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, 78020-78069 [E8-29995]

Agencies

• Employment and Training Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 73, Number 245 (Friday, December 19, 2008)]
[Rules and Regulations]
[Pages 78020-78069]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-29995]



[[Page 78019]]

-----------------------------------------------------------------------

Part V





Department of Labor





-----------------------------------------------------------------------



Employment and Training Administration



-----------------------------------------------------------------------



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; Final Rule

Federal Register / Vol. 73, No. 245 / Friday, December 19, 2008 / 
Rules and Regulations

[[Page 78020]]


-----------------------------------------------------------------------

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, Department of Labor, in 
concurrence with the Wage and Hour Division, Employment Standards 
Administration, Department of Labor.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (DOL or the Department) is amending its regulations 
to modernize the procedures for the issuance of labor certifications to 
employers sponsoring H-2B nonimmigrants for admission to perform 
temporary nonagricultural labor or services and the procedures for 
enforcing compliance with attestations made by those employers. 
Specifically, this 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 comply with program requirements. This 
rule also makes technical changes to the regulations relating to both 
the H-1B program and the permanent labor certification program to 
reflect operational changes stemming from this regulation.
    Although Congress has conferred the statutory authority to enforce 
H-2B program requirements on the Department of Homeland Security (DHS), 
recent discussions between DHS and the Department have yielded an 
agreement for the delegation of H-2B enforcement authority from DHS to 
the Department. This Final Rule contains the Wage and Hour Division 
(WHD) regulations establishing the H-2B enforcement procedures that the 
Department will institute pursuant to that agreement. Separately, this 
Final Rule institutes conditions and procedures for the debarment of 
employers, attorneys, and agents participating in the H-2B foreign 
labor certification process. As discussed further below, the Department 
intends to exercise its inherent authority under case law and general 
principles of program administration to determine what entities 
practice before it.

DATES: This Final Rule is effective January 18, 2009.

FOR FURTHER INFORMATION CONTACT: For information on the H-2B labor 
certification process governed by 20 CFR 655.1 to 655.35, 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: (202) 693-3010 (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.
    For information on the H-2B enforcement process governed by 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 Leading to the NPRM

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).
    Section 214(c)(1) of the INA requires DHS to consult with 
``appropriate agencies of the Government'' before granting any H-2B 
visa petition submitted by an employer. 8 U.S.C. 1184(c)(1). The 
regulations for the U.S. Citizenship and Immigration Services (USCIS), 
the agency within DHS charged with the adjudication of nonimmigrant 
benefits such as H-2B status, 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 visa program stems from its 
obligation, outlined in DHS regulations, to certify, upon application 
by a U.S. employer intending to petition DHS to admit 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).
    The Department's role in the H-2B process is currently advisory to 
DHS. 8 CFR 214.2(h)(6)(iii)(A). DHS 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, the Department's 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 
process. Applications for labor certification are processed by the 
Office of Foreign Labor Certification (OFLC) in ETA, the agency to 
which the Secretary of Labor has delegated her advisory 
responsibilities described in the DHS H-2B regulations, after they are 
processed by the State Workforce Agency (SWA) having jurisdiction over 
the area of intended employment.\1\ The SWA reviews the employer's 
application and job offer (comparing the employer's offered wage 
against the prevailing wage for the position); supervises U.S. worker 
recruitment; and forwards completed applications to OFLC for further 
review and final determination.
---------------------------------------------------------------------------

    \1\ The SWAs are agencies of State Government that receive 
Federal Workforce Investment Act (WIA), Wagner-Peyser Act, and other 
funds to administer our nation's state-based employment services 
system and perform certain activities on behalf of the Federal 
Government.
---------------------------------------------------------------------------

    Under current procedures, the employer must demonstrate that its 
need for the services or labor is temporary as defined by one of four 
regulatory standards: (1) A one-time occurrence; (2) a seasonal need; 
(3) a

[[Page 78021]]

peakload need; or (4) an intermittent need. 8 CFR 214.2(h)(6)(ii)(B). 
The employer or its authorized representative must currently submit to 
the SWA a detailed statement of temporary need and supporting 
documentation with the application for H-2B labor certification. Such 
documentation must provide a description of the employer's business 
activities and schedule of operations throughout the year, explain why 
the job opportunity and the number of workers requested reflects its 
temporary need, and demonstrate how the employer's need meets one of 
these four regulatory standards. Based on longstanding practice and DOL 
program guidance, the employer must also establish that the temporary 
position is full-time and that the period of need is generally one year 
or less, consistent with the standard under DHS regulations at 8 CFR 
214.2h(6). This Final Rule clarifies that full-time employment, for 
purposes of temporary labor certification employment, means at least 30 
hours per week, except that where a State or an established practice in 
an industry has developed a definition of full-time employment for any 
occupation that is less than 30 hours per week, that definition 
governs.
    Additionally, the employer must recruit from the U.S. labor market 
to determine if a qualified U.S. worker is available for the position. 
In addition, in order to ensure an adequate test of the labor market 
for the position sought to be filled, the employer must comply with 
other program requirements. For example, it must offer and subsequently 
pay throughout the 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; provide terms and conditions of 
employment that are not less favorable than those offered to the 
foreign worker(s); and not otherwise inhibit the effective recruitment 
and consideration of U.S. workers for the job.
    Historically, the Department's review and adjudication of permanent 
and temporary labor certification applications (including H-2B) 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 labor 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) 
issues a labor certification for temporary employment under the H-2B 
program, denies the certification, or issues a notice including the 
reasons why such certification cannot be made. Prior to June 1, 2008, 
the NPCs shared responsibility for processing of temporary labor 
certification applications; each NPC had jurisdiction over and 
processed applications from a different subset of states and 
territories. Effective June 1, 2008, the NPCs specialized, each 
assuming responsibility for different types of applications. Now, H-2B 
temporary labor certification applications approved by the SWAs are 
processed exclusively by the Chicago NPC. 73 FR 11944, Mar. 5, 2008.
    Currently, the Department has no enforcement authority or process 
to ensure H-2B workers who are admitted to the U.S. are employed in 
compliance with H-2B labor certification requirements. Congress vested 
DHS with that enforcement authority in 2005. See 8 U.S.C. 1184, as 
amended by the Emergency Supplemental Appropriations Act for Defense, 
the Global War on Terror, and Tsunami Relief of 2005, Public Law 109-
13, 119 Stat. 231. As described more fully below, the Department in 
this Final Rule establishes the H-2B regulatory enforcement regime 
proposed in the NPRM, consistent with the agreement for a delegation of 
enforcement authority reached by the Department and DHS pursuant to 8 
U.S.C. 1184(c)(14)(B). This enforcement regime also includes debarment 
procedures for ETA and the Employment Standards Administration, Wage 
and Hour Division (WHD), under the Department's inherent debarment 
authority, which is explained in greater detail below.

