Temporary Non-Agricultural Employment of H-2B Aliens in the United States, 10038-10182 [2012-3058]
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Information Relay Service at 1–800–
877–8339.
SUPPLEMENTARY INFORMATION:
DEPARTMENT OF LABOR
Employment and Training
Administration
I. Revisions to 20 CFR part 655 Subpart
A
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
Employment and Training
Administration, and Wage and Hour
Division, Labor.
ACTION: Final rule.
AGENCY:
The Department of Labor (the
Department) is amending its regulations
governing the certification of the
employment of nonimmigrant workers
in temporary or seasonal nonagricultural employment and the
enforcement of the obligations
applicable to employers of such
nonimmigrant workers. This Final Rule
revises 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.
We have also created new regulations to
provide for increased worker
protections for both United States (U.S.)
and foreign workers.
DATES: This Final Rule is effective April
23, 2012.
FOR FURTHER INFORMATION CONTACT: For
further information on 20 CFR part 655,
Subpart A, contact William L. Carlson,
Ph.D., 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) 693–0071 (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
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SUMMARY:
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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 of 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). On Guam, H–2B
employment requires certification from
the Governor of Guam, not the
Secretary. 8 CFR 214.2(h)(6)(iii).
Our regulations, at 20 CFR part 655,
Subpart A, ‘‘Labor Certification Process
for Temporary Employment in
Occupations other than 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 the Employment and Training
Administration (ETA), the agency to
which the Secretary has delegated her
responsibilities as 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,
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 2008 H–2B regulations
published at 73 FR 29942, May 22, 2008
(the 2008 Final Rule), an employer
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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 onetime 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, except in the
case of a one-time occurrence, which
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 at § 655.6(b).
The 2008 Final Rule also employed an
attestation-based filing model, in which
the employer conducted its recruitment
with no direct Federal or State
oversight. Lastly, the 2008 Final Rule
provided WHD’s enforcement authority
under which WHD could impose civil
money penalties and other remedies.
On August 30, 2010, the U.S. District
Court for the Eastern District of
´
Pennsylvania in Comite 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
2008 Final Rule and remanded the rule
to the Department to correct its errors.
In the Notice of Proposed Rulemaking
(NPRM) published March 18, 2011 (76
FR 15130), we proposed to amend the
particular provisions that were
invalidated by the Court, including
specifying when H–2B employers must
contact unions as a potential source of
labor at § 655.44 and providing a new
definition of full-time and a slightly
modified definition of job contractor in
§ 655.5 and 29 CFR 503.4.
B. The Need for Rulemaking
The Department determined for a
variety of reasons that a new rulemaking
effort is necessary for the H–2B
program. These policy-related reasons,
which were discussed at length in the
NPRM, include expansion of
opportunities for U.S. workers, evidence
of violations of program requirements,
some rising to a criminal level, need for
better worker protections, and a lack of
understanding of program obligations.
We accordingly proposed to revert to
the compliance-based certification
model that had been used from the
inception of the program until the 2008
Final Rule. We also proposed to add
new recruitment and other requirements
to broaden the dissemination of job offer
information, such as introducing the
electronic job registry and requiring the
job offer to remain open to U.S. workers
for a longer period and closer to the date
of need. We stated that these changes
were necessary to ensure that there was
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an adequate test of the U.S. labor market
to determine whether U.S. workers are
available for the jobs. Further, we
proposed additional worker protections,
such as increasing the number of hours
per week required for full-time
employment and requiring that U.S.
workers in corresponding employment
who perform the same jobs at the same
place as the H–2B workers receive the
same wages and benefits as the H–2B
workers. We discussed how increased
worker protections were necessary to
ensure that the employment of H–2B
workers does not adversely affect the
wages and working conditions of U.S.
workers.
Summing the present value of the
costs associated with this rulemaking in
Years 1–10 results in total discounted
costs over 10 years of $10.3 million to
$12.8 million (with 7 percent and 3
percent discounting, respectively).
TABLE 1—SUMMARY OF COSTS AND TRANSFERS
[Millions of dollars]
Transfers and costs by year
(millions of dollars)
Cost component
Year 1
costs
Undiscounted:
Total Costs and Transfers—Low ......................................................................................................
Total Costs and Transfers—High .....................................................................................................
Total Transfers—Low .......................................................................................................................
Total Transfers—High ......................................................................................................................
Total Costs to Employers .................................................................................................................
Total Costs to Government ..............................................................................................................
Present Value—7% Real Interest Rate:
Total Costs & Transfers—Low .........................................................................................................
Total Costs & Transfers—High ........................................................................................................
Total Transfers—Low .......................................................................................................................
Total Transfers—High ......................................................................................................................
Total Costs .......................................................................................................................................
Present Value—3% Real Interest Rate:
Total Costs & Transfers—Low .........................................................................................................
Total Costs & Transfers—High ........................................................................................................
Total Transfers—Low .......................................................................................................................
Total Transfers—High ......................................................................................................................
Total Costs .......................................................................................................................................
Year 2–10
costs
Year 1–10
costs
$96.34
131.38
93.37
128.41
2.83
0.14
$94.73
129.76
93.37
128.41
1.31
0.05
$948.91
1,299.26
933.71
1,284.06
14.64
0.56
....................
....................
....................
....................
....................
....................
....................
....................
....................
....................
623.22
853.20
612.89
842.87
10.33
....................
....................
....................
....................
....................
....................
....................
....................
....................
....................
786.05
1,076.20
773.27
1,063.42
12.78
Note: Totals may not sum due to rounding.
TABLE 2—SUMMARY OF ESTIMATED COST BY PROVISION
[Millions of dollars]
Provision costs by year
(in millions of dollars)
Cost component
Year 1
costs
Transfers:
Corresponding Workers’ Wages—Low ............................................................................................
Corresponding Workers’ Wages—High ...........................................................................................
Transportation ...................................................................................................................................
Subsistence ......................................................................................................................................
Lodging .............................................................................................................................................
Visa and Border Crossing Fees .......................................................................................................
Total Transfers—Low .......................................................................................................................
Total Transfers—High ......................................................................................................................
Costs to Employers:
Read and Understand Rule ..............................................................................................................
Document Retention .........................................................................................................................
Additional Recruiting .........................................................................................................................
Disclosure of Job Order ...................................................................................................................
Other Provisions a .............................................................................................................................
Year 2–10
costs
Year 1–10
costs
$17.52
52.55
61.33
2.81
1.58
10.13
93.37
128.41
$175.18
525.53
613.28
28.09
15.83
101.33
933.71
1,284.06
1.20
0.32
1.04
0.26
0.014
0
0
1.04
0.26
0.014
1.20
0.32
10.36
2.63
0.14
Total Costs to Employers ..........................................................................................................
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$17.52
52.55
61.33
2.81
1.58
10.13
93.37
128.41
2.83
1.31
14.65
Costs to Government:
Electronic Job Registry .....................................................................................................................
Enhanced U.S. Worker Referral Period ...........................................................................................
0.14
Not
0.05
Not
0.56
Not
Total First Year Costs to Government ......................................................................................
0.14
0.05
0.56
Total Costs & Transfers:
Total Costs & Transfers—Low .........................................................................................................
Total Costs & Transfers—High ........................................................................................................
96.34
131.38
94.73
129.76
948.91
1,299.26
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TABLE 2—SUMMARY OF ESTIMATED COST BY PROVISION—Continued
[millions of dollars]
Provision costs by year
(in millions of dollars)
Cost component
Year 1
costs
Total Transfers—Low .......................................................................................................................
Total Transfers—High ......................................................................................................................
Total Costs .......................................................................................................................................
93.37
128.41
2.97
Year 2–10
costs
93.37
128.41
1.36
Year 1–10
costs
933.71
1,284.06
15.20
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Note: Totals may not sum due to rounding.
a Includes the sum of: Elimination of Attestation-Based Model; Post Job Opportunity; Workers Rights Poster.
C. Overview of the Comments Received
We received 869 comments on the
proposed rule. We have determined that
457 were completely unique including 8
representative form letters, 4 were
duplicates, 407 were considered a form
letter or based on a form letter, and 1
comment was withdrawn at the request
of the commenter. Those comments that
were received by means not listed in the
proposed rule or that we received after
the comment period closed were not
considered in this Final Rule.
Commenters represented a broad
range of constituencies for the H–2B
program, including small business
employers, U.S. and H–2B workers,
worker advocacy groups, State
Workforce Agencies (SWAs), agents, law
firms, employer and industry advocacy
groups, union organizations, members
of the U.S. Congress, and various
interested members of the public. We
received comments both in support of
and in opposition to the proposed
regulation, which are discussed in
greater detail below.
One commenter contended that we
dismiss comments simply because they
are similar in nature. This statement is
incorrect. We read and analyzed all
comments that we received within the
comment period. For purposes of
posting comments for the public to
view, we posted all comments we
deemed unique with at least one copy
of a form letter so that there is an
opportunity to see the concerns being
addressed. All form letters are
considered in the final count of
comments received and we address
them as required by the Administrative
Procedure Act (APA) in this Final Rule.
Another commenter argued that we did
not allow enough time to comment on
the proposed rulemaking. We disagree
and believe that 60 days was enough
time for the public to comment on the
rulemaking. We note that the APA does
not provide a specific time period
during which agencies must accept
public comments in response to
proposed rules, see 5 U.S.C. 553, but the
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60-day comment period that we
provided during this rulemaking is
consistent with the directive of
Executive Order 13563, see Improving
Regulation and Regulatory Review, 76
FR 3821–22 (Jan. 21, 2011). Moreover,
in light of the Court’s ruling in the
CATA case invalidating some of the
current regulations, we believe it was
necessary to proceed as expeditiously as
reasonable through the rulemaking
process.
There were several issues which we
deemed to be beyond the scope of the
proposed rule. Some of these issues
included general disapproval of any
foreigners being allowed to work in the
U.S., elimination of temporary foreign
worker programs, activities and rules
related to the H–2A program, and
general foreign relations and
immigration reform issues (including
increasing or decreasing the number of
available visas). Also beyond the scope
of this rulemaking were the collective
bargaining rights of H–2B workers, the
wage methodology promulgated by the
Wage Methodology for the Temporary
Non-agricultural Employment H–2B
Program, 76 FR 3452, Jan. 19, 2011 and
the portability of visas.
Lastly, we received a large number of
comments from the ski industry
requesting an exemption from the
regulations. Many of the commenters
believed that because ski instructors
require skills or experience, under the
new rules they would be ineligible for
the H–2B program. Generally, job
positions certified under the H–2B
program are low skilled, requiring little
to no experience. We do recognize,
however, that there are some
occupations and categories under the
H–2B program that may require
experience and/or training. Employer
applicants demonstrating a true need for
a level of experience, training or
certification in their application have
never been prohibited in the H–2B
program, given the breadth of the
definition of H–2B under the INA. See
8 U.S.C. 1101(a)(15)(H)(ii)(b). We have
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determined that an exemption for the
ski industry is not appropriate as the
commenters presented no valid
argument as to why exemption is
necessary. There is nothing about the
workers they seek to hire that prevents
them from participating in the H–2B
program. Ski resorts are fixed-site
locations that run on a seasonal basis
with standard operating procedures. We
do not see a reason, nor was one
presented, that prevents a ski resort
from meeting all the recruitment
requirements.
D. Elimination of the Attestation-Based
Model
One of the overarching changes we
made in the proposed rule was the
elimination of the attestation-based
model adopted in the 2008 Final Rule.
We received comments supporting the
elimination of the attestation-based
model as well as opposing that change.
Generally, commenters who supported
our decision to revert to a compliancebased model focused on the
Department’s desire to reduce the
susceptibility of the H–2B program to
fraud and abuse. Several commenters
expressed concern about the rise of
criminal and civil prosecutions which
they felt demonstrate abuse in the H–2
program. Most of the commenters cited
our audit experience, as discussed in
the NPRM, and agreed that this data
alone should foreclose any debate on
the necessity of ending the attestationbased model. One commenter
specifically pointed out that changes in
the 2008 Final Rule made it easier for
unscrupulous employers and their
agents to use H–2B visas for the illicit
purpose of suppressing wages. This
same commenter suggested that a return
to a compliance-based model brings us
back to the proper focus of
administering the H–2B program in a
manner that fairly balances the
protection of workers with the desires of
employers. Another commenter pointed
out that the OFLC’s experience of 2
years under the attestation-based model
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is sufficient to demonstrate that the
model cannot be retained without doing
serious damage to the employment
prospects and wages and working
conditions of U.S. workers. Similarly,
an advocacy group stated that many
aspects of the attestation-based model
deprive domestic workers of
employment opportunities, adversely
affect their wages and working
conditions, and encourage, rather than
curb, the well-documented fraud in the
H–2B program.
Generally, commenters who
advocated the retention of an
attestation-based model encouraged us
to use our current resources and
enforcement authority to crack down on
bad actors, rather than overhaul the
program. A few commenters stated that
we did not give the 2008 Final Rule and
the attestation-based model sufficient
time to be successful. Contrary to the
comments supportive of a change, these
commenters argued that our audit of a
random sample of cases is misleading
given that the NPRM does not disclose
the number of cases audited and the
details about the audit process and that
all violations appear to be counted with
equal weight. Another commenter
believed that reverting to the
compliance-based model would create
extensive processing delays.
We disagree with the commenters
who asserted that increased
enforcement authority is the answer to
resolving concerns about the attestationbased model. Our enforcement authority
is a separate regulatory component,
regardless of the certification model we
use. Our experience, as presented in the
NPRM, indicates that despite the fact
that the 2008 Final Rule contained
elevated penalties for non-compliance
with the program provisions, the results
of the audited cases demonstrate that an
attestation-based process does not
provide an adequate level of protection
for either U.S. or foreign workers.
Commenters who assert we did not
give the 2008 Final Rule and its
attestation-based model a chance to be
successful undervalue the experience
we have had over the last 2 years with
the program. In making our decision to
depart from the attestation-based model,
we took into account not only the audits
we conducted as described in the
NPRM, but also the various comments
and concerns raised by employers,
advocates, and workers about
compliance with the program. The
attestation-based model of the 2008
Final Rule is highly vulnerable to fraud.
Under that model, only after an
employer has been certified and the
foreign workers have come to the U.S.
and begun working for the employer, is
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there a probability that the employer’s
non-compliance will be discovered or
that the foreign worker(s) will report a
violation. Only if an employer is
audited or investigated will we learn of
any non-compliance, even minor
violations of program obligations, since
the attestation-based model relies on the
employer’s attestations.
Consistent with our concerns about
the attestation-based model, the
Department’s Office of Inspector
General (OIG) issued an audit report on
October 17, 2011 in which OIG
identified the attestation-based model as
a weakness in the H–2B program 1. OIG
found that the existing attestation-based
application process did not allow for
meaningful validation before
application approval and hampered the
Department’s ability to provide
adequate protections for U.S. workers in
the H–2B applications OIG reviewed.
OIG noted that the Department’s
proposed transition to a model requiring
pre-approval review of compliance
through documentation, as adopted in
this Final Rule, would strengthen the
program.
As to commenter concerns about the
audit sample discussed in the NPRM,
we reiterate that we conducted two
rounds of audits of a random sample of
cases, both of which resulted in an
indication that many of the employers
were not in compliance with the
attestations they agreed to. These audits
we reviewed were a random sample.
Employers were not selected based on
specific industries or occupations, nor
were they selected based on compliance
with specific provisions. The indication
of employer non-compliance from those
audits is not acceptable by our
standards. Additionally, contrary to the
commenter’s claim that all violations
were given equal weight, regardless of
the type of violations or their
consequences, our concern is that these
audits evidenced a pattern of noncompliance with program obligations
toward workers, regardless of the degree
of such non-compliance. Moreover, the
results of these audits showed the
existence of deficiencies in the
applications that would have warranted
further action, the least of which would
have included issuing a Notice of
Deficiency, and affording the employer
the opportunity to correct the
deficiencies, before adjudicating the
application. Again, under the
1 Program Design Issues Hampered ETA’s Ability
to Ensure the H–2B Visa Program Provided
Adequate Protections for U.S. Forestry Workers in
Oregon, Office of the Inspector General of the U.S.
Department of Labor, Report No. 17–12–001–03–
321, Oct. 17, 2011. https://www.oig.dol.gov/public/
reports/oa/2012/17–12–001–03–321.pdf.
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10041
attestation-based program model, we are
not aware of the non-compliance before
certification.
Furthermore, despite the fact that
H–2B cases continue to be processed
under the 2008 Final Rule, which some
commenters said implemented an ideal
balance between the attestation-based
model and stronger enforcement
authority, we still see evidence in the
H–2B program of a rising number of
criminal violations. In addition to the
specific cases cited in the NPRM, there
has been more recent evidence of
employers and agents filing fraudulent
applications involving thousands of
requested employees for non-existent
job opportunities. For example,
according to the OIG’s ‘‘Semiannual
Report to Congress’’ (October 2010 until
March 2011),2 OIG investigations found
that emerging organized criminal groups
are using the Department’s foreign labor
certification processes in illegal
schemes, and in so doing are
committing crimes that negatively
impact workers. The report further lists
at least 4 examples of fraud committed
by employers or their attorneys/agents
in the H–2B program.
Lastly, while some commenters were
concerned about the processing delays
that may result from reverting to a
compliance-based certification model,
our focus in administering the H–2B
program is to provide employers with a
viable workforce while protecting U.S.
and foreign workers. We will, however,
continue to endeavor to process
applications as efficiently and quickly
as possible and in accordance with the
timeframes set forth in the application
processing provisions of this Final Rule.
In the NPRM, we solicited comments
on maintaining the 2008 Final Rule or
some modification of the attestationbased program design. While we have
chosen to adopt the certification-based
model described in the NPRM, we
discuss below the responses to the
specific questions presented in the
NPRM:
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?
We received several comments
directly addressing this question, one of
which asserted that the attestation-based
model was straightforward and that
non-compliance is attributable to a
2 Semiannual Report to Congress, Office of the
Inspector General of the U.S. Department of Labor,
Volume 65 (October 1, 2010 to March 31, 2011);
https://www.oig.dol.gov/public/semiannuals/65.pdf
https://www.oig.dol.gov/public/semiannuals/65.pdf.
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willful choice made by the employer or
its attorney/agent. Another comment,
submitted by several employer advocacy
groups, encouraged us to establish
additional ongoing education programs
throughout the U.S. and to provide a
hotline to answer questions about basic
programmatic issues. The comment
suggested the hotline be supplemented
by the Certifying Officer (CO) notifying
employers of any technical issues while
the Application for Temporary
Employment Certification is pending.
An employer also expressed frustration
with its inability to communicate
directly with us to seek immediate
guidance on program processes and
policies.
While we have established an email
box (tlc.chicago@dol.gov) to which
employers can submit questions about
their applications, we continue to rely
on those questions to easily identify
recurring issues for which we may need
to issue a Frequently Asked Question
(FAQ) and/or guidance or provide
additional training to staff. We also
anticipate stakeholder educational
efforts to help familiarize program users
and others with the regulatory
requirements and changes in the H–2B
program. Where feasible and necessary,
we will provide additional educational
outreach through briefings and other
types of guidance documents for the
benefit of all employers.
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?
One commenter suggested that we
implement a three-strike policy to
eliminate willful violators from the
H–2B program. Another commenter,
including several employer advocacy
groups, encouraged us to establish
additional ongoing education programs
throughout the U.S. and suggested that
employers document their attendance,
which we should consider in mitigation
of employer error in the application
process. The commenter also
recommended that we provide a hotline
to answer questions about basic
programmatic issues and publish at
appropriate intervals a top 10 errors and
issues list and a public notice on the
OFLC’s Web site indicating where the
CO identifies a trend.
We believe that debarment and other
program integrity measures are
sufficient to eliminate willful violators
from the H–2B program, and therefore,
do not consider a three strike policy to
be necessary. As to the request for a
hotline, as stated above, we have
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established an email box to which
employers can submit questions about
the status of their applications; we
believe this will be more accurate than
a telephone line for receiving
information and questions that can then
be translated into public guidance as
appropriate. We rely on such emailed
questions and information to identify
recurring issues for which we may need
to publish an FAQ and/or guidance. We
also draft FAQs and other guidance
documentation at the recommendation
of the COs, based on recurring trends
and/or issues identified by them. In an
effort to better provide information to
the employer community, we will
consider publishing guidance
responsive to specific issues, such as a
way to avoid common filing mistakes,
once those have been determined under
the re-engineered model. Lastly, we also
plan to implement rollout activities and
briefings to help familiarize program
users and others with the regulatory
requirements and changes in the H–2B
program. Where we determine that more
guidance is needed, we will provide
additional educational outreach to the
filing community and other interested
parties.
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?
Several commenters stated that they
would be supportive of more postcertification audits as long as we retain
the attestation-based certification
model. In asking this question, we were
trying to gauge whether a precertification audit process would be a
viable way to alleviate the obvious
compliance problems that occur under
the attestation-based certification
model. One commenter believed that by
adding a pre-certification audit process,
we would only be contributing to the
existing burden on the H–2B worker to
report non-compliance without actually
removing those employer applicants
that continue to do poorly. Another
commenter stated that a pre-certification
audit process would imply that a review
of the documentation will ensure
compliance with program requirements.
This same commenter believed that a
pre-certification review cannot ensure
that proper wages will be paid or that
U.S. referrals will be properly
considered for a job. The commenter
also affirmed that the current
enforcement scheme provides
significant incentive for program users
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to comply based on audits after an
attestation has been made. Lastly, one
commenter claimed that asking a
hypothetical question about possible
changes in the program structure, such
as pre-certification audits, without
actually proposing language or
procedures does not qualify as
appropriate notice and would require us
to issue a new NPRM.
As discussed above, we sought
comments about possible alternatives
related to retaining the attestation-based
certification model. Based on the
comments on the retention of the
attestation-based certification model
and pre-certification audits, we have
decided not to retain the attestationbased model. Therefore, we no longer
consider the pre-certification audit
process alternative, which was tied to
the concept of the attestation-based
model, to be an option.
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?
We received several comments on
sanctions. We discuss issues involving
sanctions in the preamble discussions of
29 CFR part 503 and §§ 655.72 and
655.73.
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?
We did not receive specific
alternatives in answer to this question.
Any other incidental alternatives
received that relate to specific sections
of the Final Rule have been discussed
under the appropriate related
provisions.
For the reasons discussed above, we
are reverting to a compliance-based
model under the H–2B program as
proposed.
II. Discussion of Comments Received
A. Introductory Sections
We address below those areas in
which we received comments. For
specific provisions on which we did not
receive comments, we have retained the
provisions as proposed, except where
clarifying edits have been made.
1. § 655.1 Scope and Purpose of
Subpart A
The proposed provision informs
program users of the statutory basis and
regulatory authority for the H–2B labor
certification process. This provision also
describes our role in receiving,
reviewing, adjudicating, and preserving
the integrity of an Application for
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Temporary Employment Certification.
We are adopting the provision as
proposed. We received several general
comments relating to this section. One
commenter stated that the scope and
purpose was to pay the highest of all the
prevailing wages and to make sure that
H–2B workers are offered the same
protections under the law as any other
worker. Another commenter stated that
the original scope and purpose was to
find temporary workers or certify
applications for foreign workers. These
comments misunderstand our
responsibility and the criteria that must
be met before we certify an H–2B
Application for Temporary Employment
Certification. Under DHS’ regulations at
8 CFR 214.2(h)(6)(iv), the purpose of
these regulations is for the Secretary of
Labor to determine that: (1) There are
not sufficient U.S. workers who are
qualified and who will be available to
perform the temporary services or labor
for which an employer desires to import
foreign workers; and (2) the
employment of the H–2B worker(s) will
not adversely affect the wages and
working conditions of U.S. workers
similarly employed. It is through the
regulatory provisions set forth below
that the Department ensures that that
the criteria for its labor certification
determinations are met.
2. § 655.2 Authority of Agencies,
Offices and Divisions in the Department
of Labor
This section describes the authority
and division of activities related to the
H–2B program among the Department’s
agencies. The NPRM discussed 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 discussed the
authority of WHD, the agency
responsible for investigation and
enforcement of the terms and conditions
of H–2B labor certifications, as
delegated by DHS. We are retaining this
provision as proposed.
We received several comments from
employer advocacy organizations on our
authority to administer the H–2B labor
certification program. These
commenters alleged that Congress has
not vested authority in the Department
and that the statutory provision
mandating consultation with other
agencies does not necessarily give us the
right to effectuate the requirements
proposed under these regulations. We
address this general assertion below;
however, our authority for specific
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provisions of this Final Rule is
addressed in the discussions of the
sections containing those provisions.
Under the INA, Congress did not
specifically address the issue of the
Department’s authority to engage in
legislative rulemaking in the H–2B
program but the legislative history of the
Immigration Reform and Control Act
(IRCA) specifically acknowledges the
Department’s practice of issuing
legislative rules, see H.R. Rep. No. 99–
682, pt. 1, at 79–80, 1986 WL 31950, at
**34. Since 1968, DOL has had
regulations governing the H–2 nonagricultural program, see 33 FR at 7570–
71, and in enacting IRCA in 1986,
Congress acknowledged DOL’s
rulemaking without withdrawing its
authority to issue legislative rules, see
H.R. Rep. No. 99–682, pt. 1, at 80.
Ordinarily, when Congress adopts a new
law incorporating sections of a prior law
it is presumed to be aware of existing
administrative regulations interpreting
the prior law. See Lorillard v. Pons, 434
U.S. 575, 580–81 (1978). Moreover,
when Congress re-enacts a statutory
provision, an agency’s prior longstanding administrative practice under
that statutory provision is deemed to
have received congressional approval.
Fribourg Nav. Co. v. CIR, 383 U.S. 272,
283 (1966). In this case, Congress did
more than re-enact the H–2 nonagricultural statutory provision, it
expressly acknowledged DOL’s rules
governing the H–2 program. See H.R.
Rep. No. 99–682, pt. 1, at 80. Thus,
Congress approved of DOL’s rulemaking
authority in the H–2B program, and saw
fit not to alter or further define DOL’s
practices, unlike the H–2A agricultural
program. Id.
Even if the legislative history does not
resolve the issue of DOL’s rulemaking
authority, when the statute does not
delegate rulemaking authority
explicitly, such statutory ambiguities
are implicit delegations to the agency
administering the statute to interpret the
statute through its rulemaking authority.
Arnett v. CIR, 473 F.3d 790, 792 (7th
Cir. 2007).3 Congress expected DOL to
ensure that employers using the H–2B
program would not adversely affect
similarly situated United States
workers. See 8 U.S.C.
1101(a)(15)(H)(ii)(b); H.R. Rep. No. 99–
682, pt. 1, at 80. This involves policytype determinations beyond disputed
facts in a particular case, see U.S. v. Fla.
3 In recent decisions, the Supreme Court has
affirmed this approach by applying Chevron
deference to an agency’s construction of a
jurisdictional provision in its organic statute. See
Coeur Alaska v. Southeast Alaska Conserv. Council,
129 S. Ct. 2458, 2469 (2009); United States v.
Eurodif, 129 S. Ct. 878, 888 (2009).
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10043
E. Coast Ry., 410 U.S. 224, 245–46
(1973), which renders DOL’s use of
legislative rulemaking more appropriate
in the administration of the H–2B
program than case-by-case adjudication,
see Ford Motor Co. v. FTC, 673 F.2d
1008, 1009–10 (9th Cir. 1982). Given the
type of global considerations
confronting DOL in administering the
program, it would defeat Congress’s
goals to conclude that DOL is only
authorized to engage in case-by-case
adjudication. See USV Pharm. Corp. v.
Weinberger, 412 U.S. 655, 665 (1973).
DOL’s use of legislative rulemaking also
comports with the judicial preference
for filling in the interstices of the law
through a quasi-legislative enactment of
rules of general applicability. See SEC v.
Chenery Corp., 332 U.S. 194, 202 (1947).
Courts encourage agencies to adopt
legislative rules when seeking to
establish norms of widespread
application. See Ford Motor Co., 673
F.2d at 1009. Notice and comment
rulemaking provides important
procedural protections to the public,
allows agencies to apprise themselves of
relevant issues and views, and promotes
predictability. See Int’l Union v. MSHA,
626 F.3d 84, 95 (DC Cir. 2010). Without
the use of this process, the public would
be deprived of important protections
that are unavailable in case-by-case
adjudication. Nat’l Petroleum Ref. Ass’n
v. FTC, 482 F.2d 672, 683–84 (1973).
Importantly, the CATA decision
recently held that the Department is not
permitted to adopt an H–2B prevailing
wage regime without engaging in
legislative rulemaking. See CATA I,
2010 WL 3431761, at *19 (E.D. Pa.
Aug.30,2010). That decision specifically
invalidated the Department’s attempt to
use guidance documents to announce
the applicable prevailing wage
methodology for H–2B employers,
holding that doing so deprives the
public of the opportunity to comment
on important issues for the
administration of the H–2B program. Id.
Given the CATA decision’s holding that
the Department cannot use guidance
documents to establish prevailing wage
rates, without any legislative
rulemaking authority, the Department
would lack the authority to administer
the H–2B program in a fair and
predictable manner. Lastly, given
Congress’ delegation of enforcement
authority under 8 U.S.C. 1184(c)(14)(B)
to USCIS and the Department, it would
be irrational to assume that Congress
didn’t intend for the Department to
issue rules to define the terms of the
H–2B program in the absence of
statutory standards. Cf. Nat’l Ass’n of
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(DC Cir. 2010).
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3. § 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 on Guam
continue to reside with the Governor of
Guam, under DHS regulations.
However, the NPRM proposed that we
would determine all H–2B prevailing
wages, including those for Guam.
Recently, DHS, which consults with the
Governor of Guam about the admission
of H–2B construction workers on Guam,
has determined that prevailing wages
for construction workers on Guam will
be determined by the Secretary. 8 CFR
214.2(h)(6)(v)(E)(v). DHS and the
Department agree that it is more
appropriate for OFLC to issue H–2B
prevailing wages for all workers,
including construction workers on
Guam, because OFLC already provides
prevailing wage determinations (PWDs)
for all other U.S. jurisdictions. We
therefore proposed that the process for
obtaining a prevailing wage in § 655.10
also would apply to H–2B job
opportunities on Guam. Employment
opportunities on Guam accordingly
would be subject to the same process
and methodology for calculating
prevailing wages as any other
jurisdiction within OFLC’s purview. We
received no comments on this section
and therefore are retaining the provision
as proposed.
4. § 655.4 Special Procedures
The proposed rule maintained our
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 we recognize
that variations from the normal H–2B
labor certification processes are
necessary to permit the temporary
employment of foreign workers in
specific industries or occupations when
U.S. workers are not available and the
employment of foreign workers will not
adversely affect the wages or working
conditions of similarly employed U.S.
workers. These variations permit those
who would otherwise be unable to
readily comply with the program’s
established processes to participate,
such as by allowing itinerary
employment for reforestation employers
and certain employers in the
entertainment industry. These special
procedures permit us to accommodate
the unique circumstances of certain
classes of employers without
undermining our essential
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responsibilities. We are retaining the
proposed section with one minor
clarification reminding the employer
that it must request special procedures.
We also proposed that special
procedures already in place on the
effective date of the regulations will
remain in force until we otherwise
modify or withdraw them. A couple of
commenters objected to the continuance
of current special procedures because
they had not participated in the process.
We see no need to upset the settled
expectations of the employers who have
relied upon the special procedures for
many years at least to the extent they do
not conflict with these regulations. To
the extent that the current special
procedures are in conflict with these
regulations, the regulations will take
precedence. An example of a possible
conflict would be the current special
procedure provision which allows precertification to Canadian musicians who
enter the U.S. to perform within a 50mile area adjacent to the Canadian
border for a period of 30 days or less.
TEGL 31–05 Procedures for Temporary
Labor Certification in the Entertainment
Industry under the H–2B Visa program,
May 31, 2006, available at https://
wdr.doleta.gov/directives/attach/TEGL/
TEGL 31–05.pdf. Since the Final Rule
does not provide for pre-certification for
any occupations, such exemption would
no longer be allowed.
A few commenters requested that we
revise the proposed language under this
section from ‘‘the Administrator, OFLC
may consult with affected employers
and worker representatives’’ to ‘‘the
Administrator, OFLC must consult with
affected employers and worker
representatives.’’ In addition, some
commenters, including labor
organizations and employees in the
reforestation industry, recommended
that we should present special
procedures through a notice and
comment period similar to an NPRM.
Finally, a couple of commenters felt that
the special procedures process violates
the APA.
We decline to make the changes
proposed by the commenters. We have
complied with the procedural
requirements of the APA by proposing
this provision and soliciting public
comments. See 5 U.S.C. 553. The
purpose of the special procedures is to
allow a particular group of employers
with a need for H–2B workers to
participate in the program by waiving
certain regulatory provisions when the
provisions cannot be reconciled with
the operational norms of the industry
and when the employers comply with
industry-specific alternative procedures.
