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, 29942-29975 [E8-11214]

Agencies

• Employment and Training Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 73, Number 100 (Thursday, May 22, 2008)]
[Proposed Rules]
[Pages 29942-29975]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-11214]



[[Page 29941]]

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Part V





Department of Labor





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 Employment and Training Administration



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20 CFR Parts 655 and 656



 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; Proposed 
Rule

Federal Register / Vol. 73, No. 100 / Thursday, May 22, 2008 / 
Proposed Rules

[[Page 29942]]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Parts 655 and 656

RIN 1205-AB54


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

AGENCY: Employment and Training Administration, Labor, in concurrence 
with the Wage and Hour Division, Employment Standards Administration, 
Labor.

ACTION: Proposed rule; request for comments.

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SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (DOL or the Department) are proposing changes to 
modernize procedures for the issuance of labor certifications issued in 
connection with H-2B nonimmigrants admitted to perform temporary 
nonagricultural labor or services, and procedures to enforce compliance 
with attestations made by sponsoring employers. Specifically, the 
proposed rule re-engineers the application filing and review process by 
centralizing processing and by enabling employers to conduct pre-filing 
United States (U.S.) worker recruitment activities. In addition, the 
proposed rule makes changes that will enhance the integrity of the 
program through the introduction of post-adjudication audits and 
procedures for penalizing employers who fail to meet the requirements 
of the H-2B Program. In addition, through this proposed rule technical 
changes are being made to both the H-1B and the permanent labor 
certification regulations to reflect operational changes stemming from 
this regulation. Finally, although Congress has vested the Department 
of Homeland Security (DHS) with the statutory authority to enforce the 
H-2B Program requirements and the Department possesses no independent 
authority for such enforcement, this proposed rule describes potential 
H-2B enforcement procedures the Department could institute in the event 
that DHS and the Department work out a mutually agreeable delegation of 
enforcement authority from DHS to the Department.

DATES: Interested persons are invited to submit written comments on the 
proposed rule. Such comments must be received on or before July 7, 
2008. Interested persons are invited to submit comments on the proposed 
forms mentioned herein; such comments must be received on or before 
July 21, 2008.

ADDRESSES: You may submit comments, identified by Regulatory 
Information Number (RIN) 1205-AB54, by only one of the following 
methods only:
     Federal e-Rulemaking Portal www.regulations.gov. Follow 
the Web site instructions for submitting comments.
     Mail/Hand Delivery/Courier: Please address all written 
comments (including disk and CD-ROM submissions) to Thomas Dowd, 
Administrator, Office of Policy Development and Research, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Room N-5641, 
Washington, DC 20210.
    Please submit your comments by only one method. The Department will 
post all comments received on https://www.regulations.gov without making 
any change to the comments, including any personal information 
provided. The https://www.regulations.gov Web site is the Federal e-
rulemaking portal and all comments posted there will be available and 
accessible to the public. The Department cautions commenters not to 
include their personal information such as Social Security Numbers, 
personal addresses, telephone numbers, and e-mail addresses in their 
comments as such submitted information will become viewable by the 
public via the https://www.regulations.gov Web site. It is the 
responsibility of the commenter to safeguard his or her information. 
Comments submitted through https://www.regulations.gov will not include 
the commenter's e-mail address unless the commenter chooses to include 
that information as part of his or her comment.
    Postal delivery in Washington, DC, may be delayed due to security 
concerns. Therefore, the Department encourages the public to submit 
comments via the Web site indicated above.
    Docket: For access to the docket to read background documents or 
comments received, go the Federal eRulemaking portal at https://
www.regulations.gov. The Department will also make all the comments it 
receives available for public inspection during normal business hours 
at the Office of Policy Development and Research at the above address. 
If you need assistance to review the comments, the Department will 
provide you with appropriate aids such as readers or print magnifiers. 
The Department will make copies of the rule available, upon request, in 
large print and as electronic file on computer disk. The Department 
will consider providing the proposed rule in other formats upon 
request. To schedule an appointment to review the comments and/or 
obtain the rule in an alternate format, contact the Office of Policy 
Development and Research at (202) 693-3700 (VOICE) (this is not a toll-
free number) or 1-877-889-5627 (TTY/TDD).

FOR FURTHER INFORMATION CONTACT: For information on the H-2B labor 
certification process proposed in 20 CFR 655.1 to 655.35 contact 
Sherril Hurd, Acting Team Leader, Regulations Unit, Employment and 
Training, Administration (ETA), U.S. Department of Labor, 200 
Constitution Avenue, NW., Room N-5641, Washington, DC 20210; Telephone 
(202) 693-3700 (this is not a toll-free number).
    For information on the H-2B enforcement process proposed in 20 CFR 
655.50 to 655.80 contact Michael Ginley, Office of Enforcement Policy, 
Wage and Hour Division, Employment Standards Administration, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Room S-3502, 
Washington, DC 20210. Telephone (202) 693-0745 (this is not a toll-free 
number).
    Individuals with hearing or speech impairments may access the 
telephone number above via TTY by calling the toll-free Federal 
Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: 

I. Background

A. Statutory Standard and Current Department of Labor Regulations

    Section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act 
(INA or the Act) defines an H-2B worker as a nonimmigrant admitted to 
the U.S. on a temporary basis to perform temporary nonagricultural 
labor or services. 8 U.S.C. 1101(a)(15)(H)(ii)(b). The Department's 
role in the H-2B visa program stems from its obligation, outlined in 
the statute and the regulations of DHS, to certify--upon application 
and sufficient demonstration by a U.S. employer intending to petition 
DHS to allow it to hire H-2B workers--that there are not enough able 
and qualified U.S. workers available for the position sought to be 
filled and that the employment of the foreign worker(s) will not 
adversely affect the wages and working conditions of similarly employed 
U.S. workers. 8 U.S.C. 1101(a)(15)(H)(ii)(b); 8 U.S.C. 1184(c)(1); see 
also 8 CFR 214.2(h)(6).
    Section 214(c)(1) of the INA requires DHS to consult with 
appropriate