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

    On January 27, 2005, DHS and the Department issued companion NPRMs 
to significantly revise each agency's H-2B processing procedures. 70 FR 
3984, Jan. 27, 2005; 70 FR 3993, Jan. 27, 2005. As proposed, those 
changes to both agencies' regulations would have eliminated in whole 
the Department's adjudicatory role, ending the current labor 
certification process for most H-2B occupations and requiring employers 
to submit labor-related attestations directly to USCIS as part of a 
revised supplement accompanying the H-2B petition.
    The two agencies received numerous comments on the joint NPRMs in 
2005. Most commenters opposed the proposals to move the program 
adjudication to USCIS and to eliminate the Department's role in 
reviewing the need of employers and the recruitment of U.S. workers 
except in post-adjudication audits. Commenter concerns focused in part 
on the loss of the Department's experience in adjudicating issues of 
temporary need and the potential adverse impact on U.S. workers. Based 
on the significant concerns posed in those comments, and after further 
deliberation within each agency, the Department and DHS have not 
pursued their 2005 proposals. Consequently, the NPRM published by the 
Department on January 27, 2005 (RIN 1205-AB36) was withdrawn in the 
Department of Labor's Fall 2007 Regulatory Agenda. See https://
www.reginfo.gov/public/do/eAgendaViewRule?ruleID=221117.
    As stated in the May 22, 2008, NPRM preceding this Final Rule, the 
Department continued, however, to closely review the H-2B program 
procedures in order to determine appropriate revisions to the H-2B 
labor certification process. This ongoing systematic review was 
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 similar increase during the first half of FY 2008) as well as 
limited appropriations funding program-related operations.
    On April 4, 2007, ETA issued Training and Employment Guidance 
Letter (TEGL) No. 21-06, 72 FR 19961, Apr. 20, 2007, 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 update 
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 ETA's 
National Processing Centers (NPCs). In response to the

[[Page 78022]]

substantive concerns that were 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), and updating 
procedures by allowing the NPC Certifying Officer (CO) to request 
additional information from employers to facilitate the processing of 
H-2B applications. 72 FR 36501, Jul. 3, 2007; 72 FR 38621, Jul. 13, 
2007. Several issues were not addressed by those refinements, 
particularly concerns relating to increasing workload and processing 
delays, which required regulatory changes. This Final Rule addresses a 
number of those unresolved issues.

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

    As described in the May 22, 2008, NPRM, 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. The current, 
duplicative process requires the employer to first file a temporary 
labor certification with 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, which conducts a final review of 
the application. This process 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 numerical limitation 
or ``cap'' on visas under this program, as a result of which any 
processing delay may prevent an employer from securing visas for H-2B 
workers during any given half year period for which numbers are 
available. 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) and 8 U.S.C. 
1184(g)(10) (setting a cap of 33,000 as the number of H-2B visas that 
may be allocated during each 6-month period of a fiscal year).
    The increasing workload of the Department and SWAs poses a growing 
challenge to the efficient and timely processing of applications. As 
stated in the NPRM, 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 labor 
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. 
This increasing workload is exacerbated because 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 significant disparities in processing times among the 
SWAs. 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 due to backlogs resulting from inadequate staffing or 
funding, or other causes).\3\
---------------------------------------------------------------------------

    \2\ On June 17, 2008, the Department transmitted draft 
legislation to the 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 labor certification 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 Save Our Small and Seasonal Businesses Act of 2005, 
Public Law 109-13, Div. B, Title IV, 119 Stat. 318 (effective May 
11, 2005) (exempting from numerical cap for FY 2005 and FY 2006 
returning H-2B workers who had counted against the cap in one of the 
three fiscal years preceding the fiscal year in which the visa 
petition was filed), and Save Our Small and Seasonal Businesses Act 
of 2006, included in the Defense Authorization Act for FY 2007, Sec. 
1074, Public Law 109-364 (making amendment retroactive to October 1, 
2006, and extending the exemption through FY 2007). These returning 
worker provisions expired September 30, 2007. 8 U.S.C. 1184(g)(9) 
(2007); INA sec. 214(g)(9); see also Sec. 14006, Public Law 108-287, 
118 Stat. 951, 1014 (August 6, 2004) (exempting some fish roe 
occupations from the cap).
---------------------------------------------------------------------------

    In light of these recurring experiences, this Final Rule institutes 
several significant measures to reengineer the Department's 
administration of the program. These changes improve the process by 
which employers obtain labor certification and where our program 
experience has demonstrated additional measures would assist the 
Department in protecting the job opportunities and wages of U.S. 
workers. The Final Rule also provides greater accountability for 
employers through penalties, up to and including debarment, as an 
additional safeguard against abuse of the program.