Although we are not required to provide
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procedures for requesting a waiver, see
FCC v. WNCN Listeners Guild, 450 U.S.
582, 601 (1981), the Department is
committed to ensuring that the views of
affected employers and worker
representatives are considered. The
process under which a special
procedure is considered is in most cases
initiated by an industry or group of
employers presenting us evidence that
demonstrates their occupations are
unique and that application of certain
provisions in the regulations cannot be
reconciled with the operational norms
of the industry. Before effectuating such
procedures, we will consult with other
employer and worker representatives as
well as agencies within and outside the
Department, as appropriate, to identify
necessary revisions which will, at the
same time, keep the integrity and
principal concepts of the program
intact. We also will continue to look to
our program experts in OFLC and WHD
and review industry data gathered from
employers that have previously used the
H–2B program. Additionally, while
special procedures allow for necessary
and specific variations to regulations,
we expect employers to adhere to all
other aspects of the regulations not
addressed in the special procedures.
The application of a special procedure
by an employer or an industry in no
way relieves an employer from its
obligation to obtain an approved
temporary labor certification from the
Department before submitting a request
for workers to USCIS.
5. § 655.5 Definition of Terms
a. Area of substantial unemployment.
We proposed to add a definition of area
of substantial unemployment to the H–
2B program. The proposed definition
reflected the established definition of
area of substantial unemployment in use
within ETA as it relates to Workforce
Investment Act (WIA) fund allocations.
We have retained the proposed
definition of area of substantial
unemployment without change.
Some commenters suggested
alternative methods of defining an area
of substantial unemployment. Several
commenters contended that a different
threshold percentage than 6.5 percent
(e.g., 8 percent or 9 percent, the current
national unemployment rate) or a
different time period than 12 months
(e.g., 3 months or the period of need
requested) should be used to identify an
area of substantial unemployment. One
labor organization proposed more than
a definitional alternative, suggesting
that employers in areas with 5 percent
or higher unemployment should be
subject to an automatic legal
presumption that there is no labor
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shortage sufficient to support an H–2B
application and that those employers’
applications should be given a strict,
high level review, including review by
a senior official in Washington, DC.
The definition proposed in the NPRM
and retained in the Final Rule is the
existing definition of area of substantial
unemployment within ETA. ETA uses
this definition to identify areas with
concentrated unemployment and focus
WIA funding for services to facilitate
employment in those areas. We
proposed using this existing definition,
and have chosen to retain it in the Final
Rule, both as a way to improve labor
market test quality and for the sake of
operational simplicity. This existing
definition provides the appropriate
standard for identifying areas of
concentrated unemployment where
additional recruitment could result in
U.S. worker employment. Also, the
process of collecting data and
designating an area of substantial
unemployment using the existing
definition is already established, as
discussed in ETA’s Training and
Employment Guidance Letter No. 5–11,
Aug. 12, 2011,4 providing OFLC with a
ready resource for identifying areas to
focus additional recruitment. Finally,
using this definition of area of
substantial unemployment in the Final
Rule enables an employer to check the
list of areas of substantial
unemployment ETA publishes to
determine whether its job opportunity
may fall within an area of substantial
unemployment and, as appropriate, be
subject to enhanced recruitment.
Adopting a legal presumption of the
availability of domestic workers in areas
with 5 percent or higher unemployment
would significantly impact employers’
access to the H–2B program and could
not be viewed as a logical outgrowth of
the proposal. Furthermore, while we
appreciate the commenter’s concern, we
disagree with the approach suggested.
We thoroughly review all applications
submitted for all areas of intended
employment. We consider enhanced
recruitment requirements, as proposed
in the NPRM, to be the most appropriate
way to handle job opportunities in areas
of substantial unemployment.
Accordingly, we will retain the
provision as proposed in the Final Rule.
b. Corresponding employment. The
NPRM proposed to include a definition
of corresponding employment and to
require that employers provide to
4 TEGL 5–11—Designation of Areas of Substantial
Unemployment (ASUs) under the Workforce
Investment Act (WIA) for Program Year (PY) 2012
has been added to the ETA Advisory Web site and
is available at https://wdr.doleta.gov/directives/
corr_doc.cfm?DOCN=3069.
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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). The NPRM
defined corresponding employment as
the employment of workers who are not
H–2B workers by an employer that has
an accepted H–2B application in any
work included in the job order (i.e., the
certified job duties in places of
employment or worksite locations
specified by the employer) or in any
work performed by the H–2B workers
during the period of the job order
(anywhere the H–2B employer places
H–2B workers outside the scope of the
labor certification), including any
approved extension.
For the reasons discussed below, the
Final Rule modifies the corresponding
employment definition by deleting the
word ‘‘any’’ from before the word
‘‘work’’ in two places and inserting the
words ‘‘doing substantially the same’’
instead. The preamble also clarifies and
provides examples of what is and is not
covered. The Final Rule also excludes
from the definition of corresponding
employment two categories of
incumbent employees: (1) Those
employees who have been continuously
employed by the H–2B employer in the
relevant occupation for at least the prior
52 weeks, who have worked or been
paid for at least 35 hours in at least 48
of the prior 52 workweeks, and have
averaged at least 35 hours of work or
pay over the prior 52 workweeks, and
whose terms and conditions of
employment are not substantially
reduced during the period of the job
order. In determining whether the
standard is met, the employer may take
credit for any hours that were reduced
because the employee voluntarily chose
not to work due to personal reasons
such as illness or vacation; and (2) those
employees who are covered by a
collective bargaining agreement or
individual employment contract that
guarantees an offer of at least 35 hours
of work each week and continued
employment with the H–2B employer
through at least the period of the job
order, except that the employee may be
dismissed for cause.
Significantly, the Final Rule retains in
the definition the requirement that ‘‘to
qualify as corresponding employment,
the work must be performed during the
period of the job order, including any
approved extension thereof.’’ Any work
performed by U.S. workers outside the
specific period of the job order does not
qualify as corresponding employment.
Accordingly, the Final Rule does not
require employers to offer their U.S.
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workers (part-time or full-time workers)
corresponding employment protections
outside of the period of the job order. If,
for example, a U.S. worker works yearround and is in corresponding
employment with the H–2B workers
during the period of the job order, the
employer must provide corresponding
employment protections during the time
period of the job order but may choose
not to do so during the time period
outside of the job order.
There were many comments related to
the proposed protections for workers in
corresponding employment. Employee
advocates, unions, and a member of
Congress strongly endorsed the
proposed provision, stating that it was
essential to ensuring that the
employment of H–2B workers does not
adversely affect the wages, benefits, and
working conditions of similarly
employed domestic workers. They
emphasized that it is important for
corresponding workers to receive not
just the prevailing wage, but all the
other assurances and benefits offered to
H–2B workers, such as transportation,
the three-fourths guarantee, and fulltime employment, in order to place U.S.
workers on at least the same footing as
foreign workers. These commenters
noted that the principle that there
should be no preference for foreign
workers is fundamental to the INA, and
that a corresponding employment
requirement prohibits employer
practices that would hurt the
employment prospects of U.S. workers.
They also emphasized that the proposed
rule’s assurance of equal protection was
a significant improvement for domestic
workers who have, in the past, been
bypassed in favor of foreign workers.
Thus, they stated that this protection is
necessary to provide a meaningful test
of whether there are U.S. workers
available for employment. The
employee advocates also stated that the
proposed definition’s broadening of the
requirement to protect incumbent
employees, rather than just those newly
hired in response to the H–2B
recruitment, is important because many
employers employ some U.S. workers
on a year-round basis, and they should
not be employed alongside H–2B
workers who receive greater pay,
benefits, and protections. Similarly, an
employee advocate specifically
commended the proposed rule’s
coverage of situations where employers
place H–2B workers in occupations
and/or job sites outside the scope of the
labor certification, which the
commenter stated happens regularly.
Thus, it asserted that protecting U.S.
workers (including incumbent workers)
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who are performing the same work as
the H–2B workers is necessary to ensure
that U.S. workers are not adversely
affected by the presence of H–2B
workers in the labor market. Finally,
one union stated that this additional
protection for U.S. workers would also
protect H–2B workers, because U.S.
workers would be empowered to assist
in policing unscrupulous H–2B
employers.
Employers, on the other hand,
generally opposed the extension of
protections to workers in corresponding
employment. Some stated that they
could not afford to provide the same
terms and conditions of employment to
corresponding workers, including
paying the prevailing wage and
guaranteeing three-fourths of the hours.
For example, a golf course association
stated that it would be financially
impossible to provide the same wages
and benefits to summer high school and
college laborers as it provided to H–2B
workers performing the same manual
labor. Others stated that paying the
prevailing wage to corresponding
workers would not be problematic, but
that they wanted to be able to continue
to reward long-tenured employees
(foreign or U.S.) or more skilled staff
with higher pay than new workers, such
as by providing a pay increase based
upon years of service.
It appeared there was confusion about
the impact of the corresponding
employment requirement. Employers
expressed concern because they have
overlap in the job duties of various
positions, with supervisors performing
some of the same tasks as the workers
they supervise. They believed that, if
there is some slight nexus between what
an H–2B workers does and what a
higher-paid year-round worker does, the
employer would have to pay all workers
the higher wage. They stated that this
requirement would compel changes to
management techniques and eliminate
or greatly reduce employers’ flexibility
to have employees perform whatever
task is necessary to complete their work,
thereby harming productivity. Employer
representatives stated that the definition
is so broadly worded (‘‘any’’ work
included in the job order or ‘‘any’’ work
performed by the H–2B workers) that it
would cover the entire workforce of
many businesses. One firm gave the
example of a large resort with roughly
2000 employees where senior
management (including the resident
manager, the director of food and
beverage, and even the finance manager)
clean rooms on a busy day; supervisors
carry guests’ luggage; managers in the
restaurant clear tables; and managers on
the golf course pick up trash or cut the
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grass. The firm wondered what the H–
2B workers should be paid in this case
and whether every employee is a
corresponding employee who would be
entitled to the three-fourths guarantee.
Other employers assumed that their
laborers would have to be compensated
at the same rate as a supervisor if the
supervisor occasionally performed some
of their same tasks, such as mowing,
because of a weather event, large golf
tournament, or shortage of staff due to
illness. An employer association stated
that employers, such as restaurants,
needed the flexibility to have a waitress
serve as a cashier or hostess, or to have
a dishwasher assist with food
preparation or cooking, in order to get
the work done and keep employees
working throughout the day.
Therefore, some employer
representatives suggested that the rule
should limit the definition to work in
the occupation listed in the job order.
They stated this would avoid a situation
where all U.S. workers who dig holes
and plant bushes would be viewed as
corresponding employees if the H–2B
job order was for a supervisory
landscaper with knowledge of irrigation
systems and plant species but the
supervisor occasionally helped to dig or
plant. These commenters also suggested
that the Department limit the rule’s
scope to those U.S. workers who are
newly hired by the employer on or after
the beginning of the job order period,
rather than extending it to workers
employed prior to the employment of
H–2B workers. Some employer
commenters suggested that the
Department delete the word ‘‘any’’ from
before the word ‘‘work.’’ Other
commenters questioned whether the
Department has the legal authority to
impose the requirement.
After carefully considering all of these
comments, the Department has decided
to modify the definition of
corresponding employment to delete the
word ‘‘any’’ from before ‘‘work’’ in two
places and insert the words
‘‘substantially the same,’’ and to exclude
two categories of incumbent employees:
(1) Those who have worked in the
relevant job continuously for the H–2B
employer for at least the prior 52 weeks,
have averaged at least 35 hours of work
or pay over those 52 weeks and have
received at least 35 hours of work or pay
in at least 48 of the 52 weeks, as
demonstrated by the employer’s payroll
records and whose terms and conditions
of employment are not substantially
reduced during the job order period (an
employer may take credit for those
hours that were reduced due to an
employee’s voluntary leave); and (2)
those who are covered by a collective
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bargaining agreement or individual
employment contract that guarantees at
least 35 hours of work each week and
continued employment with the H–2B
employer at least through the end of the
job order period. Incumbent employees
who fall within one of these categories
may have valuable terms of
employment, including job security and
benefits, that neither H–2B workers nor
other temporary workers have. This may
account for wage differentials between
these incumbents and those who are
entitled to the H–2B prevailing wage, as
well as other differences in terms and
conditions of employment.
The Final Rule continues to include
other workers within the definition of
corresponding employment as proposed
in order to fulfill the DHS regulatory
requirement that an H–2B Petition will
not be approved unless the Secretary
certifies that the employment of the
alien will not adversely affect the wages
and working conditions of similarly
employed U.S. workers. 8 CFR
214.2(h)(6). As the NPRM explained,
Congress has long intended that
similarly employed 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)’’; see also H.R. Rep.
No. 99–682, pt. 1 at 80 (1986) (‘‘The
essential feature of the H–2 program has
been and would continue to be the
requirement that efforts be made to find
domestic workers before admitting
workers from abroad. A corollary rule,
again preserved in the bill, is that the
importation of foreign workers will not
be allowed if it would adversely affect
the wages and working conditions of
domestic workers similarly employed’’).
Current § 655.22(a) reflects this
principle, in part, by requiring that the
terms and conditions of offered
employment cannot be less favorable
than those offered to H–2B workers.
Thus, the current regulation provides
for equal treatment of workers newly
hired during the current 10-day H–2B
recruitment process.
The current regulation, however, does
not protect U.S. workers who engage in
similar work performed by H–2B
workers during the validity period of
the job order, because it does not protect
any incumbent employees. Therefore,
for example, a U.S. employee hired
three months previously performing the
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same work as the work requested in the
job order, but earning less than the
advertised wage, would be required to
quit the current employment and reapply for the same job with the same
employer to obtain the higher wage rate
offered to H–2B workers. This would be
disruptive for the employer and could
create an additional administrative
burden for the SWAs with respect to
any workers being referred through
them. It also puts too high a premium
on 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. Therefore, the Final Rule does
not require incumbent employees to
jump through this unnecessary hoop;
U.S. workers generally would be
entitled to the wage rates paid to H–2B
employees without having to quit their
jobs and be rehired.
There are only two categories of
incumbent U.S. employees who would
be excluded from the definition of
corresponding employment. The first
category covers those incumbents who
have been continuously employed by
the H–2B employer for at least the 52
weeks prior to the date of need, who
have averaged at least 35 hours of work
or pay over those 52 weeks, and who
have worked or been paid for at least 35
hours in at least 48 of the 52 weeks, and
whose terms and conditions of
employment are not substantially
reduced during the period of the job
order. The employer may take credit for
any hours that were reduced because
the employee voluntarily chose for
personal reasons not to work hours that
the employer offered, such as due to
illness or vacation. Thus, for example,
assume an employee took six weeks of
unpaid leave due to illness, and the
employer offered the employee 40 hours
of work each of those weeks. In that
situation, the employer could take credit
for all those hours in determining the
employee’s average number of hours
worked in the prior year and could take
credit for each of those six weeks in
determining whether it provided at least
35 hours of work or pay in 48 of the
prior 52 weeks. Similarly, if the
employer provided a paid day off for
Thanksgiving and an employee worked
the other 32 hours in that workweek, the
employer would be able to take credit
for all 40 hours when computing the
average number of hours worked and
count that week toward the required 48
weeks. In contrast, assume another
situation where the employer offered
the employee only 15 hours of work
during each of three weeks, and the
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employee did not work any of those
hours. The employer could only take
credit for the hours actually offered
when computing the average number of
hours worked or paid during the prior
52 weeks, and it would not be able to
count those three weeks when
determining whether it provided at least
35 hours of work or pay for the required
48 weeks.
The second category of incumbent
workers excluded from the definition of
corresponding employment includes
those covered by a collective bargaining
agreement or individual employment
contract that guarantees both an offer of
at least 35 hours of work each week and
continued employment with the H–2B
employer at least through the period of
the job order (except that the employee
may be dismissed for cause). As noted
above, incumbent employees in the first
category are year-round employees who
began working for the employer before
the employer took the first step in the
H–2B process by filing an Application
for Temporary Employment
Certification. They work 35 hours per
week for the employer, even during its
slow season. The Department recognizes
that there may be some weeks when,
due to personal factors such as illness
or vacation, the employee does not work
35 hours. The employer may still treat
such a week as a week when the
employee worked 35 hours for purposes
of the corresponding employment
definition, so long as the employer
offered at least 35 hours of work and the
employee voluntarily declined to work,
as demonstrated by the employer’s
payroll records. Thus, these workers
have valuable job security that H–2B
workers and those hired during the
recruitment period or the period of the
job order lack. Such full-time, yearround employees may have other
valuable benefits as well, such as health
insurance or paid time off. Similarly,
employees covered by a collective
bargaining agreement or an individual
employment contract with a guaranteed
weekly number of hours and just cause
provisions also have valuable job
security; they may also have benefits
beyond those guarantees provided by
the H–2B program. These valuable terms
and conditions of employment may
account for any difference in wages
between what they receive and what H–
2B workers receive. Therefore, these
U.S. workers are excluded from
corresponding employment only if they
continue to be employed full-time at
substantially the same terms and
conditions throughout the period
covered by the job order, except that
they may be dismissed for cause.
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The Final Rule’s inclusion of other
workers within the definition of
corresponding employment is important
because the current regulation does not
protect U.S. workers in the situation
where an H–2B employer places H–2B
workers in occupations and/or at job
sites outside the scope of the labor
certification, in violation of the
regulations. For example, if an employer
submits an application for workers to
serve as landscape laborers, but then
assigns the H–2B workers to serve as
bricklayers constructing decorative
landscaping walls, the employer has
bypassed many of the H–2B program’s
protections for U.S. workers. The
employer has deprived them of their
right to protections such as domestic
recruitment requirements, the right to be
employed if available and qualified, and
the prevailing wage requirement. The
Final Rule guards against this abuse of
the system and protects the integrity of
the H–2B process by ensuring that the
corresponding U.S. workers employed
as bricklayers receive the prevailing
wage for that work.
The current regulation also does not
protect U.S. workers if the employer
places H–2B workers at job sites outside
the scope of the labor certification. For
example, an employer may submit an
application for workers to serve as
landscape laborers in a rural county in
southern Illinois, but instead assign its
H–2B workers to work as landscape
laborers in the Chicago area. Because
the employer did not fulfill its
recruitment obligations in Chicago, U.S.
workers were not aware of the job
opportunity, they could not apply and
take advantage of their priority hiring
right, and the prevailing wage assigned
was not the correct rate for Chicago.
Such a violation of the employer’s
attestations results both in the absence
of a meaningful test of the labor market
for available U.S. workers and U.S.
workers being adversely affected by the
presence of the underpaid H–2B
workers. The Final Rule’s definition of
corresponding employment ensures that
the employer’s incumbent landscape
laborers who work where the H–2B
workers actually are assigned to work
will receive the appropriate prevailing
wage rate; paying the proper wage to
such workers is necessary to protect
against possible adverse effects on U.S.
workers due to wage depression from
the introduction of foreign workers.
Therefore, adoption of the definition of
corresponding employment in the Final
Rule is necessary to allow the
Department to fulfill its mandate from
DHS to provide labor certifications only
in appropriate circumstances.
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On the other hand, it is important to
clarify that the corresponding
employment requirement does not
apply in the way that a number of
employer commenters feared it would
apply. Employers expressed concern
that, if a supervisor or manager picked
up a piece of trash on a golf course,
planted a tree, or cleared a dining room
table (the duties of its H–2B workers),
all its employees who performed such
work would be entitled to the higher
wage rate paid to the supervisor. This
concern is misplaced because this is not
what the definition of corresponding
employment requires. Under the Final
Rule, a U.S. employee who performs
work that is either within the H–2B job
order or work actually performed by
H–2B workers is entitled to be paid at
least the H–2B required wage for that
work. However, as the employer
commenters recognized, the supervisor
already is earning more than the H–2B
workers. The corresponding
employment requirement does not
impose obligations in the opposite
direction. Thus it does not, for example,
require an employer to bump up the
wages it pays to its landscape laborers
to the supervisor’s wage rate simply
because the supervisor performed some
of their landscaping laborer duties. Of
course, if the H–2B certification was for
a landscaping supervisor, and one of its
laborers actually worked as a supervisor
(perhaps because the supervisor was
away on vacation for a week or was out
sick for a day or two), then that laborer
would be entitled to the H–2B
prevailing supervisory rate for those
hours actually worked as a supervisor.
The laborer would not be entitled to the
supervisory wage rate on an ongoing
basis after the worker has returned to
performing laborer duties.
Employers also expressed concern
about how the corresponding
employment provision would affect
their flexibility in assigning workers
different tasks. It is the employer’s
obligation to state accurately on the
Application for Temporary Employment
Certification the job duties that their
H–2B workers will perform and to
comply with the terms of their labor
certifications by limiting the H–2B
workers to those duties. This will
maximize the employers’ flexibility
with regard to their U.S. employees. For
example, if a restaurant receives a labor
certification based on its temporary
need for dishwashers, and it limits its
H–2B employees to such duties, the
restaurant may freely assign any of its
U.S. workers to other jobs as needed,
such as cashiers, servers and cooks. If
the restaurant had previously used both
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its H–2B and U.S. workers
interchangeably in various jobs, it must
plan more carefully in the future in
order to comply with the terms of its
certification.
Nevertheless, in order to address
employer concerns that the proposed
definition of corresponding employment
(‘‘any work included in the job order’’
or ‘‘any work performed by the H–2B
workers’’) was so broadly worded that it
would encompass the entire workforce
of a company, the Final Rule deletes the
word ‘‘any’’ in both places and uses the
term ‘‘substantially the same’’ instead.
The Department did not intend for the
word ‘‘any’’ to indicate that occasional
or insignificant instances of overlapping
job duties would transform a U.S.
worker employed in one job into
someone in corresponding employment
with an H–2B worker employed in
another job. The following explanation
is intended to provide clarity regarding
when work is substantially the same
that it should be considered
corresponding employment. We note
that the Wage and Hour Division has
considerable enforcement experience
under a number of statutes in
determining the extent to which
employees who are assigned to one type
of work actually perform other types of
work and that employers are generally
familiar with these analyses.
Where the U.S. worker is performing
‘‘either substantially the same work
included in the job order or
substantially the same work performed
by the H–2B workers * * * during the
period of the job order, including an
approved extension thereof,’’ the U.S.
worker is in corresponding employment
and entitled to the H–2B prevailing
wage if it is higher than the worker
currently receives. This includes
situations where the U.S. worker
performs the same job as the H–2B
worker as well as those situations where
the U.S. worker regularly performs a
significant number of the duties of the
H–2B worker for extended periods of
time, because that worker’s job is
substantially the same as the H–2B
worker’s job. The U.S. worker in both
situations is in corresponding
employment and thus entitled to the
higher H–2B prevailing wage.
Because the definition of
corresponding employment also applies
to ‘‘work performed by H–2B workers,’’
it is important to note that
corresponding employment can also
arise where H–2B worker is assigned to
perform a job that significantly deviates
from the job order; effectively making
the H–2B worker perform a different job
than was stated in the labor
certification. If this violation causes the
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H–2B worker to regularly perform a job
for extended periods of time that U.S.
workers perform, then the U.S. workers
performing the same job are in
corresponding employment. If the
prevailing wage for that job is higher
than the wages the U.S. workers earn,
then the U.S. workers are entitled to the
higher wage.
An issue of corresponding
employment will arise if the employer
assigns the H–2B worker to work at a
different worksite(s) or place(s) of
employment than the worksite(s) or
place(s) of employment listed in the
certified application. U.S. workers at the
new, non-certified location may be
performing the same or substantially the
same job as the H–2B worker. Deviating
from the labor certification in this
manner and moving an H–2B worker to
the non-certified place of employment
will cause the U.S. workers who
perform the same work to be deemed to
be in corresponding employment. They
will be entitled to the H–2B prevailing
wage if it is higher than what they
currently earn.
Finally, employers expressed their
interest in continuing to reward their
experienced employees with higher
wage rates than those paid to new
workers. The H–2B program does not
prohibit such higher wage rates for an
employer’s experienced employees. Of
course, an employer must offer at least
the same terms and conditions of
employment to its U.S. workers in
corresponding employment as it offers,
plans to offer, or will provide to its H–
2B workers. So if an employer rewards
an H–2B worker with extra pay and/or
benefits based on the H–2B employee’s
previous work experience, the employer
must offer and provide at least the same
extra pay and/or benefits to U.S.
workers in corresponding employment
with same or similar level of previous
work experience. Employers can and
should indicate the additional pay
amounts based upon years of experience
on any Application for Temporary
Employment Certification, and properly
advertise and recruit for those positions.
c. Full-time. The Department
proposed to change the definition of
full-time from 30 or more hours of work
per workweek to 35 or more hours of
work per week. This proposal was
precipitated by the District Court’s
decision in CATA v. Solis, 2010 WL
3431761 (E.D. Pa. 2010), invalidating
the 2008 Final Rule’s 30-hour
definition. The Department stated in its
NPRM that a 35-hour workweek was
more reflective of empirical data, was
consistent with other temporary work
programs, and would comport with
H–2B employment relationships that the
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Department has encountered during its
limited enforcement experience. In
addition, the Department solicited
comment for an alternative definition of
40 hours, noting that the December 2010
Bureau of Labor Statistics (BLS) Current
Population Survey (CPS) found that the
average workweek for employees who
consider themselves full-time was 42.4
hours per week.5
Several trade associations and private
businesses supported retaining the 2008
Final Rule’s standard of 30 hours per
workweek, citing the difficulties of
scheduling work around unpredictable
and uncontrollable events, particularly
the weather. A number of those
commenters suggested that full-time
employment should be determined not
in each individual workweek, but by
averaging workweeks over the length of
the certified employment period. Two
trade associations and a private business
claimed that increasing full-time to 35
hours per workweek would decrease
employer flexibility and/or increase
costs. Comments from several trade
associations and a professional
association stated that a 35-hour
workweek would be burdensome in
combination with other aspects of the
proposed rule, particularly the threequarter guarantee. Finally, one private
business commented that the definition
of full-time should be determined by
industry standards.
A private business, a private citizen,
a research institute, two unions, and a
number of worker advocacy groups
commented that a definition of full-time
as 40 hours per workweek is preferable
to 35, arguing that the higher standard
is more representative of typical fulltime jobs. Several of these commenters
referred to the CPS findings cited by the
Department. Two H–2B worker
advocacy groups asserted their
experience indicated that long hours are
standard in many industries employing
H–2B workers and, therefore, a 40-hour
definition would be more representative
of H–2B job opportunities. Another
union and a research institute, in their
support of a 40-hour standard, noted
that the H–1B visa program also defines
full-time as 40 hours per workweek.
Finally, a private business, a union, a
research organization, and two advocacy
organizations argued that establishing a
40-hour standard is more protective of
U.S. workers than a 35-hour standard, as
more U.S. workers are likely to consider
jobs that offer 40 hours of work. One
union suggested changing the definition
to 37.5 hours per workweek, arguing
that this was a common measure.
In accord with the District Court’s
decision in CATA v. Solis, the
Department has continued to carefully
consider relevant factors in determining
the hours threshold for full-time,
including national labor market
statistics, empirical evidence from a
random sample of approved
applications, and other employment
laws. All available evidence suggests
that the existing definition of 30 hours
or more per workweek is not an accurate
reflection of full-time employment.
According to the May 2011 Employment
Situation report published by BLS, the
average number of hours worked per
week for employees who consider
themselves full-time was 42.7.6 Another
BLS publication, the Current Population
Survey, uses a 35-hour threshold to
define full-time employment. Employer
practices also strongly suggest that the
existing definition of 30 hours is not
reflective of actual employer practices:
in a randomly selected sample of 200
Applications that the Department
certified or partially certified in 2009
and 2010, more than 99 percent
reflected workweeks of at least 35 hours.
This finding is consistent with the
Department’s enforcement experience:
the vast majority of Applications that
are the subject of investigations are
certified for 35 or more hours per week.
Under another similar nonimmigrant
visa program the Department regulates,
H–2A program for agricultural workers,
full-time is defined as 35-hours per
week.
The Department recognizes that there
is no universally-accepted definition of
full-time employment and, without such
a standard, must determine a reasonable
floor of hours per week below which a
job is not considered full-time and
therefore ineligible for inclusion in the
H–2B program. After careful
consideration, the Department has
decided to retain the proposed
definition of at least 35 hours per week,
which more accurately reflects full-time
employment expectations than the
current 30-hour definition, will not
compromise worker protections, and is
consistent with other existing
Department standards and practices in
the industries that currently use the
H–2B program to obtain workers.
Though a 40-hour threshold, as some
commenters pointed out, would be more
consistent with the BLS-reported
average of workweek of nearly 43 hours,
5 Bureau of Labor Statistics, Labor Force
Statistics, Table A–24; Persons at work in
agriculture and related nonagricultural industries
by hours of work, Dec. 2010. https://www.bls.gov/
web/empsit/cpseea24.htm.
6 Bureau of Labor Statistics, Employment
Situation, Table A–24: Persons at work in
agriculture and related and in nonagricultural
industries by hours of work, May 2011. https://
www.bls.gov/web/empsit/cpseea24.htm.
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an average level, by definition, accounts
for both higher and lower values. The
average includes, for example, hours
worked by exempt managerial and
professional employees who are not
entitled to overtime and who tend to
work longer hours. The Department
observes that it is entirely likely that the
average calculation includes
employment relationships in which
both the employer and the workers
consider full-time to be 35 hours of
work per week. This assertion is borne
out by some Applications for Temporary
Employment Certification currently
being filed with ETA that request such
a weekly schedule.
The Department’s decision to define
full-time as 35 or more hours does not
conflict with worker advocacy groups’
claims that many H–2B jobs require 40
or more hours per week. The 35-hour
floor simply allows employers access to
the H–2B program for a relatively small
number of full-time jobs that would not
have been eligible under a 40-hour
standard. H–2B employers are and will
remain required to accurately represent
the actual number of hours per week
associated with the job, recruit U.S.
workers on the basis of those hours, and
pay for all hours of work. Therefore, the
employer is obligated to disclose and
offer those hours of employment—
whether 35, 40 or 45, or more—that
accurately reflect the job being certified.
Failure to do so could result in a finding
of violation of these regulations.
d. Job contractor. We proposed to
amend the definition of job contractor to
resolve concerns raised by the U.S.
District Court for the Eastern District of
Pennsylvania in CATA v. Solis, 2010
WL 3431761, about our adoption of
language in the 2008 Final Rule that
states a 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 that our explanation that we
adopted this language to ‘‘make clear
that the job contractor, rather than the
contractor’s client, must control the
work of the individual employee,’’ 73
FR 78020, 78024, Dec. 19, 2008, ‘‘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.’’ CATA, 2010 WL 3431761
at *16.
The proposed definition of job
contractor included the phrase ‘‘will not
exercise substantial, direct day-to-day
supervision or control.’’ This addition
further clarified that an entity exercising
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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. For the
reasons stated below, we have decided
to amend the definition as proposed to
include the phrase supervision and
control rather than supervision or
control.
While some commenters contended
that the CATA decision was flawed and
urged us to use existing enforcement
mechanisms rather than change the
definition, other commenters welcomed
the additional language clarifying that
an employer exercising substantial,
daily supervision and control would not
be considered a job contractor. A
specialty bar association suggested that
since an employer’s status as a job
contractor determines an employer’s
eligibility to use the H–2B program
under the NPRM, we should provide
more concrete examples of employers
that we would or would not consider to
be job contractors.
While we appreciate the bar
association’s suggestion, given the
infinite variety of business arrangements
employers can make with other
employers for the provision of labor or
services, it is impossible to provide a
definitive list of types of employers that
would or would not be deemed job
contractors. However, the following
examples may be instructive for
illustrating the differences between an
employer that is a job contractor and an
employer that is not. Employer A is a
temporary clerical staffing company. It
sends several of its employees to Acme
Corporation to answer phones and make
copies for a week. While Employer A
has hired these employees and will be
issuing paychecks to these employees
for the time worked at Acme
Corporation, Employer A will not
exercise substantial, direct day-to-day
supervision and control over its
employees during their performance of
services at Acme Corporation. Rather,
Acme Corporation will direct and
supervise the Employer A’s employees
during that week. Under this particular
set of facts, Employer A would be
considered a job contractor. By contrast,
Employer B is a landscaping company.