[[Page 29943]]

agencies of the Government before granting any H-2B visa petition 
submitted by an employer. 8 U.S.C. 1184(c)(1). The DHS regulations for 
the U.S. Citizenship and Immigration Services (USCIS), the agency in 
DHS charged with the adjudication of immigration benefits such as H-2B 
petitions, currently require, at 8 CFR 214.2(h)(6), that the intending 
employer (other than in the Territory of Guam) first apply for a 
temporary labor certification from the Secretary of Labor (the 
Secretary) advising USCIS whether U.S. workers capable of performing 
the services or labor are available, and whether the employment of the 
foreign worker(s) will adversely affect the wages and working 
conditions of similarly employed U.S. workers.
    The Department's role in the H-2B process is currently advisory to 
DHS. 8 CFR 214.2(h)(6)(iii)(A). The INA and DHS regulations govern the 
H-2B petition process and set the broad parameters for labor 
certification pursuant to which the Department issues its own H-2B 
regulations and guidance. DHS H-2B regulations provide that an employer 
may not file a petition with DHS for an H-2B temporary worker unless it 
has received a labor certification from the Department (or the Governor 
of Guam, as appropriate), or received a notice from either that a 
certification cannot be issued. 8 CFR 214.2(h)(6)(iii)(C), (iv)(A), 
(vi)(A).
    Currently, DOL regulations at 20 CFR Part 655, Subpart A, ``Labor 
Certification Process for Temporary Employment in Occupations other 
than Agriculture, Logging or Registered Nursing in the United States 
(H-2B Workers),'' govern the H-2B labor certification. Applications 
received by the Office of Foreign Labor Certification (OFLC) in the 
Department's ETA, the office to which the Secretary has delegated her 
advisory responsibilities described in the DHS H-2B regulations, are 
processed first through the State Workforce Agency (SWA) having 
jurisdiction over the area of intended employment.\1\ The SWAs review 
the application and job offer, compare the wage offer against the 
prevailing wage for the position, supervise U.S. worker recruitment, 
and forward the completed applications to OFLC for further review and 
final determination.
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    \1\ The SWAs comprise agencies of State Government that receive 
Federal Workforce Investment Act (WIA), Wagner-Peyser Act, and other 
funds to administer our nation's one-stop career system and, through 
those grants, perform certain activities on behalf of the Federal 
Government, such as administration of the job clearance system. With 
respect to this NPRM, they currently accept applications by 
employers for processing prior to their transmittal to the 
Department.
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    To obtain a temporary labor certification, the employer must 
demonstrate their need for the temporary services or labor meets one of 
the regulatory standards of (1) a one-time occurrence, (2) a seasonal 
need, (3) a peakload need, or (4) an intermittent need. 8 CFR 
214.2(h)(6)(ii)(B). The employer or its authorized representative must 
submit to the SWA a detailed statement of temporary need and supporting 
documentation with the application for H-2B labor certification. Such 
documentation provides a description of the employer's business 
activities and schedule of operations throughout the year, explains why 
the job opportunity and the number of workers requested reflects its 
temporary need, and demonstrates how the employer's need meets one of 
these four regulatory ``need'' standards. The petitioning employer must 
also establish that the temporary position is full-time, and the period 
of need is less than three years (although a labor market test and 
certification must be obtained each year).
    Additionally, the requesting employer must adequately test the U.S. 
labor market to determine if a qualified U.S. worker is available for 
the position. In order to ensure an adequate test of the labor market, 
the employer must offer and subsequently pay for the entire period of 
employment a wage that is equal to or higher than the prevailing wage 
for the occupation at the skill level and in the area of intended 
employment, and provide terms and conditions of employment that are not 
less favorable than those offered to the foreign worker(s) or otherwise 
inhibit the effective recruitment and consideration of U.S. workers for 
the job.
    Historically, the Department's review and adjudication took place 
through ETA's Regional Offices. However, in December 2004, the 
Department opened two new National Processing Centers (NPCs), one each 
located in Atlanta, Georgia, and Chicago, Illinois, to centralize 
processing of permanent and temporary foreign labor certification cases 
at the Federal level. The Department published a notice in the Federal 
Register at 70 FR 41430 (Jul. 19, 2005), clarifying that employers 
seeking H-2B certifications must file two originals of Form ETA 750, 
Part A, directly with the SWA serving the area of intended employment. 
Once the application is reviewed by the SWA and after the employer 
conducts its required recruitment, the SWA sends the complete 
application to the appropriate NPC. The NPC Certifying Officer (CO), on 
behalf of the Secretary, either issues a labor certification for 
temporary employment under the H-2B Program, denies the certification, 
or issues a notice that such certification cannot be made.
    Currently, the Department has no enforcement authority or process 
to ensure H-2B workers are employed in compliance with the H-2B 
certification requirements. Congress vested DHS with that enforcement 
authority in 2005. 8 U.S.C. 1184, Public Law 109-13, 119 Stat. 231, 
318. As described more fully below, the Department in this NPRM 
proposes an H-2B regulatory enforcement regime in the event that the 
Department and DHS are able, pursuant to 8 U.S.C. 1184(c)(14)(B), to 
work out a mutually agreeable delegation of enforcement authority from 
DHS to the Department.

B. Earlier Efforts To Reform the H-2B Regulatory Process

    On January 27, 2005, DHS and the Department issued companion NPRMs 
to significantly alter H-2B procedures. 70 FR 3984, Jan. 27, 2005, 70 
FR 3993, Jan. 27, 2005. As proposed, combined changes to both sets of 
regulations would have eliminated in whole the Department's 
adjudicatory role, ending the current labor certification process for 
most H-2B occupations and permitting employers to submit labor-related 
attestations directly to USCIS as part of a revised Supplement 
accompanying the H-2B petition. The Department's proposed rule would 
have authorized the Department to conduct random or selected audits of 
labor attestations approved by USCIS and to recommend debarment of 
employers from participation in the H-2B Program upon findings of 
misrepresentation or violations of those attestations. The Department 
would have established a new audit and debarment process at the 
Department, and USCIS would have established its own procedures to 
debar employers based on independent information. DHS regulations, as 
proposed in 2005, also would have required filing directly by 
employers, disallowing the filing of H-2B petitions by agents. Id.
    The two agencies received numerous comments on the joint NPRMs. 
Most commenters opposed the proposals to move the program to a USCIS-
based attestation system and to eliminate the Department's role in 
reviewing the need of employers and the recruitment of U.S. workers 
except in the context of a post-adjudication audit. These concerns 
focused in part on the loss of the Department's experience in 
adjudicating

