Temporary Non-Agricultural Employment of H-2B Aliens in the United States, 15130-15207 [2011-6152]

Agencies

• Employment and Training Administration
• Wage and Hour Division
• DEPARTMENT OF LABOR

[Federal Register Volume 76, Number 53 (Friday, March 18, 2011)]
[Proposed Rules]
[Pages 15130-15207]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-6152]



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Vol. 76

Friday,

No. 53

March 18, 2011

Part IV





Department of Labor





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Employment and Training Administration



20 CFR Part 655





Wage and Hour Division 29 CFR Part 503



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Temporary Non-Agricultural Employment of H-2B Aliens in the United 
States; Proposed Rule

Federal Register / Vol. 76, No. 53 / Friday, March 18, 2011 / 
Proposed Rules

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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

Wage and Hour Division

29 CFR Part 503

RIN 1205-AB58


Temporary Non-Agricultural Employment of H-2B Aliens in the 
United States

AGENCY: Employment and Training Administration, and Wage and Hour 
Division, Labor.

ACTION: Proposed rule; request for comments.

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SUMMARY: The Department of Labor (the Department or DOL) proposes to 
amend its regulations governing the certification of the employment of 
nonimmigrant workers in temporary or seasonal non-agricultural 
employment and the enforcement of the obligations applicable to 
employers of such nonimmigrant workers. This Notice of Proposed 
Rulemaking (NPRM or proposed rule) proposes to revise and solicits 
comments on the process by which employers obtain a temporary labor 
certification from the Department for use in petitioning the Department 
of Homeland Security (DHS) to employ a nonimmigrant worker in H-2B 
status. The Department also proposes to create new regulations to 
provide for increased worker protections for both U.S. and foreign 
workers and enhanced enforcement under the H-2B program.

DATES: Interested persons are invited to submit written comments on the 
proposed rule on or before May 17, 2011. Interested persons are invited 
to submit comments on the proposed H-2B registration form mentioned 
herein; comments must be received on or before May 17, 2011.

ADDRESSES: You may submit comments, identified by Regulatory 
Information Number (RIN) 1205-AB58, by any one of the following 
methods:
     Federal e-Rulemaking Portal www.regulations.gov. Follow 
the Web site instructions for submitting comments.
     Mail or Hand Delivery/Courier: Please submit all written 
comments (including disk and CD-ROM submissions) to Michael Jones, 
Acting Administrator, Office of Policy Development and Research, 
Employment and Training Administration, U.S. Department of Labor, 200 
Constitution Avenue NW., Room N-5641, Washington, DC 20210.
    Please submit your comments by only one method. Comments received 
by means other than those listed above or that are received after the 
comment period has closed will not be reviewed. 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 are 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 on the https://www.regulations.gov Web site. It is the 
commenter's responsibility 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 through the https://www.regulations.gov Web site.
    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 Employment and Training Administration (ETA) 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 an 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 further information on 20 CFR part 
655, subpart A, contact William L. Carlson, PhD, Administrator, Office 
of Foreign Labor Certification, ETA, 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 number above via 
TTY by calling the toll-free Federal Information Relay Service at 1-
800-877-8339.
    For further information on 29 CFR part 503, contact Mary Ziegler, 
Director, Division of Regulations, Legislation, and Interpretation, 
Wage and Hour Division, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Room S-3510, Washington, DC 20210; Telephone (202) 693-
0406 (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. Revisions to 20 CFR Part 655 Subpart A

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 non-agricultural 
labor or services for which ``unemployed persons capable of performing 
such service or labor cannot be found in this country.'' 8 U.S.C. 
1101(a)(15)(H)(ii)(b). Section 214(c)(1) of the INA requires DHS to 
consult with appropriate agencies before approving an H-2B visa 
petition. 8 U.S.C. 1184(c)(1). The regulations for the U.S. Citizenship 
and Immigration Services (USCIS), the agency within DHS which 
adjudicates requests for H-2B status, require that an intending 
employer first apply for a temporary labor certification from the 
Secretary of Labor (the Secretary). That certification informs USCIS 
that U.S. workers capable of performing the services or labor are not 
available, 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 CFR 214.2(h)(6). A certification from the Secretary 
currently is not required for H-2B employment on Guam, for which 
certification from the Governor of Guam is required. 8 CFR 
214.2(h)(6)(iii).
    The Department's regulations at 20 CFR part 655, Subpart A, ``Labor 
Certification Process for Temporary Employment in Occupations other 
than