 D. Overview of Redesigned H-2B Foreign Labor Certification Process

    As proposed in the NPRM and finalized in this rule, the redesigned 
application process will require employers to complete recruitment 
steps similar to those now required, but will require them to do so 
prior to filing the application for labor certification. Once 
recruitment is complete, this Final Rule maintains the requirement 
proposed in the NPRM that the completed application be submitted 
directly to DOL instead of being filed with a SWA. This Final Rule 
eliminates the SWA duplicative review of the H-2B application. In 
association with this Final Rule, the Department has redesigned the 
application form currently used for the H-2A and H-2B temporary labor 
certification programs and proposed a new ETA Form 9142. Additional 
information about the new application form appears in the 
Administrative Information section of this preamble. This rule does not 
eliminate or federalize SWA activities (e.g., the job order and 
interstate clearance process) that may ultimately support an employer's 
H-2B application but are funded and governed independently under the 
Wagner-Peyser Act. This rule does federalize prevailing wage 
determinations, previously performed by the SWAs under this program.
    To test the U.S. labor market appropriately, employers will be 
required to first obtain from the Chicago NPC a prevailing wage rate to 
be used in the recruitment of U.S. workers. To make this request, 
employers in the non-agricultural labor certification programs will use 
a new ETA Form 9141, which was designed and will be implemented in 
conjunction with this Final Rule. As with the Form 9142, additional 
information about the Form 9141 appears in the Administrative 
Information section of the preamble. The employer will then follow 
recruitment steps similar to those required under the current program. 
The NPRM proposed increasing the number of required advertisements to 
three. However, in response to comments, the Final Rule returns to the 
current requirement of two advertisements, although it retains the 
proposed requirement that one of those advertisements be placed on a 
Sunday.
    Consistent with the NPRM, this Final Rule requires the employer to 
attest to and enumerate its recruitment efforts as part of the 
application but does not require the employer to submit

[[Page 78023]]

supporting documentation with its application. To ensure the integrity 
of the process, the Final Rule requires the employer to retain 
documentation of its recruitment, as well as other documentation 
specified in the regulations, for 3 years from the date of 
certification. The employer will be required to provide this 
documentation in response to a request for additional information by 
the Certifying Officer (CO) before certification or by ETA pursuant to 
an audit or in the course of an investigation by the Wage and Hour 
Division (WHD) after a determination on the application has been 
issued. The Department has set the document retention requirement at 3 
years rather than the proposed 5 years in response to comments received 
expressing concerns that five years would impose an unnecessary burden 
on small employers, especially those that are mobile or have a mobile 
component.
    Employers or their authorized representatives (attorneys or agents) 
will be required to submit applications using a new form designed to 
demonstrate the employer's compliance with the obligations of the H-2B 
program. As described in the NPRM and the Final Rule, the application 
form will collect, in the form of attestations, information that is 
largely required already by the current H-2B labor certification 
process. These attestations are required from the employer to ensure 
adherence to program requirements and to establish accountability. As 
with recruitment, employers are required to retain records documenting 
their compliance with all program requirements. An application that is 
complete will be accepted by the NPC for processing and will undergo 
final review by the Department.
    Based on the Department's experience, and in response to concerns 
voiced in public comments about the need for H-2B stakeholder guidance 
and ETA staff training, we have added a transition period to the Final 
Rule at new Sec.  655.5. Although the Final Rule takes effect 30 days 
from publication, it phases in implementation based on employment start 
dates listed in the application. Employers with a date of need on or 
after October 1, 2009, will be governed by these new regulations. 
Employers with a date of need on or after the rule's effective date but 
prior to October 1, 2009, will follow the transitional process 
described in Sec.  655.5. Additional information about the transition 
process appears below.
    In order to further protect the integrity of the program, 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 occur during processing to ensure the accuracy of 
the information supplied by the employer. If an application does not 
appear to be complete or merit approval on its face but requires 
additional information in order to be adjudicated, the CO will issue a 
Request for Further Information (RFI), a process the program already 
employs. After Departmental review, an application will be certified or 
denied.
    As proposed in the NPRM and adopted in the Final Rule, the 
introduction of new post-adjudication audits will serve, along with WHD 
investigations, as both a quality control measure and a means of 
ensuring program compliance. Audits will be conducted on adjudicated 
applications meeting 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 on the application in question, initiate 
Departmental supervised recruitment in future applications, and 
penalties.\4\
---------------------------------------------------------------------------

    \4\ Further sanctions may be imposed by DHS. See 8 U.S.C. 
1184(c)(14).
---------------------------------------------------------------------------

    As stated in the NPRM, the Department expects the modernized 
processing of applications will yield a reduction in the overall 
average time needed to process H-2B labor certification applications. 
This process is expected to lead to greater certainty and 
predictability for employers by reducing processing times which have 
exceeded our historical 60-day combined State and Federal processing 
timeframe.