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issues of temporary need and the potential adverse impact on U.S. 
workers. Based on the significant concerns posed in these comments, and 
after further deliberation within each agency, the Department and DHS 
have not pursued their original proposal to streamline the program in 
the manner suggested by the two companion NPRMs. Consequently, that 
NPRM published by the Department on January 27, 2005 (RIN 1205-AB36) 
was withdrawn in the Department of Labor Fall 2007 Regulatory Agenda. 
See https://www.reginfo.gov/public/do/eAgendaViewRule?ruleID=221117.
    The Department has, however, continued to closely review its H-2B 
Program procedures in order to determine appropriate revisions to the 
H-2B labor certification process. This ongoing and systematic review 
has been accelerated in light of considerable workload increases for 
both the Department and the SWAs (an approximate 30 percent increase in 
applications in Fiscal Year (FY) 2007 over those received in FY 2006, 
and a comparable number during the first half of FY 2008) and limited 
appropriations. On April 4, 2007, ETA issued Training and Employment 
Guidance Letter (TEGL) No. 21-06, published in the Federal Register, 
Apr. 20, 2007, 72 FR 19961, to replace its previous guidance for the 
processing of H-2B applications (General Administration Letter No. 1-
95, 60 FR 7216, Feb. 7, 1995) and updated procedures for SWAs and NPCs 
to use in the processing of temporary labor certification applications. 
The Department then held national briefing sessions in Chicago and 
Atlanta on May 1 and May 4, 2007, respectively, to inform employers and 
other stakeholders of the updated processing guidance contained in TEGL 
21-06. Attendees at those briefing sessions raised important questions 
and concerns with regard to the effective implementation of TEGL 21-06 
by the SWAs and NPCs. In response to the substantive concerns raised, 
the Department further refined the process of reviewing applications in 
TEGL 27-06 (June 12, 2007) providing special procedures for dealing 
with forestry related occupations, and TEGL No. 21-06, Change 1 (June 
25, 2007) updating procedures by allowing the NPC CO to request 
additional information from employers to facilitate the processing of 
applications. 72 FR 36501, Jul. 3, 2007; 72 FR 38621, Jul. 13, 2007. 
Issues that were not addressed by these refinements, including those 
requiring regulatory changes, namely issues of increasing workload and 
processing delays, remain of concern to the Department.

C. Current Process Involving Temporary Labor Certifications and the 
Need for a Redesigned System

    The process for obtaining a temporary labor certification has been 
described to the Department as complicated, time-consuming, 
inefficient, and dependent upon the expenditure of considerable 
resources by employers. In the H-2B Program, and particularly in recent 
years, the sequential process for filing a temporary labor 
certification first at the SWA, which reviews the application, compares 
the wage offer to the prevailing wage for the occupation, oversees the 
recruitment of U.S. workers, and then transfers the application to the 
applicable ETA NPC, has been criticized for its length, overlap of 
effort, and resulting delays. Application processing delays, regardless 
of origin, can lead to adverse results with serious repercussions for a 
business, especially given the cap on visas under this program, where 
any delay may prevent an employer from obtaining H-2B workers that 
year. This occurs because employer demand for the limited number of 
visas greatly exceeds their supply and all visas are typically 
allocated in the early weeks of availability. See 8 U.S.C. 
1184(g)(1)(B) (setting H-2B annual visa cap at 66,000).
    In addition, the Department's increasing workload poses a growing 
challenge to efficient and timely processing of applications. The H-2B 
foreign labor certification program continues to increase in popularity 
among employers. While the annual number of visas available is limited 
by statute, the number of certifications is not. The number of H-2B 
labor certification applications has increased 129 percent since FY 
2000. In FY 2007, the Department experienced a nearly 30 percent 
increase in H-2B temporary labor certification application filings over 
the previous fiscal year. The INA does not authorize the Department to 
charge a fee to employers for processing H-2B applications \2\. At the 
same time, appropriated funds have not kept pace with the increased 
workload at the State or Federal level. This has resulted in 
disparities in processing rates--some significant--among SWAs receiving 
the initial H-2B employer applications. Some observers have noted these 
disparities among States unfairly advantage one set of employers (those 
in which the SWAs are able to timely process applications) over others 
(those in which SWAs experience delays because of backlogs, inadequate 
staffing or funding, or for other reasons).\3\
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    \2\ The Department will be transmitting draft legislation to 
Congress that would amend the INA to provide the Department with 
authority to charge and retain a fee to recoup the costs of 
administering the H-2B program.
    \3\ The growth in the number of applications is explained in 
part by the increasing desire of employers for a legal temporary 
workforce and by legislation that permitted greater numbers of H-2B 
workers into the U.S. by exempting from the 66,000 annual cap any H-
2B worker who had been counted against the numerical cap in previous 
years. See, e.g., Save Our Small and Seasonal Businesses Act of 2005 
(SOSSBA), Public Law 109-13, Div. B, Title IV, 119 Stat. 318 (May 
11, 2005); see also Public Law 108-287 Sec.  14006, 118 Stat 951, 
1014 (August 6, 2004) (exempting some fish roe occupations from the 
cap).
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    In light of these recurring experiences, the Department is 
proposing several significant measures to re-engineer our 
administration of the program. These changes do not alter, in any 
substantive way, the current obligations and requirements of employers 
who file an application for H-2B. Rather, these proposals are designed 
to improve the process by which employers obtain labor certification in 
areas where our program experience has demonstrated that such 
efficiencies will not impair the integrity of the process or the 
Department's role in protecting the job opportunities and wages of U.S. 
workers. These proposals will also provide greater accountability for 
employers through penalties, up to and including debarment, to further 
protect against program abuse.
    The redesigned process will require employers to complete 
recruitment steps similar to those now required, but will enable them 
to do so prior to filing the application for labor certification. Once 
the recruitment is complete, the paper application will be submitted 
directly to ETA instead of being filed with a SWA. To appropriately 
test the labor market, employers will be required to first obtain a 
prevailing wage rate from the appropriate NPC that will be used as the 
wage to be offered in the recruitment of U.S. and foreign workers. The 
employer will then follow recruitment steps similar to those required 
under the current program. The employer will be required to attest to 
and enumerate its recruitment efforts, but need not submit the 
documentation supporting those efforts with its application. To ensure 
the integrity of the process, the employer will be expected to retain 
evidence of its recruitment, as well as other documentation specified 
in the regulations, for 5 years from the date of certification, and 
will be required to provide it in response to a request by the CO for 
additional information made