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Agriculture or Registered Nursing in the United States (H-2B 
Workers),'' govern the H-2B labor certification process, as well as the 
enforcement process to ensure U.S and H-2B workers are employed in 
compliance with H-2B labor certification requirements. 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 responsibilities described in the USCIS H-2B 
regulations. Enforcement of the attestations made by employers in the 
course of submission of H-2B applications for labor certification is 
conducted by the Wage and Hour Division (WHD) within the Department of 
Labor, to which DHS on January 16, 2009 delegated enforcement authority 
granted to it by the INA. 8 U.S.C. 1184(c)(14)(B).
    Under the current regulations, an employer seeking to fill job 
opportunities through the H-2B program must demonstrate that it has a 
temporary need for the services or labor, as defined by one of four 
regulatory standards: (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). Generally, that period of time will be limited to 1 
year or less but, in the case of a one-time occurrence, could last up 
to 3 years, consistent with the standard under DHS regulations at 8 CFR 
214.2(h)(6) as well as current Department regulations. See 20 CFR 
655.6(b).
    Before 2008, the Department's regulatory scheme was minimal; the 
process was governed primarily through program guidance issued by ETA, 
with enforcement by WHD only of independently applicable laws such as 
the Fair Labor Standards Act (FLSA). Before 2007, ETA processing was 
governed primarily by General Administration Letter No. 1-95, 60 FR 
7216, Feb. 7, 1995, which laid out the processing of applications, 
first at the State Workforce Agency (SWA), then at the Federal level. 
Applications were filed first with the SWA, allowing them to review the 
applications, oversee the conduct of recruitment of potential U.S. 
workers, review the results, and then forward the application to OFLC 
with a recommendation of whether to approve or deny the application. 
ETA issued Training and Employment Guidance Letter (TEGL) No. 21-06, 72 
FR 19961, Apr. 20, 2007, to replace the previous guidance for the 
processing of H-2B applications.
    In January 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. This set of proposed 
rules suggested an attestation-based approach to adjudication, sending 
applications directly to USCIS with enhanced enforcement by the 
Department. The two agencies received significant opposition to these 
proposals. The Department withdrew its proposed rule as a result of 
these comments. See https://www.reginfo.gov/public/do/eAgendaViewRule?ruleID=221117.
    In 2008, the Department again proposed regulations employing an 
attestation-based filing model. See 73 FR 29942, May 22, 2008. In this 
proposed model, SWAs no longer oversaw recruitment, instead allowing 
the employer to conduct its recruitment with no direct Federal or state 
oversight. This attestation-based model meant that OFLC could only 
review certain aspects of compliance with the regulations through post-
certification audits rather than through the recruitment process, 
although the recruitment process itself was not dissimilar and the 
employers were performing the same activities as they would be with a 
SWA's assistance and oversight. The proposed regulation also provided 
for enforcement by WHD through investigation and findings, leading to 
the imposition of civil money penalties and other actions. These 
regulations were proposed in light of (1) 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); (2) limited appropriations funding for program-related 
operations, both at the Federal and SWA levels; and (3) frequent and 
increasing comments from the user community that the process was 
cumbersome, complicated, time-consuming, and inefficient. These 
proposed regulations were a substantial shift from the administration 
of the program which provided for greater SWA involvement in the 
application and recruitment process. The Department received 
substantial comment on the proposed rule, and issued a Final Rule on 
December 19, 2008 (the 2008 Final Rule), which became effective January 
18, 2009. See 73 FR 78020, Dec. 19, 2008.
    Under the current attestation-based processing model, before filing 
an application to seek H-2B workers, an employer must first recruit 
U.S. workers to ensure an adequate test of the labor market for the 
position. In addition, the employer 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 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 contact 
any previously laid-off workers.
    One important change in the 2008 Final Rule was its inclusion of 
enforcement authority for the Department. Before 2008, the Department 
had no H-2B specific enforcement authority or process to ensure 
employer compliance with H-2B labor certifications. 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. That legislation authorized DHS to delegate this 
enforcement authority to the Department and DHS subsequently made that 
delegation. The 2008 Final Rule instituted an H-2B regulatory 
enforcement regime based upon DHS's delegation.
    On August 30, 2010, the U.S. District Court for the Eastern 
District of Pennsylvania in Comit[eacute] de Apoyo a los Trabajadores 
Agricolas (CATA) v. Solis, Civil No. 2:09-cv-240-LP, 2010 WL 3431761 
(E.D. Pa. Aug. 30, 2010), invalidated various provisions of the 
Department's 2008 Final Rule and remanded the case to the Department to 
correct its errors. The court ruled that the Department had violated 
the Administrative Procedure Act when it did not adequately explain its 
reasoning for using skill levels as part of the H-2B prevailing wage 
determination process, and that it failed to consider comments relating 
to the choice of appropriate data sets in deciding to rely on 
Occupational Employment Statistics survey data rather than Davis Bacon 
Act and Service Contract Act wage data in setting the prevailing wage 
rates. The court ordered the Department to ``promulgate new rules 
concerning the calculation of the prevailing wage rate in the H-2B 
program that are in compliance with the Administrative Procedure Act no 
later than 120 days from the date of this order.'' CATA v. Solis, Civil 
No. 2:09-cv-240-LP, 2010 WL 3431761 (E.D. Pa. Aug. 30, 2010). The 
Department began a separate rulemaking process to address the 
prevailing wage calculation and, on January 19, 2011, finalized its new 
prevailing wage calculation methodology in Wage Methodology for the 
Temporary Non-agricultural Employment H-2B Program Final Rule, 76 FR 
3452 (Jan. 19, 2011). This NPRM does not address the matters in the 
Prevailing Wage Final Rule, and

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commenters should not address those matters in this proceeding. 
However, commenters may wish to consider the content of that rule in 
fashioning their comments to the NPRM since the prevailing wage 
determination system set forth in the Prevailing Wage Final Rule will 
be applied to the final rule that results from this NPRM.
    Additionally, the court invalidated and vacated 20 CFR 655.22(k) 
insofar as that provision permits the clients of job contractors to 
hire H-2B workers without submitting an application to the Department. 
As a result, the Department no longer accepts H-2B labor certification 
applications filed solely by job contractors.
    Lastly, the court invalidated the following provisions on the 
ground that the Department did not provide a rational explanation of 
its policy choices: (1) 20 CFR 655.15(g) concerning the situations in 
which H-2B employers must contact unions as a potential source of 
labor; (2) the portion of 20 CFR 655.4 defining ``full time''; and (3) 
the portion of 20 CFR 655.4 defining ``job contractor'' to mean an 
entity that ``will not exercise any supervision or control in the 
performance of the services or labor to be performed other than hiring, 
paying, and firing the workers.'' In this NPRM, the Department is 
proposing a new provision at section 655.44 specifying when H-2B 
employers must contact unions as a potential source of labor and a new 
definition of ``full time'' at section 655.5 and 29 CFR 503.4 and is 
thereby proposing to abandon the particular union contact and full time 
provisions that were invalidated by the court. The Department is also 
proposing a slightly modified definition of job contractor based on the 
invalidated definition; however, the Department has provided an 
explanation in section 655.5 of the preamble which clarifies the 
rationale for the underlying definition and its modification.