II. Discussion of Comments on the Proposed Rule

    In response to the proposed rule, the Department received 134 
comments, of which 88 were unique and another 46 were duplicate form 
comments. Commenters represented a broad range of constituencies for 
the H-2B program, including individual employers, agents, industry 
coalitions and trade groups, advocacy and legal aid organizations, 
labor unions, a bar association, congressional oversight and 
authorizing committees, and individual members of the public.
    The Department received comments both in support and opposition to 
the proposed regulation. Comments supported, for example, the 
anticipated efficiencies of the proposed streamlined process and the 
potential conversion to electronic filing. Broadly, other commenters 
opposed the rule because they felt it would undermine program integrity 
or weaken worker protections and U.S. worker access to job 
opportunities. Still others believed the rulemaking untimely, given the 
general weakening of the economy, or that the proposed rule failed to 
address what they believed to be key problems underlying the program. 
Several of those problems, such as the annual cap of 66,000 H-2B visas 
per year, are statutory and cannot be changed through regulation.
    In addition, as described in greater detail below, the Department 
received comments raising a variety of concerns with specific proposals 
and provisions within the rule. After reviewing those comments 
thoughtfully and systematically, the Department has modified several 
provisions and retained others as originally proposed in the NPRM.
    Provisions of the NPRM that received comments are discussed below; 
provisions that were not commented on or revised for technical reasons 
have been adopted as proposed. The Department has made some technical 
changes to the regulatory text for clarity and to improve readability, 
but those changes were not designed to alter the meaning or intent of 
the regulation.

A. Section 655.2--Territory of Guam

    In the Final Rule, the Department has revised the discussion on the 
authority of the Governor of Guam to clarify that the enforcement of 
the provisions of the H-2B visa program in Guam resides with the 
Governor, pursuant to DHS regulations.

B. Section 655.4--Definitions

    Of the definitions proposed in the NPRM, comments were received on 
the definitions for ``agent,'' ``attorney,'' ``employ,'' ``employer,'' 
``full time,'' ``representative,'' and ``United States worker.''
    The proposed rule defined an agent as ``a legal entity or person 
which is authorized to act on behalf of the employer for temporary 
agricultural labor certification purposes, and is not itself an 
employer as defined in this subpart. The term `agent' specifically 
excludes associations or other organizations of employers.'' In 
response to comments, the Department has corrected the typographical 
error and replaced ``agricultural'' with ``nonagricultural.''
    Some commenters supported the proposed definition of agent with 
regard to its barring of associations or organizations of employers. 
One bar

[[Page 78024]]

association commented there had been many abuses by agents in the past, 
including the unauthorized practice of law, and recommended the 
Department adopt the definition under DHS regulations at 8 CFR 292.1. 
We have reviewed the guidelines under that section and concluded it is 
inappropriate for the labor certification process. The standard set by 
8 CFR 292.1 is not tailored to the Department's needs. For example, it 
includes, among others, law students and ``reputable individuals.'' We 
have determined such persons may not be appropriate to practice before 
the Department, in particular for purposes of foreign labor 
certification activities. That definition was designed to fit the needs 
of another Federal agency and would eliminate many current individuals 
who act on behalf of employers in the labor certification process with 
the Department.
    The Department acknowledges that allowing agents who are not 
attorneys does not fit into the categories recognized by DHS and 
creates a difference between the two agencies. The Department has 
permitted agents who do not meet these criteria to appear before it for 
decades. Agents who are not attorneys have represented claimants before 
the Department in a wide variety of activities since long before the 
development of H-2A program, and DOL's programs, where they intersect 
with those of DHS, permit a broader range of representation. To change 
such a long-standing practice in the context of this rulemaking would 
represent a major change in policy that the Department is not prepared 
to make at this time and was suggested in the NPRM seeking comments. 
Consequently, the Department has not adopted this recommendation. The 
Department will maintain its long-standing practice and policy with 
respect to who may represent employers.
    For greater clarity, a definition for ``Administrator, Wage and 
Hour Division (WHD)'' has been added to the definition section of the 
regulation to distinguish this official from the ``Administrator, 
Office of Foreign Labor Certification (OFLC).'' Regulatory text has 
been added where needed to distinguish between these officials.
    The proposed rule defined an attorney as:

    Any person who is a member in good standing of the bar of the 
highest court of any State, possession, territory, or commonwealth 
of the U.S., or the District of Columbia, and who is not under 
suspension or disbarment from practice before any court or before 
DHS or the U.S. Department of Justice's Executive Office for 
Immigration Review. Such a person is permitted to act as an attorney 
or representative for an employer under this part; however, an 
attorney who acts as a representative must do so only in accordance 
with the definition of ``representative'' in this section.