It sends several of its employees to
Acme Corporation once a week to do
mowing, weeding, and trimming around
the Acme campus. Among the
employees that Employer B sends to
Acme Corporation are several landscape
laborers and one supervisor. The
supervisor instructs and supervises the
laborers as to the tasks to be performed
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on the Acme campus. Under this
particular set of facts, Employer B
would not be considered a job
contractor. Note that the provision of
services under a contract alone does not
render an employer a job contractor;
rather, each employment situation must
be evaluated individually to determine
the nature of the employer-employee
relationship and accordingly, whether
the petitioning employer is in fact a job
contractor.
We believe that our discussion of
reforestation employers in the NPRM
also may help to further clarify the
definition of job contractor. As
described in the NPRM, a typical
reforestation employer, such as those
who have historically used the H–2B
program, performs contract work using
crews of workers subject to the
employer’s on-site, day-to-day
supervision and control. Such an
employer, whose relationship with its
employees involves substantial, direct,
on-site, day-to-day supervision and
control would not be considered a job
contractor under this Final Rule.
However, if a reforestation employer
were to send its workers to another
company to work on that company’s
crew and did not provide substantial,
direct, on-site, day-to-day supervision
and control of the workers, that
employer would be considered a job
contractor under this Final Rule.
Some commenters asserted that a job
contractor’s degree of supervision does
not change the fact that its need for
workers is permanent. These
commenters appear to misunderstand
our objective in proposing to prohibit
job contractors from participating in the
H–2B program. The NPRM created an
irrebuttable presumption that a job
contractor’s need for workers is
inherently permanent. The
implementation of that determination
necessitates that we create a definition
of job contractor. Only after a job
contractor is identified through the
definition can we conclude that the
entity’s need is permanent.
One commenter asserted that the
language ‘‘where the job contractor will
not exercise substantial, direct day-today supervision or control in the
performance of the services or labor to
be performed other than hiring, paying
and firing the workers’’ created a
loophole for job contractors to
artificially increase their level of
supervision in order to avoid being
labeled job contractors. Another
commenter was concerned that an
employer performing contracts on a
year-round basis with on-site supervised
crews would avoid being designated a
job contractor based on its level of
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supervision. Both suggested removing
the supervision or control language from
the definition. While we are concerned
about job contractors artificially
changing their business model to
circumvent a job contractor designation,
we believe that the permanency of such
an employer’s need will be evident and
addressed during the registration and
application processes. Moreover, we
believe that retaining the supervision
and control language in the definition is
essential to continuing to provide access
to employers with legitimate temporary
needs who perform contracts for
services (e.g. reforestation or
landscaping). Therefore, we will not
alter the definition of job contractor in
such a way as to bar all employers that
perform contracts for services.
A specialty bar association contended
that the phrase ‘‘substantial, direct dayto-day supervision or control’’ is
ambiguous and will lead to confusion
and uncertainty. The commenter
asserted that the word ‘‘or’’ could lead
to proof of either supervision or control
enabling an employer to avoid
designation as a job contractor and
suggested that the word substantial adds
to interpretive difficulty. Contrary to the
commenter’s reading, we intended
supervision or control to prevent an
employer which did not exercise both
supervision and control from avoiding
designation as a job contractor. In order
to resolve this ambiguity, we have
changed ‘‘or’’ to ‘‘and’’ in the Final
Rule. We believe the use of the word
substantial is important because some
job contractors do exercise minimal
levels of supervision and control, for
example, by sending a foreman to check
that a crew is working. We have
retained the rest of the definition
without change because, as discussed
above, we believe the language is
essential to distinguishing between
employers who perform contracts for
services and employers who fill staffing
contracts. The Final Rule now states
that job contractors do not exercise
substantial, direct day-to-day
supervision and control in the
performance of the services or labor to
be performed other than hiring, paying
and firing the workers.
e. Other definitions. As discussed
under § 655.6, we have decided to
permit job contractors to participate in
H–2B program where they can
demonstrate their own temporary need,
not that of their clients. The particular
procedures and requirements that
govern their participation are set forth
in § 655.19 and provide in greater detail
the responsibilities of the job
contractors and their clients.
Accordingly, we are adding a definition
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of employer-client to this Final Rule to
define the characteristics of the
employer that is served by the job
contractor and the nature of their
relationship.
We also proposed to define several
terms not previously defined in the
2008 Final Rule, including job offer and
job order. We proposed definitions for
job offer and job order 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. In
response to comments about the
definitions of job offer and job order, we
have retained the definition of job offer
without change but have revised the
definition of job order to indicate that it
must include some, but not all, of the
material terms and conditions of
employment as reflected in modified
§ 655.18 which identifies the minimum
content required for job orders.
Some commenters expressed concern
that both the definition of job offer and
the definition of job order require the
employer to include all material terms
and conditions for the job opportunity.
The commenters contended that since
employment contracts typically
incorporate employee handbooks and
other documents by reference, it would
be difficult, if not impossible, to draft a
document that contains all material
terms and conditions. In addition, the
commenters argued that including such
extensive content would infringe on an
employer’s legitimate business interest
in maintaining the confidentiality of
employment terms and subject
employers to exorbitant fees when the
document was used in mandatory
advertising. We agree that including all
material terms and conditions for the
job opportunity in the job order and
advertising would be difficult, if not
impossible, as well as a dramatic
departure from how employers hire for
these positions. Accordingly, we have
amended the definition of job order so
that it now reads ‘‘[t]he document
containing the material terms and
conditions of employment * * *’’
rather than ‘‘[t]he document containing
all the material terms and conditions of
employment * * *’’ and ‘‘including
obligations and assurances under 29
CFR part 503 * * *’’ and we have
amended § 655.18 to reflect the
minimum content requirements for job
orders. We also removed the phrase ‘‘on
their inter- and intra-State job clearance
systems’’ as unnecessary. The definition
of job offer remains unchanged and
requires an employer’s job offer to
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contain all material terms and
conditions of employment.
We also proposed revising the
definition of strike so that the term is
defined more consistently with our 2010
H–2A regulations. We are retaining the
proposed definition without change.
Some worker advocacy organizations
supported the revised definition,
appreciating that the definition
recognizes a broad range of protected
concerted activity and clearly notifies
employers and workers of their
obligations when workers engage in
these protected activities. Other
commenters, representing employer
concerns, opposed the revised
definition, finding it too broad. These
commenters contended that the
proposed definition includes minor
disagreements not rising to the level of
what the commenters or prior regulatory
language would consider a strike and
that the definition covered an
employer’s local workforce, rather than
just the H–2B position. Some
commenters requested a return to the
language of the 2008 Final Rule, arguing
that the proposed definition rejects our
longstanding position limiting the
admission of H–2B workers where the
specific job opportunity is vacant
because the incumbent is on strike or
being locked out in the course of a labor
dispute. These commenters were
concerned that two workers could claim
to have a dispute and, thereby, prevent
the employer from using the program.
Given our desire to align the
definition of strike in this Final Rule
with the definition in the 2010 H–2A
regulations, we have decided to retain
the definition as proposed. As we
explained in the preamble to the 2010
H–2A Final Rule at 75 FR 6884, Feb. 12,
2010, we believe narrowing the
provision as recommended by
commenters would unjustifiably limit
the freedom of workers to engage in
concerted activity during a labor
dispute.
6. § 655.6 Temporary Need
We proposed to interpret temporary
need in accordance with the DHS
definition of that term and of our
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 Final Rule, as
discussed in further detail below, is
consistent with this approach.
Also, consistent with the definition of
temporary need, we proposed to
exclude job contractors from
participation in the H–2B program, in
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10051
that they have an ongoing business of
supplying workers to other entities,
even if the receiving entity’s need for
the services is temporary. The proposal
was based on our 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. As
discussed below, we have revised the
proposed provisions in the Final Rule.
a. Job Contractors. We received a
number of comments on our proposal to
eliminate job contractors from the H–2B
program. We received some comments
related to the definition of job contractor
and how we will identify a job
contractor. Those comments related to
the definition of job contractor rather
than the nature of a job contractor’s
need. Specifically, commenters from the
reforestation industry expressed
concerns over being classified as job
contractors. These comments are
addressed in the discussion of § 655.5.
A number of commenters expressed
support for the elimination of job
contractors, agreeing that job
contractors’ need is permanent and that
the job openings are actually with a job
contractor’s employer-client, rather than
with the job contractor. A worker
advocacy organization asserted that the
proposed approach, ensuring that the
program is reserved for temporary job
openings and excluding job contractors
whose need is inherently permanent,
was consistent with Congressional
intent with respect to the program. One
commenter expressed support for the
changes in the proposed rule which
reflected the court’s ruling in CATA v.
Solis and which prohibited job
contractors from filing in the program if
their clients did not also submit an
application to the Department.
Other commenters generally
supported the elimination of job
contractors from the program as a way
of protecting workers from trafficking
and forced labor. One commenter also
asserted that the elimination of job
contractors will prevent circumstances
where the H–2B workers are left without
sufficient work or pay while in the job
contractor’s employ and where H–2B
workers, who may be willing to work for
less pay or in worse conditions,
compete with similarly situated U.S.
workers.
Another commenter offered support
for the prohibition on job contractors
due to the difficulty in holding them
accountable for program violations,
either because they disappear at the
threat of litigation or because they have
so little money that they are judgmentproof when they violate employment
and labor laws. This commenter
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reasoned that the job contractors act as
a shield for the employers who actually
employ the workers and indicated that
the proposed change to the regulations
would stem violations of laws by both
contractors and the employers who
work in concert with them.
On the other hand, one commenter
asserted that the bar on job contractors
should not be complete because to the
extent that any one job contractor does
not have a year-round need and
routinely does not employ workers in a
particular occupation for a specific
segment of the year, its needs are
seasonal. This commenter argued that
the standard for rejection from the H–2B
program should be definitively
permanent, not potentially permanent,
with respect to whether or not a job
contractor’s need is permanent. Job
contractors should be afforded the same
opportunity as all other employers to
prove they have a temporary need for
services or labor. Relying on Matter of
Vito Volpe, 91–INA–300 (BALCA 1994),
this commenter indicated that any need
that does not constitute ‘‘permanent
full-time work, such as where the
occupation is one where employers
have seasonal layoffs each year, the
position is temporary.’’
As discussed in the NPRM, a person
or entity that is a job contractor, as
defined under § 655.5, has no individual
need for workers. Rather, its need is
based on the underlying need of its
employer-clients, some which may be
concurrent and/or consecutive.
However, we recognize the validity of
the concern raised by the commenter
that we should exclude from the
program only those who have a
definitively permanent need for
workers, and that job contractors who
only operate several months out of the
year and thus have a genuine temporary
need should not be excluded. Therefore,
we are revising § 655.6 to permit only
those contractors that demonstrate their
own temporary need, not that of their
employer-clients, to continue to
participate in the H–2B program. Job
contractors will only be permitted to file
applications based on seasonal need or
a one-time occurrence. In other words,
in order to participate in the H–2B
program, a job contractor would have to
demonstrate, just as all employers
seeking H–2B workers based on
seasonal need have always been
required: (1) If based on a seasonal need
that the services or labor that it provides
are traditionally tied to a season of the
year, by an event or pattern and is of a
recurring nature; or (2) if based on a
one-time occurrence, that the employer
has not employed workers to perform
the services or labor in the past and will
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not need workers to perform the
services in the future or that it has an
employment situation that is otherwise
permanent, but a temporary event of
short duration has created the need for
a temporary worker.
For a job contractor with a seasonal
need, the job contractor must specify the
period(s) or time during each year in
which it does not provide any services
or labor. The employment is not
seasonal if the period during which the
services or labor is not provided is
unpredictable or subject to change or is
considered a vacation period for the
contractor’s permanent employees. For
instance, a job contractor that regularly
supplies workers for ski resorts from
October to March but does not supply
any workers outside of those months
would have its own temporary need that
is seasonal.
Limiting job contractor applications to
seasonal need and a one-time
occurrence is appropriate, as it is
extremely difficult, if not impossible, to
identify appropriate peakload or
intermittent needs for job contractors
with inherently variable client bases.
The seminal, precedent decision in
Matter of Artee, 18 I. & N. Dec 366,
Interim Decision 2934, 1982 WL 190706
(Comm’r 1982), established that a
determination of temporary need rests
on the nature of the underlying need for
the duties of the position. To the extent
that a job contractor is applying for a
temporary labor certification, the job
contractor whose need rests on that of
its clients has itself no independent
need for the services or labor to be
performed. The Board of Alien Labor
Certification Appeals (BALCA) has
further clarified the definition of
temporary need in Matter of Caballero
Contracting & Consulting LLC, 2009–
TLN–00015 (Apr. 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.’’ The BALCA, in Matter of
Cajun Constructors, Inc. 2009–TLN–
00096 (Oct. 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 limited circumstances under
which job contractors may continue to
participate in the H–2B program would
still be subject to the limitations
provided in the CATA decision, which
resulted in the Department no longer
being able to accept H–2B labor
certification applications from job
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contractors if the job contractor’s
employer-clients also did not submit
labor certification applications. Section
655.19 sets forth the procedures and
requirements governing the filing of
applications by job contractors.
The Department understands that in
some cases the use of a job contractor
may be advantageous to employers.
However, the advantages provided to
employers by using job contractors do
not overcome the fact that many job
opportunities with job contractors are
inherently permanent and therefore
such job contractors are not permitted to
participate in the program. We
recognize 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. In the proposed
rule, the Department encouraged
employers to submit information about
their changed circumstances as a result
of the proposal to bar job contractors
from the program, including the
potential costs and savings that may
result. The Department did not receive
any comments from employers
describing or quantifying the cost of the
elimination of job contractors from the
program to aid in the Department’s
estimation of the economic impact of
this proposal.
One commenter was concerned that
job contractors would get around this
prohibition by representing employers
as agents. Agents, by their role in the
program, have no temporary need apart
from the underlying need of the
employer on whose behalf they are
filing the Application for Temporary
Employment Certification. When
considering any employer’s H–2B
Registration, the Department will
require that employer to substantiate its
temporary need by providing evidence
required to support such a need. The
Department does not anticipate an issue
with this type of misclassification.
b. Change in the Duration of
Temporary Need. In addition to
proposing to bar job contractors from
the H–2B program based on their
underlying permanent need for the
employees, we proposed to define
temporary need, except in the event of
a one-time occurrence, as 9 months in
duration, a decrease from the 10-month
limitation under the 2008 Final Rule. As
also discussed in the NPRM, this
definition is more restrictive than, yet
still consistent with, the DHS definition
of temporary need, in which the ‘‘period
of time will be 1 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). We
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are adopting this provision in the Final
Rule as proposed.
We received a number of comments
on this proposal. Most commenters
supported the clarification of the
temporary need standard. Two such
commenters recommended a further
reduction in the duration of temporary
need to no more than 6 months. In
support of their proposal, these
commenters suggested that half a year is
a reasonable amount of time for an
employer to have an unskilled
temporary foreign worker, because there
are currently millions of unemployed
unskilled U.S. workers seeking
employment across the country. These
commenters hoped that shortening the
certification periods for H–2B workers
will compel employers to increase
recruitment of U.S. workers (because
they will have to recruit more often),
which better achieves the statutory
mandate not to use H–2B labor unless
‘‘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).
Other commenters opposed the
proposal to change the maximum
duration of temporary need from 10
months to 9 months. One commenter,
who conducted a private survey of H–
2B employers, indicated that 32 percent
of its respondents indicated that
curtailing the temporary work period to
9 from 10 months will have a severe
effect on their bottom line. The
remainder of respondents indicated
moderate to no effect. This commenter
indicated that some industries reported
greater effects than others; those
primarily concerned over the shorter
season included: Landscaping, seafood
processing, ski resorts, summer resorts,
and forestry. As reported by this
commenter, for some of these industries,
a shorter season would mean less time
for training and quality control,
decreased revenues and loss of
permanent full-time employees.
Another commenter concurred that the
adoption of a 9-month limit would have
a devastating impact on many types of
businesses, ranging from hospitality and
food service to landscaping and
numerous others. This commenter
raised concerns about a significant drop
in participation in the program by
nearly a third of the businesses
currently using the H–2B program and
predicted substantial effects on the
economy, including upstream ripple
effects. In contrast to commenters who
called for a yet shorter duration, most of
these commenters agreed that they
would not be able to use the H–2B
program if we define a temporary need
as less than 9 months.
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Another commenter asserted that the
standard for temporary need should be
the employer’s actual need (up to 1 year,
or up to 3 years for one-time events) and
not an arbitrary time period defined by
the Department under the guise of
ensuring the integrity of the program.
Supporting the retention of a 10-month
standard, this commenter challenged
our reasoning for reducing the duration
of seasonal, peakload, or intermittent
need, including referring to the
discussion under the 2008 Final Rule
which indicated that a period of need in
excess of 1 year may be justified in
certain circumstances. Finally, an
association of employers and temporary
workers argued that temporary need
should not be generally quantified
because it is industry-specific and
suggested that each employer should be
able to argue that its need is temporary
and consistent with the definition of
seasonal or peakload.
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. See, generally, 8 CFR
214.2(h)(6)(ii)(B).
We believe that the proposed time
period is an appropriate interpretation
of the one year or less limitation
contained in the DHS regulations.
Allowing employers to file seasonal,
peakload or intermittent need
applications for periods approaching a
year (364 days is less than 1 year) would
be inconsistent with the statutory
requirement that H–2B job opportunities
need to be temporary. The closer the
period of employment is to one year, the
more the opportunity resembles a
permanent position. For instance, it
would be difficult, if not impossible, to
distinguish between a permanent job
opportunity and one in which the work
begins on March 1st and ends on
February 20th, only to begin again on
March 1st. We believe that a maximum
employment period of 9 months
definitively establishes the
temporariness of the position, as there is
an entire season in which there is
simply no need for the worker(s). Where
there are only a few days or even a
month or two for which no work is
required, the job becomes less
distinguishable from the permanent
position, particularly one that offers
time off due to a slow-down in work
activity. Recurring temporary needs of
more than 9 months are, as a practical
matter, permanent positions for which
H–2B labor certification is not
appropriate. The current approach that
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permits temporary certifications for
periods up to 10 months encompasses
job opportunities that we believe are
permanent in nature and not consistent
with Congressional intent to limit H–2B
visas to employers with temporary or
seasonal needs. However, we recognize
that some employers may have a
legitimate temporary need that lasts up
to 9 months, and for that reason, we
decline to reduce the duration of
temporary need to 6 months. A job
opportunity that does not exist in the
winter months would likely be
considered seasonal. We believe that the
9-month limitation that fairly describes
the maximum scope of a seasonal need
should also be applied to peakload need
since there is no compelling rationale
for creating a different standard for
peakload.
While we recognize the impact that a
movement from 10 months, which had
been previously acceptable, to 9 months
will have an adverse impact on some
employers, the impact is not relevant to
our legal obligation to protect the wages
and working conditions of U.S. workers.
The Department previously relied on
the standard articulated in In the Matter
of Vito Volpe Landscaping, 91–INA–
300, 91–INA–301, 92–INA–170, 91–
INA–339, 91–INA–323, 92–INA–11
(Sept. 29, 1994), which stated that a
period of 10 months was not permanent.
The Department may adopt through
notice and comment rulemaking a new
standard that is within our obligation to
administer the program. See United
States v. Storer Broadcasting, 351 U.S.
192, 203 (1956); Heckler v. Campbell,
461 U.S. 458, 467 (1983). We have
determined that 9 months better reflects
a recurring seasonal or temporary need
and have accordingly proposed a new
standard which has been adopted in this
Final Rule. Recurring temporary needs
of more than 9 months are, as a practical
matter, permanent positions for which
H–2B labor certifications are not
appropriate. The majority of H–2B
employer applicants will not be affected
by this change. According to H–2B
program data for FY 2007–2009, 68.7
percent of certified and partially
certified employer applicants had a
duration of temporary need less than or
equal to 9 months, while 31.3 percent of
certified or partially certified applicants
had a duration of temporary need
greater than 9 months. Many seasonal
businesses experience ‘‘shoulder
seasons,’’ which are periods of time at
the beginning and end of the season
when fewer workers are needed.
Therefore, we anticipate that employers
will be able to meet their labor needs
during the short additional period they
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must cover of the shoulder seasons with
U.S. workers and, therefore, will not be
impacted by the change from the 10month standard.
Similarly, we have determined that
limiting the duration of temporary need
on a peakload basis would ensure that
the employer is not mischaracterizing a
permanent need as one that is
temporary. For example, since
temporary need on a peakload basis is
not tied to a season, under the current
10-month standard, an employer may be
able to characterize a permanent need
for the services or labor by filing
consecutive applications for workers on
a peakload basis. To the extent that each
application does not exceed the 10
months, the 2-month inactive period
may correspond to a temporary
reduction in workforce due to annual
vacations or administrative periods.
Increasing the duration of time during
which an employer must discontinue
operations from 2 months to 3 will
ensure that the use of the program is
reserved for employers with a genuine
temporary need. Similarly, a 9-month
limitation is appropriate for ensuring
that the employer’s intermittent need is,
in fact, temporary. In addition, under
the Final Rule, each employer with an
intermittent need will be required to file
a separate H–2B Registration and
Application for Temporary Employment
Certification to ensure that any
disconnected periods of need are
accurately portrayed and comply with
the 9-month limitation.
With respect to one commenter’s
assertion that we have acknowledged in
the 2008 Final Rule that temporary need
may last longer than 1 year in some
circumstances, the definition of a onetime occurrence as lasting up to 3 years
is consistent with DHS regulations and
is intended to address those limited
circumstances where the employer has
a one-time need for workers that will
exceed the 9-month limitation.
With respect to the commenter’s
concern regarding the potential
economic impact of the shorter standard
on the operations of businesses and the
drop in program participation, the
Department has accounted in both the
NPRM and this Final Rule for the
potential drop in program use.
Employers participating in the H–2B
program must demonstrate that they
have a temporary need for the labor or
services to be performed which they are
unable to meet with U.S. workers. In
interpreting the DHS standard for
defining temporary need, the
Department has struck a balance
between ensuring that each position
certified will comport with the
regulatory requirements and
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accommodating an employer’s
legitimate need to fill its job
opportunities in cases where United
States workers are not available.
c. Peakload need. In addition to redefining the duration of temporary
need, we expressed concern in the
NPRM that certain employers who lack
the ability to demonstrate temporary
need on a seasonal basis may
mischaracterize a permanent need as a
short-term temporary need which would
fit under the peakload need standard.
We used as an example the landscaping
industry in which the off season is
primarily a product of the absence of H–
2B workers rather than a reduction in
the underlying need for the services or
labor. In that context, we sought
comments and ideas from the public on
the factors or criteria that we should
consider in determining whether the
employer has a genuine peakload need
based on short-term demand. In
addition, we requested input on
whether we should limit these
occurrences to those resulting from
climactic, environmental or other
natural conditions, or on limiting shortterm demand to 6 months.
We received several comments on this
proposal. The majority of commenters
opposed the restriction of the peakload
need standard. One commenter
indicated that approximately a quarter
of all H–2B applications are filed for
landscaping employment, and that the
employer’s underlying need may well
depend on the location of the company
and the climate in that location. This
commenter suggested that these
employers should not be precluded
from program participation by virtue of
where they are located, and requested
that we retain our peakload need
definition as proposed.
In response to commenters’
suggestions, we have concluded that no
commenters offered a practical rationale
indicating that a 6 month limitation
would be more effective at curbing the
issue of misclassifying the nature of the
employer’s need, rather than a 9 month
limitation but we received a large
number of comments noting that such a
change would have an unintended
consequence of effectively barring at
least one sustaining industry—
landscaping—from the program. With
respect to another commenter’s
suggestion that we estimate short-term
demand in relation to the number of
temporary workers on a peakload basis
as a percentage of the employer’s total
workforce, we note that such a
suggestion is not operationally feasible.
One commenter responded to the
request for comments on establishing
criteria for distinguishing genuine
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peakload need from a permanent need.
The commenter proposed the
application of a specific criterion,
namely: a limitation of peakload need to
6 months, defining short-term demand
in relation to the percentage of
temporary workers on a peakload basis
as a percentage of the employer’s total
workforce. This commenter proposed
concrete numbers of workers and
percentages based on the numbers of
workers employed by the employer,
indicating that such an approach ought
to preclude employers that conduct
year-round activities constituting
permanent need from using the H–2B
program.
Having considered all comments on
this proposal, we have determined to
retain the provision as proposed. We
thank the commenters for their valuable
suggestions; however, we have
determined that this regulation, as
proposed, better meets our program
mandate than any of the suggested
alternatives.. Therefore, we are retaining
this provision as proposed.
d. One-Time Occurrence. In addition
to barring job contractors, and reducing
the duration of the seasonal/peakload
need to 9 months, we proposed an
interpretation of a one-time occurrence
to be consistent with DHS regulations
under which such an occurrence could
last up to 3 years. We received a number
of comments on this proposal.
The majority of commenters opposed
the apparent expansion of this
requirement. One commenter indicated
that while the reduction in the duration
of seasonal/peakload need to 9 months
was a notable improvement, the 3-year
one-time occurrence provided
employers with a loophole. This
commenter referred to the H–2B
definition under section 101 of the INA
to indicate an inconsistency. Other
commenters suggested that we institute
an across the board 9-month limitation
to the duration of temporary need. Many
of the commenters opposing this
proposal referred to average durations
U.S. workers stay in their jobs, noting
that the duration was typically less than
3 years and thus that our proposal was
inconsistent with labor market
information.
Other commenters addressing the
needs of the construction industry
indicated that the standard for proving
a temporary need based on a one-time
occurrence would be difficult to meet
under the definition, in that the
employer must establish that [1] it has
not employed workers to perform the
services or labor in the past and that it
will not need workers to perform the
services or labor in the future, or [2] it
has an employment situation that is
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otherwise permanent, but a temporary
event of short duration has created the
need for a temporary worker. These
commenters expressed concern that
construction contractors will not able to
pass the first test unless the project for
which the H–2B worker is hired is the
only project they ever work on, because
they invariably use the same types of
workers. As to the second alternative,
they argued that the construction
industry consists primarily of short-term
and intermittent work and therefore
does not qualify under this test. Another
commenter opposing the change in the
definition for consistency with DHS
regulations indicated that in crafting its
definition DHS relied on an example
from the construction industry which
was not an accurate portrayal of the way
in which that industry operates.
Another commenter opposing the 3-year
standard for one-time occurrences
indicated that circumstances where an
employer will be able to comply with
the requirements for meeting the
standard may be rare.
We proposed to define temporary
need consistent with DHS regulations,
so that both agencies make consistent
decisions on applications/petitions. The
majority of commenters asserted that
our reliance on DHS regulations, in this
instance, is misplaced. These
commenters focused on the examples
relied upon by DHS in the preamble to
its 2008 regulations at 73 FR 78104, Dec.
19, 2008 to explain the operation of the
3-year, one-time occurrence. Although
we adopt the DHS regulatory standard,
we acknowledge, as DHS did, that it did
not intend for the 3-year
accommodation of special projects to
provide a specific exemption for the
construction industry in which many of
an employer’s projects or contracts may
prove a permanent rather than a
temporary need. Therefore, we will
closely scrutinize all assertions of
temporary need on the basis of a onetime occurrence to ensure that the use
of this category is limited to those
special and rare circumstances where
the employer has a non-recurring need
which exceeds the 9 month limitation.
For example, an employer who has a
construction contract which exceeds 9
months may not use the program under
a one-time occurrence if it has
previously filed an Application for
Temporary Employment Certification
identifying a one-time occurrence and
the prior Application for Temporary
Employment Certification requested H–
2B workers to perform the same services
or labor in the same occupation.
For all of the reasons articulated
above, we are retaining the standard for
a one-time occurrence as proposed.
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7. § 655.7 Persons and Entities
Authorized To File
In the NPRM, we proposed to
designate the persons authorized to file
an H–2B Registration or an Application
for Temporary Employment
Certification as the employer, or its
attorney or agent. The proposed
provisions also stressed the requirement
that the employer must sign the H–2B
Registration or Application for
Temporary Employment Certification
and any other required documents,
whether or not it is represented by an
attorney or agent. We did not receive
comments on this proposal. Therefore,
the provision is retained as proposed.
8. § 655.8
Requirements for Agents
In the NPRM, we noted that we have
long accepted applications from agents
acting on behalf of employers in the H–
2B program, but that in administering
the H–2B program, we have become
concerned about the role of agents in the
program and whether their presence and
participation have contributed to
program compliance problems. We
proposed that if we were to continue to
accept applications from agents, that the
agents be required, at a minimum, to
provide copies of current agreements
defining the scope of their relationships
with employers and that where an agent
is required under the Migrant and
Seasonal Agricultural Worker Protection
Act (MSPA) to have a Certificate of
Registration, the agent must also
provide a current copy of the certificate
which identifies the specific farm labor
contracting activities that the agent is
authorized to perform. The Final Rule
adopts this provision as proposed. We
also invited the public to provide ideas
and suggestions on the appropriate role
of agents in the H–2B program. We
specifically sought comments on
whether we should continue to permit
the representation of employers by
agents in the H–2B program, and if so,
whether any additional requirements
should be applied to agents to
strengthen program integrity.
Based on the comments we received,
we have concluded that agents should
be permitted to continue to represent
employers in the H–2B process before
the Department and file Applications for
Temporary Employment Certification on
their behalf. To assist in verifying the
scope of the agent’s relationship with
the employer, we will also require
agents to provide copies of their
agreement with the employer as well as
the MSPA Certificate of Registration,
where applicable. We are collecting the
agreements and will be reviewing them
as evidence that a bona fide relationship
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10055
exists between the agent and the
employer and, where the agent is also
engaged in international recruitment, to
ensure that the agreements include the
language required at § 655.20(p)
prohibiting the payment of fees by the
worker. We do, however, also reserve
the right to further review the
agreements in the course of an
investigation or other integrity measure.
We therefore remind the public that a
certification of an employer’s
application that includes such a
submitted agreement in no way
indicates a general approval of the
agreement or the terms therein.
A few commenters suggested that
agents be barred from filing applications
on behalf of H–2B employers. At least
two commenters, both trade
organizations, suggested that agents
create a problematic level of separation
between employers and their obligations
under the H–2B program.
An overwhelming number of
commenters, however, stated that while
disreputable agents may exist, bona fide
agents are critical to the employers’
ability to maneuver through the H–2B
application process and requirements.
Many of these commenters reiterated
our own statistics for FY 2010, showing
that that only 14 percent of employers
filed applications without an agent and
that 38 percent of these cases were
denied. These commenters argued that
we should continue to allow agents to
file applications on behalf of H–2B
employers. These same commenters,
however, expressed an interest in
program integrity and therefore agreed
with the proposal to require agents to
provide copies of their agreements with
employers, to verify the existence of a
relationship. Some commenters
suggested that the agent(s) should be
permitted to redact confidential
proprietary business information before
providing such agreements. Again, we
are requiring agents to supply copies of
the agreements defining the scope of
their relationship with employers to
ensure that there is a bona fide agency
relationship and maintain program
integrity. The requirement, however, in
no way obligates either the agent or the
employer to disclose any trade secrets or
other proprietary business information.
The Final Rule only requires the agent
to provide sufficient documentation to
clearly demonstrate the scope of the
agency relationship. In addition, under
this Final Rule, we do not presently
plan to post these agreements for public
viewing. If, however, we do so in the
future, we will continue to follow all
applicable legal and internal procedures
for complying with Freedom of
Information Act (FOIA) requests to
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ensure the protection of private data in
such circumstances.
One commenter, a trade organization,
suggested that the proposed requirement
that agents provide a copy of their
MSPA Certificate of Registration, if
required under MSPA, may be
confusing since H–2B is viewed as nonagricultural, in contrast with the H–2A
program, which is for agricultural labor
and services. This commenter
recommended that we provide a list of
those businesses to which this
additional requirement applies.
Several commenters also suggested
that, in addition to receiving agentemployer agreements we should: limit
the tasks in which agents can engage to
those not involving the unauthorized
practice of law or for which no payment
is received, in accordance with DHS’
regulations; make such agreements
publicly available; maintain a public list
of the identity of agents who represent
employers in the labor certification
process; require mandatory registration
for agents; hold employers strictly liable
for the actions and representations of
their agents; and lastly, enhance
enforcement mechanisms to combat
fraud.
After evaluating all the comments, we
have decided to continue to permit
agents to participate in the Department’s
H–2B labor certification program. Their
importance to employers, as reflected in
numerous comments, outweighs any
value gained by their exclusion. We
remain interested in furthering program
integrity; while we are not prepared to
accept any of the specific requirements
on agents suggested by commenters at
this time, we have clarified in
§ 655.73(b) that an agent signing ETA
Form 9142 may be debarred for its own
violation as well as for participating in
a violation committed by the employer.
