The application forms and other information requirements are necessary to the collection of information from U.S. employers wishing to hire foreign workers for temporary and permanent employment under the H-2A, H-2B, H-1B (including H-1B1 and E3), and PERM programs. The information collected is used by the Secretary of Labor to make the necessary certification in compliance with the Immigration and Nationality Act as amended.
On April 8, 2012, OMB approved changes to this Information Collection in conjunction with recent rulemaking resulting in a final rule published on February 21, 2012 (the 2012 H-2B Final Rule) (77 FR 10038). However, a lawsuit was brought in Federal court in the Northern District of Florida, Pensacola Division, against the Department and an order is expected to be issued by the court enjoining the Department from implementing the 2012 H-2B Final Rule. (Bayou Lawn & Landscape Services, et al. v. Hilda L. Solis, et al., 12-cv-00183-RV-CJK). This requires the Department to revert back to the information collection instruments used in this collection prior to this most recent H-2B rulemaking. Specifically, ETA Form 9155, H-2B Registration, is no longer needed. ETA Form 9142 and Appendix B.1 must revert back to the specific information collected before the H-2B Final Rule. The combination of 1205-0404 and 1205-0466 will now be divided again into two separate ICs as it was in the past. (To ensure the public is fully aware of the intent to combine Control Numbers 1205-0466 and 1205-0404, the agency will publish a Federal Register Notice to seek comments on the merger that specifically identifies each Control Number.) ETA Form 9141 also reverts back to the information collection before the H-2B Final Rule. The Appendix A.1 to ETA Form 9142 was removed from the DepartmentÂs August 19, 2009 ICR and continues to be obsolete. As a result, DOL is asking for this emergency revision to use the former 1205-0466 instrument, except as otherwise noted. The reason the forms must revert back to those in effect prior to the rulemaking is because the attestations that an employer using the H-2B program must make, which are listed in Appendix B.1, have changed substantially and the Department cannot require employers to make attestations that are not required by the current regulations, which will remain in effect if the rule is enjoined.
The changes reflected in this ICR are attributed to the reversion back to the 2008 H-2B Final Rule. This Information Collection Request (ICR) most recently contained the burden and cost estimates for the 2012 H-2B Final Rule. However, a Federal court in the Northern District of Florida, Pensacola Division, is expected to enjoin the Department from implementing the 2012 H-2B Final Rule. The changes in the number of responses and burden hours in H-2B IC result from the reversion back to the old requirements under the 2008 regulations. Current estimates are based on the annual average of actual applications received over the course of three years.
On behalf of this Federal agency, I certify that the collection of information encompassed by this request complies with 5 CFR 1320.9 and the related provisions of 5 CFR 1320.8(b)(3).
The following is a summary of the topics, regarding the proposed collection of information, that the certification covers:
(i) Why the information is being collected;
(ii) Use of information;
(iii) Burden estimate;
(iv) Nature of response (voluntary, required for a benefit, or mandatory);
(v) Nature and extent of confidentiality; and
(vi) Need to display currently valid OMB control number;
If you are unable to certify compliance with any of these provisions, identify the item by leaving the box unchecked and explain the reason in the Supporting Statement.
Form ETA Form 9142 H-2A Rulemaking
emergency justification memo final.doc
H-2B Rulemaking