In the Final Rule, the Department has reworded the definition to 
provide more clarity regarding the bodies or courts that could suspend 
or disbar an attorney. The Department has also revised the final 
sentence in the definition to read: ``Such a person is permitted to act 
as an agent or attorney for an employer and/or foreign worker under 
this subpart.''
    In the NPRM, the Department added a definition for ``employ'' and 
made revisions to the definition of ``employer.'' A trade association 
suggested that the Department eliminate the definition of ``employ'' 
but retain the definition of ``employer,'' stating that the definition 
of ``employ'' adds nothing to clarify status or legal obligations under 
the H-2B program and insinuates broad legal concepts that add 
unnecessary confusion. As suggested by commenters, the Department has 
deleted the definition of ``employ.'' We agree this definition did not 
provide any additional clarification regarding status or legal 
obligations related to the H-2B program and may generate some confusion 
with other statutes.
    The Department received comments that the requirement for a Federal 
Employer Identification Number (FEIN) as incorporated in the definition 
of ``employer'' could be problematic for some employers. One commenter 
recommended the use of the DUNS number as a complement to the FEIN. The 
``data universal numbering system'' (DUNS), which is operated by Dunn & 
Bradstreet, issues nine-digit numbers that serve as unique identifiers 
and are used, in cases, by the Federal Government or individual 
businesses to track business entities. The Department has decided to 
retain the definition as proposed, and notes that it is easy for 
employers to obtain FEINs, which have the advantage of being assigned 
by the Internal Revenue Service, although in paragraph (1)(iii) of the 
definition we have added the phrase ``for purposes of the filing of an 
application,'' to clarify the FEIN is information gathered specifically 
at the point of application for H-2B labor certification. In paragraph 
(1)(i) of the definition, the Department has replaced ``may'' with 
``must'' to clarify U.S. workers must be referred to a U.S. location 
for employment.
    Commenters supported the inclusion of a definition for ``full 
time.'' The Department agrees with one commenter's assertion that, 
consistent with program practice, the definition should not be 
construed to establish an actual obligation of the number of hours that 
must be guaranteed each week. The parameters set forth in the 
definition of ``full time'' refer to the number of hours that are 
generally perceived to constitute that type of employment, as 
distinguished from ``part time,'' and are not a requirement that an 
employer offer a certain number of hours or any other terms or 
conditions of employment.
    The Department has also made changes to the definition of a job 
contractor for purposes of clarity. The changes make clear that the job 
contractor, rather than the contractor's client, must control the work 
of the individual employee.
    One trade association commented that to the extent the intent of 
the rule is to define the respective liability of agents and 
representatives, it should articulate a clear set of standards for 
liability. The association found the definition of ``representative'' 
to be problematic and suggested deleting or revising it. The commenter 
questioned whether the intent of the regulation was to make the 
representative liable for any misrepresentations in an attestation made 
on behalf of an employer. Because of potential overlaps with the 
definition and role of agent, the commenter also requested the rule 
clarify if, and under what circumstances, an agent is liable for 
activities undertaken on behalf of an employer. The commenter 
recommended the Department delete the provision on the representative's 
role in the consideration of U.S. workers, questioning what rationale 
the Department had for dictating under what circumstances an attorney 
or other person can interview U.S. applicants for the job, and why the 
Department is ``singling out'' attorneys within the definition.
    The Department disagrees with the commenter's interpretation of the 
liability of an agent or attorney for the acts of the employer. The 
duties of an agent or attorney may vary widely and not all duties that 
an agent or attorney undertakes may lead to liability. The Department 
recognizes, however, that some of an agent's or attorney's duties in 
representing an employer may put the agent or attorney in the role of 
the employer and be a basis for assigning liability for the employer's 
acts or omissions. For example, in undertaking to represent an employer 
in the H-2A program, an agent or attorney not only performs 
administrative tasks but also

[[Page 78025]]

submits attestations regarding the employer's obligations under the 
program. Attorneys and agents undertake a significant duty in making 
such representations. They are, therefore, responsible for reasonable 
due diligence in ensuring that employers understand their 
responsibilities under the program and are prepared to execute those 
obligations. Agents and attorneys do not themselves make the factual 
attestations and are not required to have personal knowledge that the 
attestations they submit are accurate. They are, however, required to 
inform the employers they represent of the employers' obligations under 
the program, including the employers' liability for making false 
attestations, and the prohibition on submitting applications containing 
attestations they know or should know are false. Failure to perform 
these responsibilities may render the agent or attorney personally 
liable for false attestations. The Department has decided to retain the 
definition as proposed.
    One commenter believed that the definition of ``United States 
worker'' presented in the NPRM was too narrow and that there are other 
persons in the United States legally entitled to work in addition to 
those in the categories listed. The Department disagrees and has 
retained the proposed definition, as it is inclusive and consistent 
with other provisions of immigration law and regulations that define 
U.S. workers and persons authorized to work in the U.S.
    The Department also added definitions for the terms 
``Administrative Law Judge,'' ``Chief Administrative Law Judge,'' 
``Department of Homeland Security,'' and ``United States Citizenship 
and Immigration Services,'' mirroring the definitions in the 
Department's H-2A Final Rule. These terms and definitions were 
inadvertently omitted from the proposed rule.
    The Department has added a definition of the term ``strike'' to the 
Final Rule. The definition clarifies that the Department will evaluate 
whether job opportunities are vacant because of a strike, lockout, or 
work stoppage on an individualized, position-by-position basis.
    The Department also has added a definition of ``successor in 
interest'' to make clear that the Department will consider the facts of 
each case to determine whether the successor and its agents were 
personally involved in the violations that led to debarment in 
determining whether the successor constitutes a ``successor in 
interest'' for purposes of the rule.

C. Section 655.5--Transition

    The Department recognizes that implementing the provisions of the 
Final Rule may be somewhat difficult for employers who have already 
filed their applications with the SWA to begin recruiting U.S. workers. 
Even though the NPRM put current and future users of H-2B workers on 
notice regarding the Department's intention to publish a Final Rule, 
the rule represents a departure from the current administration of the 
program. H-2B employers, including those who expressed concern 
regarding the time frame for a Final Rule, will require some period of 
time to prepare and adjust their requests for nonimmigrant workers to 
perform temporary or seasonal nonagricultural services or labor, 
particularly in tandem with changes to DHS processing of cases, and 
understand how to complete the Department's new forms for requesting a 
prevailing wage and applying for temporary employment certification.
    In response to comments, the Department is accordingly adopting a 
transition period, outlined in new Sec.  655.5 (previously reserved). 
Employers filing applications for H-2B workers on or after the 
effective date of these regulations where the date of need for the 
services or labor to be performed is before October 1, 2009, will be 
required to obtain a prevailing wage determination from the SWA serving 
the area of intended employment, rather than the NPC, but must meet all 
of the other pre-filing recruitment requirements outlined in this 
regulation before an Application for Temporary Employment Certification 
can be filed with the NPC. However, employers filing applications on or 
after the effective date of these regulations where the date of need 
for H-2B workers is on or after October 1, 2009, must obtain a 
prevailing wage determination from the NPC and comply with all of the 
obligations and assurances detailed in this subpart. The SWAs will no 
longer accept for processing applications filed by employers for H-2B 
workers on or after the effective date of these regulations. Rather, 
the SWAs will assist the Department's transition efforts by issuing 
prevailing wage determinations where the employer's need for H-2B 
workers is prior to October 1, 2009. This will allow the rest of the 
pre-filing recruitment requirements, obligations and assurances to 
become effective immediately. During this transition period, the 
Department expects that SWAs will continue to allow employers to file 
prevailing wage requests on forms they currently use in other visa 
programs in order to minimize any confusion and expedite the prevailing 
wage review process.
    In order to complete the processing of applications filed with the 
SWAs prior to the effective date of these regulations, the transition 
procedures require the SWAs to continue to process all active 
applications under the former regulations and transmit all completed 
applications to the NPC for review and issuance of a final 
determination. In circumstances where the SWA has already transmitted 
the completed application to the NPC, the NPC will complete its review 
in accord with the former regulations and issue a final determination. 
OFLC intends to conduct several national stakeholder briefings to 
familiarize program users with these requirements.