Some of the commenters’ ideas, such as
requiring agents to be registered with
the Department to participate in the
program would require additional
government resources which are
currently limited, while other ideas are
not deemed necessary at this time, such
as making the agreements publicly
available. We believe that the
Department will be able to preserve
program integrity by collecting such
agreements to ascertain the validity of
and scope of the agency relationship
and, where the agent is also engaged in
international recruitment, to ensure they
include the contractual prohibition
against charging fees language required
at § 655.20(p) prohibiting the payment
of fees by the worker. Such action, in
combination with the enforcement
mechanisms and compliance-based
model adopted by this Final Rule, will
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resolve many of the expressed concerns
without requiring the expenditure of
additional resources. However, as stated
under § 655.63, we reserve the right to
post any documents received in
connection with the Application For
Temporary Employment Certification
and will redact information accordingly.
Lastly, in response to commenters
that urged us to hold employers strictly
liable for the actions of the agents, we
remind both agents and employers that
each is responsible for the accuracy and
veracity of the information and
documentation submitted, as indicated
in the ETA Form 9142 and Appendix
B.1, both of which must be signed by
the employer and its agent. As
discussed under § 655.73(b), agents who
are signatories to ETA Form 9142 may
now be held liable for their own
independent violations of the H–2B
program. As to the commenter’s
suggestion that we provide additional
examples of H–2B occupations subject
to MSPA guidelines, we believe that
employers or individuals working in
affected industries are already aware of
their obligations under MSPA,
including the requirement to register.
9. § 655.9 Disclosure of Foreign
Worker Recruitment
We proposed to require an employer
and its attorney and/or agent to provide
a copy of all agreements with any agent
or recruiter whom it engages or plans to
engage in the international recruitment
of H–2B workers. We also proposed to
disclose to the public the names of the
agents and recruiters used by employers
and their attorneys and/or agents
participating in the H–2B program. We
received several comments, all of which
agreed with the proposal to provide
information about the recruiter’s
identity. We have expanded this section
in the Final Rule to better reflect the
obligation therein. For example, we
revised the Final Rule to specify that the
requirement to provide a copy of the
written contract applies to agreements
between the employer or the employer’s
attorney or agent and that the written
contract must contain the contractual
prohibition on charging fees, as set forth
in § 655.20(p). Where the contract is not
in English and the required contractual
prohibition is not readily discernible,
we reserve the right to request further
information to ensure that the
contractual prohibition is included in
the agreement.
Several commenters requested that we
strengthen the section by requiring the
employer to also provide the identity
and location of the foreign labor
recruiter’s sub-recruiters or sub-agents
and to expand the provision to include
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verbal agreements, as such informal
arrangements with foreign recruiters are
not uncommon. We agree that in
addition to bolstering program integrity
by aiding in the enforcement of certain
regulatory provisions, collecting the
identity and location of persons hired
by or working for the recruiter or its
agent to recruit or solicit prospective
H–2B workers—effectively acting as
sub-recruiters, sub-agents, or subcontractors—will bring a greater level of
transparency to the foreign recruitment
process that will assist the Department,
other agencies, workers, and community
and worker advocates in understanding
the roles of each participant and the
recruitment chain altogether. This
requirement advances the Department’s
mission of ensuring that employers
comply with overall H–2B program
requirements, and do not engage in
practices that adversely affect the wages
and working conditions of U.S. workers.
See 8 U.S.C. 1184(c)(14).
We have therefore added paragraph
(b) of this section in the Final Rule,
requiring that employers and their
attorneys or agents provide the identity
(name) of the persons and entities hired
by or working for the recruiter or
recruiting agent and any of the agents or
employees of those persons and entities,
as well as the geographic location in
which they are operating. We interpret
the term ‘‘working for’’ to encompass
any persons or entities engaged in
recruiting prospective foreign workers
for the H–2B job opportunities offered
by the employer, whether they are hired
directly by the primary recruiter or are
working indirectly for that recruiter as
a downstream recruiter in the
recruitment chain. We expect
employers, and their attorneys or agents,
as applicable, to provide these names
and geographic locations to the best of
their knowledge at the time the
application is filed. We expect that, as
a normal business practice, when
completing the written agreement with
the primary recruiting agent or recruiter,
the employer/attorney/agent will ask
who the recruiter plans to use to recruit
workers in foreign countries, and
whether those persons or entities plan
to hire other persons or entities to
conduct such recruitment, throughout
the recruitment chain.
As mentioned above, the public
disclosure of the names of the foreign
labor recruiters used by employers, as
well as the identities and locations of
persons or entities hired by or working
for the primary recruiter in the
recruitment of H–2B workers, and the
agents or employees of these entities,
will provide greater transparency to the
H–2B worker recruitment process. By
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providing us with this list, which we
will make public, the Department will
be in a better position to enforce
recruitment violations, and workers will
be better protected against fraudulent
recruiting schemes because they will be
able to verify whether a recruiter is in
fact recruiting for legitimate H–2B job
opportunities in the U.S. We intend to
use this list of foreign labor recruiters to
facilitate information sharing between
the Department and the public, so that
where we believe it is appropriate, we
can more closely examine applications
or certifications involving a particular
recruiter or its agent identified by
members of the public as having
engaged in improper behavior.
Additionally, information about the
identity of the international recruiters
will assist us in more appropriately
directing our audits and investigations.
To reiterate the overall requirements
of § 655.9 in the Final Rule, § 655.9(a)
requires employers or their agents or
attorneys, as applicable, to provide us
with a copy of all agreements with any
foreign labor recruiter, and those written
agreements must contain the required
contractual prohibition on the collection
of fees, as set forth in § 655.20(p). The
requirement in § 655.9(b) to disclose to
the Department the identities and
locations of persons and entities hired
by or working for the foreign labor
recruiter and any of the agents or
employees of those persons and entities
who will recruit or solicit H–2B workers
for the job opportunities offered by the
employer encompasses all agreements,
whether written or verbal, involving the
whole recruitment chain that brings an
H–2B worker to the employer’s certified
H–2B job opportunity in the U.S.
Several commenters erroneously
assumed the agreements between the
employer and the foreign recruiter
would be made public. The NPRM
provided for obtaining the agreements
and sharing with the public the identity
of the recruiters, not the full agreements.
As stated above, we intend to collect
the submitted agreements for the
purpose of maintaining a public list of
recruiters involved with H–2B workers.
At the time of collection, we will review
the agreements to obtain the names of
the foreign recruiters and to verify that
these agreements include the
contractual prohibition against charging
fees language required at § 655.20(p)
prohibiting the payment of fees by the
worker. We may also further review the
agreements in the course of an
investigation or other integrity measure.
We therefore remind the public that a
certification of an employer’s
application that includes such a
submitted agreement in no way
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indicates a general approval of the
agreement or the terms therein.
Several commenters agreed that the
disclosure of the identity of the foreign
recruiters is helpful and badly needed,
but suggested that it is not enough. One
commenter, an individual, suggested
that if an employer is paying a recruiter
to locate foreign workers, that employer
should also pay for a U.S. recruiter to
locate U.S. workers. We did not impose
such a requirement. This Final Rule, as
discussed below in further detail,
contains several recruitment steps the
employer must conduct, aimed at
providing U.S. workers ample
opportunity to learn about and apply for
these jobs.
Other commenters suggested that we
should institute a mandatory
registration or licensing system, that we
should require recruiters to make
themselves subject to U.S. jurisdiction,
or that employers should be held strictly
liable for recruitment violations. While
we appreciate these suggestions, we will
not implement them because we neither
have the resources nor the authority to
do so. However, we will continue to
implement enforcement and integrity
measures to decrease potential fraud in
the H–2B program.
B. Prefiling Procedures
1. § 655.10 Prevailing Wage
We proposed a modified process for
obtaining a prevailing wage designed to
simplify how an employer requests a
PWD. The proposed rule required
employers to request PWDs from the
National Prevailing Wage Center
(NPWC) before posting their job orders
with the SWA and stated that the PWD
must be valid on the day the job orders
are posted. We encourage employers to
continue to request a PWD in the H–2B
program at least 60 days before the date
the determination is needed. After
reviewing comments on the proposed
prevailing wage process, we are
adopting the provisions as proposed,
with one amendment.
Several labor and worker advocacy
groups supported the proposed process
for obtaining a PWD. One, while
agreeing that we should require
employers to test the U.S. labor market
using a currently valid PWD, suggested
that we should also require employers
to pay any increased prevailing wage
that is in effect for any time during the
certified period of employment. The
commenter cited the Court’s ruling in
CATA and the requirement in the H–2A
program requirement that an employer
pay a higher adverse effect wage rate
(AEWR) when a new, higher AEWR
becomes effective during the period of
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employment as its basis for the
suggestion.
Since this concept of paying any
increased prevailing wage that is in
effect for any time during the certified
period of employment was not
contained in the NPRM and the public
did not have notice and an opportunity
to comment, we cannot adopt the
commenter’s suggestion in this Final
Rule.
Some labor and worker advocacy
groups suggested that removing the last
sentence of proposed paragraph (d),
which exempts employers operating
under special procedures, would clarify
the proposed regulatory language on
prevailing wages for multiple worksites.
We agree and have removed the
sentence in the Final Rule. We issue
special procedures through TEGLs
which detail the variances permitted for
occupations covered by the special
procedures.
Some commenters noted that existing
special procedures will require
updating, given this rule and the
Prevailing Wage Final Rule. We agree
that we will need to update existing
special procedure guidance to reflect
organizational and regulatory changes;
however, those updates will be issued
through new Training and Employment
Guidance Letters (TEGLs) rather than
within this rule, where appropriate.
Until such time as new TEGLs are
issued, we will continue to honor the
special procedures that were in place
before the effective date of the new
regulations.
A number of commenters expressed
concern about the application of the
new prevailing wage methodology to
workers in corresponding employment.
We address these comments in the
larger discussion of corresponding
employment at § 655.5.
As discussed in the NPRM, this
rulemaking does not address or seek to
amend the prevailing wage methodology
established under the H–2B Wage Final
Rule. Comments related to the new
prevailing wage methodology fall
outside the scope of this rulemaking.
2. § 655.11 Registration of H–2B
Employers
We proposed 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. We proposed to require employers
to submit an H–2B Registration and
receive an approval before submitting
an Application for Temporary
Employment Certification and
conducting the U.S. labor market test.
The proposed registration required
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employers to document the number of
positions the employer desires to fill in
the first year of registration; the period
of time for which the employer needs
the workers; and that the employer’s
need for the services or labor is nonagricultural, temporary and is justified
as either a one-time occurrence, a
seasonal need, a peakload need, or an
intermittent need, as defined by DHS in
8 CFR 214.2(h)(6)(ii)(B) and interpreted
in § 655.6. If approved, we proposed
that the registration would be valid for
a period of up to 3 years, absent a
significant change in conditions,
enabling an employer to begin the
application process at the second phase
without having to re-establish
temporary need for the second and third
years of registration. We have retained
the proposed registration process in the
Final Rule, with one minor change
related to Requests for Information
(RFIs) and other clarifying language that
if and when the H–2B Registration is
permitted to be filed electronically, the
employer must print and sign it to
satisfy the original signature
requirement.
a. Method of registration. Many
commenters voiced support for the
proposal to bifurcate the application
process and shift the temporary need
and bona fide job opportunity review to
the registration process described in the
NPRM. Some commenters supported
bifurcation believing that the
registration process will provide more
time for OFLC to thoroughly review an
employer’s intended use of the program
and temporary need. Others supported
the registration process, asserting that
the 3-year registration validity and
removal of employers without legitimate
temporary need will result in a more
efficient process, better program
oversight, better protection for workers,
and greater visa availability for
employers with legitimate temporary
needs. Still other commenters believed
that the registration would help prevent
visa fraud. These comments were
consistent with our reasoning, as
articulated in the NPRM.
Other commenters opposed the
registration process. Some industry
organizations and employers feared that
the addition of a registration step will
make the application process more
cumbersome and time-consuming and
some urged us to use increased
enforcement activities rather than
program restructuring to accomplish our
stated goals. We view the proposed
separation of the temporary need
evaluation process from the labor
market test process as an opportunity to
fully evaluate an employer’s intended
use of the H–2B program without
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sacrificing overall program efficiency.
We have found that evaluating
temporary need is a fact-intensive
process which, in many cases, can take
a considerable amount of time to
resolve. Separating the two processes
will give OFLC the time to make a
considered decision about temporary
need without negatively impacting an
employer’s ability to have the workers it
needs in place when needed. In
addition, we anticipate that many
employers, with 3 years of registration
validity, will enjoy a one-step process
involving only the labor market test in
their second and third years after
registration, which will allow the
Department to process these
applications more efficiently. We
disagree that enforcement alone can
ensure program integrity; we believe the
move from an attestation-based model to
a compliance-based model, the
bifurcation of application processing
into registration and labor market test
phases, and enforcement activities all
contribute to program integrity. We
appreciate and understand stakeholder
concerns about transition to a new
registration process and will make every
effort to ensure that the transition does
not adversely impact processing by
announcing the procedures by which
we will implement the registration
process. We have accordingly added a
regulatory provision to allow for the
transition of the registration process
through a future announcement in the
Federal Register, until which time the
CO will adjudicate temporary need
through the application process.
One commenter expressed concern
that DHS and the Department of State
(DOS) each also review temporary need
and that the three agencies differ in
approach, resulting in inconsistent
findings related to temporary need. We
understand that, throughout the H–2B
process, an employer must interact with
multiple government agencies, each
with different responsibilities related to
the H–2B program. However, while each
may perform different functions, the
definition of temporary need is
consistent across all relevant agencies,
and we seek to minimize differences by
participating in inter-agency
communication designed to align the
agencies’ H–2B processing efforts.
One specialty bar association asserted
that the new registration process is a
departure from previous practice and
that we are exceeding our authority by
adjudicating temporary need in the
registration process, effectively
removing USCIS from the process and
assuming an adjudicatory role that
Congress did not intend. We disagree.
We have a longstanding practice of
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evaluating temporary need as an integral
part of the adjudication of the
Application for Temporary Labor
Certification; the bifurcation of the
application process into a registration
phase and a labor market test phase
shifts the timing of, but does not change
the nature of, our review. See Matter of
Golden Dragon Chinese Restaurant, 19 I.
& N. Dec. 238, 239 (Comm’r 1984).
Moreover, following lengthy
discussions, DHS and the Department
both issued companion H–2B final rules
in 2008. 73 FR 78020, Dec. 19, 2008; 73
FR 78104, Dec. 19, 2008. These final
rules left our evaluation of temporary
need in place and shifted administrative
review of the Application for Temporary
Labor Certification from DHS to the
Department. The bifurcation of the
application process simply represents a
timing shift, not a change, in our
longstanding review of temporary need
and bona fide job opportunity issues.
b. Timing of registration. We
proposed to require employers to file an
H–2B Registration no fewer than 120
and no more than 150 calendar days
before the date of initial need for H–2B
workers. The Final Rule retains this
provision with minor clarification.
Several commenters supported
bifurcation of the application process as
a means of enabling employers to
conduct recruitment in the U.S. labor
market closer to the date of need. We
agree and anticipate, as these
commenters do, that recruitment closer
to the date of need should provide a
more accurate reflection of actual labor
market conditions.
Other commenters feared that the
addition of a registration step will make
the application process more timeconsuming. Commenters expressed
concern that, without timelines or
deadlines on registration processing, an
employer cannot be sure it will have
time to complete Department, DHS, and
DOS processing and receive the
requested workers before its date of
need. One commenter alleged that we
sought to hide registration processing
time outside the application processing
time counted against our 60-day
processing guideline.
Our timeline for processing
applications in the new two-step
process is sensitive to these concerns.
The proposed registration window (i.e.,
120 to 150 days before the employer’s
anticipated date of need) provides
enough time for processing the
registration before an employer may
submit an Application for Temporary
Employment Certification (i.e., 75 to 90
days before the employer’s anticipated
date of need) to assure that the
adjudication of the Application for
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Temporary Employment Certification
will not be delayed. In addition, many
employers will not have to repeat the
registration process for the next 2 years.
The registration timeframe also reflects
our understanding that some employers
may have difficulty accurately
predicting their need more than 5
months in advance. The registration
window seeks to balance both
processing time and accuracy concerns.
We anticipate an employer’s overall
processing time to decrease significantly
when the bifurcated process goes into
effect.
For consistency with other provisions
under the Final Rule and clarification of
the process therein, this provision has
been slightly revised to add reference to
the exception to the filing time
requirement of the H–2B Registration
where it is filed in support of an
emergency filing under § 655.17.
c. Registration process. The proposed
rule authorized the CO to issue one or
more RFIs before issuing a Notice of
Decision on the H–2B Registration if the
CO determined that he or she could not
approve the H–2B Registration for
various reasons, including, but not
limited to: An incomplete or inaccurate
ETA Form 9155; a job classification and
duties that do not qualify as nonagricultural; the failure to demonstrate
temporary need; and/or positions that
do not constitute bona fide job
opportunities. We retained the proposed
provisions in the Final Rule, with one
amendment.
One employer suggested we remove
the word ‘‘normally’’ from paragraph (g)
of this section to establish a definitive
timeframe for RFI issuance. We agree
and have removed ‘‘normally’’ from
paragraph (g) of this section in the Final
Rule.
Another employer suggested that we
should not permit the CO to issue an
unlimited number of RFIs. In order to
provide the CO with flexibility to work
with employers seeking to resolve
deficiencies and secure registration
approval, we will retain the provision as
proposed.
One commenter suggested limiting 3year registration validity to employers
with recurring predictable seasonal and
peakload needs, while requiring onetime or intermittent need employers to
re-register every year. We find that this
concern is sufficiently accommodated in
the regulation as written, which
provides the CO with discretion over
the validity period of registrations
approved. The CO may approve a
registration for a period up to 3
consecutive years, taking into
consideration the standard of need and
any other factors in the registration.
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d. Registration content. Under the
proposed rule, supporting
documentation was to accompany the
H–2B Registration, including
documentation showing the number of
positions the employer desires to fill in
the first year of registration; the period
of time for which the employer needs
the workers; and that the employer’s
need for the services or labor is nonagricultural, temporary and justified as
either a one-time occurrence, a seasonal
need, a peakload need, or an
intermittent need, as defined by DHS in
8 CFR 214.2(h)(6)(ii)(B) and interpreted
in § 655.6. We are adopting the
proposed provision of the NPRM
without change.
One commenter suggested that we
include a basic recruitment effort
requirement at the time of registration to
show need for the program. We do not
believe requiring recruitment prior to
registration filing is consistent with our
purpose in separating the application
process into a registration step and a
labor market test. Recruitment efforts
close to an employer’s period of need
are most likely to result in an accurate
labor market test, while recruitment far
in advance of the employer’s period of
need is unlikely to yield valid
recruitment results. The Final Rule
retains recruitment requirements during
the application process, which is closer
to the employer’s date of need.
One commenter encouraged us to
include a bona fide employer check, in
order to eliminate fraud by fictitious
employers. The commenter suggested
requiring Federal Employer
Identification Number (FEIN)
documentation and a certificate of good
standing from the company’s State of
formation (in the case of a corporation
or a limited liability company) or
comparable document for a sole
proprietorship (e.g., certified payrolls
and confirmation of a bank account
form a financial institution) as well as
disclosure of beneficial owners. We
agree with the importance of allowing
only bona fide employers access to the
H–2B program and will verify business
existence at the time of registration to
protect program integrity. We will
perform the initial business existence
verification and, if questions arise, will
request additional documentation of
bona fide existence through the RFI
process already contained in the Final
Rule.
Some labor and advocacy groups
suggested making registration
information available to the public, for
both transparency and information
purposes, as well as to permit public
input on registrations before
adjudication. Comments related to
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transparency and community interest in
publicly available information have
been addressed in the larger discussion
of public disclosure. While we
anticipate continuing to receive
information and concerns from the
public informally, which OFLC takes
under consideration during its review,
we cannot permit the public to formally
participate in the adjudication process.
It would present serious operational
burdens, and as a result it would
become difficult to complete the
registration process in a timely fashion.
Finally, we anticipate that the various
provisions of this Final Rule will result
in improved employer compliance,
resolving some of the underlying
concerns.
e. Registration documentation
retention. We proposed requiring all
employers that file an H–2B Registration
to retain any documents and records not
otherwise submitted proving
compliance with this subpart for a
period of 3 years from the final date of
applicability of the H–2B Registration, if
approved, or the date of denial or
withdrawal. We have retained this
requirement in the Final Rule.
We received few comments on this
provision. One worker advocacy
organization expressed support for the
registration documentation retention
requirement, believing the requirement
will improve protections for U.S.
workers, while another commenter
suggested that a 5-year retention
requirement would be better than 3
years in preserving evidence for
criminal prosecution. We believe the 3year retention requirement is sufficient
to address our interests in upholding
program integrity and, as with any
document retention requirement, if an
employer is involved in a proceeding in
which documents are relevant, the time
for retaining the documents is tolled.
One State bar association expressed
concern about our discussion in the
NPRM about requiring retention of
documentation related to an H–2B
Registration so that we could,
potentially, use a prior year’s
registration, even if withdrawn, as a
factor in evaluating current temporary
need. The commenter argued that there
are many legitimate business reasons
why an employer’s situation could
change following denial or withdrawal
of a registration. We understand that, in
some situations, circumstances may
change and legitimately affect the nature
of an employer’s need for workers. We
also expect that employers who
accurately document their need when
submitting a registration will be able to
articulate the change, if requested. We
will not deny an employer’s H–2B
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Registration where the employer
documents a change in circumstances
and the H–2B Registration otherwise
complies with program requirements.
f. Registration of job contractors. As
discussed in the preamble to § 655.6, we
are continuing to permit job contractors
to participate in the H–2B program
where they can demonstrate their own
temporary need and not that of their
employer-clients, and that this
temporary need is seasonal or a onetime occurrence. Accordingly, we have
made several edits to reflect the
requirement that job contractors provide
documentation that establishes their
temporary seasonal need or one-time
occurrence during the registration
process and to make this requirement a
factor in the National Processing
Center’s (NPC’s) review of the H–2B
Registration. While a job contractor
must file an Application for Temporary
Employment Certification jointly with
its employer-client, in accordance with
§ 655.19, a job contractor and its
employer-client must each file a
separate H–2B Registration.
g. Document retention. We proposed
that the documents for registration
would be retained for a period of 3 years
from the date of applicability of the H–
2B Registration. This meant that all
documents retained in connection with
an H–2B Registration would be retained
for 3 years after the last date of
validity—for up to 6 years. We have
clarified in this Final Rule that the
documents to be retained must be
retained for 3 years from the date of
certification of the last Application for
Temporary Employment Certification
supported by the H–2B Registration. We
have also added clarifying language in
the document retention provision at
§ 655.56 with respect to the document
retention of an H–2B Registration.
3. § 655.12 Use of Registration by
H–2B Employers
We proposed to permit an employer
to file an Application for Temporary
Employment Certification upon
approval of its H–2B Registration, and
for the duration of the registration’s
validity period, which may be up to 3
consecutive years from the date of
issuance, provided that the employer’s
need for workers (i.e., dates of need or
number of workers) had not changed
more than the specified levels. In the
NPRM, we proposed that if the
employer’s need for workers increased
by more than 20 percent (or 50 percent
for employers requesting fewer than 10
workers); if the beginning or ending date
of need for the job opportunity changed
by more than 14 calendar days; if the
nature of the job classification and/or
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duties materially changed; and/or if the
temporary nature of the employer’s need
for services or labor materially changed,
the employer would be required to file
a new H–2B Registration. We also
proposed that the H–2B Registration
would be non-transferable. In the Final
Rule, for the reasons stated below, we
have retained this provision as
proposed, except for a modification to
the variance in the period of need
permitted without an employer needing
to re-register.
a. Limitation on variances in
temporary need. Some commenters
contend that, given that business is not
static, the limitations on H–2B
Registration validity make it likely that
an employer will have to register each
year or at least more than once every 3
years due to fluctuations in the number
of workers needed, the dates of need, or
the nature of the duties. We recognize
that there may be fluctuations from year
to year and accordingly have designed
the H–2B Registration to accommodate
minor variations. However, we also
have an interest in preserving program
integrity, and thus do not believe that it
would be appropriate to allow for the
same H–2B Registration to apply to a
substantially different job opportunity.
Commenters suggested other
thresholds for variances in the period of
need or in the number of workers
requested that could trigger reregistration requirements. One
commenter supported the requirement
that employers be required to re-register
when there are significant variances in
temporary need as an important fraud
reduction mechanism, but suggested we
alter the formula from a percentage
system to a whole number ratio system
(e.g., employer can request an extra 2
workers for every 10 that were sought in
the initial registration). As the basis for
the suggestion, the commenter
identified a scenario in which an
employer that initially requested 9
workers could increase its request by 4
workers without having to re-register,
while an employer that initially
requested 16 could only request 3
workers without having to re-register.
We believe that material changes in
the job classification or job duties,
material changes in the nature of the
employer’s temporary need, or changes
in the number of workers needed greater
than the specified levels, from one year
to the next, merit a fresh review through
re-registration. We note that the
tolerance level for the number of
workers requested proposed for the
registration process (i.e., 20 percent (or
50 percent for employers requesting
fewer than 10 workers)) is the same as
the tolerance level in the 2008 H–2B
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Final Rule, the current H–2A regulation,
and § 655.35 of this Final Rule for
amendments to an Application for
Temporary Employment Certification
before certification. We do not find the
difference of one worker, in the scenario
provided, sufficient to justify changing
our method of calculating minor
changes in the number of workers
requested.
Another commenter suggested
focusing the number of workers
limitation on the number of H–2B
workers actually employed rather than
the number requested. We find this
suggestion unworkable both for OFLC
and employers. Our focus is on an
employer’s need for workers and
openings to be filled during recruitment,
not actual visa usage. While we plan to
begin collecting data on the number of
workers an employer ultimately
employs under H–2B visas for other
purposes, such as gaining a better
understanding of program usage, we
will base our evaluation of H–2B
Registration use on the number of
workers requested.
We agree, however, that a wider
variation in the employer’s stated period
of need would accommodate reasonable
fluctuations in temporary need, without
sacrificing program integrity, and would
better effectuate our goal of streamlining
the process by enabling more employers
to use an H–2B Registration for more
than 1 year. Accordingly, we have
changed the limitation on a valid H–2B
Registration to permit an employer’s
beginning and/or ending date of need to
change by no more than a total of 30
calendar days from the initial year
without requiring re-registration.
b. Prohibition on transfer. We
proposed to prohibit the transfer of an
approved H–2B Registration. One
commenter agreed with the proposal,
finding the approach critical to
preventing program abuse. Under the
Final Rule, an H–2B Registration is nontransferrable.
c. Validity of registration. We
proposed to issue H–2B Registration
approvals, valid for up to a period of 3
years. Apart from the concerns
discussed earlier, such as business
fluctuations requiring an employer to reregister more often than its registration
validity required, commenters generally
supported the 3-year validity of a
registration as a mechanism for
potentially streamlining the process for
repeat users.
4. § 655.13 Review of Prevailing Wage
Determinations
We proposed changing the process for
the review of PWDs for purposes of
clarity and consistency. Specifically, we
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proposed reducing the number of days
within which the employer must
request review of a PWD by the NPWC
Director from 10 calendar days to 7
business days from the date of the PWD.
We also proposed revising the language
of the 2008 Final Rule to reflect that the
NPWC Director will review
determinations, and specifying that the
employer has 10 business days from the
date of the NPWC Director’s final
determination within which to request
review by the BALCA. We adopt this
provision of the NPRM without change
in the Final Rule.
A labor and worker advocacy
organization suggested that U.S. and
foreign workers should not be excluded
from the PWD appeal process. We
cannot permit public participation in
the prevailing wage appeal process. The
prevailing wage process is an employerbased application process, which often
occurs before specific workers are
identified. Operationally, doing so
would present serious questions as to
who could or could not become parties
to the process and would make timely
resolution of issues difficult. We will
continue however, to accept information
from the public regarding wage issues,
including information concerning
appeals.
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C. Application for Temporary
Employment Certification Filing
Procedures
1. § 655.15 Application Filing
Requirements
Under the proposed rule, we returned
to a post-filing recruitment model in
order to develop more robust
recruitment and to ensure better and
more complete compliance by H–2B
employers with program requirements.
As explained in the proposed rule, our
experience in administering the H–2B
program since the implementation of
the 2008 Final Rule suggests that the
lack of oversight by the Department and
the SWAs during the pre-filing
recruitment process has resulted in
failures to comply with program
requirements. We believe the
recruitment model described in the
proposed rule and now adopted in this
Final Rule will enhance coordination
between OFLC and the SWAs, better
serve the public by providing U.S.
workers more access to available job
opportunities, and assist employers in
obtaining the qualified personnel that
they require in a timelier manner.
The proposed rule required the
employer to file the Application for
Temporary Employment Certification,
with original signature(s), copies of all
contracts and agreements with any agent
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and/or recruiter executed in connection
with the job opportunities, and a copy
of the job order with the Chicago NPC
at the same time it files the job order
with the SWA. The employer must
submit this filing no more than 90 days
and no fewer than 75 days before its
date of need. The proposed process
continues to employ the SWAs’
significant knowledge of the local labor
market and job requirements. In the
Final Rule, this provision is slightly
revised to clarify that the employer is
required to also submit to the NPC any
information required under §§ 655.8 and
655.9 (including the identity and
location of persons and entities hired by
or working with the recruiter or agent or
employee of the recruiter to recruit
prospective foreign workers for the H–
2B job opportunities). The signature
portion of this section is also slightly
revised to clarify that if and when the
Application for Temporary Employment
is permitted to be filed electronically,
the employer must print and sign it after
receiving a determination to satisfy the
original signature requirement.
For purposes of simultaneous filing,
we use the term ‘‘job order’’ when in
fact the job order has yet to be created
and posted by the SWA. We recognize
that this may be confusing to the
employer, as what will actually be
submitted simultaneously to both
agencies is a document which outlines
the details of the employer’s job
opportunity, not the official job order.
We expect the employer to provide the
Chicago NPC with an exact copy of the
draft the employer provides to the SWA
for the creation of the SWA job order.
We also proposed to continue to
require employers to file separate
applications when there are different
dates of need for the same job
opportunity within an area of intended
employment. Lastly, we proposed to
continue to require filing of an
Application for Temporary Employment
Certification in a paper format until
such time as an electronic system can be
fully implemented. We are retaining the
provisions as proposed.
A few commenters disagreed with the
proposal to allow for the simultaneous
filing of the job order with the
Department and the SWA, contending
that the process would be unwieldy and
result in duplicative efforts. In contrast,
other commenters supported a return to
a post-filing recruitment model. As
discussed in the NPRM, by involving
the SWA in the job order review, the
proposed process directly employs the
SWAs’ significant knowledge of the
local labor market and job requirements.
We agree with the commenters who
asserted that the resulting job order will
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10061
provide accurate, program compliant
notification of the job opportunity to
U.S. workers. In addition, requiring the
employer to simultaneously file the job
order with the Chicago NPC and the
SWA will enhance coordination
between the agencies, resulting in
increased U.S. worker access to job
opportunities as well as helping
employers locate qualified and available
U.S. workers.
Some commenters supported the
proposed timeframe for submitting the
Application for Temporary Employment
Certification. These commenters
thought the requirement that employers
file an Application for Temporary
Employment Certification no more than
90 days and no fewer than 75 days
before their date of need, combined with
the proposed post-filing recruitment,
would allow employers to conduct a
more accurate test of the U.S. labor
market and the CO to make a more
accurate determination about
availability of U.S. workers. OIG, in its
October 17, 2011 report, found that
permitting employers to recruit for job
openings up to 120 days prior to the job
start makes the recruitment less likely to
result in U.S. worker hires than
recruitment closer to the start date. OIG
identified our proposal to shorten the
timeframe between recruitment and job
start date as strengthening U.S. worker
recruitment. We agree and have retained
the proposed timeframe for filing the
Application for Temporary Employment
Certification in the Final Rule.
One worker advocacy group
expressed support for requiring separate
applications for work occurring at
separate worksites, with separate
employers, or for different positions that
have different job duties or terms and
conditions of employment. We also
received comments opposing the
proposal to continue to require
employers to file separate applications
when there are different dates of need
for the same job opportunity within an
area of intended employment.
Commenters argued that their business
ramps up during the period of need,
resulting in a need for some, but not all,
of the workers requested on the date of
need provided in the Application for
Temporary Employment Certification.
