DOL Will Propose Rescission of H-2B Registration Requirements
DOL posted the following notice on their website in response to a district court order:
December 1, 2022. The Department of Labor’s Office of Foreign Labor Certification Will Propose Rescission of H-2B Registration Requirements and Will Provide Unique H-2B Temporary Registration Numbers Per District Court’s Order
The Department of Labor (Department) published the current H-2B regulations, Temporary Non-Agricultural Employment of H-2B Aliens in the United States, as an interim final rule with the Department of Homeland Security (DHS) on April 29, 2015. 80 FR 24042. With the interim final rule, the Department created a separate H-2B registration process to determine whether an employer has a temporary need for nonagricultural services or labor, subject to review by DHS as the final arbiter of temporary need. The interim final rule stated the registration process would be implemented through the publication of a notice in the Federal Register. The Department has not implemented the H-2B registration process.
On November 2, 2022, the U.S. District Court for the Central District of California issued an order in Padilla Construction Company, et. al. v. Martin J. Walsh, et. al., No. 2:18-cv-1214 (C.D. Cal. Nov. 2, 2022). Under the order, the Department will propose to rescind H-2B registration requirements contained in 20 CFR 655.11 and 655.12 and propose conforming edits throughout its H-2B regulations at 20 CFR part 655, subpart A to remove references to the H-2B registration process through future notice and comment procedures. In the interim, the Department will use the Notice of Acceptance (NOA), which is issued when an H-2B application meets regulatory requirements and is permitted to commence recruitment of U.S. workers, to inform an H-2B employer of the Department’s determination on its temporary need for services or labor. Where an employer is determined to have a temporary need for services or labor, the NOA will provide the employer with a unique temporary need registration number, which may remain active for up to three years and which will be considered as one piece of evidence during the Department’s adjudication of the employer’s temporary need in future application filings. The Department will use a Notice of Deficiency to inform an H-2B employer when its temporary need for an application filing is in question, to request additional information, and also to inform an employer of deactivation of its temporary need registration number if the number has expired or if it appears that the employer no longer demonstrates a temporary need. For more information, please see the district court’s order below.
Important Note: This announcement of the Department’s future proposal to rescind H-2B registration requirements will not affect H-2B application filings for the 2023 peak application filing season for the second half visa cap.