D. Section 655.6--Temporary Need

    Congress mandated the H-2B program be used to fill only the 
temporary needs of employers where no unemployed U.S. workers capable 
of performing the work can be found. 8 U.S.C. 1101(a)(15)(H)(ii)(b). 
Therefore, as explained in the NPRM, the Department will continue to 
determine whether the employer has demonstrated that it has a need for 
foreign labor that cannot be met by U.S. workers and that the need is 
temporary in nature.
    The controlling factor continues to be the employer's temporary 
need and not the nature of the job duties. Matter of Artee Corp., 18 
I&N Dec. 366 (Comm. 1982); cf. Global Horizons, Inc. v. DOL, 2007-TLC-1 
(Nov. 30, 2006) (upholding the Department's position that a failure to 
prove a specific temporary need precludes acceptance of temporary H-2A 
application).
    DHS regulations at 8 CFR 214.2(h)(6)(ii)(B) provide that a 
petitioner's need be one of the following: (1) A one-time occurrence, 
in which an employer demonstrates it has not had a need in the past for 
the labor or service and will not need it in the future, but needs it 
at the present time; (2) a seasonal need, in which the employer 
establishes that the service or labor is recurring and is traditionally 
tied to a season of the year; (3) a peakload need, in which the 
employer needs to supplement its permanent staff on a temporary basis 
due to a short-term demand; or (4) an intermittent need, in which the 
employer demonstrates it occasionally or intermittently needs temporary 
workers to perform services or labor for short periods.
    As proposed in the NPRM, for purposes of a one-time occurrence, 
under this Final Rule the Department will consider a position to be 
temporary

[[Page 78026]]