These commenters asserted that they
also need flexibility to respond to
changes in the market. We acknowledge
that business is not static and an
employer’s need for workers during its
period of greatest and least need may
not be consistent. However, employers
should accurately identify their
personnel needs and, for each period
within its season, file a separate
application containing a different date
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of need. An application with an
accurate date of need will be more likely
to attract qualified U.S. workers to fill
those open positions, especially when
the employer conducts recruitment
closer to the actual date of need. This
prohibition against staggered entries
based on a single date of need is
intended to ensure that employers
provide U.S. workers the maximum
opportunity to consider the job
opportunity and is consistent with
USCIS policies. It ensures that U.S.
workers are not treated less favorably
than H–2B workers who, for example,
may be permitted to report for duty 6
weeks after the stated date of need. We
recognize that there may be industries
whose participation in the H–2B
program may be constrained as a result
of this revised 90- to 75-day timeframe
filing in years in which the statutory cap
of for the six-month intervals beginning
October 1 and April 1 is at issue.
However, this is largely a function of the
statutory cap on the available visas over
which we have no control. We are,
therefore, retaining the provision as
proposed and only slightly revising the
language to further clarify that an
employer must file only one
Application for Temporary Employment
Certification for worksite(s) within one
area of intended employment for each
job opportunity for each date of need.
We received comments suggesting
that we post the Application for
Temporary Employment Certification to
increase transparency. These comments
have been addressed in the larger
discussion of public disclosure at
§ 655.63.
We did not receive comments on our
proposal to continue to use ETA Form
9142 to collect the necessary
information, with slightly modified
appendices reflecting changes from the
2008 Final Rule (such as a change of
tense to note pre-recruitment filing). As
discussed in the NPRM, while we have
begun efforts to establish an online
format for the submission of an
Application for Temporary Employment
Certification, deployment of the system
depends upon the resolution of issues in
this rulemaking; we cannot implement
it until after this Final Rule is effective.
After the rule is effective, there will
have to be a period during which
entities may only file applications by
paper submissions. However, in
anticipation of the deployment of an
online filing system, we have added
language in the regulatory text that
clarifies that when an employer submits
an Application for Temporary
Employment Certification electronically,
the CO will inform the employer how to
fulfill the signature requirement.
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2. § 655.16 Filing of the Job Order at
the SWA
We proposed to require the employer
to submit its job order directly to the
SWA at the same time as it files the
Application for Temporary Employment
Certification and a copy of the job order
with the Chicago NPC, no more than 90
calendar days and no fewer than 75
calendar days before the employer’s
date of need. As discussed above, we
sought to continue to use the SWAs’
experience with the local labor market,
job requirements, and prevailing
practices by requiring the SWA to
review the contents of the job order for
compliance with § 655.18 and to notify
the CO of any deficiencies within 4
business days of its receipt of the job
order. The proposed rule differed from
the 2008 Final Rule in that it prohibited
the SWA from posting the job order
before receiving a Notice of Acceptance
from the CO directing it to do so. We
have retained the provision in the Final
Rule as proposed except for a
modification to the SWA’s job order
review timeframe and minor
clarifications.
Many commenters supported the
return to more direct SWA participation
in the U.S. labor market test, including
the SWA’s simultaneous review of job
order content with the Chicago NPC.
These commenters agreed that the
SWA’s local knowledge would be
helpful in ensuring that an accurate job
order is posted presenting the job
opportunity to available workers. In
contrast, some commenters opposed the
simultaneous job order review process
as burdensome for SWAs at current
funding levels and duplicative of the
Chicago NPC’s review. By requiring
such concurrent filing and review, the
CO can use the knowledge of the SWA,
in addition to its own review, in a single
Notice of Deficiency before the
employer conducts its recruitment.
While we are sensitive to SWA budget
concerns, SWAs can continue to rely on
foreign labor certification grant funding
to support those functions. We believe
that this continued cooperative
relationship between the CO and the
SWA will ensure greater program
integrity and efficiency.
Despite supporting re-introduction of
SWA job order review, some
commenters contended that 4 calendar
days was insufficient time for the SWA
to conduct an adequate compliance
review and notify the Chicago NPC of its
findings. After reviewing these
comments, we have decided to modify
the SWA’s timeframe for job order
review in the Final Rule, from 4
calendar days to 6 business days.
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One commenter suggested requiring
the employer to submit the job order to
all SWAs having jurisdiction over the
anticipated worksite(s). We will not
accept this suggestion, finding the result
potentially burdensome and confusing
to SWAs and employers, as well as the
Chicago NPC. Limiting the job order
submission and review to one SWA and
the Chicago NPC and, after acceptance,
circulating the job order to other
appropriate SWAs, best accomplishes
the cooperative relationship and
thorough review we seek to implement
without increasing confusion or
sacrificing efficiency.
A labor organization suggested that
we clarify the meaning of intrastate and
interstate clearance to ensure that the
SWA circulates the job order to all
appropriate States. Intrastate clearance
refers to placement of the job order
within the SWA labor exchange services
system of the State to which the
employer submitted the job order and to
which the NPC sent the Notice of
Acceptance, while interstate clearance
refers to circulation of the job order to
SWAs in other States, including those
with jurisdiction over listed worksites
and those the CO designates, for
placement in their labor exchange
services systems. We note that, under
§ 655.33(b)(4), the CO directs the SWA
in the Notice of Acceptance to the States
to which the SWA must circulate the job
order, ensuring that the employer is also
aware of the job order’s exposure in the
SWAs’ labor exchange services systems.
However, to further this distinction in
the Final Rule, this section has been
slightly revised to clarify that the SWA
must place the job order in intrastate
clearance and must also provide it to
other States as directed by the CO.
The same labor organization
suggested we require the SWA to post
the job at State motor vehicle offices and
Web sites. Another commenter
suggested we require the job order to be
open until the end of the certification
period, not only the recruitment period.
Still another commenter suggested the
SWA be required to keep the job order
posted for 30 days. We note that job
order posting in the SWA labor
exchange system is but one of the SWA
and employer recruitment activities
contained in the Final Rule, which
together are designed to ensure
maximum job opportunity exposure for
U.S. workers during the recruitment
period. Also, in most cases, the job
order will be posted for more than 30
days, since the Final Rule requires the
employer to file its application no more
than 90 calendar days and no less than
75 calendar days before its date of need
and the SWA to post the job order upon
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receipt of the Notice of Acceptance and
to keep the job order posted until 21
days before the date of need, as
discussed in the preamble to § 655.20(t).
We do not consider it feasible to add
further SWA requirements; as stated
above, we have to be sensitive to SWA
resource concerns. Additionally, the H–
2B electronic job registry, for instance,
already provides nationwide exposure
of the job opportunities, which renders
the additional postings suggested by the
commenter unnecessary. We have
decided to retain the requirement that
SWAs post the job order for the duration
of the recruitment period, which was
revised as discussed in the preamble to
§ 655.40. This ensures the job order is
afforded maximum visibility for the
most relevant period of time—the time
during which workers are most likely to
apply for an imminent job opening, and
when employers are most in need of
workers.
One commenter suggested we require
employers to simultaneously file the
Application for Temporary Employment
Certification rather than the job order
with the SWA and Chicago NPC. In
addition to citing the lack of a uniform
job order form, the commenter
contended that the Application for
Temporary Employment Certification
form contains the information necessary
to place a job order and provides
additional information, thereby
enhancing the SWA’s review ability.
While we acknowledge that there is no
uniform job order form available, we
note that the SWA labor exchange
system is a State, not Federal, system.
The existing cooperative Federal-State
model under the Wagner-Peyser system
is much too decentralized to
accommodate the requirement that
SWAs use a specific form. Moreover, in
deference to concerns about SWA
administrative burden, we do not wish
to add forms, such as the Application
for Temporary Employment
Certification, outside of a SWA’s normal
job order placement function.
Additionally, the job order contains
different reference points than the ETA
Form 9141 and collects different
information. Therefore, we will retain
the provision without change. In an
effort to acknowledge the fact that
SWAs have different forms and
emphasize the employer’s need to
comply with each State’s form and
requirements, we have revised this
provision to provide that the employer’s
job order must conform to the Statespecific requirements governing job
orders as well as the requirements set
forth in § 655.18.
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3. § 655.17 Emergency Situations
We proposed to permit an employer
to file an H–2B Registration fewer than
120 days before the date of need and/or
an Application for Temporary
Employment Certification along with
the job order fewer than 75 days before
the date of need where an employer has
good and substantial cause and there is
enough time for the employer to
undertake an adequate test of the labor
market. This was a change from the
2008 regulations, which do not allow for
emergency filings, and sought to afford
employers flexibility while maintaining
the integrity of the application and
recruitment processes. To meet the good
and substantial cause test, we proposed
that the employer must provide to the
CO detailed information describing the
reason(s) which led to the emergency
request. Such cause may, in the Final
Rule, include the substantial loss of U.S.
workers due to Acts of God or similar
unforeseeable man-made catastrophic
event that is wholly outside the
employer’s control, unforeseen changes
in market conditions, or pandemic
health issues. These edits have been
made for consistency and clarity so that
employers will easily understand those
areas in which emergency situations
will be permitted. However, the CO’s
denial of an H–2B Registration in
accordance with the procedures under
§ 655.11 does not constitute good and
substantial cause for a waiver request.
In the NPRM, apart from permitting
an employer to file fewer than 75 days
before the start date of need and
requiring the employer to show good
and substantial cause, we proposed to
process an H–2B Registration and/or an
Application for Temporary Employment
Certification and job orders in a manner
consistent with non-emergency
processing. In the Final Rule, we have
adopted the proposed provision with a
few clarifying edits.
For purposes of simultaneous filing
we use the term job order in the NPRM,
when in fact the job order has yet to be
created and posted by the SWA. We
recognize that this may be confusing to
the employer, as what will actually be
submitted simultaneously with the
Application for Temporary Employment
Certification in such instances is a draft
document which outlines the details of
the employer’s job opportunity, not the
official job order. Therefore, we have
made such clarification in the Final
Rule, indicating that the job order is
proposed and not final.
We also received several comments
from employers, employer advocacy
groups, and trade organizations,
requesting that we include man-made
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disasters in this provision. While we
indicated in the NPRM that the
examples listed as good and substantial
cause are not exclusive, suggesting that
the expansion of the list is in line with
the intent of the provision, for
clarification we have revised this
provision in the Final Rule to
specifically include man-made disasters
as being circumstances beyond the
control of the employer that can result
in the need to file an H–2B Registration
and/or an Application for Temporary
Employment Certification along with
the job order fewer than 75 days before
the date of need.
Several commenters expressed
concern about the potential for
employers to use natural disasters to
abuse the program and workers. These
commenters urged us to be vigilant
when processing emergency
applications. We are sensitive to these
concerns. We intend to subject
emergency applications to a higher level
of scrutiny than non-emergency
applications. As proposed and as
adopted in the Final Rule, an H–2B
Registration and/or Application for
Temporary Employment Certification
processed under the emergency
situation provision is subject to the
same recruitment activities, potential to
be selected for audit, and enforcement
mechanisms as a non-emergency H–2B
Registration and/or Application for
Temporary Employment Certification.
A labor organization asserted that in
times of disaster, U.S. workers may be
interested in assuming these temporary
positions after an initial period of
securing basic provisions and safety
because they have been displaced from
their normal jobs. This commenter
suggested expanding the recruitment
period for emergency situation filings to
require the employer to replace H–2B
workers with U.S. workers up to 50
percent of the period of need requested.
We have decided not to incorporate this
suggestion. We believe each emergency
situation is unique and must be
evaluated on its specific characteristics,
both as to whether a qualifying situation
exists and whether there is sufficient
time to thoroughly test the U.S. labor
market. The regulation gives the CO the
discretion not to accept the emergency
filing if the CO believes there is
insufficient time to thoroughly test the
U.S. labor market and make a final
determination. Moreover, under
§ 655.46, the CO has the discretion to
instruct an employer to conduct
additional recruitment. We believe the
Final Rule accommodates both the
urgency of these situations and the
importance of conducting an
appropriate test of the U.S. labor market.
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A worker advocacy group supported
the inclusion of an emergency situation
provision, but urged us to permit only
late applications, not early applications.
As discussed above, it is our intention
that the emergency situation provision
permit an employer to file fewer than 75
days before the start date of need. This
provision in no way expands the earliest
date an employer is eligible to submit an
H–2B Registration or Application for
Temporary Employment Certification.
A private citizen suggested limiting
an employer to one emergency
application per year. We have decided
not to accept this suggestion. Given that
some employers file multiple
applications, each for a different
occupation and/or area of intended
employment, we believe such an
approach is too strict and contrary to the
purpose of the provision.
Two labor organizations suggested
limiting the subjectivity of the
provision. One specifically
recommended adding the word
reasonably to unforeseen changes in
market conditions, while the other
recommended limiting emergencies to
objectively verifiable events such as
those confirmed in Federal, State or
local government statements formally
certifying a natural or manmade
disaster, necessitating extraordinary
measures by Federal, State or local
government. The CO will adjudicate
foreseeability based on the precise
circumstances of each situation
presented. The burden of proof is on the
employer to demonstrate the
unforeseeability leading to a request for
a filing on an emergency basis.
Therefore, we believe the language as
proposed strikes an appropriate balance
between providing flexibility to
employers experiencing emergencies
that create a need to submit applications
closer to their need than normal
processing permits, and limiting the
scope of such emergencies so that
emergency processing is truly an
exception rather than the norm.
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4. § 655.18 Job Order Requirements and
Contents
The job order is essential for U.S.
workers to make informed employment
decisions. The Department proposed to
require employers to inform applicants
in the job order not only of the standard
information provided in advertisements,
but also several key assurances and
obligations to which the employer is
committing by filing an Application for
Temporary Employment Certification
for H–2B workers and to which U.S.
workers are also entitled. The job order
must also be provided to H–2B workers
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with its pertinent terms in a language
the worker understands.
Several commenters found the
organization of this section to be
confusing when read in concert with the
advertising requirements at § 655.41.
The proposed rule at § 655.18 reads:
‘‘An employer must ensure that the job
order contains the information about the
job opportunity as required for the
advertisements required in § 655.41 and
the following assurances * * *’’ many
of which overlapped with those
requirements found in § 655.41. 76 FR
15182, Mar. 18, 2011. In order to dispel
confusion and reconcile the sections,
the Department has reorganized § 655.18
and imported some requirements from
§ 655.41 that were implied, but not
explicitly required, in the NPRM. Those
specific changes are discussed below
and in the preamble to § 655.41, and as
a result of those changes, this section no
longer cross-references § 655.41.
In addition, the Department has
reorganized this section in order to
ensure that employers include all
pertinent information in each job order,
regardless of the State in which the job
order is being placed. As there is not a
single H–2B job order form that is
applicable to all States and job
opportunities, this change is necessary
for the uniform administration of the
program requirements. This approach
will ensure that workers have a full
understanding of the terms and
conditions of employment, improve
employer compliance, and support
program enforcement.
Furthermore, the Department clarifies
that the assurances pertaining to the
prohibition against preferential
treatment and bona fide job
requirements in paragraph (a) of this
section need not be included in the job
order verbatim; rather they are
applicable to each job order insofar as
they apply to each listed term and
condition of employment.
One commenter suggested that the
lengthy job orders have the effect of
discouraging U.S. workers from
pursuing a job opportunity and
suggested that the Department adopt an
abbreviated form which might be
provided to each job applicant by the
SWA which summarizes the job order.
The Department is not able to accept
this suggestion as it is our primary
concern in this context that U.S.
applicants be provided with all of the
terms and conditions of employment
and fully apprised of the job
opportunity.
a. Prohibition against preferential
treatment (proposed rule § 655.18(a);
Final Rule § 655.18(a)(1)). The proposed
rule required the employer to provide to
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U.S. workers at least the same level of
benefits, wages, and working conditions
that are being or will be offered or paid
to H–2B workers, similar to the
requirements under § 655.22(a) of the
2008 Final Rule, with the additional
requirement that this guarantee must be
set forth in the job order to ensure that
all workers are aware of their rights to
similar benefits, wages, and working
conditions. These protections were also
reflected in the proposed rule as an
employer assurance and obligation
under § 655.20(q).
Some commenters may have
misunderstood the protections
guaranteed to U.S. workers under the
proposed section because the last
sentence of the proposed section stated
that an employer is not relieved from
providing H–2B workers the minimum
benefits, wages, and working conditions
that must be offered to U.S. workers
under this section. One commenter
expressed support for the proposed
changes and elaborated on the
importance of preventing disparate
treatment of H–2B and U.S. workers that
could lead to the creation of
substandard jobs and lead to the abuse
of vulnerable H–2B workers. To clarify,
the purpose of § 655.18(a)(1) is to
protect U.S. workers by ensuring that
the employers do not understate wages
and/or benefits in an attempt to
discourage U.S. applicants or to provide
preferential treatment to temporary
foreign workers. Employers are required
to offer and provide H–2B workers at
least the minimum wages and benefits
outlined in these regulations. So long as
the employer offers U.S. workers at least
the same level of benefits as will be
provided to the H–2B workers, the
employer will be in compliance with
this provision. Section 655.18(a)(1) does
not preclude an employer from offering
a higher wage rate or more generous
benefits or working conditions to U.S.
workers, as long as the employer offers
to U.S. workers all the wages, benefits,
and working conditions offered to and
required for H–2B workers pursuant to
the certified Application for Temporary
Employment Certification.
In addition to commenters who
generally supported the expanded
protections of H–2B workers, several
commenters—a legal network a human
rights organization, a labor organization
and an alliance of human rights
organizations—specifically requested
that the Department add an additional
provision into the job order which
would require the employer to offer to
H–2B workers the same fringe benefits
as those the employer is offering to U.S.
workers in corresponding employment.
As discussed above, the Department’s
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mandate requires that an employer be
permitted to hire H–2B workers only in
circumstances where there are no
qualified and available U.S. workers,
and where the employment of H–2B
workers will not have an adverse effect
on the wages and working conditions of
U.S. workers. To that end, the regulation
under § 655.18(a)(1) requires that the job
order ‘‘must offer to U.S. workers no
less than the same benefits, wages, and
working conditions that the employer is
offering, intends to offer, or will provide
to H–2B workers.’’ Any fringe benefits
offered or provided by an employer
would fall under the category of
benefits, and the employer would
therefore be required to list them on the
job order. However, nothing in this
regulation precludes an employer from
offering more generous benefits than
those required by the regulations to
either U.S. workers or H–2B workers, as
long as the employer offers to U.S.
workers at least the same wages,
benefits, and working conditions offered
to and required for H–2B workers
pursuant to the approved Application
for Temporary Employment
Certification. However, for further
clarification, the Department has
amended § 655.18(b)(9) to require that
the job order specifically list any fringe
benefits that will be offered.
The Department received no more
comments on this section; the
Department is therefore adopting the
proposed language in the Final Rule
without change.
b. Bona fide job requirements
(proposed rule § 655.18(b); Final Rule
§ 655.18(a)(2)). The Department
proposed to require that the job
qualifications and requirements listed in
the job order be bona fide and consistent
with the normal and accepted job
qualifications and requirements of
employers that do not use H–2B workers
for the same or comparable occupations
in the same area of intended
employment. Several commenters
expressed concern about how the
Department and the SWAs will
determine what qualifications and
requirements are bona fide and normal
to the job opportunity. The
determination of whether job
requirements and qualifications are
consistent with the normal and accepted
job requirements and qualifications of
non-H–2B employers is fact-specific.
The SWAs have decades of experience
reviewing job orders according to these
standards. However, the Department
recognizes that some confusion exists
concerning the distinction between job
requirements and qualifications and the
application of each. Therefore, this
provision of the Final Rule includes a
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definition of job requirements and
qualifications. As stated in § 655.18(b),
a qualification means a characteristic
that is necessary for the individual to
perform the job in question. A
requirement means a term or condition
of employment which a worker is
required to accept in order to obtain the
job opportunity. Additionally, the
Department added language requiring
that any on-the-job training that will be
provided to the worker must be
disclosed in the job order. This change
was made to align with the advertising
requirements in § 655.41.
c. Benefits, wages, and working
conditions (proposed rule § 655.18(c)–
(g); Final Rule § 655.18(b)(1)–(8), (11)).
The Department proposed to require
that the employer list the following
benefits, wages, and working conditions
in the job order: The rate of pay,
frequency of pay, deductions that will
be made, and that the job opportunity is
full-time. These requirements are
generally consistent with those required
in § 655.17 and § 655.22 of the 2008
Final Rule. These disclosures are critical
to any applicant’s decision to accept the
job opportunity.
Many advocacy groups commented on
the importance of including information
related to benefits, wages, and working
conditions in the job order. These
commenters noted that when this
information is specifically listed on the
job order, workers are better able to
make an informed decision regarding
the job opportunity prior to accepting a
position. As no specific comments were
received on proposed §§ 655.18(d), (e),
or (g), the Department is adopting those
provisions without change in the Final
Rule. A full discussion of comments
received on § 655.18(f) is below.
In response to the aforementioned
confusion caused by discrepancies
between proposed § 655.18 (Contents of
the job order) and § 655.41 (Advertising
requirements), the following sections
were reorganized: Proposed § 655.18(d)
(Rate of pay) is § 655.18(b)(5) in the
Final Rule, proposed § 655.18(e)
(Frequency of pay) is § 655.18(b)(9) in
the Final Rule, proposed § 655.18(f)
(Deductions that will be made) is
§ 655.18(b)(11) in the Final Rule,
proposed § 655.18(g) (Statement that the
job opportunity is full-time) is
§ 655.18(b)(2) in the Final Rule,
proposed § 655.18(h) (Three-fourths
guarantee) is § 655.18(b)(17) in the Final
Rule, proposed § 655.18(i)
(Transportation and visa fees) is
§ 655.18(b)(12) through (15) in the Final
Rule, proposed § 655.18(j) (Employerprovided items) is § 655.18(b)(16) in the
Final Rule, and proposed § 655.18(k)
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(Board, lodging, or facilities) is
§ 655.18(b)(10) and (11).
d. Deductions (proposed rule
§ 655.18(f); Final Rule § 655.18(b)(10)).
In § 655.18(f), the Department proposed
to require that the job order specify that
the employer will make all deductions
from the worker’s paycheck required by
law and specifically list all deductions
not required by law that the employer
will make from the worker’s paycheck.
Numerous commenters—including
advocacy organizations, legal networks,
and labor organizations—offered
unqualified support for this provision.
One foreign worker advocacy group
noted that workers have expressed
concern that the various deductions are
unlawful and affect their ability to
support family members in their
countries of origin.
In addition, a coalition representing
agents and employers requested that the
Department amend this section in three
ways. First, the commenter suggested
that the Department define deductions
for the purpose of this section as an
actual subtraction from earned wages.
This commenter contended that such an
amendment would prevent an employer
from finding itself in violation of this
obligation because an employee
expended sums without its knowledge,
which some treat as deductions.
Second, the commenter requested that
the Department amend this section to
deal with the circumstance where
deductions may, but not necessarily
will, be made. The commenter asserted
that an employer should be able to
avoid discouraging a potential applicant
by suggesting that a deduction will be
made when it might never be, for
example, a deduction for damages to
employer-owned items, where State law
permits such a deduction. Finally, this
commenter requested that the
Department clarify that required by law
includes judicial process, such as child
support orders.
The Department reminds the
commenter that under the Fair Labor
Standards Act (FLSA) there is no legal
difference between deducting a cost
from a worker’s wages and shifting a
cost to an employee to bear directly. As
the court stated in Arriaga v. Florida
Pacific Farms, L.L.C., 305 F.3d 1228,
1236 (11th Cir. 2002):
An employer may not deduct from
employee wages the cost of facilities which
primarily benefit the employer if such
deduction drive wages below the minimum
wage. See 29 C.F.R. § 531.36(b). This rule
cannot be avoided by simply requiring
employees to make such purchases on their
own, either in advance of or during
employment. See id. § 531.35; Ayres v. 127
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Rest. Corp., 12 F.Supp.2d 305, 310
(S.D.N.Y.1998).
Consistent with the FLSA and the
Department’s obligation to prevent
adverse effects on U.S. workers by
protecting the integrity of the H–2B
offered wage, the Department views the
offered wage as the effective minimum
wage for H–2B and corresponding U.S.
workers.
In response to the second instance
mentioned by the commenter, the
Department reminds the commenter that
deductions for damage to employerprovided items are prohibited under the
Final Rule, regardless of State laws
permitting such deductions. This
prohibition is explained in detail in the
preamble to § 655.20(k). However, as a
general rule, if an employer reserves the
right to make a deduction, the potential
that such a deduction could be made
must be disclosed in the job order to
ensure that employees are fully
informed of the terms and conditions of
employment. Finally, the Department
includes garnishments in deductions
required by law; this is made explicit in
the Final Rule at § 655.20(c).
No other comments were received on
this provision. However, for
clarification, the Department has moved
this section to § 655.18(b)(10) in the
Final Rule and added language,
previously contained in proposed
§ 655.18(k), specifying that the job order
must include, ‘‘if applicable, any
deduction for the reasonable cost of
board, lodging, or other facilities.’’ The
Department has made another clarifying
edit, modifying the provision to require
the disclosure of any deductions the
employer intends to make rather than
those an employer will make. This
change is consistent with the intent of
the proposed rule. No other changes
were made to this provision.
e. Three-fourths guarantee (proposed
rule § 655.18(h); Final Rule
§ 655.18(b)(17)). The NPRM proposed to
require that H–2B employers list in the
job order the new obligation that the
employer would guarantee to offer
employment for a total number of work
hours equal to at least three-fourths of
the workdays of each 4-week period
and, if the guarantee was not met, to pay
the worker what the worker would have
earned if the employer had offered the
guaranteed number of days, as required
by proposed § 655.20(f). For the reasons
discussed in the preamble under
§ 655.20(f), the Final Rule modifies this
provision to lengthen the increment to
a 12-week period instead of a 4-week
period if the period of employment
covered by the job order is 120 days or
more, and lengthens the increment to a
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6-week period if the employment
covered by the job order is less than 120
days. As there were no comments
specific to inclusion of this requirement
in the job order, the Department adopts
this provision without further change in
the Final Rule.
f. Transportation and visa fees
(proposed rule § 655.18(i); Final Rule
§ 655.18(b)(12)–(15)). The NPRM
proposed to require the job order to
disclose that the employer will provide,
pay for, or fully reimburse the worker
for inbound and outbound
transportation and daily subsistence
costs for U.S. workers who are not
reasonably able to return to their
residence within the same workday and
H–2B workers when traveling to and
from the employer’s place of
employment. Additionally, the NPRM
proposed to require employers to
disclose if they will provide daily
transportation to the worksite and that
the employer will reimburse H–2B
workers for visa and related fees. For the
reasons discussed in the preamble
under § 655.20(j), the Final Rule adopts
these obligations with the modification
that employers must arrange and pay for
the inbound transportation and
subsistence directly, advance the
reasonable cost, or reimburse the
worker’s reasonable costs if the worker
completes 50 percent of the period of
employment covered by the job order,
and must provide, pay for, or reimburse
outbound transportation and
subsistence if the worker completes the
job order period or is dismissed early.
However, under § 655.18(y), if
separation is due to the voluntary
abandonment of employment by the H–
2B worker or the worker in
corresponding employment and the
employer provides proper notice to DHS
and DOL, the employer will not be
responsible for providing or paying for
the subsequent transportation and
subsistence expenses of that worker and
that worker is not entitled to the threefourths guarantee described in
§ 655.20(f). As there were no comments
specific to the disclosure requirements
under this section, the Department
adopts this provision without further
change in the Final Rule.
g. Employer-provided items (proposed
§ 655.18(j); Final Rule § 655.18 (b)(16)).
The proposed rule required the job
order to disclose that the employer will
provide workers with all tools, supplies,
and equipment needed to perform the
job at no cost to the employee. This
provision, which is consistent with the
FLSA regulations at 29 CFR part 531
and current § 655.22(g) requiring all
deductions to be reasonable, gives the
workers additional protection against
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improper deductions from wages for
items that primarily benefit the
employer, and assures workers that they
will not be required to pay for items
necessary to perform the job.
Several commenters expressed
unqualified support for this provision.
However, some commenters noted that
this provision could be impractical in
industries in which employees
customarily prefer to use specialized,
custom-made equipment, such as the
skis used by some ski instructors. One
commenter, a ski industry
representative, suggested that the
Department amend § 655.18(j) to require
that employers offer standard
equipment instead of provide * * * all
tools, supplies, and equipment required
to perform the duties assigned to clarify
that employers are not responsible for
providing employees with custom-fitted
equipment. The Department wishes to
clarify that this provision is intended to
protect workers against improper
deductions by ensuring that they are
fully capable of performing their jobs
without any personal investment in
tools or equipment. Thus, employers
must provide standard equipment that
allows employees to perform their job
fully, but they are not required to
provide, for example, equipment such
as custom-made skis that may be
preferred, but not needed by, ski
instructors. It does not prohibit
employees from electing to use their
own equipment, nor does it penalize
employers whose employees voluntarily
do so, so long as a bona fide offer of
adequate, appropriate equipment has
been made.
Another commenter, a worker
advocate, suggested further protections,
requesting that the provision be revised
to include language explicitly
prohibiting employers from charging
workers for broken, stolen, or lost
equipment. Section 3(m) of the FLSA
prohibits deductions that are primarily
for the benefit of the employer that bring
a worker’s wage below the applicable
minimum wage, including deductions
for tools, supplies, or equipment that are
incidental to carrying out the
employer’s business. Consistent with
the FLSA, current § 655.22(g) (which
requires all deductions to be
reasonable), and the Department’s
obligation to prevent adverse effects on
U.S. workers, the Department believes
this Final Rule similarly should protect
the integrity of the H–2B offered wage
by treating it as the effective minimum
wage. This gives U.S. and H–2B workers
additional protection against improper
deductions from the offered wage for
items that primarily benefit the
employer. Therefore, because
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deductions for damaged and lost
equipment are encompassed within
deductions for equipment needed to
perform a job, such deductions that
bring a worker’s wage below the offered
wage are not permissible. The
Department believes these principles are
sufficiently clear as set forth in the
FLSA regulations, 29 CFR part 531, and
declines to adopt this commenter’s
suggestion. No other comments were
received on this section. Therefore, the
Final Rule retains the requirement as
proposed.
h. Board, lodging, or facilities
(proposed rule § 655.18(k)); Final Rule
§ 655.18(b)(9). In § 655.18(k) the
Department proposed to require that, if
an employer provides the worker with
the option of board, lodging, or other
facilities or intends to assist workers to
secure such lodging, this must be listed
in the job order. In addition, if the
employer intends to make any wage
deductions related to such provision of
board, lodging or other facilities, such
deductions must be disclosed in the job
order. Several commenters offered
unqualified support for this provision.
However, a coalition representing agents
and employers was concerned that the
phrase or intends to assist workers to
secure such lodging was overly vague
and asked the Department to clarify
what would qualify as assistance. This
commenter also noted that the proposed
section did not require that the
intention to assist be listed in the job
order. The Department does not include
as assistance an employer’s simple
provision of information, such as
providing workers coming from remote
locations with a list of facilities
providing short-term leases, or a list of
extended-stay motels. However, in some
cases, employers may reserve a block of
rooms for employees, negotiate a
discounted rate on the workers’ behalf,
or arrange to have housing provided at
cost for its employees and such
activities would qualify as assistance.
Any such assistance may make it more
feasible for a U.S. worker from outside
the area of intended employment to
accept the job, and therefore it should
be included in the job order. In
addition, while the requirement to
disclose the provision of such assistance
was implicit in § 655.18(k) of the NPRM,
in response to this commenter’s
suggestion the Final Rule has been
clarified to explicitly require the
employer to disclose such offer of
assistance. The Final Rule regulatory
text now requires the disclosure of: the
provision of board, lodging, or other
facilities or of assistance in securing
such lodging. Finally, this commenter
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requested that the Department add a
definition of other facilities to the
definition section or to this section. The
Department declines to make such an
addition and refers the commenter to 29
CFR 531.32, which defines the term at
length and has been construed and
enforced by the Department for several
decades. The Department has concluded
that it is beneficial for workers,
employers, agents, and the Wage and
Hour Division to ground its enforcement
of H–2B program obligations in its
decades of experience enforcing the
FLSA, and the decades of court
decisions interpreting the regulatory
language we are adopting in these
regulations. Therefore, the Department
notes throughout this preamble where it
is relying on FLSA principles to explain
the meaning of the requirements of the
H–2B program that use similar language.
Nevertheless, the Department has
clarified the meaning of the term
facilities by adding the parenthetical
(including fringe benefits) to the Final
Rule. This clarification makes this
section more parallel with the
requirement in § 655.18(a)(1), which
requires the job order to offer U.S.
workers no less than the same benefits,
wages, and working conditions as
offered to H–2B workers. Because the
term fringe benefits is commonly used
and understood, the Department
believes this will provide employers
with greater clarification about their
obligation to disclose on the job order
the benefits they will offer or provide to
workers.
An advocacy organization requested
that the Department impose additional
requirements on employers who intend
to provide rental housing. This
commenter suggested that in such cases,
the job order should specifically
disclose the following: whether the
worker will be sharing the
accommodations with other workers or
tenants, and if so, how many; the rent
and security deposit, if any; a
description of the type of
accommodations; information about
utilities; and any other pertinent
information related to room and board.