B. The Need for Rulemaking

    The Department has determined for a variety of reasons that a new 
rulemaking effort is necessary for the H-2B program. The Department 
believes that the policy underpinnings of the 2008 Final Rule, e.g. 
streamlining the H-2B process to defer many determinations of program 
compliance until after an application has been adjudicated, do not 
provide an adequate level of protection for either U.S. or foreign 
workers. These protections are essential to meet the regulatory mandate 
to prevent adverse effect on wages and working conditions for U.S. 
workers and to ensure access to jobs for U.S. workers in order to 
satisfy the statutory requirement that certifications be granted only 
if no U.S. workers are available.
    First, there are insufficient worker protections in the current 
attestation-based model in which employers merely assert, and do not 
demonstrate, that they have performed an adequate test of the U.S. 
labor market and one which is in accordance with the regulations. 
Further, in the first year of the operation of the attestation-based 
system our experience indicates that employers are attesting to 
compliance with program obligations with which they have not complied, 
and that employers do not appear to be recruiting, hiring and paying 
U.S. workers, and in some cases the H-2B workers themselves, in 
accordance with established program requirements. Cases audited after 
certification by the OFLC in the 2 years since the adoption of an 
attestation-based program demonstrate a pattern of non-compliance or 
avoidance of demonstrating compliance. In the first round of audits 
conducted, which was primarily a random sample of cases, the Department 
found that 52 percent of employers that had attested to compliance with 
regulatory obligations were in fact not in compliance with those 
obligations. A second round demonstrated a higher level of compliance, 
but in total, the audited cases demonstrate a level of compliance of 
only 55 percent. The violations included evidence of both H-2B and U.S. 
workers being offered less than full-time work; misrepresentations as 
to the work time that was actually offered or the number of workers 
actually needed; workers being paid less than the prevailing wages; and 
U.S. workers being rejected for other than lawful, job-related reasons, 
such as not having a commercial driver's license when one is not 
required to perform the job. The identified violations come from 
different geographical sectors and relate to both new and experienced 
filers. The most disturbing evidence of non-compliance is, however, a 
lack of response from many of those audited--indicating anything from a 
company that does not exist (evidenced by returned mail) to an employer 
seeking to avoid liability by simply not informing the Department of 
its errors.
    There has also been increasing evidence in the H-2B program of 
violations rising to the criminal level. The Department has seen 
increasing evidence of employers and agents filing fraudulent 
applications--involving hundreds or thousands of requested employees--
for non-existent job opportunities. U.S. v. Broyles, 2:09-cr-00003-MSD-
TEM-23 (E.D. Va. 2010) (conspiracy to conspiracy to fraudulently obtain 
H-2B visas), U.S. v. Barbugli, 6:10-cr-00177-MSS-DAB, 6:10-mj-01089-
KRS, 6:10-cr-00180-MSS-GJK (C.D. Fl. 2010) (three family members guilty 
for operations involving a labor staffing company obtaining fraudulent 
H-2B visas through more than 11 subsidiary companies), and U.S. v. 
Manuel, 9:10-cr-80057-KAM (S.D. FL. 2010) (false statements and 
conspiring to hold approximately 39 Filipino nationals in forced 
service to work in H-2B status in country clubs and hotels in Southeast 
Florida) represent the most recent criminal actions involving H-2B 
applications filed for fraudulent job opportunities or containing false 
information at odds with the treatment actually received by the 
workers. Moreover, the General Accountability Office (GAO) released a 
report in September 2010 summarizing a review of ten concluded criminal 
and civil cases covering the previous 5 years involving H-2B employers 
and recruiters. These cases demonstrated violations of various labor 
laws or the settlement of alleged violations such as wage and/or 
overtime violations; charging of fees by employers; and the submission 
of fraudulent documentation to obtain visas and other government 
benefits. The Department cannot ignore this rise in successful criminal 
and civil prosecutions which demonstrate the abuse of the H-2 program; 
while the attestation-based model may not be a direct cause of the 
types of action resulting in these criminal charges, the model provides 
more of an opportunity for such actions to occur and remain undetected.
    The steps offered in this proposed rule cannot entirely eliminate 
the concerns the Department has with an attestation-based application 
model. The evidence of non-compliance under such a model is, however, 
sufficient in the Department's view to warrant steps to ensure that 
employers who comply in good faith can do so while those who have no 
intent to uphold their obligations have a decreased opportunity to 
defraud the program. In eliminating the attestation-based application 
model, the Department also increases the efficiency of the program, by 
ensuring applications with potential violations can be addressed before 
recruitment or certification, rather than requiring the more drastic 
potential for debarment after audit.
    In light of such non-compliance the Department has chosen to 
revisit the use of attestations, notwithstanding the use of post-
certification program integrity measures. Increased enforcement such as 
that proposed in this NPRM, although

