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[Federal Register Volume 77, Number 54 (Tuesday, March 20, 2012)]
[Rules and Regulations]
[Pages 16157-16158]
From the Federal Register Online via the Government Printing Office []
[FR Doc No: 2012-6580]



Employment and Training Administration

20 CFR Part 655

RIN 1205-AB58

Changes to the Labor Certification Process for the Temporary Non-
Agricultural Employment of H-2B Aliens in the United States; Transition 

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Guidance.


SUMMARY: On February 21, 2012, the Department of Labor (the Department 
or DOL) published a Final Rule amending H-2B regulations governing the 
certification of temporary employment of nonimmigrant workers in 
temporary or seasonal non-agricultural employment. The Department's H-
2B Final Rule also created new regulations to provide for enhanced 
enforcement under the H-2B program requirements when employers fail to 
meet their obligations under the H-2B program. The Department also made 
changes to the Application for Temporary Employment Certification, ETA 
Form 9142.
    The H-2B Final Rule becomes effective on April 23, 2012. All 
applications filed on or after that date will need to comply with all 
applicable program requirements. The purpose of this guidance is to 
provide transition procedures to ensure that employers filing H-2B 
applications on or after April 23, 2012, have sufficient information to 
file appropriately.

DATES: This guidance is effective March 20, 2012.

Administrator, Office of Foreign Labor Certification, Employment and 
Training Administration, 200 Constitution Avenue NW., Room C-4312, 
Washington, DC 20210; Telephone: (202) 693-3010 (this is not a toll-
free number).

SUPPLEMENTARY INFORMATION: On February 21, 2012, the Department 
published a Final Rule amending the H-2B regulations at 20 CFR part 
655, Subpart A. 76 FR 10038, Feb. 21, 2012. The rule becomes effective 
April 23, 2012 and applies to all applications filed on or after that 
date. Among other things, the H-2B Final Rule provides for a return to 
the compliance-based certification model, by which employers file 
before conducting recruitment. The

[[Page 16158]]

H-2B Final Rule also includes a new registration process, to precede 
the filing of applications.
    Applications filed under Labor Certification Process and 
Enforcement for Temporary Employment in Occupations Other Than 
Agriculture or Registered Nursing in the United States (H-2B Workers), 
and Other Technical Changes, 73 FR 78020, Dec. 19, 2008 (the current 
regulation), must be sent to the Office of Foreign Labor 
Certification's (OFLC's) Chicago National Processing Center (CNPC) and 
postmarked no later than midnight April 22, 2012, the last day before 
the effective date of the H-2B Final Rule. An application filed up to 
the effective date of the H-2B Final Rule must still comply in full 
with the requirements of the current regulations. Applications 
postmarked on or after April 23, 2012 will be adjudicated in accordance 
with the requirements described in the H-2B Final Rule.
    Any application filed under the current regulation that is 
postmarked on or after April 23, 2012 or later will be rejected, and 
the employer (and its agent or attorney) will be informed of the need 
to file a new application in accordance with the provisions of the new 
H-2B Final Rule.
    To ensure a smooth transition from the current regulation and allow 
the OFLC to make the necessary changes to its program operations to 
accommodate the new planned registration process, the Department noted 
in the H-2B Final Rule, at 20 CFR 655.11(j), that it would announce in 
the Federal Register a separate transition period for the registration 
process. Employers who file H-2B applications with a start date of need 
before October 1, 2013 will not be required to obtain the pre-approved 
H-2B registration under 20 CFR 655.15, and the Department will continue 
to adjudicate temporary need during the processing of applications by 
reviewing the employer's statement of temporary need in Section B of 
the ETA Form 9142. Employers filing H-2B applications on or after April 
23, 2012 with a start date of need on or after October 1, 2013, must 
comply with all the requirements contained in the registration process 
unless the OFLC publishes additional guidance in the Federal Register.
    Employers with questions are encouraged to submit such questions to The Department will provide responses in the 
form of Frequently Asked Questions (FAQs) on its Web site.

    Signed in Washington, this 14th day of March, 2012.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 2012-6580 Filed 3-19-12; 8:45 am]