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either prior to certification or, in the event the application is 
selected for audit or for investigation by the Wage and Hour Division 
(WHD), after a determination on the application has been issued.
    Employers or their authorized representatives (attorneys or agents) 
will be required to submit applications by U.S. Mail using a new form 
designed to evidence the employer's compliance with the obligations of 
the H-2B Program. The application form will collect, in the form of 
attestations, information similar to that required by--and that in 
given cases may be exchanged with SWA or NPC staff as part of--the 
current H-2B labor certification process. As we modernize the process, 
these additional attestations will be required from the employer to 
ensure adherence to program requirements and firmly establish 
accountability. As with recruitment, employers will be required to keep 
records reflecting their compliance with all program requirements. 
Assuming an application is complete and therefore accepted by the NPC 
for processing, it will undergo substantive Federal review by the 
Department.
    In order to further protect the integrity of the program in light 
of the elimination of SWA oversight of recruitment, specific 
verification steps, such as verifying the employer's Federal Employer 
Identification Number (FEIN) to ensure the employer is a bona fide 
business entity, will be collected during processing to ensure the 
accuracy of the information supplied by the employer and the employer's 
compliance with program requirements. If an application does not appear 
to be approvable on its face but requires additional information in 
order to be adjudicated, the NPC will issue a Request for Further 
Information (RFI), a process the program already employs. After full 
Departmental review, an application will be certified or denied.
    The introduction of new post-adjudication audits will serve as both 
a quality control measure and as a means of ensuring program 
compliance, along with WHD investigations. Audits will be conducted on 
adjudicated applications that meet certain criteria, as well as on 
randomly-selected applications. In the event of an audit (or WHD 
investigation), employers will be required to provide information 
supporting the attestations made in the application. Failure to meet 
the required standards or to provide information in response to an 
audit (or investigation) may result in an adverse finding for the 
application in question, and that could lead either to Departmental 
supervised recruitment in future applications or WHD investigations or 
debarment from the program.\4\
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    \4\ Further sanctions may be imposed by DHS under 8 U.S.C. 
1184(c)(14):
    ``(14)(A) If the Secretary of Homeland Security finds, after 
notice and an opportunity for a hearing, a substantial failure to 
meet any of the conditions of the petition to admit or otherwise 
provide status to a nonimmigrant worker under section 
101(a)(15)(H)(ii)(b) or a willful misrepresentation of a material 
fact in such petition--
    ``(i) The Secretary of Homeland Security may, in addition to any 
other remedy authorized by law, impose such administrative remedies 
(including civil monetary penalties in an amount not to exceed 
$10,000 per violation) as the Secretary of Homeland Security 
determines to be appropriate; and
    ``(ii) the Secretary of Homeland Security may deny petitions 
filed with respect to that employer under section 204 or paragraph 
(1) of this subsection during a period of at least 1 year but not 
more than 5 years for aliens to be employed by the employer.
    ``(B) The Secretary of Homeland Security may delegate to the 
Secretary of Labor, with the agreement of the Secretary of Labor, 
any of the authority given to the Secretary of Homeland Security 
under subparagraph (A)(i).
    ``(C) In determining the level of penalties to be assessed under 
subparagraph (A), the highest penalties shall be reserved for 
willful failures to meet any of the conditions of the petition that 
involve harm to United States workers.
    ``(D) In this paragraph, the term `substantial failure' means 
the willful failure to comply with the requirements of this section 
that constitutes a significant deviation from the terms and 
conditions of a petition.''
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    The combination of modernized processing of applications, and 
replacement of the SWAs' current role in the recruitment and referral 
of U.S. workers with pre-filing recruitment by the employer and audits 
by the Department, should yield a considerable reduction in the overall 
average time needed to process H-2B labor certification applications. 
This process will reduce past processing times which have exceeded our 
historical 60-day combined State and Federal processing window 
timeframe.

D. Compliance Investigations and Remedies for Violations

    Finally, this NPRM outlines a process to impose remedies for 
violations in the event that the Department and DHS are able to work 
out a mutually agreeable delegation of enforcement authority. The INA 
and its implementing regulations provide the Department no direct 
authority to enforce any conditions concerning the employment of H-2B 
workers, including the prevailing wage attestation. Consequently, 
current DOL H-2B regulations provide no substantive protections to 
ensure that employers fulfill their obligations concerning the terms 
and conditions of employment once the H-2B workers are employed.
    Section 404 of Save Our Small and Seasonal Businesses Act of 2005, 
Public Law 109-13, 119 Stat. 231, 318, amended the INA to provide the 
Secretary of DHS with authority to impose certain sanctions when a 
sponsoring employer has been found, after notice and an opportunity for 
a hearing, to have committed ``a substantial failure to meet any of the 
conditions of the petition to admit or otherwise provide status to a 
nonimmigrant [H-2B] worker * * * or a willful misrepresentation of a 
material fact in such petition''. 8 U.S.C. 1184(c)(14)(A). When such 
violations are found, the Secretary of Homeland Security ``may, in 
addition to any other remedy authorized by law, impose such 
administrative remedies (including civil monetary penalties in an 
amount not to exceed $10,000 per violation) as the Secretary of DHS 
determines to be appropriate.'' Id. at 1184(c)(14)(A)(i). The statute 
provides that the ``highest penalties shall be reserved for willful 
failures to meet any of the conditions of the petition (which includes 
the labor certification) that involve harm to United States workers.'' 
Id. at 1184(c)(14)(C). In addition, the Secretary of DHS is authorized 
to ``deny petitions filed with respect to that employer under section 
1154 of this title or paragraph (1) of this subsection during a period 
of at least 1 year but not more than 5 years for aliens to be employed 
by the employer.'' Id. at 1184(c)(14)(A)(ii). These enforcement 
provisions became effective October 1, 2005.
    The authority given to the Secretary of DHS under 8 U.S.C. 
1184(c)(14)(A)(i) may be delegated to the Secretary of the Department, 
with the agreement of the Secretary of the Department. Id. at 
1184(c)(14)(B). In addition, the INA contains other authority for the 
Secretary of DHS to delegate these functions. Under 8 U.S.C. 1103(a)(1) 
and (a)(3) the Secretary of DHS is ``charged with the administration 
and enforcement of [INA] and all laws relating to the immigration and 
naturalization of aliens'' and is authorized to ``establish such 
regulations; prescribe such forms of bond, reports, entries, and other 
papers; issue such instructions; and perform such other acts as he 
deems necessary for carrying out his authority under the provisions of 
[INA].'' The Secretary of DHS ``is authorized to confer or impose upon 
any employee of the United States, with the consent of the head of the 
Department * * * under whose jurisdiction the employee is serving, any 
powers, privileges, or duties conferred or imposed by [the INA] or 
regulations issued thereunder upon officers or