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essential to a viable H-2B program, is not sufficient to ensure 
protection of workers in H-2B occupations who constitute a particularly 
vulnerable subgroup of the workforce. Rather, the most reliable method 
by which the Department can ensure compliance with the regulatory 
requirements is through the review of compliance through documentation 
provided to the Department in advance of the certification 
determination, rather than during the audit process. In addition to 
communicating to all the parties to the process the need to comply with 
those obligations, this review deters bad actors in the program from 
making false statements and also reinforces program requirements for 
those who are new to the program or unable to adequately discern their 
program obligations. To the extent that employers have incorrectly 
attested to compliance with program requirements through ignorance or 
misunderstanding of those requirements, the compliance-based model will 
identify those problems in the review of the application and offer the 
employer an opportunity to correct its error without penalty or delay 
in meeting its date of need.
    Although the Department still seeks to maintain an efficient 
system, it has in this new rule struck a balance between reducing 
processing times and protecting U.S. worker access to these job 
opportunities. The structured time frames for the processing of 
applications set forth in the proposed rule help the agency to strike 
that vital balance. We would emphasize that the return to the 
certification model which was used in the program for its entire 
history until January 2009, and which was recently reintroduced into 
the H-2A program, creates no significant additional burdens on 
employers. It does not change the nature of the obligations with which 
employers must comply, or the documentation that employers must 
maintain, but merely adjusts the timing and circumstances under which 
that documentation, the evidence of compliance with those obligations, 
must be produced for review. While this change produces no additional 
burden on employers, it will substantially enhance overall program 
integrity by allowing the Department to identify potential problematic 
applications at the earliest possible time. It is also much less 
onerous on employers to be required to amend a deficient or incomplete 
application before it is certified, than to subject the employer to the 
potential for back pay, civil money penalties or debarment if the 
deficiencies in the application are not identified until the job 
opportunity is gone.
    The Department, however, is aware that in certain instances, 
employers would prefer a continuation of an attestation-based 
application process. Using an attestation-based application, 
applications would be streamlined and employers may be able to obtain 
some cost savings from not being required to duplicate and send 
documentation demonstrating compliance along with the application. Many 
employers have indicated to the Department the preference for a 
streamlined application system, with more of an emphasis on enforcement 
for compliance on the back end. This is the model that was put into 
place in the 2008 Final Rule and has support of many employers.
    The Department remains concerned, however, whether its goals of 
ensuring compliance (both up-front compliance by those unfamiliar with 
program requirements and for those engaged in deliberate disregard for 
program obligations) can be met through increased program compliance 
assistance and post-certification enforcement. This is particularly 
true in a temporary worker program, where non-compliance would likely 
be identified through enforcement efforts well after the impacted H-2B 
workers have returned to their home country or the U.S. workers were 
already denied employment.
    While a compliance demonstration model remains the Department's 
preferred alternative and as such is reflected in the proposed 
regulatory text, the Department proposes dual consideration of an 
alternative retaining the current attestation-based application system. 
The Department is interested in receiving comments on the alternative 
of maintaining the current or some modification of the current 
attestation-based program design. Specifically, the Department is 
seeking comments on whether it should develop certain attestations 
which can be required of all employers (such as an attestation for 
certain kinds of recruitment), or for only certain program compliance 
requirements. In order to provide information to address the 
Department's concerns, comments on any attestation alternative should 
focus on the following:
    1. What kind of specific guidance could the Department provide that 
would benefit a first-time (or sporadic) employer in the H-2B program 
to avoid mistakes in making attestations of compliance with program 
obligations?
    2. What kind of guidance would benefit frequent users of the 
program with respect to repetitive errors in recruitment? What kind of 
guidance would be beneficial in avoiding errors in unique situations 
for these users?
    3. Could pre-certification audits augment a post-certification 
audit in an attestation-based program model? If not, how would you 
propose the Department obtain information in the absence of supervised 
activity in order to arrive at certification while ensuring compliance 
with program obligations?
    4. What additional sanctions could be taken against employers to 
ensure compliance with program requirements, given the potential for 
fraud in the H-2B program?
    5. What other kinds of actions could the Department take to prevent 
an H-2B employer from filing attestations that do not meet program 
requirements?
    Accordingly, in order to adequately protect U.S. and H-2B workers, 
the Department proposes the changes discussed below, including the 
proposal of a new 29 CFR part 503 to set forth WHD's investigative and 
enforcement roles. The Department is engaging in this new rulemaking to 
provide the public with notice and opportunity to comment on the H-2B 
program.
    The NPRM seeks to help employers meet legitimate short-term 
temporary labor needs where and when there are no available U.S. 
workers. Over the years as the program has evolved, stakeholders in 
diverse industries throughout the country repeatedly have expressed 
concerns that some employers were inappropriately using H-2B workers 
for job opportunities that were permanent, thereby denying U.S. workers 
the opportunity for long-term employment. These employers' actions are 
at the detriment of other employers with a legitimate temporary need 
that are ultimately denied access to the program due to the statutory 
limitation on available visas. By preventing employers with a long-term 
permanent need from participating in the H-2B program, the Department 
would provide employers with genuine unmet temporary needs with a 
greater opportunity to participate in the program. Similarly, the 
proposed requirement that employers provide a single date of need or 
start date for the workers ensures that employers with legitimate 
temporary needs will have a better chance of receiving available visas 
in years in which the demand exceeds the supply.
    The Department's proposal to bifurcate the current application 
process into a registration phase which addresses the employer's 
temporary need and an application phase which addresses the labor 
market test will enable the Department to prevent

[[Page 15134]]

employers without a legitimate temporary need from even filing an 
application. The current process where the adjudication of temporary 
need is concurrent with the evaluation of the labor market test often 
results in delays in processing employer applications for H-2B labor 
certifications. The Department believes that bifurcating this process 
will facilitate the timely processing of applications. This bifurcation 
allows the employers to conduct the labor market test closer to the 
date of need without the simultaneous adjudication of temporary need. 
Because the registration may be valid for up to 3 years, employers will 
be able to commence the process at the second phase without having to 
re-establish temporary need for the second and third years of 
registration, absent significant change in conditions, saving employer 
and public resources from re-adjudication of an obvious legitimate 
need. Additionally, removing employers without demonstrable temporary 
need from the application process further enables the Department and 
the SWAs to focus their limited resources on administering in a timely 
manner the labor market test. A registration process enables the 
Department to better serve the employers with legitimate temporary 
need, as well as the public by being able to focus on ensuring that 
U.S. workers are afforded full access to these job opportunities.
    As part of the Department's commitment to openness and public 
input, DOL reached out to stakeholders, including employers, labor 
unions, advocates and other Federal agencies to learn more about their 
experiences with the H-2B program and hear their views on how the 
program can be improved to meet temporary labor needs, while ensuring 
U.S. worker access to the job opportunities and providing sufficient 
worker protections to both U.S. and H-2B workers. These listening 
sessions included targeted immigration sessions at the full-day 
Stakeholder Forum convened by WHD in Washington, DC and attended by 
hundreds of representatives from business, labor and other 
stakeholders, as part of its annual strategic planning process. These 
meetings provided the Department with a wealth and diversity of 
experience and views that helped better inform the drafting process. 
The Department hopes that the interested parties review this proposal 
and continue to engage and provide feedback and comments that are 
essential to ensuring an effective and workable final rule.