as long as the employer's need for the duties to be performed is 
temporary or finite, regardless of whether the underlying job is 
temporary or permanent in nature, and as long as that temporary need--
as demonstrated by the employer's attestations, temporary need 
narrative, and other relevant information--is less than 3 consecutive 
years. This interpretation is consistent with the rule proposed by 
USCIS on August 20, 2008, 73 FR 49109, which is being finalized in 
conjunction with this regulation.
    Consistent with the final USCIS regulations, the Department 
proposed--and the Final Rule permits--a one-time occurrence to include 
one-time temporary events that have created the need for temporary 
workers for up to 3 years. The Final Rule requires those employers to 
request annual labor certifications based on new tests of the U.S. 
labor market. As stated in the NPRM, we believe this is the best method 
by which to ensure U.S. worker access to these job opportunities, but 
recognize that an employer's need for workers to fill positions could, 
in some cases, last more than one year.
    The Department received a number of comments in response to the 
proposed expansion of the one-time occurrence definition. A job 
contractor commented that it did not believe the Department needed to 
specifically authorize the possibility of a 3-year, one-time need, 
since it could be inferred as already having the authority to certify 
such situations as long as the employer's situation as described in the 
application was compelling. However, the commenter believed that 
establishing a maximum 3-year stay may be limiting under certain 
circumstances such as rebuilding after natural disasters. It also 
creates confusion and complexity for the employer applicants who may 
not understand the distinction between a 3-year labor need broadly 
speaking and a one-time occurrence. Under the NPRM and this Final Rule, 
the extension of the temporary need definition from 1 year or less to 
potentially up to 3 years does not apply to all categories of need. The 
Department believes employers should understand that an H-2B visa will 
only be granted for longer than 1 year in the case of a one-time 
occurrence.
    Neither the Department nor DHS is changing the long-established 
definition of one-time occurrence which encompasses both unique non-
recurring situations but also any ``temporary event of a short duration 
[that] has created the need for a temporary worker.'' For example, an 
employer could utilize the H-2B program to secure a worker to replace a 
permanent employee who was injured. Further, if that permanent 
employee, upon returning to work, subsequently suffered another injury, 
the same employer could utilize the H-2B program again to replace the 
injured employee on the basis of a one-time occurrence. A one-time 
occurrence might also arise when a specific project creates a need for 
additional workers over and above an employer's normal workforce. For 
example, if a shipbuilder got a contract to build a ship that was over 
and above its normal workload, that might be a one-time occurrence. 
However, the Department would not consider it a one-time occurrence if 
the same employer filed serial requests for H-2B workers for each ship 
it built.
    The NPRM required that employers request recertification annually 
where their one-time occurrence extends beyond 1 year. The Department 
agrees with public comments that, where the need is one-time only, the 
added burden and expense of an additional labor market test does not 
make sense where the total period of need is less than 18 months. 
Therefore, an employer with a one-time need that has been approved for 
more than 1 year but less than 18 months will receive a labor 
certification covering the entire period of need, and will not be 
required to conduct another labor market test for the portion of time 
beyond 12 months. An employer requesting certification based on a one-
time occurrence it expects to last 18 months or longer, however, will 
be required to conduct one or more additional labor market tests.
    A number of individual small business commenters were concerned 
that the proposed changes went beyond the original intent of the 
program and would leave the seasonal and peakload businesses for which 
it was intended without adequate numbers of visas. They raised 
longstanding concerns with what many believe is an arbitrarily low visa 
cap and the strong competition among industries for the limited visas. 
These commenters posited that expanding the term to 3 years would open 
up the program to a wider number of industries, further increasing 
competition for visas and effectively crowding out those employers for 
which these commenters believe the visa was intended. One small 
employer thought it would allow high tech businesses to participate in 
the H-2B program to use up all the visas and leave other employers with 
real peakload needs wanting. This employer also thought it would create 
a security threat by letting visas be sold on the black market. SWAs 
commenting also questioned the change in definition as being what they 
described as a significant program change. While most employers of 
highly skilled workers currently avail themselves of the H-1B visa 
program, they are not precluded from seeking, as an alternative, H-2B 
nonimmigrant status, if they otherwise meet the requirements of the H-
2B program. None of the changes proposed by the Department would make 
the H-2B visa program any more or less available to highly skilled 
workers or provide employers who might wish to use such persons as H-2B 
workers with any greater advantage than other H-2B employers. In 
addition, with respect to visas issued by the State Department based on 
an approved DHS petition, the Department is unaware of any contemplated 
change in this or the DHS rulemaking that would create an automatic 3-
year H-2B visa. Depending on reciprocity schedules, under current State 
Department regulations, an initial H-2B visa is generally issued for a 
year or less, or for the validity period of the approved H-2B petition, 
but can be extended for additional periods of time to correspond to any 
period of time DHS might extend such H-2B petition. Nothing in this 
rule would change that.
    Several Members of Congress submitted separate comments on behalf 
of congressional committees. One U.S. Senator opposed the expansion of 
the definition of a one-time occurrence as contrary to the 1987 legal 
opinion of the Department of Justice, Office of the Legal Counsel. The 
comment stated that the Department of Justice considered various views 
of the proposed construction of ``temporarily'' in the context of the 
H-2A visa program and declined to define temporary as up to 3 years. 
According to the comment, the Justice opinion concluded that the 
statutory text, Congressional intent, and sound policy compelled a 
definition of temporary to be 1 year or less for all H-2 
classifications. The comment also pointed to the Department's and DHS's 
proposed rules on the H-2A program that retained the one year or less 
definition of temporary (absent extraordinary circumstances) as 
evidence that the current construction should be retained. The 
commenter was concerned that the regulation would lead to abuse of the 
H-2B program by encouraging some employers who want to take advantage 
of the program to characterize long-term or permanent jobs as 
temporary. The commenter believed that these longer-term jobs should be 
filled by U.S. workers and, if none are available, only then through 
the employment-based immigration visa process.
    Several labor unions also commented on this provision, largely in 
opposition.

[[Page 78027]]

One believed the proposal to be at odds with years of precedent and 
immigration and workforce policy, as well as current law. The commenter 
asserted that expanding the definition conflicts with DHS regulations, 
runs counter to the purpose of the H-2B program, and undermines the 
Congressional mandate to protect U.S. workers. Another labor 
organization contended that if an employer's need is longer than a 
short duration it is not a temporary need, and a period longer than a 
year is not of short duration. This commenter opposed the inclusion of 
this provision and urged the Department to withdraw this proposed 
change. Another union proposed temporary employment be limited to six 
months and ``certainly no longer than [1] year.'' Another labor 
organization opposing the proposed provision did not believe that the 
requirement that employers retest the labor market each year 
represented a meaningful safeguard for domestic workers, particularly 
if the Department were to adopt an attestation-based system where 
recruitment of U.S. workers is not actively supervised by the SWAs. It 
recommended the H-2B program be made consistent with the H-2A program 
concerning the definition of temporary.
    Several worker advocacy organizations also opposed this provision, 
indicating their belief it was not in keeping with the objectives of 
the program and would open most construction jobs in the country to be 
potentially part of the program. An individual employer commented that 
seasonal should mean 8 months or less so as to not compete with local 
permanent jobs.
    A law firm commented that the proposed changes went beyond what it 
believed Congress intended and claimed anecdotally it would directly 
and proportionally adversely affect the industries for which it felt 
the program was designed. It believed that the problems with the 
program are more associated with the delays and uncertainties related 
to the inadequate number of visas as well as inadequate budget and 
staffing at all levels of the application process. The commenter 
recommended these problems would be best addressed by Congress and by 
increased fees at each step. It also believed that this expansion of 
the definition would encourage additional industries, most notably the 
information technology industry, to participate and to put undue 
pressure on an already pressured program.
    Conversely, several employer and trade associations supported the 
expanded provision. One employer association welcomed the change as 
long in coming. Another supported it as a means to provide greater 
flexibility across industries and regions. Still another recommended 
that the 3-year provision be expanded beyond ``one-time need'' to the 
other three categories of temporary need.
    A legal association supported the proposal to expand temporary need 
but suggested the Department rethink the requirement that employers 
retest the market each year. According to the comment, requiring 
employers to get a new prevailing wage and perform additional 
recruitment and filing each year would increase workload for the 
Department, increase costs to employers, and fails to recognize the 
advantages of the employer having the availability of trained, 
experienced workers. It recommended that a reasonable alternative would 
be for employers to check the prevailing wage determination annually to 
ensure that the workers are being paid the appropriate wage but not to 
have to undertake further recruitment efforts.
    Many SWAs commented on the proposed rule. On the issue of 
temporariness, one SWA stated its support for retesting the labor 
market each year. An employer association supported retesting the labor 
market each year only in situations where there was a significant time 
period beyond the ordinary 10-month period left on the labor 
certification. It believed that this requirement would be too onerous 
on employers if applied to jobs lasting only 18 months, for example.
    Finally, a worker advocacy group recommended the addition of a 
process either through the Department or the SWAs under which workers 
could challenge the determination that the jobs are temporary.
    The Department defers to the Department of Homeland Security and 
will use their definition of temporary need as published in their Final 
Rule on H-2B. Currently, that definition, including the four categories 
of need, appears at 8 CFR 214.2(h)(6)(ii), and requires the employer 
show extraordinary circumstances in order to establish a need for 
longer than 1 year. DHS's Final Rule amends 8 CFR 214.2(h)(6)(ii)(B) to 
eliminate the requirement for extraordinary circumstances and clarify 
that a temporary need is one that ends in the near, definable future, 
which in the case of a one-time occurrence could last longer than 1 
year and up to 3 years. Accordingly, we have deleted the definitions we 
had in our regulatory text in the NPRM and instead provided a reference 
to the DHS regulations.