[[Page 29946]]

employees of the Service.'' Id. at 1103(a)(6).
    Pursuant to authority in 8 U.S.C. 1103(a)(6) and 1184(c)(14)(B), 
the Department of Labor is currently in discussions with the Department 
of DHS regarding whether the two Departments can work out a mutually 
agreeable delegation of authority that would enable the Department to 
enforce the terms of an H-2B certification and petition. In the event 
such a delegation of authority can be worked out, the Department would 
like to be prepared to begin enforcement of the H-2B Program and 
accordingly this NPRM contains the Department's proposed regulations 
implementing the enforcement of employer's H-2B attestations, as well 
as the authority to impose appropriate sanctions. This NPRM proposes an 
enforcement process by which the Department will investigate employer 
compliance with H-2B attestations and impose remedies for violations 
that are found, if that delegation occurs.
    As noted above, section 214(c)(14)(A) of the INA uses broad 
language in providing authority to impose ``such administrative 
remedies (including civil money penalties in an amount not to exceed 
$10,000 per violation) as the Secretary of Homeland Security determines 
to be appropriate * * *.'' The Department is considering the scope of 
remedies that may be assessed under this H-2B provision of the INA in 
the event a delegation is issued. For instance, although the assessment 
of back wage liability for the failure to pay the appropriate wage is a 
common remedy in Federal statutes that protect the rights of workers, 
see, e.g., 29 U.S.C. 216 (Fair Labor Standards Act); 29 U.S.C. 1854(c) 
(Migrant and Seasonal Agricultural Worker Protection Act); 29 U.S.C. 
2617 (Family and Medical Leave Act), the H-2B statutory provisions do 
not provide explicit authority to require the payment of back wages. It 
may be argued that an explicit statutory delegation of authority to 
award back pay is unnecessary where back pay is required to enforce the 
statute as Congress intended. See Albemarle Paper Co. v. Moody, 422 
U.S. 405, 417-418 (1975) (back pay award consistent with purposes of, 
and a necessary component of remedy for violations of Title VII of the 
Civil Rights Act of 1964); United States v. Duquesne Light Co., 423 F. 
Supp. 507, 509 (W.D. Pa. 1976) (back pay appropriate remedy under 
Executive Order 11,246). On the other hand, the H-1B provisions of the 
INA contain language that is nearly identical to the language found in 
H-2B,\5\ and unlike the H-2B provisions, H-1B also contains explicit 
authorization for the assessment of back pay, Id. at 1182(n)(2)(D). It 
may be that where Congress intended the assessment of back wages under 
the INA, it said so explicitly and the lack of such explicit authority 
under the H-2B statute might preclude such an assessment. See Beverly 
Enterprises v. Herman, 119 F. Supp. 2d1 (D.D.C. 2000) (regulation 
requiring payment of prevailing wage in the absence of a statutory 
requirement found invalid). The Department solicits comments on the 
appropriateness of assessing back wages and other remedies under the H-
2B provisions.
---------------------------------------------------------------------------

    \5\ 8 U.S.C. 1182(n)(2)(C)(i)(I)(H-1B) (``the Secretary * * * 
may * * * impose such other administrative remedies (including civil 
monetary penalties in an amount not to exceed $1,000 per violation) 
as the Secretary determines to be appropriate * * *)
---------------------------------------------------------------------------

II. Proposed Redesign To Achieve a Modern Attestation-Based Program

A. Prevailing Wage Obtained Prior To Commencing Recruitment

    In order for the Secretary to be able to certify that U.S. workers 
would not be adversely affected by the employment of H-2B workers, an 
adequate test of the labor market must be conducted. Such a test must 
include the employer offering and paying a wage that is equal to or 
higher than the available position's prevailing wage, where the terms, 
duties and conditions of employment are normal and promote the 
effective recruitment and consideration of U.S. workers.
    For many years, the Department has required H-2B employers to 
submit their applications for certification to the SWAs. The SWA then 
filled in the applicable prevailing wage for the job opportunity. 
Department regulations at 20 CFR 656.40, which the Department applies 
to prevailing wage determinations (PWD) for occupations under its 
permanent and temporary non-agricultural foreign labor certification 
programs, instructs SWAs to apply wage rates from the Bureau of Labor 
Statistics (BLS), Occupational Employment Statistics (OES) Survey to 
determine the prevailing wage rate, unless superseded by a wage set by 
a collective bargaining agreement or other statute. The BLS OES Survey 
results of prevailing wages have for several years been available to 
the SWAs and the public on the Department's Web site at https://
www.foreignlaborcert.doleta.gov/. Under current regulations and the 
Department's prevailing wage guidance, SWAs may also accept employer-
provided alternatives from legitimate sources. See 20 CFR 656.40; see 
also Employment and Training Administration, Prevailing Wage 
Determination Policy Guidance, Nonagricultural Immigration Programs 
(May 9, 2005), at https://www.foreignlaborcert.doleta.gov/pdf/Policy_
Nonag_Progs.pdf.
    As part of the proposed reengineered process, employers will obtain 
the prevailing wage for the job opportunity directly from OFLC. The 
Department is proposing to allow employers to file prevailing wage 
requests no more than 90 days in advance of the recruitment process and 
to clarify the validity period for the wage determination. The OES 
database is updated annually for use in the foreign labor programs. 
Depending on the time of year that the PWD is obtained from the 
Department, relative to the date of the most recent update, the wage 
determination provided could be valid from several months up to 1 year.
    Our program experience indicates that by federalizing the 
prevailing wage application component we can institute a high level of 
efficiency and consistency in the determination and provision of 
prevailing wages which has been a past problem. This increased 
efficiency and consistency will help ensure more accurate wage 
determinations, which result in improved protections for U.S. workers. 
The Department is especially interested in comments from employers who 
have utilized the program in the past on the efficacy of this proposed 
action.
    The new system would federalize the issuance of prevailing wages, 
and delegate the authority for determining prevailing wage rates to the 
ETA NPCs. It is the Department's goal to eventually allow this activity 
to be performed electronically between the NPC and the employer. 
However, initially it will be a manual paper process.
    Shifting wage determination activities to NPC staff would reduce 
the risk of job misclassification because of centralized staff 
experience and consistency, thereby not only strengthening program 
integrity, but also ensuring consistency in classification across 
States, resulting in improved protections for U.S. workers. Until the 
new process can be implemented, the SWAs would continue to be 
responsible for providing prevailing wage determinations (PWDs).
    The Department has received numerous reports that in cases where 
job descriptions are complex and contain more than one different and 
definable job opportunity, some SWAs have made inconsistent 
classifications, thereby resulting in inconsistent PWDs.

