H-2B Process Update

Background
On December 19, 2008, the Office of the Federal Register published the Final Rule on H-2B Temporary Non-agricultural Employment. The Final Rule took effect on January 18, 2009. Certain aspects of the Final Rule allow for a transition period.

There are no changes for applications filed before January 18, 2009. The Washington State Employment Security Department (ESD) continues to process active H-2B applications.

What's new since January 18, 2009?
Employers complete recruitment before submitting the H-2B application, ETA Form 9142, to the Department of Labor's National Processing Center (NPC).

Prevailing Wage Determination (PWD):

• Before starting recruitment, employers must obtain a PWD.
• If workers are needed before October 1, 2009, submit a prevailing wage
  request to ESD using the state's current prevailing wage request form.
• If workers are needed after October 1, 2009, submit a prevailing wage
  request to the NPC using ETA Form 9141.

How to Open a Washington State H-2B Job Order (effective May 18, 2009):

• Complete the job order form
• Choose one of the two Washington State job order options listed below. Either option meets Washington State’s requirement for positive recruitment of U.S. workers and satisfies the DOL H-2B job order posting requirements.
• E-mail the completed job order form and your option choice to sjenkins@esd.wa.gov

Option 30
No more than 120 days before the employer’s date of need, staff will post a 30-day Washington State job order.

OR

Option 10/15
No more than 120 days before the employer’s date of need, staff will post a 10-day Washington State job order.

By choosing Option 10/15, the employer agrees to an initial 10-day job order and a second 15-day job order that will open 45 days before the date of need for a minimum of 20% of the originally requested positions. We will post the 15-day job order for the entire number of positions remaining if the original job order met 80% or more of the positions needed.

Note:

• Employers can prepare their recruitment report no fewer than 2 calendar days after the 30-day or initial 10-day job order closes.

• Approval for Option 10/15 in subsequent applications will be at the discretion of the state H-2B program manager.

Referrals:

• ESD verifies employment eligibility of all referrals from the job order using the 1-9 form.
• Referrals made by ESD will be from a local WorkSource center in the areas of intended employment.

Recruitment:

• While the job order is open, the employer will publish a local newspaper advertisement that meets all requirements, on two separate days, including a Sunday.

• If party to a collective bargaining agreement, the employer should contact the local union as a recruitment source.

Recruitment report:

• Employer should prepare, sign and date a written recruitment report that meets all requirements and submit it to NPC with the application. See http://www.foreignlaborcert.doleta.gov/ for instructions.

View the Final Rule http://www.foreignlaborcert.doleta.gov/pdf/H2BFinalRule.pdf.

Inquiries regarding federal changes
Questions regarding changes to the federal regulations must be submitted directly to the U.S. Department of Labor at H-2B.Requlation@dol.gov.