II. Discussion of 20 CFR Part 655, Subpart A

A. Introductory Sections

1. Section 655.1 Scope and Purpose of Subpart A
    This proposed provision informs program users of the statutory 
basis and regulatory authority for the H-2B labor certification 
process. This provision describes the Department's role in receiving, 
reviewing, adjudicating, and upholding the integrity of an Application 
for Temporary Employment Certification.
2. Section 655.2 Authority of Agencies, Offices and Divisions in the 
Department of Labor
    The Department proposes in this provision to describe the authority 
of and division of activities related to the H-2B program among the 
Department's agencies. It discusses the authority of OFLC, the office 
within ETA that exercises the Secretary's responsibility for 
determining the availability of U.S. workers and whether the employment 
of H-2B nonimmigrant workers will adversely affect the wages and 
working conditions of similarly employed workers. It also discusses the 
authority of WHD, the agency responsible for investigation and 
enforcement of the terms and conditions of H-2B labor certifications, 
as delegated by the DHS.
3. Section 655.3 Territory of Guam
    As in the 2008 Final Rule, under the proposed rule, the granting of 
H-2B labor certifications and the enforcement of the H-2B visa program 
in Guam will continue to reside with the Governor of Guam, pursuant to 
DHS regulations. However, this regulation proposes that the 
determination of all prevailing wages should be housed in the 
Department, including those for Guam. The function determining a 
prevailing wage for construction workers on Guam has most recently been 
housed with USCIS, which consults with the Governor of Guam as to the 
admission of H-2B construction workers on Guam. 8 CFR 214.2(h)(6)(iii). 
DHS and the Department are in agreement that issuing prevailing wages 
for all workers, including construction workers, would more 
appropriately be performed by the Department, specifically by the OFLC, 
because OFLC already provides prevailing wage determinations for all 
other U.S. jurisdictions. The Department, therefore, is proposing that 
the process for obtaining a prevailing wage in proposed section 655.12 
also apply to H-2B job opportunities in Guam. Employment opportunities 
in Guam would, under the proposed rule, be subject to the same process 
and methodology for calculating prevailing wages as any other 
jurisdiction within the Department's purview.
4. Section 655.4 Special Procedures
    The proposed rule continues the Department's authority to 
establish, continue, revise, or revoke special procedures that 
establish variations for processing certain H-2B Applications for 
Temporary Employment Certification. These are situations where the 
Department recognizes that variations from the normal H-2B labor 
certification processes are necessary to permit access to the program 
for specific industries or occupations. These variations permit access 
to the program for those who would otherwise be unable to readily 
comply with the program's established processes, such as by allowing 
itinerary employment for reforestation employers and certain employers 
in the entertainment industry. Under the proposed rule, as with the 
2008 Final Rule, special procedures already in place on the effective 
date of the regulations will remain in force until otherwise modified 
or withdrawn by the Department.
5. Section 655.5 Definition of Terms
    Although the Department proposes a number of changes to the 
definitions section from the definitions contained in the 2008 Final 
Rule, many of the changes are to clarify meanings in minor ways that do 
not substantively change the meaning of the term. However, some 
substantive changes to definitions are also proposed.
    The Department proposes to add a reference to the definition of 
``agricultural labor or services'' from its own regulations governing 
H-2A temporary agricultural employment in order to assist in clarifying 
what non-agricultural employment is, by defining what it is not. The 
distinction between agricultural and non-agricultural employment is 
defined in part by the H-2A temporary agricultural regulations, drawn 
from the express authorization of the Department to define what 
constitutes agricultural labor or services. The Department is also 
offering a definition of ``non-agricultural labor or services'' as any 
type of employment that is not agricultural in nature.
    The Department proposes to add the definition of ``area of 
substantial unemployment'' to the H-2B program. As will be discussed 
more fully below, employers seeking H-2B workers in areas of 
substantial unemployment may

[[Page 15135]]

be subject to enhanced recruitment based on the Certifying Officer's 
(CO) discretion. Further discussions of how the Department has derived 
the definition of ``area of substantial unemployment'' can be found in 
ETA's Training and Employment Guidance Letter No. 1-08, Aug. 20, 2008.
    The Department proposes to amend the definition of an ``attorney'' 
to reflect the scope of activities attorneys can perform under the 
program.
    The Department proposes to amend the definition of ``Certifying 
Officer'' to clarify that the Administrator, OFLC is the National CO.
    The Department proposes to include the definition of 
``corresponding employment'' under these H-2B regulations to more 
accurately reflect the DHS regulatory requirement that, as a condition 
for approval of H-2B petitions the Secretary certify that the 
employment of the alien in such labor or services will not adversely 
affect the wages and working conditions of similarly employed U.S. 
workers. 8 CFR 214.2(h)(6). To ensure that U.S. workers are not 
adversely affected by the employment of H-2B workers, the Department 
proposes to require that employers provide to workers engaged in 
corresponding employment at least the same protections and benefits as 
those provided to H-2B workers (except for border crossing and visa 
fees which would not be applicable). Like the definition of 
corresponding employment in the H-2A program, ``corresponding 
employment'' is defined as the employment of workers who are not H-2B 
workers by an employer whose H-2B Application was approved by OFLC in 
any work included in the job order, or any work performed by the H-2B 
workers during the validity period of the job order. Workers in 
``corresponding employment'' may be either workers hired during the 
recruitment process on an H-2B job order or workers who already work 
for an employer who perform the same work as H-2B workers.
    Historically, there has been a recognition that U.S. workers should 
not be treated less favorably than temporary foreign workers. For 
example, a 1980 Senate Judiciary Report on Temporary Worker Programs 
stated that U.S. employers were required to offer domestic workers 
wages equal to foreign workers as a prerequisite for labor 
certification. See Congressional Research Service: ``Report to the 
Senate Committee on the Judiciary: Temporary Worker Programs: 
Background and Issues, 53 (1980).'' Current Sec.  655.22(a) reflects 
this principle, requiring that the terms and conditions of offered 
employment cannot be less favorable than those offered to H-2B workers. 
This provides for equal treatment of workers hired during the H-2B 
recruitment process. However, the current regulation does not encompass 
all workers who may be engaged in work performed by H-2B workers during 
the validity of the job order.
    Courts have consistently upheld the Department's interpretation 
that the wages and benefits offered or provided to H-2A agricultural 
workers must also be provided to domestic workers. See Farmer v. 
Employment Security Comm'n of N.C., 4 F.3d 1274, 1276, nn. 2, 3, 4 (4th 
Cir. 1993) (H-2A employers must make certain benefits available to all 
temporary agricultural laborers); see also Williams v. Usery, 531 F.2d 
305, 306 (5th Cir. 1976) (the Secretary's authority is limited to 
making an economic determination of what rate must be paid all workers 
to neutralize any adverse effect resulting from the influx of temporary 
foreign workers). Similarly, in the H-2B non-agricultural context, 
paying the prevailing wage rate to all workers protects against 
possible wage depression from the introduction of foreign workers.
    Further, under the current H-2B regulations, since employees hired 
during the current ten-day recruitment period in Sec.  655.15(e) are 
entitled to the same offered terms and conditions of employment as the 
foreign workers hired for those positions, a longtime employee earning 
less than the advertised wage would be entitled to quit his current 
employment and re-apply for the same job with the same employer to 
obtain the higher wage rate offered to H-2B workers and U.S. workers 
hired during that recruitment period. This would be disruptive for the 
employer and could create an additional administrative burden for the 
SWAs for any workers being referred through them. It also puts too high 
a premium on longtime employees understanding their rights under the 
regulations, and feeling secure enough--rare in low-wage employment--to 
quit a job with the expectation of being immediately rehired. Under 
this NPRM, longtime U.S. workers would be entitled to the wage rates 
paid to H-2B employees without having to quit their jobs and be 
rehired.
    The H-2B program must ensure that U.S. workers are not adversely 
affected by the presence of H-2B workers in the labor market. A primary 
means of providing this protection is to ensure that the jobs are 
available to U.S. workers under the same wages, benefits, and terms and 
conditions of employment provided to temporary foreign workers. The 
problem we seek to address with this aspect of corresponding employment 
are H-2B employers who place H-2B workers in occupations and/or at job 
sites outside the scope of the labor certification and in violation of 
the regulations, thereby bypassing many of the protections U.S. workers 
otherwise enjoy under the program, such as domestic recruitment 
requirements, wage protections, and the right to be employed if 
available and qualified. We invite comments that propose alternatives 
to including in the definition of corresponding employment U.S. workers 
employed in occupations which are beyond the scope of the labor 
certification but at job sites where H-2B workers are placed and that 
will still ensure that U.S. worker protections are not undermined.
    An employer employing H-2B workers and/or workers in corresponding 
employment under an Application for Temporary Employment Certification 
has agreed as part of the Application for Temporary Employment 
Certification that it will abide by the conditions in this section. The 
Department also invites members of the public to provide comments on 
whether and how each new proposed condition, including the application 
of transportation benefits, the three-quarter guarantee and the 
definition of full-time employment, should apply to H-2B workers and 
U.S. workers in corresponding employment.
    The Department proposes to retain the definition of ``employee'' 
from the 2008 Final Rule, with minor clarifying edits. This definition 
is based on the common law, as set forth in the Supreme Court's holding 
in Nationwide Mutual Insurance v. Darden, 503 U.S. 318, 322-324 (1992). 
The proposed clarifying edits would conform the definition to one used 
in most other Department-administered temporary foreign worker 
programs. To provide clarity, the Department proposes a definition of 
the term ``H-2B worker'' as an individual authorized to be in the 
United States to perform H-2B non-agricultural services or labor.
    The Department proposes to amend the definition of ``full time'' in 
the H-2B program to mean 35 or more hours per week. The proposed 
increase in the number of hours from 30 to 35 to constitute full-time 
employment conforms more closely to the available data on full-time 
employment. This will also provide greater clarity for employers than 
the current regulation, which defines full time to mean 30 hours or 
more per week with a vague exception for unidentified local or