[[Page 29947]]

Furthermore, where H-2B workers need to work in several different 
geographic areas which may be in the jurisdiction of several different 
SWAs (examples include the New York, New Jersey, Connecticut ``Tri-
state Region'' or the Washington, DC-Maryland-Virginia metropolitan 
area), questions have arisen about where to file a prevailing wage 
request and how that wage should be determined. Utilizing the 
federalized system discussed above would alleviate such confusion.
    For consistency and greater efficiency across non-agricultural 
programs, the Department is proposing extending this new wage request 
processing model to the permanent labor certification program, as well 
as to the attestations required under the H-1B, H-1B1 and E-3 specialty 
occupation nonimmigrant programs. The new process will in no way alter 
the substantive requirements of foreign labor certification programs, 
and we anticipate that, at least in the foreseeable future, the 
methodology for determining an appropriate non-agricultural wage rate 
will remain much the same as it stands today; our intent is simply to 
modernize, centralize, and make more consistent the mechanics and 
analysis behind wage determination. Much as the SWAs do now, the NPCs 
will evaluate the particulars of the employer's job offer, such as the 
job duties and requirements for the position and the geographic area in 
which the job is located, to arrive at the correct PWD. In the near 
term, the Department will update and formalize its guidance for making 
prevailing wage determinations to confirm existing procedures. As our 
program experience administering the PWD process grows, the Department 
may revise its guidance to reflect improved processes or methodology.
    To implement and standardize the new process, ETA has developed a 
new Prevailing Wage Determination Request (PWDR) form employers can use 
to make their respective requests regardless of program or job 
classification. The Department is considering means by which 
eventually--resources permitting--such a request could be submitted, 
and a prevailing wage provided, electronically.
    For purposes of the permanent labor certification (PERM) program, 
the regulations at 20 CFR part 656 will be amended to reflect the 
transfer of prevailing wage determination functions from the SWAs to 
the NPCs. Currently, Department regulations governing permanent labor 
certification require an employer to obtain a PWD from the SWA before 
filing a labor certification application with the Department or an I-
140 immigrant worker petition with DHS under Schedule A or for 
sheepherders. In addition to technical changes required in part 656--
for example, we propose to change the definitions of ``prevailing wage 
determination'' and ``State Workforce Agency'' under Sec.  656.3--
Subpart D, ``Determination of Prevailing Wage'', to require that 
employers now seek a PWD directly from the NPC with jurisdiction over 
the area of intended employment and with which they will be filing 
their permanent labor certification application.
    For purposes of the H-1B Program, the regulations at 20 CFR part 
655 will be amended to reflect the transfer of PWD functions from the 
SWAs to the NPCs. Department regulations covering the H-1B Program (and 
by extension and reference both H-1B1 and E-3, which both utilize the 
filing and approval of a Labor Condition Application, or LCA) permit an 
employer to obtain a PWD from the SWA before filing an LCA with the 
Department in order to obtain a ``safe harbor'' from a determination of 
the validity of the prevailing wage. This proposal requires technical 
changes to Sec.  655.731(a)(2) to permit employers to utilize a 
prevailing wage obtained from the NPC rather than the SWA. These 
changes would enable employers to seek a PWD directly from the NPC with 
jurisdiction over the area of intended employment and with which they 
will be filing their Labor Condition Application.
    Under the new process, for purposes of H-2B job classifications, 
NPC staff will follow the requirements outlined under proposed 
Sec. Sec.  655.10 and 655.11 when reviewing each position and 
determining the appropriate wage rate. These new regulatory sections 
are consistent with existing regulations at 20 CFR 656.40 and the 
Department's May 2005 Prevailing Wage Determination Policy Guidance, 
Nonagricultural Immigration Programs, but would supersede current 
regulations and guidance for the H-2B Program to the extent there are 
any perceived inconsistencies.
    In those cases where a job opportunity involves multiple worksites 
in an area of intended employment and crosses multiple counties or 
States and different prevailing wage rates exist because the worksites 
are located in different Metropolitan Statistical Areas (MSA), the NPC 
will analyze the different prevailing wage rates and determine the 
appropriate wage as the highest wage rate among all applicable MSAs. In 
these cases, the employer will not pay different wage rates depending 
on the location of the work. The U.S. worker and the foreign worker are 
both entitled to know and rely on the wage to be paid for the entire 
period of temporary employment, and that wage will be the highest among 
the application wages for the various locations of work.
    The NPRM continues the Department's policy of permitting employers 
to provide an independent wage survey under certain guidelines 
delineated in the proposed rule. It also continues to provide for an 
appeal process in the event of a dispute over the applicable prevailing 
wage (but makes that process easier to use).
    The Department welcomes comments, especially from potential users 
of the system, on the proposals being presented. We are particularly 
interested in comments regarding the required use of an online 
prevailing wage system and form for interaction with the NPC.

B. Direct Filing With the NPC

    Under the NPRM, the Department will continue to administer the 
application process for H-2B temporary foreign labor certification. 
However, the Department proposes to eliminate the role of the SWAs in 
accepting and reviewing H-2B applications, overseeing recruitment, and 
forwarding completed applications to the appropriate NPC. Instead, as 
with the permanent labor certification process, the employer will file 
applications directly with the Chicago NPC, as the Department will be 
specializing its two centers effective June 1, 2008. However, each 
employer will still be required to place a job order with the 
appropriate SWA as part of the pre-filing recruitment, and we expect 
SWAs will continue to place H-2B associated job orders in their 
respective Employment Service systems.
    This re-engineered filing process should reduce the time it takes 
to process each application to conclusion. Under the current H-2B 
process, employers initially file with the appropriate SWA, which 
subsequently reviews the application, determines the prevailing wage, 
and authorizes the employer to undertake recruitment of U.S. workers. 
The SWA also places a job order in its Employment Service system and 
makes referrals of interested U.S. workers to the employer. The SWA 
receives the recruitment report and reviews it, forwarding the 
completed application on to the NPC with an adjudication 
recommendation. This last process of review is then duplicated at the 
Federal level.