This commenter also requested that the
regulations specifically require that all
rental housing comply with State and
local housing codes. The Department
acknowledges this commenter’s
concern, but declines to implement the
suggestion. There is no guarantee that
an employer would have secured
housing for potential employees at the
point of filing the job order, which
cannot be done less than 75 days before
the date of need. Requiring such
disclosures would either result in
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speculation that would undermine their
purpose, or would force employers to
secure housing more than 2 months
before workers arrived, potentially
resulting in unnecessary and
burdensome costs. Furthermore, two of
the suggested disclosures—the cost of
rent or security deposit and the cost of
utilities—are already covered under the
Final Rule at § 655.18(b)(10) if the
employer will make deductions for
them.
Responding to the Department’s
discussion of the application of this
section to employers operating under
special procedures, a trade association
argues that no DOL regulation has ever
suggested that mobile housing is
unworthy of deductions. The
Department’s long-standing position is
that facilities that are primarily for the
benefit or convenience of the employer
will not be recognized as reasonable and
may not therefore be included in
computing wages. See 29 CFR
531.3(d)(1). The Department maintains
that housing provided by employers
with a need for a mobile workforce,
such as those in the carnival or forestry
industries where workers are in an area
for a short period of time, need to be
available to work immediately, and may
not be able to procure temporary
housing easily, is primarily for the
employer’s benefit and convenience.
One commenter from the reforestation
industry wrote that the court cases the
Department cites in the proposal have
nothing whatsoever to do with the H–
2B program or workers on an itinerary
being paid wages substantially in excess
of the federal minimum wage. As
discussed in the preamble to § 655.15(f),
the Department has made an exception
for the carnival and reforestation
industries, which use H–2B workers in
itinerant employment over large
interstate areas. Without this exception,
these industries would be unable to
readily comply with the program’s
established processes. Having made this
exception for these industries, the
Department asserts that the requirement
that the employer provide housing and
transportation free of charge to the
employees is both reasonable and
reflective of the true cost of doing
business for this type of work. It should
also be noted that without the ability
and flexibility to move quickly and use
mobile workforces, these industries
could not function.
An employer from the reforestation
industry suggested that the Final Rule
require that housing for itinerant
employees be selected by the workers,
and that workers be reimbursed at a
standard daily housing rate for the area
of intended employment. The
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Department declines to mandate such a
practice. For the reasons stated in this
section, the Department’s position is
that housing for workers in itinerant
industries must be provided or paid for
by the employer.
The Department has amended this
section to require the disclosure of any
fringe benefits that will be provided.
This change is consistent with proposed
§ 655.18(a), which required that the job
order offer to U.S. workers no less than
the same benefits, wages, and working
conditions that the employer is offering,
intends to offer, or will provide to H–
2B workers. No other comments were
received on this section.
i. Other changes. In addition to
commenting on the contents of the job
order as proposed, several commenters
suggested additional content
requirements.
An alliance of human rights
organizations suggested that the job
order contain multiple explicit
provisions. Many of the disclosures
suggested by the commenter were
included in the proposed rule, such as
a list of costs charged to the worker
(§ 655.18(f)) and educational or
experience requirements
(§ 655.41(b)(3)). The commenter also
suggested that the job order contain
information on the visa, a statement
prohibiting a foreign labor contractor
from assessing fees, a notice that the
worker be provided 48 hours to review
and consider any changes in terms, a
statement that changes to the terms may
not be made without specific consent of
the worker, and a statement describing
worker protections under the
Trafficking Victims Protection Act of
2000. The Department maintains that
the information which employers are
required to include in the job order
under § 655.18 of the Final Rule is
necessary and sufficient to provide the
worker with adequate information to
determine whether to accept the job
opportunity, and notes that the
Department of State provides all H–2B
workers with a detailed worker rights
card at the visa application stage.7 The
Department believes that these
disclosures will ensure that adequate
information is available to H–2B
workers and therefore does not accept
the commenters’ suggestions.
With respect to a proposal that
workers be provided notice of the
changes to the job order, the Department
notes that both the NPRM and the Final
Rule require an employer who wishes to
change any of the terms and conditions
of employment listed in the job order,
7 The workers rights card is available at https://
travel.state.gov/pdf/Pamphlet-Order.pdf.
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to submit such a proposed change to the
CO for approval. The employer may not
implement changes to the approved
terms and conditions listed in the job
order without the approval by CO.
Additionally, such changes must be
disclosed to all U.S. workers hired
under the original job order, as required
by § 655.35.
Finally, a coalition of worker
advocacy organizations and several
other worker advocacy organizations
suggested that the Department add a
provision to the regulations stating that,
in the absence of a written contract, the
terms and conditions listed in the job
order shall be the work contract. The
Department does not believe it is
necessary to add such a provision, as
the courts will determine private
parties’ contractual rights under state
contract law. These commenters were
concerned, however, that the
Department’s reference to Garcia v. Frog
Island Seafood, Inc. (Frog Island), 644 F.
Supp. 2d 696, 716–18 (E.D.N.C. 2009),
in its rationale for the three-fourths
hours guarantee, 76 FR 15143, Mar. 18,
2011, implied that the Department
endorsed that court’s view that the
terms and conditions of H–2B job orders
are not enforceable under state contract
law. The Department wishes to clarify
that it does not endorse this view, and
was simply referencing this decision as
an example of one of several ways that
courts have viewed the enforceability of
an hours guarantee in the H–2B job
order absent an explicit regulatory
requirement. The Department believes
that the Frog Island court’s holding
regarding the enforceability of the H–2B
job order is limited to the 2008 Final
Rule, as the court’s reasoning was based
on the explicit lack of an hours
guarantee under that rule. See 644 F.
Supp. 2d at 718; 73 FR 78024, Dec. 18,
2008 (2008 Final Rule preamble
explaining that the definition of fulltime did not constitute an actual
obligation of the number of hours that
must be guaranteed each week). The
reference to Frog Island in the NPRM
should not have been interpreted as the
Department’s view of the enforceability
of the three-fourths guarantee in this
Final Rule because this Final Rule
explicitly mandates an hours guarantee.
Moreover, to the extent the court in Frog
Island also based its decision on the
premise that finding the employer
responsible for providing the 40 hours
listed in the H–2B job order would
effectively negate at-will employment,
see 644 F. Supp. 2d at 719, the
Department notes that it views the terms
and conditions of the job order as
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binding, regardless of workers’ at-will
employment status.
In addition to making the
organizational changes discussed above,
the Final Rule will require employers to
list in the job order the following
information that is essential for
providing U.S. workers sufficient
information about the job opportunity
(this information was previously
required to be included in the job order
by a cross reference to § 655.41): the
employer’s name and contact
information (§ 655.18(b)(1)); a full
description of the job opportunity
(§ 655.18(b)(3)); the specific geographic
area of intended employment
(§ 655.18(b)(4)); if applicable, a
statement that overtime will be available
to the worker and the overtime wage
offer(s) (§ 655.18(b)(6)); if applicable, a
statement that on-the-job training will
be provided to the worker
(§ 655.18(b)(7)); a statement that the
employer will use a single workweek as
its standard for computing wages due
(§ 655.18(b)(8)); and instructions for
inquiring about the job opportunity or
submitting applications, indications of
availability, and/or resumes to the
appropriate SWA (§ 655.18 (b)(18)). This
last addition was included to ensure
that applicants who learn of the job
opening through the electronic job
registry are provided with the
opportunity to contact the SWA for
more information or referral.
5. § 655.19 Job Contractor Filing
Requirements
This Final Rule amends § 655.6 to
provide for the limited circumstances
under which job contractors may
continue to participate in the H–2B
program. However, their participation is
still be subject to the limitations
provided in the CATA decision, in
which the Court invalidated and
vacated 20 CFR 655.22(k) under the
2008 Final Rule insofar as that provision
permits the clients of job contractors to
hire H–2B workers without submitting
an application to the Department. In
particular, the Court relied, as a basis for
its determination, on the DHS regulation
at 8 CFR 214.2(h)(2)(i)(C), which
provides that ‘‘[i]f the beneficiary [i.e.,
the temporary, non-immigrant worker]
will perform nonagricultural services
for, or receive training from, more than
one employer, each employer must file
a separate petition with USCIS as
provided in the form instructions.’’ The
Court found that this provision, when
coupled with the DHS regulation at 8
CFR 214.2(h)(6)(iii)(A), which requires
the petitioner to apply for a temporary
labor certification with the Department
of Labor, prohibited the Department’s
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existing practice of allowing only job
contractors to file for labor
certifications. See CATA 2010 WL
3431761, at *16 (E.D. Pa. Aug. 30, 2010).
Rather, the Court found that such
provisions
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mandate that (1) every employer must file a
petition with DHS, and (2) before doing so,
the employer must also file a certification
application with DOL. By allowing certain
employers not to file certification
applications, DOL’s regulations
unambiguously contradict this mandate. Id.
(emphasis added).
As a result of this order, we
determined that we could no longer
accept H–2B labor certification
applications from job contractors if the
job contractor’s employer-clients did not
also submit labor certification
applications. However, both the 2008
Final Rule and this Final Rule only
permit 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. Accordingly, both a
job contractor and employer-client each
would not be able to file their own
application for a single job opportunity.
However, we recognized that it may
be possible for a job contractor and its
employer-client to file a single
application as a joint employer. Joint
employment is defined as where two or
more employers each have sufficient
definitional indicia of employment to be
considered the employer of an
employee, those employers may be
considered to jointly employ that
employee. An employer in a joint
employment relationship with an
employee may be considered a ‘joint
employer’ of that employee. See § 655.4.
That approach would be consistent with
both the CATA decision (which
prohibits allowing only the job
contractor to file the application) and
§ 655.20 under the 2008 Final Rule and
§ 655.15 under this Final Rule (which
prohibit the filing of multiple
applications for a single job
opportunity). Earlier this year, we
issued guidance on our Web site which
addresses the requirement and
procedures for filing and processing
applications for joint employers (which
could include job contractors and their
employer-client(s)) under the H–2B
program. See https://
www.foreignlaborcert.doleta.gov/
faqsanswers.cfm#h2b. While such
guidance continues to remain valid, we
are incorporating in this section the key
procedures and requirements relating to
the submission of the Application for
Prevailing Wage Determination, the
filing of the Application for Temporary
Employment Certification, placement of
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the job order and conduct of
recruitment, issuance of certification,
and submission of certification to
USCIS.
In deciding whether to file as joint
employers, the job contractor and its
employer-client should understand that
employers are considered to jointly
employ an employee when they each,
individually, have sufficient
definitional indicia of employment with
respect to that employee. As described
in the definition of employee in 20 CFR
655.4, some factors relevant to the
determination of employment status
include, but are not limited to, the
following: The right to control the
manner and means by which work is
accomplished; the skill required to
perform the work; the source of the
instrumentalities and tools for
accomplishing the work; the location of
the work; discretion over when and how
long to work; and whether the work is
part of the regular business of the
employer or employers. Whenever a job
contractor and its employer client file
applications, each employer is
responsible for compliance with H–2B
program assurances and obligations. In
the event a violation is determined to
have occurred, either or both employers
can be found to be responsible for
remedying the violation and attendant
penalties.
D. Assurances and Obligations
1. § 655.20 Assurances and Obligations
of H–2B Employers
Proposed § 655.20 replaced existing
§ 655.22 and contained the employer
obligations that WHD will enforce. The
Department proposed to modify,
expand, and clarify current
requirements to ensure that the
employment of H–2B workers will not
adversely affect the wages and working
conditions of U.S. workers similarly
employed. Requiring compliance with
the following conditions of employment
is the most effective way to meet this
goal. As discussed in the preamble to
§ 655.5, workers engaged in
corresponding employment are entitled
to the same protections and benefits, set
forth below, that are provided to H–2B
workers.
a. Rate of pay (§ 655.20(a)). In
proposed § 655.20(a) the Department
expanded the current § 655.22(e). In
addition to the existing requirements
that employers pay the offered wage
during the entire certification period
and that the offered wage equal or
exceed the highest of the prevailing
wage, the applicable Federal minimum
wage, the State minimum wage, and any
local minimum wage, the Department
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added the requirement that such wages
be paid free and clear. The proposed
section also added requirements related
to productivity standards and payments
made on a piece-rate basis, and
eliminated the current § 655.22(g)(1)
option of paying such wages on a
monthly basis. The Department received
numerous comments on this section that
were deemed out of scope, as they
concerned the calculation of the
prevailing wage.
The Department’s proposed regulation
required that the wages offered in the
job order must be at least equal to the
prevailing wage rate for the occupation
in the area of employment, as set forth
in § 655.10(b), or the appropriate
Federal, State, or local minimum wage,
whichever is highest. If, during the
course of the period certified in the
Application for Temporary Employment
Certification, the Federal, State or local
minimum wage increases to a level
higher than the prevailing wage certified
in the Application, then the employer is
obligated to pay that higher rate for the
work performed in that jurisdiction
where the higher minimum wage
applies.
A State Attorney General’s office
supported the obligation to pay the State
or local minimum wage where one is
higher than the prevailing wage or the
Federal minimum wage, stating that this
provision is particularly important in
industries in which employees are often
exempt from Federal wage and hour
law. We concur with this assessment.
Upon consideration, we have
amended the provision with respect to
productivity standards (§ 655.20(a)(3))
to reflect that it is incumbent upon the
employer to demonstrate that such
productivity standards are normal and
usual for non-H–2B employers for the
occupation and area of intended
employment. Unlike in the H–2A
program, the Department does not
conduct prevailing practice surveys
through the SWAs, which would
provide such information to enable a CO
to make this decision. If an employer
wishes to provide productivity
standards as a condition of job
retention, the burden of proof rests with
that employer to show that such
productivity standards are normal and
usual for employers not employing H–
2B workers. We have adopted the rest of
the proposed rule with minor clarifying
edits for consistency.
b. Wages free and clear (§ 655.20(b)).
In § 655.20(b), the Department proposed
to require that wages be paid either in
cash or negotiable instrument payable at
par, and that payment be made finally
and unconditionally and free and clear
in accordance with WHD regulations at
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29 CFR part 531. Numerous
commenters, including several advocacy
organizations and a state agency, wrote
in support of this provision. A foreign
worker advocacy organization writing in
favor of the provision stated that in its
experience employers too often try to
impermissibly shift costs of tools,
recruiting, travel, and other costs which
impermissibly bring employees’ wages
below the minimum and prevailing
wage. This assurance clarifies the preexisting obligation for both employers
and employees.
Only one commenter, a trade
organization wrote in opposition to the
provision. However, this commenter
misunderstood the proposal, writing
that the requirement to pay prevailing
wages free and clear will expose
employers to the costs of local
convenience travel (trips to Wal-Mart,
Western Union, laundry, etc.), uniforms,
tools, meals, etc. While the employer’s
obligation to pay for uniforms and tools
is covered in the Final Rule at
§ 655.20(k), reasonable deductions for
employer-provided local travel that is
for the employees’ primary benefit and
meals, if disclosed on the job order,
would generally be viewed as
permissible under § 655.20(c).
c. Deductions (§ 655.20(c)). In
proposed § 655.20(c) the Department
sought to ensure payment of the offered
wage by limiting deductions which
reduce wages to below the required rate.
The proposed section limited
authorized deductions to those required
by law, made under a court order, that
are for the reasonable cost or fair value
of board, lodging, or facilities furnished
that primarily benefit the employee, or
that are amounts paid to third parties
authorized by the employee or a
collective bargaining agreement. The
proposed section specifically provided
that deductions not disclosed in the job
order are prohibited. The Department
also specified deductions that would
never be permissible, including: Those
for costs that are primarily for the
benefit of the employer; those not
specified on the job order; kick backs
paid to the employer or an employer
representative; and amounts paid to
third parties which are unauthorized,
unlawful, or from which the employer
or its foreign labor contractor, recruiter,
agent, or affiliated person benefits to the
extent such deductions reduce the
actual wage to below the required wage.
The proposed section referred to the
FLSA and 29 CFR part 531 for further
guidance.
Numerous advocacy groups, labor
organizations, and individuals
commented in favor of the provision.
One foreign worker advocacy
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organization applauded the
Department’s proposal, writing the
provision’s level of specificity is
valuable and necessary to prevent
employers from taking advantage of
vulnerable workers with little
understanding of what employers may
lawfully deduct from their wages. A
labor organization wrote that it regularly
finds that immigrant workers are
exploited by employers who confuse
them as to their rate of pay, overtime,
taxes, and other deductions, and
therefore enthusiastically supported the
provision. Two individuals
misunderstood the provision as
allowing deductions that are primarily
for the benefit of the employer and
requested that the Department explicitly
prohibit such deductions. The
Department clarifies that a deduction for
any cost that is primarily for the benefit
of the employer is never reasonable and
therefore never permitted under the
Final Rule. Some examples of costs that
Department has long held to be
primarily for the benefit of the employer
are: Tools of the trade and other
materials and services incidental to
carrying on the employer’s business; the
cost of any construction by and for the
employer; the cost of uniforms (whether
purchased or rented) and of their
laundering, where the nature of the
business requires the employee to wear
a uniform; and transportation charges
where such transportation is an incident
of and necessary to the employment.
This list is not an all-inclusive list of
employer business expenses.
A comment from a State Department
of Labor expressed concern that the
permissibility of a deduction was still
subjective and requested that ETA
provide SWAs with training and
detailed written instructions with
criteria to use when evaluating
deductions listed on a job order. The
Department believes that the guidance
provided in this section is sufficient, but
will provide additional training and
guidance to SWAs as needed.
In addition, concerns were raised by
a coalition representing agents and
employers and an industry group that
the prohibition of deductions
constituted an overstepping of the
Department’s bounds by importing the
de facto deduction concept from the
FLSA. One of these commenters also
cited the decision by the Fifth Circuit
Court of Appeals in CastellanosContreras v. Decatur Hotels, LLC, 622
F.3d 393 (5th Cir. 2010), contending that
this decision definitively resolved
whether the FLSA requires H–2B
employers to reimburse certain
employee pre-employment business
expenses, and that the Department is
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bound by this decision. However, that
decision concerned alleged FLSA
violations relating to employees’
payment of transportation and visa fees
during a time period in which the court
found that the Department did not have
a clear position as to whether employers
were required to reimburse for these
fees. Decatur, 622 F.3d at 401–02, and
n.9. It specifically stated that the
Department’s subsequent clarification
that these expenses primarily benefited
the employer and therefore could not
bring workers’ wages below the FLSA
minimum wage, as set forth in Field
Assistance Bulletin No. 2009–2 (August
2009, available at https://www.dol.gov/
ebsa/regs/fab2009–2.html), might be
afforded due deference in the future but
would not apply retroactively to the
allegations at issue in that case. Id. at
402. The Department acknowledges that
it is bound by the Fifth Circuit’s
decision with respect to the time period
considered in that case, in the
jurisdictions covered by the Fifth
Circuit, with regard to how such
expenses are treated under the FLSA.
However, the Department does not
interpret this decision to be the ultimate
determination on these issues, as
suggested by this commenter, and notes
that the decision did not address what
the proper deduction analysis would be
under newly promulgated regulations
adopted under the H–2B program. The
Department believes that the concept of
de facto deductions initially developed
under the FLSA is equally applicable to
deductions that bring H–2B workers’
wages below the required wage, as the
payment of the prevailing wage is
necessary to ensure that the
employment of foreign workers does not
adversely affect the wages and working
conditions of similarly employed U.S.
workers. To allow deductions for
business expenses, such as tools of the
trade, would undercut the prevailing
wage concept and, as a result, harm U.S.
workers.
d. Job opportunity is full-time
(§ 655.20(d)). In proposed § 655.20(d),
the Department required that all job
opportunities be full-time temporary
positions, consistent with existing
language in § 655.22(h), and established
full-time employment as at least 35
hours per week, an increase from the
current level of 30 hours. Additionally,
consistent with the FLSA, the NPRM
added the requirement that the
workweek be a fixed and regularly
recurring period of 168 hours or seven
consecutive 24-hour periods which may
start on any day or hour of the day. The
Department received no comments
regarding the added language
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addressing the workweek requirement;
however, there were many comments
submitted by a variety of commenters
expressing opinions about the definition
of full-time employment. The
Department carefully considered and
responded to those comments in its
discussion of § 655.5, Definition of
Terms.
e. Job qualifications and requirements
(§ 655.20(e)). Proposed § 655.20(e)
clarified existing § 655.22(h) by stating
that each job qualification and
requirement listed in the job order must
be consistent with normal and accepted
qualifications required by non-H–2B
employers for similar occupations in the
area of intended employment. Under the
proposed compliance model, OFLC in
collaboration with the SWA would
determine what is normal and accepted
during the pre-certification process. In
addition, we proposed to provide the
CO with the authority to require the
employer to substantiate any job
qualifications specified in the job order.
The Department is retaining this
provision with amendments, as
discussed below.
The Department received one
comment on this additional language, in
which a coalition representing agents
and employers requested that the
Department limit the CO’s discretion to
demand substantiation to those cases in
which he or she has objective and
reliable documentation showing that a
requirement or qualification is unusual
or rare. This commenter asserted that
this limitation would not place a further
burden on the CO and would limit the
burden placed on employers. The
Department concludes that such a
requirement would in fact place a
significant burden on the CO, who
would have to do substantial research to
produce such documentation, while an
employer would presumably have
documentation of the appropriateness of
its own requirement or qualification
readily available. The Department
therefore declines to make this change.
In addition, the Department received
comments raising concerns regarding
the Department’s standard for what is
normal and accepted with respect to the
employer’s qualifications and
requirements. Some commenters
expressed confusion between the use of
the terms qualification and requirement.
These and other comments related to
this and related provisions are
discussed in the preamble to paragraph
(r) of this section as well as
§ 655.18(a)(2). However, in response to
these comments, the Department has
amended this section to clarify,
consistent with a parallel requirement
in 655.18(a)(2), that the employer’s job
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qualifications and requirements
imposed on U.S. workers must be no
less favorable than the qualifications
and requirements that the employer is
imposing or will impose on H–2B
workers. In addition, and in response to
the confusion articulated by some
commenters, we have clarified that a
qualification means a characteristic that
is necessary to the individual’s ability to
perform the job in question. In contrast,
a requirement means a term or
condition of employment which a
worker is required to accept in order to
obtain the job opportunity.
This provision, as amended, enables
us to continue our current standard of
review of the job qualifications and
special requirements by looking at what
non-H–2B employers determine is
normal and accepted to be required to
perform the duties of the job
opportunity. The purpose of this review
is to avoid the consideration (and the
subsequent imposition) of requirements
on the performance of the job duties that
would serve to limit the U.S. worker
access to the opportunity. OFLC has
significant experience in conducting
this review and in making
determinations based on a wide range of
sources assessing what is normal for a
particular job, and employers will
continue to be held to an objective
standard beyond their mere assertion
that a requirement is necessary. We will
continue to look at a wide range of
available objective sources of such
information, including but not limited
to O*NET and other job classification
materials and the experience of local
treatment of requirements at the SWA
level. Ultimately, however, it is
incumbent upon the employer to
provide sufficient justification for any
requirement outside the standards for
the particular job opportunity.
Therefore, we are retaining this
provision with the amendments
discussed above.
f. Three-fourths guarantee
(§ 655.20(f)). In § 655.20(f), the NPRM
proposed to require employers to
guarantee to offer employment for a
total number of work hours equal to at
least three-fourths of the workdays of
each 4-week period and, if the guarantee
was not met, to pay the worker what the
worker would have earned if the
employer had offered the guaranteed
number of days. The NPRM stated these
4-week periods would begin the first
workday after the worker’s arrival at the
place of employment or the advertised
contractual first date of need, whichever
is later, and would end on the
expiration date specified in the job
order or in any extensions. The NPRM
provided that a workday would be
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based on the workday hours stated in
the employer’s job order, and the 4week period would be based on the
employer’s workweek, with increases
for the initial period and decreases for
the last period on a pro rata basis,
depending on which day of the
workweek the worker starts or ceases
work.
The NPRM proposed that if a worker
failed or refused to work hours offered
by the employer, the employer could
count any hours offered consistent with
the job order that a worker freely and
without coercion chose not to work, up
to the maximum number of daily hours
on the job order, in the calculation of
guaranteed hours. The NPRM also
allowed the employer to offer the
worker more than the specified daily
work hours, but stated the employer
may not require the employee to work
such hours or count them as offered if
the employee chose not to work the
extra hours. However, the NPRM
allowed the employer to include all
hours actually worked when
determining whether the guarantee had
been met. Finally, the NPRM proposed,
as detailed in 29 CFR 503.16(g), that the
CO can terminate the employer’s
obligations under the guarantee in the
event of fire, weather, or other Act of
God that makes the fulfillment of the job
order impossible.
The NPRM specifically invited the
public to suggest alternative guarantee
systems that may better serve the goals
of the guarantee. In particular, the
Department sought comments on
whether a 4-week increment is the best
period of time for measuring the threefourths guarantee or whether a shorter
or longer time period would be more
appropriate.
Based upon all the comments
received, the Department has decided to
retain the three-fourths guarantee, but to
lengthen the increment over which the
guarantee is measured to 12 weeks,
rather than just 4 weeks, if the period of
employment covered by the job order is
120 days or more, and increase the
increment of the guarantee to 6 weeks,
if the period of employment covered by
the job order is less than 120 days.
The Department received numerous
comments, from both employers and
employees, addressing whether to
include a guarantee and whether a 4week increment is the appropriate
period of time. Many employers
expressed concern about the guarantee.
They were particularly concerned about
the impact of the weather on their
ability to meet the guarantee. For
example, crab processing companies
emphasized that unseasonably cool
weather, weather events such as
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hurricanes, or unforeseen events like oil
spills or health department or
conservation closures can make the
harvesting and processing of crabs
impossible. Other employers—such as
those in the forestry industry—similarly
emphasized that the 4-week period does
not adequately account for the impact of
weather because many days can be
unworkable (because it is too hot, too
dry, too wet, or too cold to plant
seedlings) and the hours cannot be
made up within 4 weeks. Ski resorts
emphasized that they are dependent
upon the amount and timing of snowfall
as well as temperatures, and golf clubs
expressed similar concerns about the
impact of the weather. Employers also
stated that work hours may be
unavailable for many other reasons
beyond their control, such as federal
money for forestry work is unavailable,
landowners change their minds about
planting, or the nursery does not make
seedlings available; the economy affects
consumers’ willingness to travel for
leisure; or a large group or event
sponsor changes the schedule or cancels
a booking. Employers also emphasized
that it is difficult to predict with
precision several months ahead of time
exactly what an employer’s workforce
needs will be throughout the season,
and requiring employers to pay wages
when no work is performed would
cause financial ruin. Some employers
focused, in particular, on their difficulty
in meeting the guarantee during slow
months at the beginning and end of the
season.
One commenter presented a survey of
501 employers in which 34 percent of
employers responded that the guarantee
would severely affect their bottom line,
26 percent were moderately concerned,
and 40 percent stated that it would not
affect them. The survey showed that, for
a plurality of employers, workers
consistently work more than 40 hours
per week; even those employers that
expressed concern stated that the
guarantee would not present a problem
during the busiest months of the season,
but would be a burden during the first
and last months of the season when they
are ramping up or winding down. Many
survey respondents were prepared to
guarantee a minimum workload over the
season, but not month to month.
Numerous other employer
commenters similarly stated that if a
guarantee remains in the Final Rule, it
should be spread over the entire
certification period, as it is in the H–2A
regulations. They noted that this would
provide flexibility and enhance their
ability to meet the guarantee without
cost, because often the loss of demand
for work in one period is shifted to
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another point in the season, but such a
guarantee would still deter egregious
cases of employers misstating their need
for H–2B employees. Employers also
suggested, in addition to a clear Act of
God exception, that there should be an
exception for man-made disasters such
as an oil spill or controlled flooding.
Some also suggested that the rule
should allow the Department to give
employers a short period of interim
relief from the guarantee, when weather
or some other catastrophic event makes
work temporarily unavailable, rather
than simply authorizing the termination
of the job order.
A number of employer commenters
suggested that the guarantee should be
based upon pay for three-fourths of the
hours, rather than three-fourths of the
hours, so that employers could take
credit for any overtime paid at time-anda-half. They noted that, because
agriculture is exempt from overtime, H–
2A employers do not have to pay an
overtime premium when employees
work extra hours in some weeks. Other
commenters stated that the three-fourths
guarantee is beyond the Department’s
statutory authority, noting the
differences between the H–2A and H–2B
statutory frameworks. Finally, some
employers expressed concern about how
they could afford to pay the guarantee
when the employee does not or cannot
work, seeming to suggest that employers
are required to pay the guarantee even
if an employee voluntarily chooses not
to work, or that they were unaware of
the alternative of seeking termination of
the job order.
Employees, in contrast, uniformly
supported the requirement for a
guarantee, and many suggested
strengthening the proposed guarantee.
For example, employee advocates
stressed that the three-fourths guarantee
is important to prevent foreign workers
from being lured into the program with
promises of far more hours of work than
they will actually receive. When
workers do not receive the promised
hours, they are forced to resort to work
that does not comply with the program
in order to survive, and this then
impacts the job opportunities available
to U.S. workers. Further, where there
are excess H–2B workers, employers are
able to exploit them out of their
desperation for work, resulting in an
ability to undercut the wages of U.S.
workers. Commenters emphasized that
the proposed guarantee would protect
workers who traveled in reliance on
promises of work, who now may have
to wait weeks or months for the work to
begin, because it would serve as a
barrier preventing employers from
artificially increasing their stated need
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for H–2B workers. One commenter with
experience working with H–2B workers
in New Orleans described a situation in
which the workers were provided little
or no work after traveling from India,
and when they complained they were
threatened and many were fired.
Employee commenters noted that when
they get very limited hours because the
jobs either do not start on the promised
date or finish early, or have fewer hours
per week, they would have been better
off staying in their home country
because they have to spend everything
they earn to live on and have nothing
left to send home.
Employee advocates stated that
applying the guarantee on a 4-week
basis (as opposed to over the length of
the job order) prevents employers from
claiming artificially long seasons, in the
hopes that workers will quit
prematurely at the end of the season and
lose their rights to the guarantee and
transportation home, even if the reason
was that the employer had very little
work available. The shorter increment
also protects U.S. workers because it
prevents employers from using an
unrealistic early start date as a method
of encouraging them to abandon the job
to seek alternative employment with
more hours. The commenters noted that
employers could simply apply for fewer
H–2B workers and offer all workers
more hours to minimize the impact of
the requirement.
Although employee advocates
uniformly supported the concept of a
guarantee, some advocates stressed that
the three-fourths guarantee
overcompensates for the effects of
weather. Employees were particularly
concerned about the guarantee being
only three-fourths if the definition of
full-time remained at 35 hours, which
they viewed as double-counting for the
effects of weather and which would
result in workers only being guaranteed
26 hours per week (105 hours per
month). Thus, while some employee
commenters believed the three-fourths
guarantee to be a reasonable and
narrowly-tailored means to prevent
abuses, other employee advocates
suggested adopting a more protective
guarantee—100 percent, or 90 percent,
or providing the guarantee on a weekly
basis. They emphasized that employees
are required to pay 100 percent of their
expenses, such as rent and medical fees.
They also noted that many H–2B
industries are not affected by the
weather to the same degree as
agricultural work; therefore, some
advocates suggested the guarantee
should be higher than the three-fourths
rule in the H–2A program. At a
minimum, they emphasized the
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importance of having the guarantee at
least every 4 weeks to prevent
employees from going through long
periods without work or income.
Finally, employee advocates
expressed concern about a broad Act of
God or impossibility exception to the
rule and suggested that the Department
play a direct role in assisting in the
transfer of temporary foreign workers
affected by such a job order termination
to other employers, and suggested
adopting an additional recordkeeping
requirement, similar to the H–2A threefourths guarantee recordkeeping
provision at § 655.122(j)(3)), requiring
employers to record the reason a worker
declined offered hours of work in order
to prevent employers from overstating
the number of hours offered.
After carefully considering all the
comments received, the Department has
decided to retain the three-fourths
guarantee, but to lengthen the increment
over which the guarantee is measured to
12 weeks, rather than just 4 weeks, if the
period of employment covered by the
job order is 120 days or more, and
increase the increment over which the
guarantee is measured to 6 weeks rather
than 4 weeks, if the period of
employment is less than 120 days. The
Department believes that this approach
will retain the benefits of having the
guarantee, while offering employers the
flexibility to spread the required hours
over a sufficiently long period of time
such that the vagaries of the weather or
other events out of their control that
affect their need for labor do not prevent
employers from fulfilling their
guarantee. Moreover, as discussed in
detail later with regard to § 655.20(g),
the CO may relieve an employer from
the three-fourths guarantee requirement
for time periods after an unforeseeable
event outside the employer’s control
occurs, such as fire, weather, or other
Act of God.