[[Page 15136]]

industry standards. The proposal also restores the pre-2008 level of 35 
hours.
    The District Court in CATA v. Solis, Civil No. 2:09-cv-240-LP, 2010 
WL 3431761 (E.D. Pa. Aug. 30, 2010), invalidated the definition in the 
2008 H-2B Final Rule of full time as 30 hours a week, which was a 
change from the proposed definition of full time as 35 hours a week 
primarily because, in the court's view, the Department did not 
``consider[ ] the relevant factors and articulate[ ] a rational 
connection between the facts found and the choice made.'' CATA, 2010 WL 
3431761 at * 14 (quotation and citation omitted).
    In accord with the CATA decision, the Department believes that the 
regulatory definition of full-time work should be supported by 
empirical data. In response to these data, the Department's position 
regarding the definition of full time has evolved. Though the 2008 
Final Rule established a 30-hour work week as the standard for full 
time employment, the CATA court correctly pointed out that the 2008 
Final Rule contained no meaningful rationale for that determination. 
After reviewing available information, the Department now believes that 
a 35-hour work week is more representative of the actual needs of 
employers and expectations of workers. First, the most recent 
statistics available from BLS indicate that the average hours worked 
during a week, including both full and part time employment was 34.3 
hours during December 2010, \1\ and that the average weekly hours 
worked of workers who usually work full time is 42.4 hours. \2\ These 
statistics make clear that full time U.S. workers are employed for at 
least 35 hours per week. The last two years of experience under the 
current rule are consistent with the direction of BLS data. Though an 
exhaustive statistical analysis of hours requested is not feasible, it 
is clear that a substantial majority of H-2B employers recruit workers 
for 35 or more hours of work each week. All of the approximately 30 
investigations undertaken by the WHD since enforcement authority was 
transferred from DHS have identified work weeks of at least 35 hours 
(with some even indicating possible overtime). In addition, as noted in 
the preamble to the current H-2B regulations, landscapers--one of the 
largest groups of H-2B workers--typically work 35-hour weeks. See 73 FR 
78038 (Dec. 19, 2008). Defining a workweek as at least 35 hours is 
consistent with existing H-2A regulations, and it is closer to the 40 
hours per week standard used in the H-1B program. Furthermore, the use 
of the 35-hour week may increase the possibility of recruiting U.S. 
workers who may find the additional hours of work more attractive.
---------------------------------------------------------------------------

    \1\ Bureau of Labor Statistics, Employment Situation, Table B-2: 
Average weekly hours and overtime of all employees on private 
nonfarm payrolls by industry sector, seasonally adjusted, Dec. 2010. 
https://www.bls.gov/news.release/empsit.t18.htm.
    \2\ Bureau of Labor Statistics, Employment Situation, Table A-
24: Persons at work in agriculture and related and in nonagriculture 
industries by hours of work, Dec. 2010. https://www.bls.gov/web/empsit/spseea24.pdf.
---------------------------------------------------------------------------