[[Page 29948]]

    Given these current multiple levels of Government review, any 
delays early in the process can have a ripple effect resulting in 
delays at the NPCs. For example, due to differing and increasing 
workload levels, local filing cycles, and declining resources, SWAs 
vary considerably in the amount of time required, to review 
applications, tell employers to initiate recruitment, review 
recruitment results and, finally, forward the application to the NPC. 
Consequently, the State (or even SWA jurisdiction) in which an 
application is filed can significantly impact the application's 
processing time. Employers can be disadvantaged through no fault of 
their own simply based on their location, depending upon a SWA's 
workload and available resources.
    The disparity between demand for program services and processing 
resources has increased in recent years, sometimes significantly, the 
amount of time required to process even the most basic of applications. 
In FY 2007, the average processing time for the SWA portion of an H-2B 
labor certification application was 64 days, as compared to an average 
of 31 days at the NPC level. As our recent program experience shows, 
these delays have serious repercussions at the Federal level. The NPCs 
must attempt to compensate for State delays by borrowing staff from 
other non-H-2B processing activities. Shifting these finite resources 
has created new backlogs in one or more of the other labor 
certification programs. This is exacerbated by statutorily-mandated 
processing times in some of the other programs.
    By focusing the SWAs' role in the initial stages of processing H-2B 
labor certification applications to the placement of job orders and 
handling referrals, the Department anticipates being able to sustain 
the processing of all applications on a first-in, first-out basis and 
more effectively and efficiently oversee the adjudication of 
applications. As a result of this proposed modernized and more 
efficient application procedure, processing times will be significantly 
more uniform across work locations.
    We expect that the time savings gained from a process that removes 
duplicative functions and ensures adjudication by the NPC will improve 
the total time an employer must wait to obtain a labor certification 
from the Federal Government. Moreover, the Department's centralization 
of application review in its NPCs will permit greater consistency of 
adjudication with respect to substantive issues. All major 
determinations made as part of the certification process will be 
consolidated from 53 agencies in the States and territories (except 
Guam) to one federally-run NPC, thereby gaining efficiency of scale and 
greater uniformity and accountability in training adjudicators and for 
consistently applying relevant law and policy.

C. Employer Conducted Pre-Filing Recruitment

    This NPRM proposes, under new Sec.  655.15, that employers be 
required to conduct recruitment for U.S. workers prior to filing the 
new form currently in development, to be styled on the Application for 
Temporary Employment Certification. The purpose of the recruitment 
process is to fulfill the Department's obligation to ensure an adequate 
test of the availability of qualified U.S. workers to perform the work 
and to ensure foreign workers are not employed under conditions that 
adversely affect the wages and working conditions of similarly employed 
U.S. workers. Employers will continue to be required to test the labor 
market for qualified U.S. workers, at prevailing wages and working 
conditions, no more than 120 days before the date the work must begin 
(``date of need''), thus ensuring these jobs are made available, with 
notice, to the U.S. workers who are most likely to qualify.
    The Department further proposes that prevailing wages be obtained 
from the NPC in advance of recruitment. The NPCs will issue prevailing 
wages valid for the duration of the described need up to 1 year. The 
employer will be obligated to ensure that the prevailing wage is valid 
upon commencement of recruitment or on the date it files the 
application with the Chicago NPC and that the appropriate wage is 
listed in all recruitment documents. Obtaining the prevailing wage in 
advance of initiating recruitment will help enable employers to begin 
their recruitment obligations in a timely manner and will ensure that 
the job is advertised and offered to U.S. workers at the appropriate 
wage.
    U.S. worker recruitment will continue to consist of prescribed 
steps designed to reflect what the Department has determined, based on 
program experience, are most appropriate to the occupations that are 
the usual subjects of H-2B applications. These steps, which are 
discussed in more detail below, will include the placement of a job 
order with the SWA serving the area of intended employment; the 
placement of three advertisements, one of which must be on a Sunday, in 
the newspaper most appropriate for the occupation and most likely to 
reach the U.S. workers who would apply and qualify for the job 
opportunity; and preparation of a recruitment report outlining the 
results of the recruitment to be submitted with the application. If the 
employer determines in good faith that use of a professional, trade or 
ethnic publication is more appropriate to the occupation, that 
qualified workers likely to apply for the job opportunity would be more 
likely to read that publication than a newspaper of general 
circulation, and that it is the most likely source to bring responses 
from qualified and available U.S. workers, the employer may use such a 
publication in place of two of the daily (but not Sunday) 
advertisements. This option would offer employers greater flexibility 
in meeting recruitment requirements for those jobs that are 
traditionally advertised in professional or trade journals 
(particularly for those unionized jobs for which publications are most 
likely to exist). In addition, in circumstances where it is appropriate 
for the occupation and customary to the industry, the use of union 
organizations as a recruitment source will continue to be required. 
Employers will have to attest under penalty of perjury that (1) they 
did, in fact, attempt to recruit U.S. workers in the manner described 
above, and (2) any potentially qualified U.S. workers that applied were 
rejected because in fact they were not qualified or for other lawful, 
job-related reasons.
    These steps are very similar to those currently required under the 
current H-2B Program. The rule maintains the requirement that employers 
must conduct recruitment and consider potential U.S. workers. By having 
employers engage in these steps under their own direction rather than 
the SWA's, and by having the employer forward their recruitment report 
to the Department for review, we expect to improve application 
processing and consistency while ensuring protections for U.S. workers. 
Maintaining the Department's current requirement that recruitment take 
place no more than 120 days before the date of need continues to ensure 
jobs are advertised to U.S. workers with adequate notice given the 
temporary nature of the employment.
    Employer recruitment efforts must be documented and preserved for 
production to the Department or other Federal agencies--for example, in 
the event of either a post-adjudication audit or a pre-adjudication RFI 
or an investigation by the WHD or another body. For purposes of this 
regulation, the recruitment documentation requirements will be 
satisfied by copies of the pages containing the advertisement from the 
newspapers in

[[Page 29949]]

