Emergency H-2B Procedures Available Due to DOL Delays
Wednesday, February 24, 2016
Posted by: Julie Hill
Feb. 22 (BNA) -- As of Feb. 22, employers that rely on the H-2B program will be able to take advantage of emergency procedures being put in place to address significant delays in H-2B processing, the Labor Department has announced.
"The delays in the certification process that applicants are currently experiencing impair the ability of employers to hire foreign workers when needed, and create instability for small businesses that depend on temporary and seasonal workers," the DOL said Feb. 19. Therefore, the Chicago National Processing Center will accept employer requests for emergency procedures through April 1.
An employer may request emergency procedures if it has a pending H-2B application, including a valid prevailing wage determination, and (1) the employer hasn't received an initial notification of acceptance (NOA) or notice of deficiency (NOD) within seven business days after the application was filed; or (2) the employer received a notice of deficiency after seven business days and hasn't yet received a notification of acceptance.
Employers that meet these criteria don't need to file a new H-2B application or proposed job order. Rather, they should ask that the pending application and proposed job order be "incorporated by reference" into the emergency procedure request, and to withdraw the prior application.
The new application will remain in the original queue based on the date the original application was received and be processed in that order, the DOL said.
Employers seeking emergency procedures also will be able to undertake expedited recruitment of U.S. workers, the DOL said.
The time frames for when emergency procedures may be requested depend on when employers originally filed their H-2B applications. Employers also may request minor changes to their start dates of need for the workers at any time before a final determination is issued.
Delays Stem From Processing Halt
The DOL said processing delays under the low-skilled, nonagricultural guestworker program are the result of several factors. The "most significant" is the 17-day processing hiatus following enactment of H-2B changes in the omnibus spending legislation funding the government through the end of fiscal year 2016 (10 WIR 01, 1/4/16).
Employers first got wind of the stoppage soon after the changes became law (10 WIR 01, 1/4/16). The DOL soon thereafter issued "emergency guidance" officially announcing that it wouldn't be processing any H-2B applications until it aligned the application forms with the new provisions (10 WIR 01, 1/4/16).
Delays also resulted from a more than doubling of H-2B applications filed between Dec. 26, 2015, and Jan. 15, 2016, compared with the same period a year ago, the DOL said. In addition, the DOL's Office of Foreign Labor Certification has experienced technical problems resulting from implementation of required security specifications within its iCERT online filing system.
The H-2B backlog has caught the attention of Congress, including House Majority Whip Steve Scalise (R-La.). He and two other Republican House members from Louisiana-Reps. Charles Boustany and Garret Graves-Feb. 19 wrote to Labor Secretary Thomas Perez to complain that DOL inaction has brought several businesses in the state "dangerously close to having to permanently close their doors."
Other groups of House members also sent similar letters to DOL officials Feb. 16 and Feb. 5.
Backlog Mounting as Demand Rises
An informal survey of employer agents and attorneys conducted by the H-2B Providers' Coalition, which was provided to Bloomberg BNA Feb. 22, shows a mounting backlog in DOL processing.
For example, 555 respondents as of Feb. 5 reported 170 applications (30.63 percent) lacking either an NOA or an NOD within the required seven days, and 69 applications (12.43 percent) without an NOA or NOD after 30 days.
But 531 respondents as of Feb. 16 reported 403 applications (75.89 percent) without an NOA or NOD after seven days and 272 applications (51.22 percent) without one after 30 days.
Compounding the processing delays is employers' increased usage of the H-2B program since the economy began to rebound.
Between fiscal year 2009 and FY 2014, the annual cap of 66,000 H-2B visas wasn't reached at all, and in 2014 it was reached almost at the end of the fiscal year.
In FY 2015, however, the cap was reached in mid-June, meaning employers couldn't access H-2B workers between then and the Oct. 1 start of FY 2016 (9 WIR 424, 6/22/15).
The rise in demand led to language in the appropriations act allowing H-2B workers from the prior three fiscal years to come back to the U.S. in FY 2016 without being counted against this year's cap. But employers can't petition U.S. Citizenship and Immigration Services for the visas until they obtain a labor certification from the DOL.
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