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Unified Agenda 1205-AB58

Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers)


The Department published a Notice of Proposed Rulemaking (NPRM) on March 18, 2011. The public comment period closed on May 17, 2011. The Department of Homeland Security (DHS) regulations require employers to apply for a temporary labor certification from the Department of Labor before H-2B petitions may be approved. DOL certifies that there are not sufficient U.S. worker(s) who are capable of performing the temporary services or labor at the time of an application for a visa, and that the employment of the H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. This NPRM proposed to re-engineer the H-2B program in order to enhance transparency and strengthen program integrity and protections of both U.S. workers and H-2B workers.

Statement of need

The Department has determined that a new rulemaking effort is necessary for the H-2B program. The policy underpinnings of the current regulation; e.g., streamlining the H-2B process to defer many determinations of program compliance until after an application has been adjudicated do not provide an adequate level of protection for either U.S. or foreign workers. The proposed rule seeks to enhance worker protections and increase the availability of job opportunities to qualified U.S. workers.

Legal Basis

The Department of Labor's authority to revise these regulations derives from 8 U.S.C. 1101(a)(15)(H)(ii)(B), 8 U.S.C. 1184(c)(1), and 8 CFR 214.2(h).


The public was afforded an opportunity to provide comments on the proposed regulatory changes when the Department published the NPRM in the Federal Register. A final rule will be issued after analysis of, and response to, public comments.

Costs and Benefits

Preliminary estimates of the anticipated costs of this regulatory action have been provided in the NPRM. The Department of Labor sought information on potential additional or actual costs from employers and other interested parties through the NPRM in order to better assess the costs and benefits of the proposed provisions of the program. The proposed changes are thought to raise "novel legal or policy issues" but are not economically significant within the context of Executive Order 12866 and are not a "major rule" under section 804 for the Small Business Regulatory Enforcement Fairness Act.


This action does not affect the public health, safety, or the environment.


3 actions from March 18th, 2011 to January 2012

  • March 18th, 2011
  • May 17th, 2011
    • NPRM Comment Period End
  • January 2012
    • Final Rule


  • William Carlson
    Administrator, Office of Foreign Labor Certification
    Phone 202 693-3010
    Room C-4312, FP Building, 200 Constitution Avenue NW.,
    Washington DC 20210

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