E9-21274. Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes; Correction

AGENCY:

Employment and Training Administration, Department of Labor.

ACTION:

Technical correction.

SUMMARY:

This document contains a correction to the Final Rule of the H-2B program that was published on December 19, 2008. The Final Rule re-engineers the application filing and review process by centralizing processing and by enabling employers to conduct pre-filing recruitment of United States (U.S.) workers. In addition, the rule enhances the integrity of the H-2B program through the introduction of post-adjudication audits and procedures for penalizing employers who fail to meet program requirements. This rule also makes technical changes to both the H-1B and the permanent labor certification program regulations to reflect operational changes stemming from this regulation.

DATES:

This technical correction is effective September 3, 2009. The technical correction is applicable beginning January 18, 2009.

FOR FURTHER INFORMATION CONTACT:

For information on the labor certification process governed by this correction, contact William L. Carlson, Administrator, Office of Foreign Labor Certification, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210. Telephone: [phone] (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

On December 19, 2008 the Department of Labor's (Department) Employment and Training Administration (ETA) published a Final Rule titled “Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes.” It has come to ETA's attention that due to a technical oversight a certain part of the final regulations was deleted from the Final Rule publication. The Department did not intend to remove this language from the regulations and through this correction notice the Department seeks to reinsert the inadvertently deleted language.

Need for Correction

As published, the final regulation erroneously removed a paragraph of § 655.731 that the Department had intended to remain. The intention of this Notice is to reestablish that paragraph.

List of Subjects in 20 CFR Part 655

• Administrative practice and procedure
• Foreign workers
• Employment
• Employment and training
• Enforcement
• Forest and forest products
• Fraud
• Health professions
• Immigration
• Labor
• Longshore and harbor work
• Migrant labor
• Passports and visas
• Penalties
• Reporting and recordkeeping requirements
• Unemployment
• Wages
• Working conditions

Accordingly, 20 CFR Part 655 is amended by making the following technical correction:

PART 655—TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES

Subpart H—Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion Models, and Labor Attestation Requirements for Employers Using Nonimmigrants on H-1B1 Visas in Specialty Occupations

1. The authority citation for part 655, Subpart H continues to read as follows:

8 U.S.C. 1101(a)(15)(H)(i)(b) and (b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Public Law 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), Public Law 105-277, 112 Stat. 2681; and 8 CFR 214.2(h).

2. Amend § 655.731 by adding paragraph (a)(2)(ii)(C) to read as follows:

§ 655.731

What is the first LCA requirement, regarding wages?

(a) * * *

(2) * * *

(ii) * * *

(C) Another legitimate source of wage information. The employer may rely on other legitimate sources of wage data to obtain the prevailing wage. The other legitimate source survey must meet all the criteria set forth in paragraph (b)(3)(iii)(C) of this section. The employer will be required to demonstrate the legitimacy of the wage in the event of an investigation.

* * * * *

Signed in Washington, DC, this 28th day of August 2009.

Jane Oates,

Assistant Secretary, Employment and Training Administration.