On May 13, 2004, the Employment and Training Administration of the Department of Labor (DOL) published a notice in the Federal Register providing guidance on H-2B applications for fiscal year 2005.  The procedures described in the notice apply to H-2B applications filed with the DOL on or after June 1, 2004 for workers subject to the H-2B cap for FY 2005 who will be performing temporary work commencing on or after October 1, 2004.

An employer who plans to employ an H-2B worker with a start date of October 1, 2004, must file a new ETA 750, Part A, Application for Alien Employment with the U.S. Department of Labor (DOL) on or after June 1, 2004.  The employer must also conduct a new test of the labor market through the placement of advertisements.  This procedure applies to those employers who could not use a currently approved labor certification due to the H-2B program cap being reached for FY 2004.  Current DOL policy requires employers to file their H-2B application no more than 120 days before the worker is needed in order to ensure that the labor market test is reasonably current.

The DOL provides an example in the Federal Register of employers who filed applications with the DOL after March 10, 2004, and were not approved by USCIS due to the H-2B cap being reached.  These employers need to file new applications with the DOL on or after June 1, 2004 if the employer needs the workers to start on or after October 1, 2004.