When employers file applications for
H–2B labor certifications, they represent
that they have a need for full-time
workers during the entire certification
period. Therefore, it is important to the
integrity of the program, which is a
capped visa program, to have a
methodology for ensuring that
employers have fairly and accurately
estimated their temporary need. As
explained in the NPRM, the guarantee
deters employers from misusing the
program by overstating their need for
full-time, temporary workers, such as by
carelessly calculating the starting and
ending dates of their temporary need,
the hours of work needed per week, or
the total number of workers required to
do the work available. To the extent that
employers more accurately describe the
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amount of work available and the
periods during which work is available,
it gives both U.S. and foreign workers a
better chance to realistically evaluate
the desirability of the offered job. U.S.
workers will not be induced to abandon
employment, to seek full-time work
elsewhere at the beginning of the season
or near the end of the season because
the employer overstated the number of
employees it actually needed to ramp
up or to wind down operations. Nor will
U.S. workers be induced to leave
employment at the beginning of the
season or near the end of the season due
to limited hours of work because the
employer misstated the months during
which it reasonably could expect to
perform the particular type of work
involved in that geographic area. Not
only will the guarantee result in U.S.
and H–2B workers actually working
most of the hours promised in the job
order, but it also will make the capped
H–2B visas more available to other
employers whose businesses need to use
H–2B workers. Therefore, the
Department disagrees with those
commenters who suggested the
Department lacks the authority to
impose a guarantee. The guarantee is a
necessary element to ensure the
integrity of the labor certification
process, to ensure that the availability of
U.S. workers for full-time employment
is appropriately tested, to ensure that
there is no adverse effect on U.S.
workers from the presence of H–2B
workers who are desperate for work
because the work that was promised
does not exist, and to ensure that H–2B
visas are available to employers who
truly have a need for temporary labor for
the dates and for the numbers of
employees stated.
The Department’s recent experience
in enforcing the H–2B regulations
demonstrates that its concerns about
employers overstating their need for
workers are not unfounded, as do the
numerous comments from employees
and their advocates who described
countless private cases and testimony
demonstrating the existence of this
problem. The Department’s
investigations have revealed employers
that stated on their H–2B applications
that they would provide 40 hours of
work per week when, in fact, their
workers averaged far fewer hours of
work, especially at the beginning and/or
end of the season. Indeed, in some
weeks the workers have not worked at
all. In addition, there has been
testimony before Congress involving
similar cases in which employers have
overstated the period of need and/or the
number of hours for which the workers
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10073
are needed. For example, as the
Department described in the NPRM,
H–2B workers testified at a hearing
before the Domestic Policy
Subcommittee, House Committee on
Oversight and Government Reform, on
April 23, 2009, that there were several
weeks in which they were offered no
work; others testified that their actual
weekly hours—and hence their weekly
earnings—were less than half of the
amount they had been promised in the
job order. Daniel Angel Castellanos
Contreras, a Peruvian engineer, was
promised 60 hours per week at $10–$15
per hour. According to Mr. Contreras,
‘‘[t]he guarantee of 60 hours per week
became an average of only 20 to 30
hours per week—sometimes less. With
so little work at such low pay [$6.02 to
$7.79 per hour] it was impossible to
even cover our expenses in New
Orleans, let alone pay off the debt we
incurred to come to work and save
money to send home.’’ 8 Miguel Angel
Jovel Lopez, a plumber and farmer from
El Salvador, was recruited to do
demolition work in Louisiana with a
guaranteed minimum of 40 hours of
work per week. Mr. Lopez testified,
‘‘[i]nstead of starting work, however, I
was dropped off at an apartment and left
for two weeks. Then I was told to attend
a two week training course. I waited
three more weeks before working for
one day on a private home and then
sitting for three more weeks.’’ 9
Testimony at the same hearing by three
attorneys who represent H–2B workers
stated that these witnesses’ experiences
were not aberrations but were typical.
Hearing on The H–2B Guestworker
Program and Improving the Department
of Labor’s Enforcement of the Rights of
Guestworkers, 111th Cong. (Apr. 23,
2009).
Furthermore, a 2010 report by the
American University Washington
College of Law International Human
Rights Law Clinic and the Centro de los
Derechos del Migrante, Inc. documented
the prevalence of work shortages for
women working on H–2B visas in the
Maryland crab industry. The researchers
found that several women interviewed
spent days and weeks without work
when crabs were scarce. During this
time most continued to make rent
8 Testimony of Daniel Angel Castellanos
Contreras before the House Committee on Oversight
and Government Reform Domestic Policy
Subcommittee, 2, (2009, Apr. 23) https://
oversight.house.gov/images/stories/documents/
20090423085101.pdf.
9 Testimony of Miguel Angel Jovel Lopez before
the House Committee on Oversight and Government
Reform Domestic Policy Subcommittee, 2. (2009,
Apr. 23) https://oversight.house.gov/images/stories/
documents/20090423085606.pdf.
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payments, and struggled to send money
to family back in Mexico.10
The Department has not adopted the
suggestion of employers to spread the
three-fourths guarantee over the entire
period covered by the job order. Using
the entire period of the job order would
not adequately protect the integrity of
the program because it would not
measure whether an employer has
appropriately estimated its need for
temporary workers. It would not prevent
an employer from overstating the
beginning date of need and/or the
ending date of need and then making up
for the lack of work in those two periods
by offering employees 100 percent of the
advertised hours in the middle of the
certification period. Indeed the
employer could offer employees more
than 100 percent of the advertised hours
in the peak season and, although they
would not be required to work the
excess hours, most employees could
reasonably be expected to do so in an
effort to maximize their earnings.
However, in order to meet the
legitimate needs of employers for
adequate flexibility to respond to
changes in climatic conditions (such as
too much or too little snow or rain,
temperatures too high or too low) as
well as the impact of other events
beyond the employer’s control (such as
a major customer who cancels a large
contract), the Department has modified
the increment of time for measuring the
guarantee by tripling it from 4 weeks to
12 weeks (if the period of employment
covered by the job order is at least 120
days) and increasing the period by 2
weeks to 6 weeks (if the employment is
less than 120 days). The Department
believes this provides sufficient
flexibility to employers, while
continuing to deter employers from
requesting workers for 9 months, for
example, when they really only have a
need for their services for 7 months. If
an employer needs fewer workers
during the shoulder months than the
peak months, it should not attest to an
inaccurate statement of need by
requesting the full number of workers
for all the months. Rather, the proper
approach it should follow is to submit
two applications with separate dates of
need, so that it engages in the required
recruitment of U.S. workers at the
appropriate time when it actually needs
the workers.
10 American University Washington College of
Law International Human Rights Law Clinic and
Centro de los Derechos del Migrante, Inc. Picked
Apart: The Hidden Struggles of Migrant Worker
Women In the Maryland Crab Industry.2, July 2010.
https://www.wcl.american.edu/clinical/documents/
20100714_auwcl_ihrlc_picked_apart.pdf?rd=1.
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Finally, the Department has not
adopted the suggestion of some
employers for a guarantee tied to pay
rather than hours. The employers’
attestation relates to their need for a
particular number of full-time workers
during a set period; thus, the attestation
relates to the amount of full-time work,
not the amount of pay received. The
Department reminds employers that
they may count toward the guarantee
hours that are offered but that the
employee fails to work, up to the
maximum number of hours specified in
the job order for a workday; thus, they
do not have to pay an employee who
voluntarily chooses not to work.
Similarly, they may count all hours the
employee actually works, even if they
are in excess of the daily hours specified
in the job order. Employers’ comments
addressing the Act of God exception are
addressed in § 655.20(g).
The Department has not adopted the
suggestion of many employee advocates
to impose a more protective guarantee.
The Department does not believe it
would be appropriate to impose a 100
percent, 90 percent, or weekly
guarantee. The three-fourths guarantee
is a reasonable deterrent to potential
carelessness and a necessary protection
for workers, while still providing
employers with flexibility relating to the
required hours, given that many
common H–2B occupations involve
work that can be significantly affected
by weather conditions. Moreover, it is
not just outdoor jobs such as
landscaping that are affected by
weather. For example, indoor jobs such
as housekeeping and waiting on tables
can be affected when a hurricane, flood,
unseasonably cool temperatures, or the
lack of snow deters customers from
traveling to a resort location. The impact
on business of such weather effects may
last for several weeks, although (as
employers recognized) they are likely to
be able to make up for them in other
weeks of the season. Moreover, the
Department understands that it is
difficult to predict with precision
months in advance exactly how many
hours of work will be available,
especially as the period of time involved
is shortened. Finally, the comment
suggesting adding a recordkeeping
requirement related to the reason an
employee declines offered work is
addressed in § 655.20(i).
g. Impossibility of fulfillment
(§ 655.20(g)). In proposed § 655.20(g),
the Department added language to allow
employers to terminate a job order in
certain narrowly-prescribed
circumstances when approved by the
CO. In such an event, the employer
would be required to meet the three-
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fourths guarantee discussed in
paragraph (f) of this section based on the
starting date listed in the job offer or
first workday after the arrival of the
worker, whichever is later, and ending
on the job order termination date. The
employer would also be required to
attempt to transfer the H–2B worker (to
the extent permitted by DHS) or worker
in corresponding employment to
another comparable job. Actions
employers could take include reviewing
the electronic job registry to locate other
H–2B-certified employers in the area
and contacting any known H–2B
employers, the SWA, or ETA for
assistance in placing workers. Absent
such placement, the employer would
have to comply with the proposed
transportation requirements in
paragraph (j) of this section.
The Department received numerous
comments on this section, from the
Small Business Administration (SBA)
Office of Advocacy, employers,
employer advocacy groups, and trade
organizations, requesting that the
provision be expanded to cover
manmade disasters. Many of these
commenters cited the recent Deepwater
Horizon oil spill, which forced many
businesses to close unexpectedly. The
Department views this suggested
expansion as wholly in line with the
intent of the provision, which
acknowledged that circumstances
beyond the control of the employer or
the worker can result in the need to
terminate a worker’s employment before
the expiration date of a job order.
Therefore, the Department has amended
this provision in the Final Rule. The
first sentence of the paragraph now
reads, ‘‘If, before the expiration date
specified in the job order, the services
of the worker are no longer required for
reasons beyond the control of the
employer due to fire, weather, other
Acts of God, or a similar unforeseeable
man-made catastrophic event (such as
an oil spill or controlled flooding) that
is wholly outside the employer’s
control, that makes the fulfillment of the
job order impossible, the employer may
terminate the job order with the
approval of the CO.’’ No other changes
were made to this section.
h. Frequency of pay (§ 655.20(h)).
Proposed § 655.20(h) required that the
employer indicate the frequency of pay
in the job order and that workers be
paid at least every two weeks or
according to the prevailing practice in
the area of intended employment,
whichever is more frequent. Further, it
required that wages be paid when due.
Numerous worker advocacy
organizations submitted comments
supporting this provision. One comment
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stated that frequent pay is important for
H–2B workers who often arrive in the
United States with little money and
need prompt payment after beginning
work to be able to pay for their expenses
without going into debt. Requiring
frequent pay also negates the ability of
unscrupulous lenders to take advantage
of desperate workers who run out of
money before payday by extending high
interest loans. Another comment stated
that this provision would allow regular
access to funds and assist workers to
avoid being trapped in a work situation
because of lack of resources to leave an
exploitative working situation.
One employer expressed general
opposition to this requirement but gave
no reason explaining the opposition.
Other employer comments expressed a
range of concerns.
One individual commented that the
specific language in § 655.20(h), or
according to the prevailing practice in
the area of intended employment, is
ambiguous. The commenter expressed
concern that the regulation provides no
process for determining what prevailing
practice is and that area of intended
employment has no rigid tangible
boundaries. This commenter did not
provide any alternative suggestions. The
Department does not consider the
regulation text ambiguous. The concept
of an area of intended employment is
defined in the regulations at § 655.5 and
has been used in the program since its
inception. While we do not conduct
prevailing practice surveys in the H–2B
program at this time, we assume
employers are aware of prevailing
practices for frequency of pay in their
area.
One employer suggested that the
Department permit employers to use a
monthly pay period provided that they
give employees the option to draw a
percentage of wages earned in the
middle of the month, as this would
effectively give twice-monthly pay
periods to any employee who exercised
the option. The Department rejects this
suggestion. The requirement that
workers be paid at least every 2 weeks
was designed to protect financially
vulnerable workers. Allowing an
employer to pay less frequently than
every two weeks would impose an
undue burden on workers who
traditionally are paid low wages and
may lack the means to make their
income stretch through a month until
they get paid, and it would force these
workers to pursue the needless step of
requesting their earnings every month in
the middle of the pay period.
One commenter suggested that the
Department require employers to pay
wages in cash or require that wages be
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deposited directly into the employee’s
bank account. The Department notes
that the requirement that payments be
made either in cash or negotiable
instrument payable at par at § 655.20(b)
of the Final Rule will ensure that wages
are paid free and clear and in an
accessible medium.
No other comments were received on
this section. As such, the Department
adopts the provision as proposed.
i. Earnings statements (§ 655.20(i)).
Proposed § 655.20(i) added
requirements for the employer to
maintain accurate records of worker
earnings and provide the worker an
appropriate earnings statement on or
before each payday. The proposed
paragraph also listed the information
that the employer must include in such
a statement.
The Department received numerous
comments in support of § 655.20(i) from
community-based organizations and
worker advocacy organizations. One
comment from a worker advocacy
organization stated that earning
statements will help workers promptly
identify any improper deductions or
wage violations. This commenter noted
that, armed with such wage information,
employees are better able to hold
employers accountable to wage
requirements.
Some commenters expressed
opposition to this provision, arguing
that requiring employers to provide
earnings statements will create an
administrative burden and additional
costs resulting from more paperwork
and additional recordkeeping. The
Department believes that any additional
administrative burden resulting from
this provision will be outweighed by the
importance of providing workers with
this crucial information, especially
because an earnings statement provides
workers with an opportunity to quickly
identify and resolve any anomalies with
the employer and hold employers
accountable for proper payment.
One employer association expressed
concern that before in the phrase on or
before each payday is vague. The
comment proposed no alternative
language. The Department finds the
language to clearly indicate that so long
as the earnings statement is provided no
later than the time payment is received
there is no violation of this provision.
One comment submitted by a worker
advocacy group suggested the
Department also require that where a
worker declines any offered hours of
work, employers record the reason why
the hours were declined. Similar to
§ 655.122(j)(3) in the H–2A program,
requiring an employer to record the
reasons why a worker declined work
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will support the Department’s
enforcement activities related to the
three-fourths guarantee proposed in
§ 655.20(f). The Department accepts this
suggestion and adds the following
language to § 655.20(i)(1) and 29 CFR
503.16(i)(1): ‘‘* * * if the number of
hours worked by the worker is less than
the number of hours offered, the
reason(s) the worker did not work;’’.
Additionally, the Department has
amended §§ 655.16(i)(2)(iv), 655.20(i)(l)
and 655.20(i)(2)(v) and 29 CFR
503.16(i)(l) to require employers to
maintain records of any additions made
to a worker’s wages and to include such
information in the earnings statements
furnished to the worker. Such additions
could include performance bonuses,
cash advances, or reimbursement for
costs incurred by the worker. This
requirement is consistent with the
recordkeeping requirements under the
FLSA in 29 CFR part 516. No other
changes were made to this section in the
Final Rule.
j. Transportation and visa fees
(§ 655.20(j)). The Department proposed
changes relating to transportation and
visa costs in § 655.20(j). In
§ 655.20(j)(1)(i), the NPRM proposed to
require an employer to provide, pay for,
or reimburse the worker in the first
workweek the cost of transportation and
subsistence from the place from which
the worker has come to the place of
employment. If the employer advanced
or provided transportation and
subsistence costs to H–2B workers, or it
was the prevailing practice of non-H–2B
employers to do so, the NPRM proposed
to require the employer to advance such
costs or provide the services to workers
in corresponding employment traveling
to the worksite. The amount of the
transportation payment was required to
be at least the most economical and
reasonable common carrier charge for
the trip. Section 655.20(j)(1)(ii) of the
NPRM proposed to require the
employer, at the end of the employment,
to provide or pay for the U.S. or foreign
worker’s return transportation and daily
subsistence from the place of
employment to the place from which
the worker departed to work for the
employer, if the worker has no
immediate subsequent approved H–2B
employment. If the worker has been
contracted to work for a subsequent and
certified employer, the last H–2B
employer to employ the worker would
be required to provide or pay the U.S.
or foreign worker’s return
transportation. Therefore, prior
employers would not be obligated to
pay for such return transportation costs.
The NPRM also proposed that all
employer-provided transportation—
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including transportation to and from the
worksite, if provided—must meet
applicable safety, licensure, and
insurance standards (§ 655.20(j)(1)(iii)).
Furthermore, all transportation and
subsistence costs covered by the
employer had to be disclosed in the job
order (§ 655.20(j)(1)(iv)). Finally,
§ 655.20(j)(2) of the NPRM proposed
that employers would be required to pay
or reimburse the worker in the first
workweek for the H–2B worker’s visa,
visa processing, border crossing, and
other related fees including those fees
mandated by the government (but not
for passport expenses or other charges
primarily for the benefit of the workers).
As discussed below, a significant
number of commenters addressed these
proposed changes, and the Department
has made two changes to the Final Rule
as a result.
Employers and their representatives
generally opposed at least some aspects
of the proposal. For example, some
employers asserted that paying such
fees would be too costly and that
transportation costs should be the
responsibility of the employee or paid at
the discretion of the employer. In
particular, some ski resorts emphasized
the costs they face because many of
their ski instructors travel a significant
distance by air to remote resorts. Many
employers were particularly concerned
with the requirement to pay
transportation and subsistence costs for
U.S. workers recruited from outside the
local commuting distance, based upon
their experience that U.S. workers have
high rates of turnover and rarely stay for
the entire season. A number of
employers recounted their experience
with the short periods worked by U.S.
applicants. For example, one
commenter gave examples from various
employers who stated that, e.g., of 25
U.S. workers hired, only four reported
for work and only two stayed more than
one week; the longest a U.S. worker
remained employed was one month; no
U.S. worker has stayed more than 2 days
in ten to 15 years; in 13 seasons, no
worker stayed more than a few weeks;
in 5 years, only one U.S. worker
reported to work and he lasted less than
2 weeks; and of the U.S. workers who
report for work, fewer than 10 percent
stay through the season.
Employers expressed particular
opposition to reimbursing what a
number of them labeled as disingenuous
U.S. applicants who could exploit the
employer by applying for a job they had
no intention of performing simply to get
the transportation and subsistence to a
new area. Having received a free trip,
such employees would quit the job and
be able to look for full-time, year-round
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work with another employer, because
U.S. workers are not bound to work only
for the H–2B employer. Such applicants
would result in large costs to the
employer with no return on their
investment, and the employer could do
nothing to mitigate its risk. Many such
employers and their representatives
suggested that it would be more
appropriate to tie the reimbursement to
either full completion of, or partial
completion of, the term of employment.
A number of them suggested adoption of
the H–2A program provision requiring
that workers must complete at least 50
percent of the work contract to be
reimbursed for inbound transportation
and subsistence expenses; they stated
that this would help to minimize the
risk that an employee could manipulate
the system for free travel and would
ensure that the employer benefited from
the employment before disbursing the
cost.
One commenter stated that the
Department lacks the authority to
require reimbursement of travel
expenses, especially with regard to U.S.
workers in corresponding employment,
because the Internal Revenue Service
does not allow employees to deduct
such travel to the job as a business
expense. Another commenter asserted
that visa fees should be the
responsibility of the employee because
State Department regulations assign the
cost to the foreigner. Finally, an
employer suggested requiring employers
to reimburse only the amount necessary
to protect the FLSA minimum wage, but
not the H–2B prevailing wage.
Employee advocates strongly
supported the proposal and commended
the Department for it. Numerous
advocates described why it is essential
for the employer to provide, pay for or
reimburse transportation, subsistence
and visa-related expenses in the first
workweek, in order to ensure that
workers are not forced to go into debt
and borrow money at exorbitant rates.
They emphasized that, without timely
reimbursement, employees are more
likely to tolerate abusive work
environments in order to be able to
repay their loans, rather than risk
retaliatory termination. One
commenter’s survey of temporary
foreign workers indicated that debts
from such pre-employment costs are the
main reason temporary foreign workers
do not come forward to report violations
of the law. Another commenter
emphasized that employers are the
primary beneficiaries of such
expenditures, because they directly
profit from the mobility of a low-wage
workforce. Commenters stated that, if
the costs of transportation and visa-
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related expenses are not reimbursed, it
effectively lowers the employees’ wage
rates below the required wage, which
causes adverse effects because it puts
downward pressure on the wages of
similarly situated U.S. workers. And
they noted that it is important that U.S.
workers are provided the same benefit,
both because the concept that there
should be no preferential treatment for
foreign workers is fundamental to the
INA, and because it will make it
possible for available U.S. workers to
take jobs where the transportation costs
otherwise would be an insurmountable
hurdle. They stated that requiring
transportation and subsistence
reimbursement also encourages
employers to consider more carefully
the number of workers actually needed,
making it less likely that employers will
request more workers than they need
and making it more likely that they will
make more efforts to recruit U.S.
workers.
Thus, these commenters believed that
the proposed rule requirements, and
even stronger measures, were necessary
in order to make progress toward
eliminating the history of abuses in the
H–2B program. Some employee
advocates suggested expanding the
proposed regulation to clarify that
inbound transportation includes travel
between the home community and the
consular city as well as between the
consular city and the place of
employment in the U.S., or to require
reimbursement for additional expenses,
such as hotels while traveling to the
worksite or while waiting in the
consular city for visa processing. They
suggested requiring employers to bear
these expenses up front, rather than
reimbursing them, so that workers do
not have to borrow money to pay the
fees. They also suggested clarifying that
the employer must pay for outbound
transportation if the employer
terminates the employee without cause
or the employee is constructively
discharged, such as where the employee
leaves due to lack of work. A union
suggested incorporating an H–2A
provision requiring employers to
provide free daily transportation to the
worksite, noting that H–2B workers
often have no means to commute and
are forced into dangerous transportation
arrangements, such as being packed into
the open beds of pick-up trucks or
squeezed into vans in excessive
numbers. The union also recommended
a requirement that such transportation
comply with applicable laws. As an
alternative, the union suggested that
employers be required to state in the job
order whether they will voluntarily
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choose to provide such daily
transportation to the jobsite, noting that
such transportation would be applicable
to both H–2B workers and domestic
workers in corresponding employment.
Another commenter specifically
supported the requirement to disclose
all transportation and subsistence costs
in the job order.
After carefully considering the
voluminous comments on this issue, the
Department has made two changes in
the Final Rule. Section 655.120(j)(1)(i)
of the Final Rule continues to require
employers to provide inbound
transportation and subsistence to H–2B
employees and to U.S. employees who
have traveled to take the position from
such a distance that they are not
reasonably able to return to their
residence each day. However, the Final
Rule provides that employers must
arrange and pay for the transportation
and subsistence directly, advance at a
minimum, the most economical and
reasonable common carrier cost, or
reimburse the worker’s reasonable costs
if the worker completes 50 percent of
the period of employment covered by
the job order if the employer has not
previously reimbursed such costs. The
Final Rule reminds employers that the
FLSA imposes independent wage
payment obligations, where it applies.
Section 655.20(j)(1)(ii) of the Final Rule
continues to require employers to
provide return transportation and
subsistence from the place of
employment; however, the obligation
attaches only if the worker completes
the period of employment covered by
the job order or if the worker is
dismissed from employment for any
reason before the end of the period. An
employer is not required to provide
return transportation if separation is due
to a worker’s voluntary abandonment.
The Final Rule, like the NPRM, requires
employers to reimburse all visa, visa
processing, border crossing and other
related fees in the first workweek.
The Department continues to believe
that under the FLSA the transportation,
subsistence, and visa and related
expenses for H–2B workers are for the
primary benefit of employers, as the
Department explained in Wage and
Hour’s Field Assistance Bulletin No.
2009–2 (Aug 21, 2009). The employer
benefits because it obtains foreign
workers where the employer has
demonstrated that there are not
sufficient qualified U.S. workers
available to perform the work; the
employer has demonstrated that
unavailability by engaging in prescribed
recruiting activities that do not yield
sufficient U.S. workers. The H–2B
workers, on the other hand, only receive
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the right to work for a particular
employer, in a particular location, and
for a temporary period of time; if they
leave that specific job, they generally
must leave the country. Transporting
these H–2B workers from remote
locations to the workplace thus
primarily benefits the employer who has
sought authority to fill its workforce
needs by bringing in workers from
foreign countries. Similarly, because an
H–2B worker’s visa (including all the
related expenses, which vary by
country, including the visa processing
interview fee and border crossing fee) is
an incident of and necessary to
employment under the program, the
employer is the primary beneficiary of
such expenses. The visa does not allow
the employee to find work in the U.S.
generally, but rather restricts the worker
to the employer with an approved labor
certification and to the particular
approved work described in the
employer’s application.
Therefore, the Final Rule adds a
reminder to employers that the FLSA
applies independently of the H–2B
requirements. As discussed above,
employers covered by the FLSA must
pay such expenses to nonexempt
employees in the first workweek, to the
level necessary to meet the FLSA
minimum wage (outside the Fifth
Circuit). See, e.g., Arriaga v. Florida
Pacific Farms, LLC, 305 F.3d 1228 (11th
Cir. 2002); Morante-Navarro v. T&Y
Pine Straw, Inc., 350 F.3d 1163 (11th
Cir. 2003); Gaxiola v. Williams Seafood
of Arapahoe, Inc., 2011 WL 806792
(E.D.N.C. 2011); Teoba v. Trugreen
Landcare LLC, 2011 WL 573572
(W.D.N.Y. 2011); DeLeon-Granados v.
Eller & Sons Trees, Inc., 581 F. Supp. 2d
1295 (N.D. Ga. 2008); Rosales v.
Hispanic Employee Leasing Program,
2008 WL 363479 (W.D. Mich. 2008);
Rivera v. Brickman Group, 2008 WL
81570 (E.D. Pa. 2008); contra
Castellanos-Contreras v. Decatur Hotels,
LLC, 622 F.3d 393 (5th Cir. 2010).
Payment sufficient to satisfy the FLSA
in the first workweek is also required
because § 655.20(z) of the Final Rule,
like the current H–2B regulation,
specifically requires employers to
comply with all applicable Federal,
State, and local employment-related
laws. Furthermore, because U.S.
workers are entitled to receive at least
the same terms and conditions of
employment as H–2B workers, in order
to prevent adverse effects on U.S.
workers from the presence of foreign
workers, the Final Rule requires the
same reimbursement for U.S. workers in
corresponding employment who are
unable to return to their residence each
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workday, such as those from another
state who saw the position advertised in
a SWA posting or on the Department’s
electronic job registry. The Department
does not believe that the treatment of
such expenses by the State Department
or the Internal Revenue Service controls
how they are categorized for these
purposes. Rather, employers must
simultaneously comply with all the
laws that are applicable, and must do so
by complying with the most protective
standard. See Powell v. United States
Cartridge Co., 339 U.S. 497 (1950).
The Final Rule separately requires
employers to reimburse these inbound
transportation and subsistence
expenses, up to the offered wage rate, if
the employee completes 50 percent of
the period of employment covered by
the job order. The Department believes
this approach is appropriate and
adequately protects the interests of both
U.S. and H–2B workers. It takes account
of the concerns expressed by numerous
employers that they would have to pay
the inbound transportation and
subsistence costs of U.S. workers
recruited pursuant to H–2B job orders
who do not remain on the job for more
than a very brief period of time.
Additionally, the Final Rule requires
reimbursement of outbound
transportation and subsistence if the
worker completes the job order period
or if the employer dismisses the worker
before the end of the period of
employment in the job order, even if the
employee has completed less than 50
percent of the period of employment
covered by the job order. This
requirement uses language contained in
the DHS regulation at 8 CFR.
214.2(h)(6)(vi)(E), which states that
employers will be liable for return
transportation costs if the employer
discharges the worker for any reason.
See 8 U.S.C. 1184(c)(5)(A). For example,
if there is a constructive discharge, such
as the employer’s failure to offer any
work or sexual harassment that created
an untenable working situation, the
requirement to pay outbound
transportation would apply. However, if
separation from employment is due to
voluntary abandonment by an H–2B
worker or a corresponding worker, and
the employer provides appropriate
notification specified under § 655.20(y),
the employer will not be responsible for
providing or paying for return
transportation and subsistence expenses
of that worker.
This requirement to pay inbound
transportation at the 50 percent point
and outbound transportation at the
completion of the work period is
consistent with the rule under the H–2A
visa program. Moreover, the Final Rule
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fulfills the Department’s obligation to
protect U.S. workers from adverse effect
due to the presence of temporary foreign
workers. As discussed above, under the
FLSA, numerous courts have held in the
context of both H–2B and H–2A workers
that the inbound and outbound
transportation costs associated with
using such workers are an inevitable
and inescapable consequence of
employers choosing to participate in
these visa programs. Moreover, the
courts have held that such
transportation expenses are not ordinary
living expenses, because they have no
substantial value to the employee
independent of the job and do not
ordinarily arise in an employment
relationship, unlike normal daily hometo-work commuting costs. Therefore, the
courts view employers as the primary
beneficiaries of such expenses under the
FLSA; in essence the courts have held
that inbound and outbound
transportation are employer business
expenses just like any other tool of the
trade. A similar analysis applies to the
H–2B required wage. If employers were
permitted to shift their business
expenses onto H–2B workers, they
would effectively be making a de facto
deduction and bringing the worker
below the H–2B required wage, thereby
risking depression of the wages of U.S.
workers in corresponding employment.
This regulatory requirement, therefore,
ensures the integrity of the full H–2B
required wage, rather than just the FLSA
minimum wage, over the full term of
employment; both H–2B workers and
U.S. workers in corresponding
employment will receive the H–2B
required wage they were promised, as
well as reimbursement for the
reasonable transportation and
subsistence expenses that primarily
benefit the employer, over the full
period of employment. To enhance this
protection, the Final Rule contains the
additional requirement that, where a
worker pays out of pocket for inbound
transportation and subsistence, the
employer must maintain records of the
cost of transportation and subsistence
incurred by the worker, the amount
reimbursed, and the date(s) of
reimbursement.
The Department made two clarifying
edits to this section in the Final Rule.
Paragraph (1)(ii) of this section has been
amended to clarify that the employer is
required to provide or pay for the return
transportation and daily subsistence of
a worker who has completed the period
of employment listed on the certified
Application for Temporary Employment
Certification, regardless of any
subsequent extensions. The Final Rule
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continues to provide that if a worker has
contracted with a subsequent employer
that has agreed to provide or pay for the
worker’s transportation to the
subsequent employer’s worksite, the
subsequent employer must provide or
pay for such expenses; otherwise, the
employer must provide or pay for that
transportation and subsistence.
Paragraph (2) of this section has been
amended to clarify that the employer
need not, but may, reimburse workers
for expenses that are primarily for the
benefit of the employee.
The Department does not believe that
any other change to § 655.20(j) is
necessary. The regulatory text already
clarifies that transportation must be
reimbursed from the place from which
the worker has come to work for the
employer to the place of employment;
therefore, the employer must pay for
transportation from the employee’s
home community to the consular city
and then on to the worksite. Similarly,
the regulatory text already requires the
employer to pay for subsistence during
that period, so if an overnight stay at a
hotel in the consular city is required
while the employee is interviewing for
and obtaining a visa, that subsistence
must be reimbursed. See MoralesArcadio v. Shannon Produce Farms,
Inc., 2007 WL 2106188 (S.D. Ga. 2007).
Finally, if an employer provides daily
transportation to the worksite, the
regulation already requires both that the
transportation must comply with all
applicable safety laws and that the
employer must disclose the fact that free
transportation will be provided in the
job order.
k. Employer-provided items
(§ 655.20(k)). The Department proposed
to add a new requirement under
§ 655.20(k), consistent with the
requirement under the FLSA regulations
at 29 CFR part 531, that the employer
provide to the worker without charge all
tools, supplies, and equipment
necessary to perform the assigned
duties. The employer may not shift to
the employee the burden to pay for
damage to, loss of, or normal wear and
tear of, such items. This proposed
provision gives workers additional
protections against improper deductions
for the employer’s business expenses
from required wages.
The Department received numerous
comments on this provision, the
majority of which were supportive.
