be found here in its entirety.

 

 

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