    The Department anticipates that this change will not impose 
substantial cost on most employers. Since the data and experience 
referenced above indicated that a substantial majority of H-2B 
employers already employ workers for 35 hours or longer each week, the 
proposed rule will have no impact on a large proportion of the employer 
population. Furthermore, 66 percent of employers in FY2010 requested at 
least ten employees to work in the same occupation in the same area of 
intended employment, suggesting that some employers can avoid any 
adverse impact by requesting fewer workers and scheduling each to work 
several more hours per week. The Department seeks comments on costs to 
employers and other stakeholders of an increase from 30 to 35 hours per 
week.
    Alternatively, the Department considered proposing a 40-hour 
threshold. This level is more in line with what the U.S. labor market 
generally considers as full time. Forty hours is also reflective of 
data actually captured by the December 2010 BLS Current Population 
Survey (CPS) concluding that the average workweek of non-agricultural 
workers who usually work full time is 42.4 hours long.\3\ The 
Department is currently proposing 35 hours instead of 40 because 35 
hours is more consistent with the Department's historical practice for 
the H-2B program, and should therefore not pose difficulty for the 
regulated community. However, the Department welcomes comments 
regarding whether extending the definition of a full-time workweek to 
at least 40 hours is more protective of U.S. workers and whether it 
conforms better to employer standards and needs.
---------------------------------------------------------------------------

    \3\ Bureau of Labor Statistics, Employment Situation, Table A-
24: Persons at work in agriculture and related and in nonagriculture 
industries by hours of work, Dec. 2010. https://www.bls.gov/web/empsit/spseea24.pdf.
---------------------------------------------------------------------------

    The Department proposes to amend the definition of an ``H-2B 
petition'' to clarify that the petition includes the certified 
Application for Temporary Employment Certification and its attachments. 
This more closely reflects the Department of Homeland Security's 
current H-2B regulations, in which a certified Application for 
Temporary Employment Certification is required.
    In this NPRM, the Department proposes to amend the definition of a 
``job contractor.'' The U.S. District Court for the Eastern District of 
Pennsylvania in CATA v. Solis, Civil No. 2:09-cv-240-LP, 2010 WL 
3431761 (E.D. Pa. Aug. 30, 2010) invalidated the definition of ``job 
contractor'' under the 2008 Final Rule, concluding that the Department 
did not provide a rational explanation for its adoption of the language 
in the final rule that the job contractor ``will not exercise any 
supervision or control in the performance of the services or labor to 
be performed other than hiring, paying, and firing the workers.'' The 
court found the Department's explanation deficient because the 
Department stated that this language was to ``make clear that the job 
contractor, rather than the contractor's client, must control the work 
of the individual employee.'' However, as the court stated, this 
language ``did precisely the opposite--it clarified that it is the 
contractor's client who `must control the work of the individual 
employee.' The explanation is therefore not rationally connected to the 
change, which will accordingly be invalidated as arbitrary.''
    Accordingly, the Department would like to resolve any confusion and 
clarify that the phrase ``the job contractor will not exercise any 
supervision or control in the performance of the services or labor to 
be performed other than hiring, paying and firing the workers'' was 
intended to clarify that an employer meets the definition of job 
contractor where the job contractor's client, rather than the job 
contractor, exercises primary supervision or control over the work of 
the individual employee.
    The Department is proposing to amend the definition of job 
contractor to include the phrase ``substantial, direct day-to-day'' 
before ``supervision or control'' to clarify that an entity exercising 
some limited degree of supervision or control over the H-2B workers 
would still be considered a job contractor, while an entity exercising 
substantial, direct day-to-day supervision or control over the H-2B 
workers would not be considered a job contractor. This revised 
definition better reflects the activities of job contractors in the H-
2B program.
    The Department is not of the view that employers engaged in 
reforestation activities that have historically used the program will 
be impacted by this proposed action because their activities generally 
should not fall under the definition of a job contractor. Reforestation 
employers provide on site,

[[Page 15137]]

day-to-day supervision and direction of workers and are therefore not 
job contractors for the purposes of this proposed rule.
    The Department also proposes an amended definition of the ``offered 
wage.'' The amended definition makes clear the employer's obligation to 
pay all affected workers at least the highest of the prevailing wage, 
or the Federal, State, or local minimum wage.
    The Department proposes to revise the definition of ``strike.'' The 
term is used in the same way as in the Department's 2010 H-2A 
regulations. The proposed definition is broader than the current 
definition and includes any concerted work stoppage as a result of a 
labor dispute or any concerted interruption or slowdown of operation.
    The Department also proposes to define several terms not previously 
defined in the 2008 Final Rule. The Department intends by these new 
definitions to provide interested parties with an understanding of 
terms that are either new or are commonly used in the H-2B program. As 
discussed more fully later in this preamble, the Department is 
including a definition of ``H-2B Registration.'' See discussion of 
Sec.  655.11. Other terms have been proposed to provide program users 
with insight to better achieve program compliance, including ``job 
offer'' and ``job order.'' The Department proposes these definitions to 
ensure that employers understand the difference between the offer that 
is made to workers, which must contain all the material terms and 
conditions of the job, and the order that is the published document 
used by SWAs in the dissemination of the job opportunity.
    The Department is including a proposed definition of a ``Federal 
holiday'' to provide clarity for employers about which holidays are 
included for purposes of tracking timelines that are used in this 
regulation. The Department proposes to move several definitions to the 
definition section, such as the ``Administrator, OFLC,'' that have 
appeared in different sections in previous regulations to provide one 
place for the definition of those terms.
    The Department also proposes the removal of certain definitions 
that are obsolete in or inapplicable to the H-2B program. The terms 
``representative'' and ``eligible worker'' for example, are proposed to 
be eliminated, as they are no longer used.
6. Section 655.6 Temporary Need
    The Department proposes an interpretation of temporary need that is 
directly reflective of the DHS definition of that term and of the 
Department's experience in the H-2B program. The DHS regulations define 
temporary need as a need for a limited period of time, where the 
employer must ``establish that the need for the employee will end in 
the near, definable future.'' 8 CFR 214.2(h)(6)(ii)(B). The proposed 
interpretation is consistent with this approach.
    The Department proposes to exclude job contractors from being 
considered for participation in the H-2B program. Job contractors are 
defined in this regulation as entities that employ workers they supply 
to other entities and that are generally only engaged in the hiring, 
firing and payment of the workers they supply; they do not control the 
day-to-day performance of or directly supervise the services or labor 
of those workers. Furthermore, they have an ongoing business of 
supplying workers to other entities, even if that entity's need for the 
services is temporary. It is the Department's view that a job 
contractor's ongoing need is by its very nature permanent rather than 
temporary and therefore the job contractor does not qualify to 
participate in the program. The contractor may have many clients, each 
of whom has a temporary need, but the contractor's need for the 
employees it seeks to fulfill its contracts is ongoing and therefore of 
a potentially permanent duration. Accordingly, the contractor's need 
would not be temporary.
    This conclusion is consistent with the Board of Immigration 
Appeals' seminal decision in Matter of Artee, 18 I. & N. Dec 366, 
Interim Decision 2934, 1982 WL 190706 (BIA 1982). Matter of Artee 
established that a determination of temporary need rests on the nature 
of the underlying need for the duties of the position. The Board of 
Alien Labor Certification Appeals (BALCA) has recently further 
clarified the definition of temporary need in Matter of Caballero 
Contracting & Consulting LLC 2009-TLN-00015 (April 9, 2009), finding 
that ``the main point of Artee * * * is that a job contractor cannot 
use [solely] its client's needs to define the temporary nature of the 
job where focusing solely on the client's needs would misrepresent the 
reality of the application.'' BALCA, in Matter of Cajun Constructors, 
Inc. 2009-TLN-00096 (October 9, 2009), also decided that an employer 
that by the nature of its business works on a project until completion 
and then moves on to another, has a permanent rather than a temporary 
need. The Department concurs that a job contractor that provides 
workers to an employer on a temporary basis, but has an ongoing need 
for such workers, is an entity with a permanent and not a temporary 
need.
    As a result of the order issued by the U.S. District Court for the 
Eastern District of Pennsylvania in CATA v. Solis, Civil No. 2:09-cv-
240-LP, 2010 WL 3431761 (E.D. Pa. Aug. 30, 2010), the Department has 
stopped accepting labor certification applications submitted by job 
contractors. In the CATA decision, the court interpreted DHS' 
regulations to require every employer client of a ``job contractor'' as 
defined in the regulations at 20 CFR 655.4, to file a visa petition 
(and thus the underlying labor certification as well); therefore, 
requiring only job contractors to file a labor certification 
application would be contrary to DHS regulations. The proposal to 
eliminate job contractors altogether from the H-2B program, based on 
the determination that job contractors have a permanent need, 
effectively achieves the same result as the court's ruling in CATA 
since the Department has yet to receive a labor certification 
application from a job contractor that meets both the requirements of 
the CATA decision and the existing H-2B regulations.\4\
---------------------------------------------------------------------------

