[Federal Register Volume 77, Number 78 (Monday, April 23, 2012)]
[Rules and Regulations]
[Pages 24137-24138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-9612]


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DEPARTMENT OF LABOR

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; Revisions 
to Transition Period

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Guidance.

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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. On March 20, 2012, 
the Department published guidance informing employers of the dates by 
which their H-2B application must be postmarked in order to be governed 
by the Final Rule. This guidance revises these dates so that the Final 
Rule will become operative 60 days after it was reported to Congress.

DATES: This guidance is effective April 23, 2012.

FOR FURTHER INFORMATION CONTACT: William L. Carlson, Ph.D., 
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. 77 FR 10038, Feb. 21, 2012. The Final Rule provides for 
an effective date of April 23, 2012, which is 60 days after the date of 
publication of the Final Rule. On March 20, 2012, 77 FR 16157, the 
Department published guidance which provided that 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

[[Page 24138]]

78020, December 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. The guidance also provides that applications postmarked on or 
after April 23, 2012 will be adjudicated in accordance with the 
requirements described in the Final Rule.
    The Department is revising its guidance to clarify that the Final 
Rule will not be operative until April 27, 2012. In accordance with the 
Congressional Review Act, (CRA), 5 U.S.C. 801, et seq., April 27, 2012 
is 60 days after February 27, 2012, the date on which the rule was 
reported to Congress, and the earliest date on which the rule can 
become operative under the CRA. See 5 U.S.C. 801(a)(3). While section 
801(a)(3) does not alter the date a rule goes into effect, it prevents 
an agency from enforcing the rule for 60 days after the rule is 
reported to Congress.
    Accordingly, applications filed under the current regulation must 
be sent to the CNPC and postmarked no later than midnight April 26, 
2012, and applications postmarked on or after April 27, 2012 will be 
adjudicated in accordance with the requirements described in the Final 
Rule. Any application filed under the current regulation that is 
postmarked on or after April 27, 2012 will be returned, and the 
employer (and its agent or attorney) informed of the need to file a new 
application in accordance with the provisions of the new H-2B Final 
Rule.
    Please note that, as provided in the March 20th guidance, 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 with H-2B applications postmarked on or after April 27, 
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 their questions 
to <a href="/cdn-cgi/l/email-protection#afe7829ded81fdcac8dac3cedbc6c0c1efcbc0c381c8c0d9"><span class="__cf_email__" data-cfemail="6e26435c2c403c0b091b020f1a0701002e0a010240090118">[email protected]</span></a>. The Department will provide responses in 
the form of Frequently Asked Questions (FAQs) on its Web site.

    Signed in Washington, this 17th day of April 2012.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 2012-9612 Filed 4-20-12; 8:45 am]
BILLING CODE 4510-FP-P


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