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DHS and DOL issue direct final rule extending DOL discretionary review to H-2B temporary labor certification cases

  1. Original Date Announced

    January 4, 2021

    DHS and DOL issue both a direct final rule and a proposed rule that extend the Secretary of Labor's discretionary review to H-2B temporary labor certification cases pending before and decided by the Board of Alien Labor Certification Appeals and the Department of Labor’s Administrative Review Board. The direct final rule will take effect on February 3, 2021 "unless significant adverse comment is submitted by January 19, 2021." The text of the proposed rule is identical to the direct final rule. If significant adverse comments are submitted, the direct final rule will be withdrawn and the comments will be treated as submissions in response to the proposed rule.

    [ID# 1260]

    Discretionary Review by the Secretary of Labor NPRM: Discretionary Review by the Secretary of Labor
  2. Effective Date

    February 3, 2021
  3.  
  4. Biden Administration Action: Revoked/Replaced

    February 3, 2021

    Withdrawal of Rule on Discretionary Review by Labor Secretary

    This Biden Administration policy withdraws the direct final rule element of the Trump-era policy identified in this entry.

    On February 3, 2021, DHS and DOL announced withdrawal of the direct final rule that would have extended this discretionary review to H-2B cases before BALCA. This withdrawal does not affect the companion proposed rule that provides the procedural framework to finalize the rule.

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  5. Biden Administration Action: Under Study

    June 14, 2021

    Amended Rules Concerning Discretionary Review by the Secretary of Labor

    This notice made known the Biden administration's intention to seek public comment on a proposal to extend the Trump-era policy identified in this entry.

    DHS and DOL indicate in the Unified Agenda an intention to jointly issue a NPRM to seek comments on a proposal to apply DOL’s recently established system of discretionary Secretary of Labor review to H-2B temporary labor certification cases (H-2B cases) pending before or decided by BALCA, and to make technical, conforming changes to regulations governing the timing and finality of those decisions and of decisions from the DOL’s Administrative Review Board in H-2B cases.

    View Document

Current Status

Not in effect
February 3, 2021
Acted on by Biden Administration
June 14, 2021
Acted on by Biden Administration

Original Trump Policy Status

Trump Administration Action: Rule
Agencies Affected: DHS DOL

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