    \4\ While the CATA decision did not impose an outright 
prohibition on the participation of job contractors in the H-2B 
program, the Court left open the possibility that the Department may 
accept a labor certification application from a job contractor if 
its employer-client(s) also filed applications. However, the 
regulation at 20 CFR 655.20(e) only allows for one H-2B labor 
certification application to be filed for worksite(s) within one 
area of intended employment for each job opportunity with an 
employer. The H-2B regulations though recognize joint employment and 
do not prohibit the filing of a single labor certification by joint 
employers. Therefore, under the current regulations, a job 
contractor and its employer-client(s) could very well file a single 
application as joint employers and thus be in compliance with both 
the CATA decision (which prohibits allowing only the job contractor 
to file the application) and Sec.  655.20(e) (which prohibits the 
filing of multiple applications for a single job opportunity).
---------------------------------------------------------------------------

    The Department's proposal regarding job contractors is based on our 
determination that job contractors, by their nature, have a permanent 
need for workers and therefore are not statutorily permitted to seek to 
employ H-2B workers. As stated above, the Department understands that 
in some circumstances the use of a job contractor may be advantageous 
to employers; job contractors presumably save some employers from the 
administrative functions of direct employment and provide their clients 
with useful, perhaps even cost-saving, service. However, the advantages 
provided to employers by using these services are not a legitimate 
basis for use of the H-2B program. Based on the Department's 
determination that job contractors have

[[Page 15138]]

a permanent need for workers, it cannot transgress the temporary 
parameters of the program to permit employers with permanent job 
opportunities to apply for temporary workers. The Department recognizes 
that by taking this position, the result may be that some employers who 
have been clients of such job contractors, and who have not previously 
participated in the program, may now seek to do so. We encourage those 
employers to submit information to us about their changed circumstances 
as a result of this proposal, including the potential costs or savings 
that may result.
    DHS categorizes and defines temporary need into four 
classifications: Seasonal need; peakload need; intermittent need; and 
one-time occurrence. A one-time occurrence may be for a period of up to 
3 years. The other categories are limited to 1 year or less in 
duration.
    The Department proposes to define temporary need as less than 9 
months, except in the case of a one-time occurrence. The definition is 
in keeping with the DHS definition of temporary need, in which the 
``period of time will be one year or less, but in the case of a one-
time event could last up to 3 years.'' 8 CFR 214.2(h)(6)(ii)(B). The 
Department believes its proposed time period is an appropriate 
interpretation of the ``or less'' limitation contained in the DHS 
regulations, a limitation it has always previously applied in this 
program. This interpretation is necessary to ensure that the program is 
available only for employers with truly temporary or seasonal needs. 
The current approach that permits temporary certifications for periods 
up to 10 months encompasses job opportunities that the Department 
believes are permanent in nature and not consistent with Congressional 
intent to limit H-2B visas to employers with temporary or seasonal 
needs. If work is performed during all four seasons of the year, either 
it is not temporary or seasonal, consistent with statutory intent, or 
it is not the same work (for example, landscape workers who also 
perform snow removal duties) and thus would require separate 
applications. Employers that have recurring needs that are longer than 
9 months should not have access to the H-2B temporary worker program 
for those job opportunities.
    In addition, the Department's experience in administering the H-2B 
program indicates that some employers are not appropriately 
characterizing the nature of their peakload need, specifically where 
this need is based on a short-term, as opposed to seasonal, demand. 
Peakload need is based on ``seasonal or short-term demand'' for which 
the employer needs to supplement its normal workforce. 8 CFR 
214.2(h)(6)(ii)(A)(3). The Department is concerned that employers who 
cannot demonstrate a seasonal need mischaracterize a permanent need as 
a short-term temporary need, relying on a perceived short-term