On February 21, 2012, the DOL published a final rule that significantly alters the process used by employers to substantiate their need for foreign workers to perform temporary or seasonal non-agricultural labor or services. Preliminarily, employers must submit and receive a prevailing wage determination from the DOL, and then submit an H-2B registration. The registration requirement is a new step for employers under the 2012 Rule. The Employment and Training Administration (ETA) then certifies temporary need for up to three years.

After the registration is certified, the employer may submit the H-2B application, ETA Form 9142 and other required documents 75 to 90 calendar days before the date of need, except in emergency situations, if:

The 2009 regulations used an attestation-based certification model. When employers applied to the DOL for H-2B workers, they were required to attest that:

The 2012 Final Rule uses a compliance demonstration model that requires employers to:

After the DOL receives this information from an employer, it must certify that these conditions exist. Furthermore, employers that use foreign recruiters must provide, in the H-2B application, a copy of the agreement with the recruiters, as well as the names and locations of subcontractors that the recruiter will use to recruit workers for the program.

The DOL reinstituted the compliance model, which was the H-2B system before the 2009 regulations, because of strong concerns that the attestation model allowed for pervasive fraud. The DOL seeks to reduce abuse of the program by employers.

In addition, the 2012 Final Rule provides new protections for H-2B and US workers alike. For example, while the 2009 regulations did not address corresponding employment, the 2012 regulations provide that corresponding US workers are entitled to the same protections and benefits as H-2B workers. Corresponding workers are defined as those who perform substantially the same work as H-2B workers. (29 C.F.R. § 503.4 (2012).)

Employers must guarantee employment for at least three-fourths of the total work hours in each 12-week period (or each six-week period if the job order is for less than 120 days).

While the 2009 regulations allowed job contractors to fully participate in the H-2B program, the Final Rule only allows contractors with their own genuine temporary need for workers to participate. In that situation, the contractor and the employer must both demonstrate their need for H-2B workers.

The Final Rule defines temporary need for workers (either on a seasonal, peakload or intermittent basis) as need lasting nine months or less (20 C.F.R. § 655.6 (2012)).

Employers must now disclose the job order, which details the terms and conditions of employment, to all H-2B and corresponding workers, in language that the workers can understand (20 C.F.R. § 655.20(l) (2012); 29 C.F.R. § 503.16(l) (2012)). The Final Rule also requires employers to post a workers' rights poster from the DOL, in English and other languages as needed (20 C.F.R. § 655.20(m) (2012); 29 C.F.R. § 503.16(m) (2012)).

H-2B workers must be paid every two weeks or according to the prevailing practice in the area of employment, whichever is more frequent (20 C.F.R. § 655.20(h) (2012); 29 C.F.R. § 503.16(h) (2012)). Furthermore, employers must keep accurate wage and hour records and provide H-2B workers with an earnings statement on or before each payday (20 C.F.R. § 655.20(i) (2012); 29 C.F.R. § 503.16(i) (2012)). Finally, the employer is now required to provide H-2B workers all tools and equipment needed to perform the job, without charge or deposit (20 C.F.R. § 655.20(k) (2012); 29 C.F.R. § 503.16(k) (2012)).

These changes in the H-2B program will affect certain industries, such as summer and ski resorts, very heavily beginning this year. The Final Rule places more requirements on employers and will probably make the wage and compliance costs of using H-2B workers much higher.