E. Section 655.10--Determination of Prevailing Wage for Labor 
Certification Purposes

1. Federalizing Prevailing Wage Determinations
    The Department proposed a new reengineered system to federalize the 
issuance of prevailing wages, under which employers would obtain the 
prevailing wage for the job opportunity directly from the NPC. As 
proposed, the new federalized process would allow employers to file 
prevailing wage requests with the appropriate NPC--designated as the 
Chicago NPC for prevailing wage requests--no more than 90 days before 
the start of recruitment. The proposed rule also clarified the validity 
period for wage determinations. Based on annual updates to the 
Occupational Employment Survey (OES) database, and depending on the 
time of year that the prevailing wage determination (PWD) was 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. The NPRM sought comments from employers who had utilized the 
program in the past on the efficacy of this proposed action.
    The Department received numerous comments on this new process. 
After consideration of all comments, we have decided to implement the 
PWD process as proposed in the NPRM. However, to reflect the transition 
from the current system to the new, the Final Rule now clarifies that 
employers with a date of need on or after October 1, 2009, must seek a 
PWD from the Chicago NPC prior to beginning recruitment, while 
employers with prior dates of need will continue to seek PWDs from the 
SWAs. However, consistent with the Department's intent to immediately 
implement the Final Rule, and as set forth in Sec.  655.5 of this Final 
Rule, SWAs will be required to follow the procedures instituted under 
Sec.  655.10 for any prevailing wage determination requests submitted 
on or after the date this Final Rule takes effect.
    Overwhelmingly, commenters were concerned about the capability of 
the NPC to provide timely and accurate prevailing wage determinations. 
Commenters supporting the new centralized process included trade 
associations, employer-based organizations, businesses, and individual 
professionals with significant experience in the foreign labor 
certification field. Of those, some requested reassurance that the 
Department would allocate sufficient resources and training to the PWD

[[Page 78028]]

activity at the NPCs to prevent processing delays. They urged the 
Department to institute mechanisms to ensure consistency between NPCs 
and across job titles, descriptions, and requirements; and to offer 
comprehensive training to employers, attorneys, and agents prior to 
implementation.
    Many commenters, including labor unions, advocacy organizations, 
academic institutions, and SWAs expressed concern that the NPC staff 
would not possess the same level of expertise, particularly locally-
oriented expertise, required to provide accurate, context-appropriate 
prevailing wage determinations as the SWA staff. They believed this 
could lead to reduced scrutiny, inaccuracy, backlogs, and delays, and 
adversely affect U.S. worker wages and job opportunities. The SWAs that 
commented on this issue were concerned that transferring the 
determination to the NPCs would also degrade customer service, and some 
questioned whether OES really keeps pace with changes in local 
standards. One state has had success with its own system and 
recommended the Department replicate that system on a national scale.
    One advocacy organization expressed the view that centralization 
would be particularly harmful to amusement park industry workers, which 
currently use a weekly rate rather than an hourly rate. One employer 
was concerned that NPC-issued PWDs would be inaccurate and biased in 
favor of higher wages, raising program costs. Several commenters 
opposed PWD federalization in its entirety and proposed full funding of 
SWAs for these activities. In the alternative, they recommended that, 
if the Department were to move forward, it hire staff with strong PWD 
backgrounds and create a separate PWD unit within the NPC.
    To guard against potential delays, some commenters requested that a 
timeframe for the process be established, or recommended adjustments to 
the process as proposed. A small business coalition recommended the 
Department permit employers to recruit without first getting the PWD 
from the NPC, so long as the employer accompanied its H-2B application 
with a printout of a current and appropriate wage from O*NET, which is 
the Internet wage survey the Department updates on an annual basis. A 
large trade association made a similar recommendation, with a proviso 
that if the employer has not used the correct wage from the database, 
it would be required to restart the application process after obtaining 
a PWD from the NPC. The Department also received a suggestion that 
employers be allowed to get the OES rate themselves unless they want a 
safe harbor which would be provided by getting the wage rate from the 
NPC or SWA. Another commenter was concerned that employer surveys do 
not provide the same safe harbor as SWA determinations and another 
commenter was concerned that eliminating the SWA from the process meant 
that the safe harbor would also be eliminated.
    This Final Rule establishes rules under which employers may provide 
their own information. Apart from those instances, the Department 
believes there is greater value and potential for greater consistency 
and efficiency in having the NPC provide the wage. The Department 
believes that continued oversight at th