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In an effort to further streamline the H-2B application process and make it less burdensome for employers, the Department of Labor has announced procedural changes to reduce the amount of documentation to demonstrate “temporary need.”

To get approval to hire H-2B workers, an employer must establish that the need for H-2B workers is temporary in nature, i.e., “limited to one year or less, but in the case of a one-time event could last up to 3 years.’’ The temporary need must be a one-time occurrence, seasonal, peak load, or intermittent. The DOL H-2B regulations envisage a two-part application process: (1) the agency adjudicates whether the employer has a temporary need through the employer registration process and (2) adjudicates the employer’s actual application to hire H-2B workers. However, as the DOL has not implemented the registration requirements of its regulations, the agency is adjudicating the employer’s temporary need during its review of the actual H-2B labor application.

Employers must complete Form ETA-9142B, Section B, which requires a statement on the nature of the temporary need, duration of employment, number of workers sought, and standard of need. The employer must demonstrate the scope and basis of the temporary need to enable the certifying officer (“CO”) to determine whether the job offer meets the statutory and regulatory standards for temporary need. However, without a registration process, many employers have had to submit additional documentation, such as summarized monthly payroll records, monthly invoices, and executed work contracts with the Form ETA-9142B, to demonstrate temporary need. For recurrent users of the H-2B visa program who receive H-2B labor certification for year-to-year, based on their business cycle, the statement and information on temporary need does not change.

DOL has concluded, “The additional documentation submitted by many employers, which is substantially similar from year-to-year for the same employer or a particular industry, creates an unnecessary burden for employers as well as the CO, who must review all documents submitted with each application.”

The agency announced that, effective September 1, 2016,

To reduce paperwork and streamline the adjudication of temporary need, effectively immediately, an employer need not submit additional documentation at the time of filing the Form ETA-9142B to justify its temporary need. It may satisfy this filing requirement more simply by completing Section B “Temporary Need Information,” Field 9 “Statement of Temporary Need” of the Form ETA-9142B. This written statement should clearly explain the nature of the employer’s business or operations, why the job opportunity and number of workers being requested for certification reflect a temporary need, and how the request for the services or labor to be performed meets one of the four DHS regulatory standards of temporary need chosen under Section B, Field 8 of the Form ETA-9142B. Other documentation or evidence demonstrating temporary need is not required to be filed with the H-2B application. Instead, it must be retained by the employer and provided to the Chicago NPC in the event a Notice of Deficiency (NOD) is issued by the CO. The Form ETA-9142B filing continues to include in Appendix B, a declaration, to be signed under penalty of perjury, to confirm the employer’s temporary need under the H-2B visa classification (Appendix B, Section B.1.).

DOL clarified that its certifying officer would review the employer’s statement of temporary need and recent filing history to determine whether “the nature of the employer’s temporary need on the current application meets the standard for temporary need under the regulations. If the job offer has changed or is unclear, or other employer information about the nature of its need requires further explanation, a NOD requesting an additional explanation or supporting documentation will be issued.”

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The Department of Homeland Security (DHS) has announced that it will resume adjudications of H-2Bpetitions, even though it will continue to suspend premium processing until further notice.

The March 17, 2015, announcement follows the filing of an unopposed motion on March 16 by DOL to stay until April 15the U.S. District Court ruling in Perez v. Perez. That order vacated DOL’s H-2B regulations on the grounds that DOL had no authority under the Immigration and Nationality Act to issue them. DHS suspended H-2B adjudications while it reviewed the decision. As stated in the motion, DHS will resume adjudicating H-2B petitions based on temporary labor certifications issued by DOL.

The DHS announcement follows pressure mounted by stakeholders to resume processing of H-2B petitions already filed, and to accept and process H-2B petitions supported by temporary labor certifications issued prior to March 4, 2015. The court in Perez enjoined DOL from enforcing DOL’s 2008 H-2B regulations. It did not invalidate H-2B temporary labor certifications already issued by the DOL, nor did it direct USCIS to end processing of H-2B petitions supported by previously issued temporary labor certifications. The stakeholders have argued that Perez does not require USCIS to cease processing of their H-2B petitions. They have lamented that the suspension of processing could potentially have a significant impact on a wide range of industries, including resort and hospitality, seafood, landscaping, grounds maintenance, and forestry, to name but a few. Businesses that use the H-2B program to supplement workforce needs will face serious labor shortages, and the potential for significant economic loss across several industries is tremendous.

To fill the regulatory gap occasioned by the court order, DOL and DHS announced on March 13, that they intend to issue a joint interim final rule by April 30, 2015.

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