which the job opportunity appeared and, if appropriate, correspondence 
signed by the employer demonstrating that labor or trade organizations 
were contacted and were either unable to refer qualified U.S. workers 
or non-responsive to the employer's request. Documentation of a SWA job 
order will be satisfied by copies of the job order downloaded from the 
Internet on the first and last day of the posting, or a copy of the job 
order provided by the SWA with the dates of posting listed.
    Newspapers remain a potential recruitment source for U.S. workers 
likely to be affected by the introduction of H-2B labor. Permitting 
employers to place their own newspaper advertisements pursuant to the 
requirements outlined in the proposed regulation acknowledges industry 
practice and needs, while maintaining accountability and worker 
protection. One of the newspaper advertisements will be required to 
appear on a Sunday, unless the job opportunity is in an area in which 
the newspaper most likely to reach the most appropriate potential pool 
of U.S. workers does not have a Sunday edition. Employers will be 
required to list the specifics of the newspaper advertisement on the 
application but will not be required to submit tear sheets or other 
documentary evidence of that recruitment when the application is 
submitted. However, the employer will be required to maintain 
documentation of the actual advertisement(s) published and the results 
of the recruitment effort in the event of an audit or other review. Our 
recent program experience under the re-engineered PERM program has 
demonstrated the viability of this approach. See 20 CFR part 656.
    At the same time, our program experience has shown that while most 
employers seek to comply with recruitment requirements, not all may do 
so. For example, the Department's experience has long demonstrated that 
there are employers who, if not provided with specific instructions, 
will seek to demonstrate apparent compliance with advertising 
requirements by placing the required newspaper advertisements in 
newspapers having low circulations and which are the least likely 
publications to be read by potentially available U.S. workers. In order 
for the employer's job opening to receive appropriate exposure to the 
widest pool of potentially available U.S. workers, the proposed 
regulation at new Sec.  655.15(f) requires that the mandatory 
advertisements (now including a Sunday edition) appear in the newspaper 
of general circulation that the employer believes in good faith is most 
appropriate to the occupation in the area of intended employment and 
the most likely to be read by workers who will apply for the job 
opportunity in the area of intended employment.
    Under proposed Sec.  655.17, the advertisements must: (1) Identify 
the employer with sufficient clarity to identify the employer to the 
potential pool of U.S. workers (by legal and trade name, for example); 
(2) provide a specific job location or geographic area of employment 
with enough specificity to apprise applicants of travel or commuting 
requirements, if any, and where applicants will likely have to reside 
to perform the services or labor; (3) provide a description of the job 
with sufficient particularity to apprise U.S. workers of the duties or 
services to be performed and whether any overtime will be available; 
(4) list minimum education and experience requirements for the 
position, if any, or state that no experience is required; (5) list the 
benefits, if any, and the wage for the position, which must equal or 
exceed the applicable prevailing wage as provided by the NPC; (6) 
contain the word ``temporary'' to clearly identify the temporary nature 
of the position; (7) list the total number of job openings that are 
available, which must be no less than the number of openings the 
employer lists on the ETA application; and (8) provide clear contact 
information to enable U.S. workers to apply for the job opportunity. 
The advertisement cannot contain a job description or duties which are 
in addition to or exceed the duties listed on the PWDR or on the 
application, and must not contain terms and conditions of employment 
which are less favorable than those that would be offered to an H-2B 
worker.
    If the job opportunity is in an industry, region and occupation in 
which union recruitment is customary, the appropriate union 
organization must be contacted. 72 FR 38621, 38624, Jul. 13, 2007. This 
is a continuation of the current practice under TEGL 21-06, Ch. 1. 72 
FR 382621, 38624, Jul. 13, 2007. Employer diligence will be required to 
determine whether the job opportunity is one which has traditionally 
been the subject of collective bargaining and whether it is therefore 
appropriate and customary to contact the union. Some positions, such as 
welders and drillers, have had a long history of collective bargaining 
interaction. Others, such as landscapers, are not traditionally 
unionized and there simply may be no collective bargaining unit to 
contact. Those jobs in which union contact has been customary will 
continue to be so; those in which there is no applicable union to 
contact would fall outside of the job opportunities for which union 
contact is ``appropriate to the occupation and customary to the 
industry.'' The nature of the employment, not the employer, will be the 
primary guide. Employers with uncertainties are invited to request 
guidance from the Chicago NPC regarding the applicability of union 
contact to their occupation during the recruitment period.
    The SWA will continue to play an active role in the recruitment 
process by posting an employer's job order. The employer will need to 
contact the SWA to place the job order in its job posting system, 
rather than rely on the SWA to place it in the course of adjudicating 
the application, as is the case now. The job order will provide the 
same information as the newspaper advertisements contemplated by this 
NPRM. Under proposed Sec.  655.15(e), employers whose applications 
involve worksites in multiple SWAs will place the job order with the 
SWA having jurisdiction over the place where the work is contemplated 
to begin. That SWA will post the job order and ensure the job order is 
circulated to other SWAs covering other worksites as required.
    The Department proposes to maintain the length of time the SWA 
keeps the job order open to its current 10 consecutive calendar days. 
We consider this amount of time the minimum necessary to provide 
sufficient local involvement in placement and referrals.
    To strengthen the integrity of the Secretary's determination of the 
availability of U.S. workers, and to help bolster employers' confidence 
in their local SWAs and the larger H-2B Program, the proposed rule 
states that SWAs are required to verify the employment eligibility of 
prospective U.S. workers before referring them under an H-2B job order. 
That such a process is appropriate under the INA is evident from the 
contemplation in section 274A(a)(5) (8 U.S.C. 1324a(a)(5)) of the 
ability of an employer to rely upon the employment eligibility 
verification conducted by a state employment agency (e.g., the SWA), if 
that agency conducts the verification and provides to the employer a 
certification that the agency has complied with the procedures required 
for verification.
    The INA clearly contemplates that workers who are competing for 
jobs with H-2B foreign workers must be eligible to be employed in such 
positions. The INA provisions governing admission of foreign workers 
under the H-2B Program make employment eligibility of U.S. workers a 
core element of their availability for such

[[Page 29950]]

jobs. By statute, the Secretary is consulted as to the availability of 
persons in the U.S. ``capable of performing such service or labor''. 8 
U.S.C. 1101(a)(15)(H)(ii)(b). USCIS regulations require, at 8 CFR 
214.2(h)(6), that the intending employer must first apply for a 
temporary labor certification from the Secretary demonstrating that 
U.S. workers capable of performing the services or labor are 
unavailable, and that the employment of the foreign worker(s) will not 
adversely affect the wages and working conditions of similarly employed 
U.S. workers. Employers are therefore not penalized for turning away 
U.S.-based applicants who are not authorized to work, and referred 
workers who are refused employment on the basis of not having work 
authorization are not counted as available for purposes of H-2B labor 
certification.
    The Department notes that DHS regulations at 8 CFR 274a.6 provide 
the verification procedures for SWAs pursuant to INA section 
274A(a)(5). The CIS regulations set out the procedures by which a SWA 
may verify and certify to the employer the employment eligibility of 
any referred worker. To confirm its continued eligibility to receive 
Alien Labor Certification grant funding, each State agency will be 
asked to submit proof of these procedures to the Department prior to 
the beginning of the 2009 fiscal year. The SWA's responsibility to 
perform threshold, pre-referral verification exists separate from each 
employer's independent obligation under the INA to verify the 
employment eligibility of every worker to whom it has extended a job 
offer. The INA provides that employers who accept referrals from SWAs 
that verify employment eligibility in compliance with the DHS process 
and provide referred employees with appropriate documentation 
certifying that employment eligibility verification has taken place are 
entitled to ``safe harbor'' in the event it is later discovered a 
referred worker was not authorized to work in the U.S. INA section 
274A(a)(5); 8 U.S.C. 1324a(a)(5). To simplify the recruiting process 
and avoid unnecessary duplication of functions, SWAs are directed to 
provide all employers with adequate documentation that employment 
verification of a referred employee has taken place.
    The Department is not insensitive to the reso