On December 18, 2008 both the Department of Homeland Security and the Department of Labor published a final rule amending the H-2B temporary worker program. These rules will go into affect on January 18, 2009 and will make substantial changes to the existing program.

The process of obtaining a temporary labor certification for the H-2B petition will now be centralized at the Department of Labor’s Chicago Processing Center. That office will issue the prevailing wage determinations and adjudicate the applications for temporary labor certification. 

Employers will be able to file the prevailing wage request no more than 90 days before the advertisements are placed. Also, the advertisements cannot be placed more than 120 days before the start date of the employment listed on the application for temporary labor certification. The advertisements must be completed before the application can be filed. The necessary advertisements include 2 newspaper advertisements (one of which is on a Sunday), posting with the State Workforce Agency, and contacting the labor union if there is an existing collective bargaining agreement in place for the position.

Another change is that the start date on the H-2B I-129 Petition filed with the U.S. Citizenship and Immigration Service must be the same as the start date indicated on the application for temporary labor certification.

If the temporary need is based on a one-time occurrence, the time period requested can be for up to three years. However, if the time period requested is more than 18 months, the employer will be required to conduct additional tests of the labor market throughout the employment period.

Lastly, the new regulations state that H-2B employees cannot pay any fees associated with the preparation and filing of the H-2B petition. This includes attorney’s fees and recruiter fees.