Discussing the importance of the
requirement, one employee advocacy
organization cited a worker testimonial
in which a former H–2B crab picker said
the boss doesn’t give tools to use on the
job. Instead, he sells the workers knives
to pick the crabmeat. He sold a worker
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a knife for $30, but they don’t have an
option to not use it. They deduct this
amount from the paychecks.
Another organization referred to a
study of H–2B crab pickers working on
Maryland’s Eastern Shore which found
that 54 percent of workers interviewed
had had deductions for tools taken from
their weekly paychecks. Numerous
employers and employer organizations
signed on to a report, jointly published
by two large industry groups, that
characterized the requirement as
seeming unlikely to cause major
problems for employers enrolled in the
program.
However, some commenters had
objections to the proposed requirement.
One trade organization expressed
unqualified opposition to the proposal.
Several employers and industry
representatives expressed concern that
the provision was incompatible with
those industries in which employees
customarily supply their own tools.
Several of these commenters noted that
in certain industries employees have
personal preferences for their
equipment and as a matter of course
bring it with them to the job site. One
employer requested that the Department
simply state that any tools or equipment
provided to domestic workers should be
provided to similarly-employed H–2B
workers, and argued that the
requirement would unfairly favor H–2B
workers by offering them a benefit that
was not legally extended to U.S.
workers. This commenter overlooked
the fact that, like all of the provisions in
§ 655.20, this requirement applies to
both H–2B workers and U.S. workers in
corresponding employment, and would
therefore not disadvantage domestic
workers. As discussed above with
respect to the disclosure requirement in
§ 655.18(g), section 3(m) of the FLSA
prohibits employers from making
deductions for items that are primarily
for the benefit of the employer if such
deductions reduce the employee’s wage
below the Federal minimum wage.
Therefore an employer that does not
provide tools but requires its employees
to bring their own would already be
required under the FLSA to reimburse
its employees for the difference between
the weekly wage minus the cost of
equipment and the weekly minimum
wage. The proposed provision simply
extends this protection to cover the
required H–2B offered wage, in order to
protect the integrity of the required H–
2B wage rate and thereby avoid adverse
effects on the wages of U.S. workers.
However, as discussed above with
regard to proposed § 655.18(j), this
requirement does not prohibit
employees from voluntarily choosing to
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use their own specialized equipment; it
simply requires employers to make
available to employees adequate and
appropriate equipment.
No other substantive comments were
received on this provision; the Final
Rule therefore retains the requirement
as proposed.
l. Disclosure of the job order
(§ 655.20(l)). Proposed § 655.20(l)
required that the employer provide a
copy of the job order to H–2B workers
no later than the time of application for
a visa and to workers in corresponding
employment no later than the first day
of work. The job order would contain
information about the terms and
conditions of employment and
employer obligations as provided in
proposed § 655.18 and would have to be
in a language understandable to the
workers. The Department received
numerous comments in support of this
provision, and none in opposition to it.
One advocacy organization used the
experience of an H–2B worker, Yolanda,
to illustrate the importance of proposed
§ 655.20(l):
When Yolanda went to the Eastern Shore
for what would be her final year, she found
that her wages were much different than
what the recruiter promised. Yolanda was
promised $7 per hour, but earned $5 instead.
She was promised overtime, but never
received it.
This commenter concluded:
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Had Yolanda, or someone in a similar
position, known about the actual terms and
conditions of employment, she could make
an informed decision as to whether
employment in the U.S. was worthwhile.
Yet many employee advocates urged
the Department to go further in the Final
Rule. Several advocacy groups
suggested that the Department require
written disclosure of the job order at the
time of recruitment, as required under
the Migrant and Seasonal Agricultural
Worker Protection Act (MSPA), rather
than when the worker applies for a visa
or, in the case of U.S. workers in
corresponding employment, on the first
day of work. These commenters asserted
that earlier disclosure would allow
potential H–2B workers to more fully
consider their options before
committing to a U.S. employer. The
Department notes that H–2B employers
that are subject to MSPA are bound by
the requirements of that Act, including
disclosure of the appropriate job order
at the time of recruitment. The H–2B
and MSPA programs are not analogous,
however. MSPA workers are often
recruited domestically shortly before the
start date of the job order, making the
provision of the job order at the time of
recruitment both logical and practical.
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In the H–2B program, as in the H–2A
program, recruitment is often less
directly related to the work start date,
making immediate disclosure of the job
order less necessary. It thus is more
practical to require disclosure of the job
order at the time the worker applies for
a visa, to be sure that workers fully
understand the terms and condition of
their job offer before they make a
commitment to come to the United
States. To clarify, the time at which the
worker applies for the visa means before
the worker has made any payment,
whether to a recruiter or directly to the
consulate, to initiate the visa
application process. The Department
maintains that worker notification is a
vital component of worker protection
and program compliance, and believes
that the proposed requirement provides
workers with sufficient notice of the
terms and conditions of the job so that
they can make an informed decision.
Some of the same commenters
requested that the Department amend
§ 655.20(l) to require that the job order
be provided to workers in their primary
language, removing the qualifying
phrase as necessary or reasonable. The
Department agrees that providing the
terms and conditions of employment to
each worker in a language that she
understands is a key element of muchneeded worker protection. However, as
the Department intends to broadly
interpret the necessary or reasonable
qualification and apply the exemption
only in those situations where having
the job order translated into a particular
language would place an undue burden
on an employer without significantly
disadvantaging an H–2B or
corresponding worker, it declines to
remove the qualifying language.
An industry group argued that this
section was designed to transform the
job order into an employment contract.
The purpose of the disclosure is to
provide workers with the terms and
conditions of employment and of
employer obligations to strengthen
worker protection and promote program
compliance. Furthermore, as discussed
in the preamble to § 655.18, the
Department views the terms and
conditions of the job order as binding,
and requires employers to attest that
they will abide by the terms and
conditions of the H–2B program.
However, the Department leaves it to
the courts to determine private parties’
contractual rights under state contract
law.
No other substantive comments were
received on this provision; the Final
Rule therefore retains § 655.20(l) as
proposed.
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m. Notice of worker rights
(§ 655.20(m)). Proposed § 655.20(m)
required that the employer post a notice
in English of worker rights and
protections in a conspicuous location
and post the notice in other appropriate
languages if such translations are
provided by the Department. While the
Department received numerous
comments in support of this provision,
several commenters suggested
amendments that they felt would
strengthen worker protections. Several
advocacy groups requested that the
Department specify that the notice of
worker rights must instruct workers
how to file a complaint with WHD. The
poster, which will be printed and
provided by the Department, will state
that workers who believe their rights
under the program have been violated
may file confidential complaints and
will display the number for WHD’s tollfree help line.
Another advocacy organization
suggested that the provision be
amended to require the employer to post
the poster in the language of any worker
who is not fluent in English. The
Department acknowledges that the
purpose of this section would be
undermined if workers cannot read the
notice. However, the Department cannot
guarantee that it will have available
translations of the notice in any given
language, and cannot require employers
to display a translation that may not
exist. Translations will be made in
response to demand; employers and
organizations that work with H–2B
workers are encouraged to inform the
Department about the language needs of
the H–2B worker population.
n. No unfair treatment (§ 655.20(n)).
Proposed § 655.20(n) added new
language on nondiscrimination and
nonretaliation protections that are
fundamental to statutes that the
Department enforces. Worker rights
cannot be secured unless there is
protection from all forms of
intimidation or discrimination resulting
from any person’s attempt to report or
correct perceived violations of the H–2B
provisions. As provided in proposed 29
CFR 503.20, make-whole relief would be
available to victims of discrimination
and retaliation under this paragraph.
The Department received numerous
comments in support of § 655.20(n);
among them were comments from
worker advocacy organizations, labor
organizations, and a State Attorney
General’s office. One comment,
submitted by a coalition of human rights
organizations, stated support for
§ 655.20(n) and noted that the provision
will contribute to the nation’s battle
against human rights abuses, abroad and
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at home. Another comment, submitted
by a worker advocacy organization,
reinforced the importance of antiretaliatory protections, stating that over
100 workers surveyed in April 2009
reported across the board that they
would not come forward to report
abuse—even when facing severe labor
exploitation. Ignacio Zaragoza, an H–2B
temporary foreign worker from Mexico,
explained the following, ‘‘Guestworkers
are afraid to report abuse. I’ve known
people in Mississippi that have even
been assaulted and didn’t report it
because they were so afraid of losing
everything—their job, their visa,
everything. Guestworkers are really
afraid of retaliation.’’
Multiple comments suggested adding
language to § 655.20(n)(4), which
proposed providing protection from
retaliation based on contact or
consultation with an employee of a legal
assistance organization or an attorney,
to include contact with labor unions,
worker centers, and worker advocacy
organizations. These commenters
maintain that labor unions, worker
centers, and community organizations
are often the first point of contact for H–
2B workers who have experienced
violations and who may be isolated or
lack familiarity with the local
community and how to obtain redress or
legal assistance. In support of the above
argument, one commenter cited to the
NPRM where the Department stated that
because H–2B workers are not eligible
for services from federally-funded legal
aid programs, most H–2B workers have
no access to lawyers or information
about their legal rights. 76 FR 15143,
Mar. 18, 2011. In addition, a temporary
foreign worker advocacy organization
noted that employers frequently
retaliated against H–2B workers upon
learning that the H–2B workers had
spoken with that organization regarding
their rights under the H–2B program.
The Department agrees with these
commenters that proposed § 655.20(n)
fails to cover the majority of first
contacts between temporary foreign
workers and those who are regularly
communicating directly with foreign
workers helping them to correct and/or
report perceived violations of the H–2B
provisions. The commenters’ suggested
additions to § 655.20(n) are fully
consistent with the intent of this antiretaliation provision. The Department
recognizes that workers should be just
as protected from retaliation if they
contact or consult with worker centers,
community organizations, or labor
unions as they are if they contact or
consult with attorneys or legal
assistance organizations. Changes to
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§ 655.20(n)(4) will be reflected in the
Final Rule as follows: ‘‘Consulted with
a workers’ center, community
organization, labor union, legal
assistance program, or an attorney on
matters related to 8 U.S.C. 1184(c),
29 CFR part 503, or this Subpart or any
other Department regulation
promulgated thereunder;’’.
One comment submitted by a
coalition of human rights organizations
suggested that the right to federallyfunded legal services be explicitly
provided for H–2B workers. However,
providing the right to federally-funded
legal services is beyond the
Department’s jurisdiction. In addition,
some comments referred to § 655.20(n)
as protecting against retaliation from
engaging in acts of worker organizing.
To clarify, the provision protects against
discrimination and retaliation for
asserting rights specific to the H–2B
program. Workers’ rights to join
together, with or without a union, to
improve their wages and working
conditions are protected under the
National Labor Relations Act and other
similar State laws.
A labor union suggested that the
Department provide an avenue for H–2B
workers to file oral complaints with the
Department by telephone or
electronically regarding H–2B violations
and all other federal labor rights granted
temporary workers. The Department
already accepts complaints through
these means. Section 655.20(m) requires
all H–2B employers to display a notice
of worker rights, which sets out the
rights and protections for H–2B workers
and workers in corresponding
employment and informs workers how
to file a complaint with WHD.
A similar comment suggested the
Department create a mechanism for
H–2B workers who have returned to
their home country or family members
who are currently in the home country
and hearing about ongoing worker abuse
to file a complaint with DOL from their
country of origin. To clarify, any person
may contact the WHD by phone at 1–
866–4–USWAGE or online at
www.wagehour.dol.gov to request
information about the H–2B program or
to file a complaint.
One comment, submitted by a State
Attorney General’s office, suggested the
Department clarify that § 655.20(n)
provides protection to U.S. workers and
H–2B workers alike. This commenter
and a temporary foreign worker
advocacy group stressed the importance
of providing workers, especially H–2B
workers who are particularly vulnerable
to retaliation, protection against
employer retaliatory acts, as well as the
importance of encouraging workers to
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come forward when there is a potential
workplace violation. The Department
recognizes that H–2B workers can be
particularly vulnerable to retaliation
and acknowledges the importance of
assuring that H–2B workers are
protected against any unfair treatment
and retaliation. The Department
therefore clarifies that § 655.20(n) will
apply equally to H–2B workers and
workers in corresponding employment.
The State Attorney General’s office
also sought clarification of the phrase
‘‘related to 8 U.S.C. 1184(c)’’ found in
§ 655.20(n)(1). The commenter
suggested the Department state that
related complaints need not specify any
specific provision of law, and would
also include complaints of violations of
related state and local laws. The
Department rejects this suggestion, as
the anti-retaliation provision applies
only to the H–2B program. However, the
Department notes that § 655.20(z)
requires employers to abide by all other
Federal, State, and local employmentrelated laws, including any antiretaliation provisions therein.
Another comment submitted by a
worker advocacy group encouraged the
Department to clarify that legal
assistance sought in relation to the
terms and conditions of employment
includes legal assistance relating to
employer-provided housing. If a worker
sought legal assistance after an
employer charged for housing that was
listed as free of charge in the job order,
this would be a protected act; however,
a routine landlord-tenant dispute may
not fall under the protections of this
section.
o. Comply with the prohibitions
against employees paying fees
(§ 655.20(o)). Proposed § 655.20(o)
prohibited employers and their
attorneys, agents, or employees from
seeking or receiving payment of any
kind from workers for any activity
related to obtaining H–2B labor
certification or employment. The
Department received numerous
comments in support of this section
from advocacy groups, labor
organizations, and an independent
policy institute. However, a number of
these commenters took issue with the
provision allowing employers and their
agents to receive reimbursement for
passport fees. These commenters argued
that passport fees are not always for the
primary benefit of the employee,
particularly where H–2B workers
receive passports that expire within 1
year of their issue date, and urged the
Department to qualify the exception to
take such circumstances into account.
The Department is unaware of passports
with such extremely short validity
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periods and with restrictions which
would not allow the worker to use the
passport in ways unrelated to the H–2B
employment. As such, the Department
declines to make the suggested change.
The Department also received
comments from a legal network and an
independent policy institute expressing
concern that the proposed section did
not protect workers from coercion by
recruiters tenuously affiliated with an
employer or an employer’s designated
agent. These commenters requested that
the Department go beyond the
requirement at § 655.20(p), which
obligates employers to execute a written
contract with any third-party agents or
recruiters prohibiting them from seeking
or receiving payment from prospective
employees, and amend § 655.20(o) to
make H–2B employers strictly liable for
any recruitment or placement fees
charged by third parties. The
Department recognizes these
commenters’ concerns but must reject
this request for the reasons stated in the
preamble under 29 CFR 503.20,
Sanctions and remedies, Liability for
prohibited fees collected by foreign
labor recruiters and sub-contractors.
No other comments were received on
this section, which is adopted as
proposed in the Final Rule.
p. Contracts with third parties to
comply with prohibitions (§ 655.20(p)).
In § 655.20(p), the Department proposed
to amend existing § 655.22(g)(2) to
require that an employer that engages
any agent or recruiter must prohibit in
a written contract the agent or recruiter
from seeking or receiving payments
from prospective employees.
The Department received numerous
comments in support of this proposal.
However, some commenters requested
that the Department go further: One
commenter requested that the contract
include the full contact information for
the agent or recruiter. The Department
declines to require such information in
the contract, but notes that the new
requirements at § 655.9 of this Final
Rule require disclosure of the
employer’s agreements with any agent
or recruiter whom it engages or plans to
engage in the international recruitment
of H–2B workers, as well as the identity
and geographic location of any persons
or entities hired by or working for the
recruiter and the agents or employees of
those persons and entities. The
difference between § 655.9, which
requires the employer to provide copies
of such agreements to the Department
when an employer files its Application
for Temporary Employment
Certification, and this provision’s
requirements is that the requirements in
this provision are of an ongoing nature.
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The employer must always prohibit the
seeking or collection of fees from
prospective employees in any contract
with third parties whom the employer
engages to recruit international workers,
and is required to provide a copy of
such existing agreements when the
employer files its Application for
Temporary Employment Certification.
For employers’ convenience, and to
facilitate the processing of applications,
the Final Rule contains the exact
language of the required contractual
prohibition that must appear in such
agreements. Further guidance on how
the Department interprets the employer
obligations in § 655.20(o) and (p)
regarding prohibited fees can be found
in Field Assistance Bulletin No. 2011–
2 (May 2011, available at https://
www.dol.gov/whd/FieldBulletins/
fab2011_2.htm.
One comment submitted by an
advocacy group informed the
Department that many recruiters engage
local intermediaries in the recruitment
process and these recruiting
subcontractors in turn charge fees. The
commenter suggested that in addition to
stating that the recruiter will not charge
a fee, the contract must insist that the
recruiter will ensure that no
subcontractor will charge fees and that
no workers will pay fees. The
Department recognizes the complexities
of recruiters using subcontractor
recruiters and has accounted for this in
§ 655.20(p) by including the following
language: ‘‘The employer must
contractually prohibit in writing any
agent or recruiter (or any agent or
employee of such agent or recruiter)
whom the employer engages, either
directly or indirectly * * *’’.
The specific language covers
subcontractors. In addition, the required
contractual prohibition applies to the
agents and employees of the recruiting
agent, and encompasses both direct and
indirect fees. As these requirements
should sufficiently address the
commenter’s concerns, the Department
declines to adopt this suggestion.
A Member of Congress urged the
Department to require that employers
publicly disclose all recruiters and subrecruiters. In another comment
submitted by a community-based
organization, an H–2B worker described
his experience with recruiters and lack
of information regarding the recruiter,
citing having to pay very large fees to
the recruiters in his community, just for
the opportunity to apply for a work visa
and later work in the United States. He
explained that they generally do not
even know who the recruiter is working
for.
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Another comment provided the
following example of common
recruitment violations: In January 2011,
a group of 25 Mexican nationals in the
state of Guanajuato had been promised
visas and six months of work by a
recruiter. The recruiter charged each of
the workers 2000 pesos to process the
visa application. Unaware of the
legitimacy of the job offer, who the
recruiter was, or whom he was
representing, the 25 Mexicans sent the
money and their passports to the
address the ‘‘recruiter’’ provided. After
several weeks of no response, the
workers inquired at the address given,
but were told by the person living there
that the recruiter had died. The workers
lost both their money and their
passports.
The Department agrees that such
public disclosure is necessary and has
addressed the issue under § 655.9. The
Department will maintain a publicly
available list of agents and recruiters
who are party to such recruitment
contracts, as well as a list of the identity
and location of any persons or entities
hired by or working for the recruiters to
recruit H–2B workers for the H–2B job
opportunities offered by the employer.
q. Prohibition against preferential
treatment of H–2B workers (§ 655.20(q)).
In § 655.20(q) the Department proposed
to prohibit employers from providing
better terms and conditions of
employment to H–2B workers than to
U.S. workers. This provision is identical
to that found at § 655.18(a)(1) of this
Final Rule; a discussion of comments
received in response to the proposal can
be found in the preamble to that section.
The Final Rule adopts the proposal as
written.
r. Non-discriminatory hiring practices
§ 655.20(r). In § 655.20(r) the
Department proposed to retain the nondiscriminatory hiring provision
contained in § 655.22(c) of the 2008
Final Rule and to clarify that the
employer’s obligation to hire U.S.
workers continues throughout the
period described in proposed
§ 655.20(t). Under this provision,
rejections of U.S. workers continue to be
permitted only for lawful, job-related
reasons. An advocacy organization
representing low wage workers
commented in support of the proposed
provision, stating that the provision
helps the Department fulfill its
obligation to ensure that U.S. workers
are not adversely affected by the H–2B
program. This commenter also advised
the Department to be aware of job order
terms that may appear to be nondiscriminatory but have a
discriminatory impact on U.S. workers,
such as requiring drug testing or
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criminal background checks as a
condition for employment. The
Department acknowledges the potential
problem and directs the commenter to
§ 655.20(q), which specifies that job
qualifications and requirements
imposed on U.S. workers must be no
less favorable than the qualifications
and requirements that the employer is
imposing or will impose on H–2B
workers. Thus, where an employer
requires drug tests or criminal
background checks for U.S. workers and
does not require the same tests and
background checks for H–2B workers,
the employer has violated this
provision. Additionally, where an
employer conducts criminal background
checks on prospective U.S. employees,
in order to be lawful and job-related, the
employer’s consideration of any arrest
or conviction history must be consistent
with guidance from the Equal
Employment Opportunity Commission
on employer consideration of arrest and
conviction history under Title VII of the
Civil Rights Act of 1964. See https://
www.eeoc.gov/policy/docs/
convict1.html; https://www.eeoc.gov/
policy/docs/arrest_records.html; https://
www.eeoc.gov/laws/practices/
inquiries_arrest_conviction.cfm. Thus,
employers may reject U.S. workers
solely for lawful, job-related reasons,
and they must also comply with all
applicable employment-related laws,
pursuant to § 655.20(z). The Final Rule
adopts the NPRM provision as
proposed.
s. Recruitment requirements
(§ 655.20(s)). The NPRM proposed that
the employer conduct required
recruitment as described in proposed
§§ 655.40–.46. No substantive comments
were received concerning employers’
obligation to comply with recruitment
requirements, and the section is adopted
in the Final Rule as proposed.
t. Continuing obligation to hire U.S.
workers § 655.20(t). In proposed
§ 655.20(t), the Department extended the
period during which the employer must
hire qualified U.S. workers referred by
the SWA or who respond to recruitment
to 3 days before the date of need or the
date the last H–2B worker departs for
the workplace for the certified job
opportunity, whichever is later. In order
to determine the appropriate cutoff date
for SWA referrals, the Department
proposed that the employer notify the
SWA in writing if the last H–2B worker
has not departed by 3 days before the
date of need and of the new departure
date as soon as available. The
Department characterized as inadequate
the existing requirements under which
an employer is under no obligation to
hire U.S. workers after submitting the
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recruitment report, which could occur
as early as 120 days before the first date
of need. U.S. applicants—particularly
unemployed workers—applying for the
kinds of temporary positions typically
offered by H–2B employers are often
unable to make informed decisions
about jobs several months in advance; it
is far more likely that they are in need
of a job beginning far sooner. In fact,
many of these applicants may not even
be searching for work as early as several
months in advance and are therefore
unlikely to see SWA job orders in the
10 days they are posted or the
newspaper advertisements on the 2 days
they are published in accordance with
the existing minimum recruitment
requirements. This segment of the labor
force cannot afford to make plans
around the possibility of a temporary
job several months in the future. The
current recruitment and hiring structure
simply cannot be reconciled with the
Department’s obligation to protect U.S.
workers and ensure that qualified U.S.
applicants are unavailable for a job
opportunity before H–2B workers are
hired.
The Department received many
comments on this proposed
requirement—predominantly from the
SBA Office of Advocacy, employers,
their advocates, and employer
associations—asserting that accepting
U.S. applicants until 3 days before the
date of need would be unworkable for
employers. Some of these commenters
described this as the most troubling
provision in the NPRM. Some of these
commenters suggested that the
Department instead modify existing
§ 655.15(e) to require the SWA to keep
the job order posted for 30 days, while
others recommended changing the
closing date from 3 days to 30 days or
60 days before the date of need.
The Department also received
numerous comments in support of the
proposed provision from advocacy
groups, policy institutes, and labor
organizations. However, some of these
commenters felt that the provision did
not go far enough to protect the interests
of U.S. workers. Some commenters,
including a labor organization, a legal
network, and a legal policy institute,
requested that the Department extend
the obligation to hire qualified U.S.
workers into the certification period,
either until 50 percent of the period has
elapsed, as in the H–2A program, or
until only 2 weeks remain.
After extensive consideration of all
comments and mindful of its
responsibilities to ensure that qualified,
available U.S. workers are not precluded
from job opportunities, the Department
has decided to change the day through
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which employers must accept SWA
referrals of qualified U.S. applicants
until 21 days before the date of need,
irrespective of the date of departure of
the last H–2B worker. The Department
believes this reduction in the priority
hiring period to 21 days before from 3
days before the date of need will allay
a number of employer concerns, and it
takes into consideration the USCIS
requirement that H–2B workers not
enter the United States until 10 days
before the date of need. Whereas
employers expressed concern that the
proposed 3-day priority hiring cutoff
opened up the possibility that a U.S.
applicant could displace an H–2B
workers who has been recruited,
traveled to the consular’s office,
obtained a visa, or even begun inbound
transportation to the worksite, the
21-day provision gives employers more
certainty regarding the timing of and
need for their efforts to recruit H–2B
workers. At the same time, the
Department believes that the 21-day
requirement, which increases the
priority hiring period by as much as
3 months compared to the current rule,
is sufficient to protect the interests of
U.S. workers. Further, the Department
notes that the extended recruitment
period is not the only provision of this
Final Rule enhancing U.S. applicants’
access to vacancies: The number and
breadth of recruitment vehicles in place
(i.e., contact of previous workers, a
national job registry, a 15-day job
posting at worksites, among others) have
also greatly expanded.
A number of employers, trade
associations, and professional
associations expressed concern that a
continuing obligation to accept U.S.
applicants could burden employers with
additional expenses. They argued that if
an employer is compelled to hire a U.S.
worker close to the date of need, the
employer might have to absorb the cost
of recruitment, travel, and housing that
it had already arranged for foreign
workers. Employers are encouraged to
delay recruitment of foreign workers
until it becomes evident that it will be
necessary to hire such workers. With
regard to travel expenses, the
Department asserts that the additional
time granted to employers in the Final
Rule will be sufficient to allow for the
arrangement of inbound transportation
without employers having to bear any
risk of last-minute cancellations, pay
premiums for refundable fares, or pay
visa expenses that are ultimately not
needed. Housing arrangements should
not present an issue, as § 655.20(q)
requires an employer to offer U.S.
workers the same benefits that it is
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offering, intends to offer, or will provide
to H–2B workers. If an employer intends
to offer housing to H–2B workers, such
housing must also be offered to all U.S.
applicants who live outside the area of
intended employment. Housing secured
for workers can just as easily be
occupied by U.S. workers as by H–2B
workers, or some combination of U.S.
and H–2B workers.
Many of the same commenters also
worried that foreign workers no longer
needed would have wasted their time in
committing to the job opportunity and
traveling to the United States, and that
some might sue for breach of contract.
As discussed above, the new 21-day
provision will prevent H–2B workers
from being dismissed after beginning
travel from their home to the consular
office or even to the United States as the
obligation to hire U.S. workers now
ends 11 days before USCIS permits
H–2B workers to be admitted to the
country. Additionally, in order to create
appropriate expectations for potential
H–2B workers, when an employer
recruits foreign workers, it should put
them on notice that the job opportunity
will be available to U.S. workers until
21 days before the date of need;
therefore, the job offer is conditional
upon there being no qualified and
available U.S. workers to fill the
positions.
A number of employers, trade
associations, and professional
associations commented about what
they called disingenuous applicants,
e.g., U.S. workers who would be
referred shortly before the date of need,
triggering an employer’s obligation to
hire them, but who would then shirk
their responsibilities or potentially
abandon the job altogether, leaving the
employer with an unmet business need.
These commenters expressed concern
that employers would be forced to reject
recruited foreign workers in favor of
SWA-referred U.S. workers who would
quickly abandon employment, leaving
employers understaffed and unable to
find replacement workers; several
commenters asserted the U.S. workers
never show up for seasonal
employment. The Department believes
the worker protections contained in this
Final Rule will encourage U.S.
applicants hired to remain on the job. In
addition, provisions such as that found
at § 655.20(y) (Abandonment/
termination of employment) offer
protection to employers from workers
who might accept the offer of
employment but who subsequently
abandon the job, as § 655.20(y) relieves
the employer, under certain
circumstances, of the responsibilities to
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provide transportation and to fulfill the
three-quarter guarantee obligation.
Some employers, trade associations,
and professional associations expressed
concern that the proposed structure
would inhibit their ability to plan for
their seasons and commit to contracts.
The Department notes that regardless of
the obligation to hire cutoff, the H–2B
employer has a high degree of certainty
that it will have access to workers,
whether from within or outside the
United States. Further, the Final Rule’s
21-day obligation to hire cutoff should
provide employers with ample time to
identify foreign workers if they are, in
fact, needed and to initiate their travel
without substantial uncertainty. The
purpose of this provision is to ensure
that available U.S. workers have a viable
opportunity to apply for H–2B job
opportunities and to facilitate the
employment of these workers. The
Department believes that the proposed
provisions do not pose a disadvantage to
employers in terms of having certainty
that positions will be filled.
One employer noted that State laws
requiring employers in some industries
to submit requests for background
checks or drug testing for their
employees 30 to 45 days before the date
of need would preclude the hiring of
U.S. workers 21 days before the date of
need. A background check or drug test
required for employment in a State, if
listed in the job order, would be
considered a bona fide job requirement,
as long as it was clearly disclosed in the
job order and recruitment materials. An
applicant who submitted an application
for employment after a State-established
deadline and was therefore unable to
undergo such an evaluation would be
considered not qualified for
employment in that State. However,
consistent with §§ 655.18(a)(2) and
655.20(e), such a requirement must be
disclosed in the job order, and the
employer would bear the responsibility
of demonstrating that it is bona fide and
consistent with the normal and accepted
requirements imposed by non-H–2B
employers in the same occupation and
area of intended employment.
Furthermore, employers cannot treat
U.S. workers less favorably than foreign
workers with regard to start date;
employers may not conduct such
screening for H–2B workers at a later
date if the employer does not provide
the same late screening for U.S. workers
who submit an application after a Stateestablished deadline.
Due to the modification of this
provision in the Final Rule allowing for
a fixed, 21-day cut-off date for the
priority hiring rights of U.S. workers,
and with the knowledge (as reported in
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the comments discussed under
§ 655.20(f) (three-fourths guarantee))
that many employers’ workforce needs
vary throughout the season and they
require fewer workers in slow months at
the beginning and end of the season, the
Department wishes to remind employers
about the requirements of the threefourths guarantee. Specifically, the
guarantee begins on the first workday
after the arrival of the worker at the
place of employment or the advertised
first date of need, whichever is later. An
employer cannot delay the three-fourths
guarantee by telling workers not to come
to work on or after the advertised first
date of need because the employer does
not have a need for them at that time.
Particularly for U.S. workers who are
not traveling to the place of
employment, this means that when they
present themselves at the place of
employment on the advertised first date
of need, the three-fourths guarantee is
triggered, whether or not the employer
has sufficient full-time work for all of
them to perform.
u. No strike or lockout (§ 655.20(u)).
The Department proposed in § 655.20(u)
to modify the no strike or lockout
language in the current rule to require
employers to assure the Department that
there is no strike or lockout at the
worksite for which the employer is
requesting H–2B certification, rather
than solely in the positions being filled
by H–2B workers, which is the
requirement under the current
regulations. If there is a strike or lockout
at the worksite when the employer
requests H–2B workers, the CO may
deny the H–2B certification.
The Department received several
comments from advocacy groups and
labor organizations in support of the
proposed change. These groups
suggested that the change would
provide a needed protection for U.S.
workers whose employers seek to
circumvent the current regulatory
provisions by transferring workers to fill
positions vacated by striking workers.
One labor organization that generally
supported the proposed regulation
indicated that it believed the
Department did not go far enough
because employers could still transfer
U.S. workers from one worksite to a
second to fill positions vacated by
striking workers, then use H–2B workers
to fill the vacancies at the first worksite.
This commenter suggested that if the
Department would not extend the
strike/layoff prohibition to all employer
worksites it should at least consider
expanding the prohibition to worksites
operated by the employer within a
particular region or geographic
proximity, for example within a 500-
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mile radius. The Department
acknowledges the commenter’s concern,
and while the Department rejects the
proposal to expand the provision to all
employer locations and rejects the
proposal to extend the prohibition to all
employer facilities within a 500-mile
radius, the Department has concluded
that, in order to effectuate its intent in
expanding the no strike or lockout
provision as proposed in the NPRM, it
will expand the provision to include all
employer worksites within the area of
intended employment. Thus, the
proposed language has been modified in
the Final Rule to further decrease the
chances that an unscrupulous employer
will circumvent the regulatory
requirement by transferring U.S.
workers to fill positions vacated by
striking workers and employing H–2B
workers in the positions those U.S.
workers vacated. The Department
believes that this extension will provide
added protection for workers whose
employers have multiple locations
within a commuting distance where
transferring employees among locations
would be relatively easy.
Several trade associations commented
that the prohibition on strikes/lockouts
was too broad. One of these commenters
was concerned that the Department did
not specify that the provision was not
intended to encompass annual layoffs
that occur due to the end of the peak
season. The Department did not intend
for § 655.20(u) to include employer
layoffs; section § 655.20(v) addresses
employer layoffs. Other commenters
were concerned that a work stoppage as
a result of labor disputes could refer to
commonly-occurring minor
disagreements and would effectively
mean no employer in the country could
use the program. The Department
maintains that the definition of strike is
sufficiently clear, and contends that this
provision will not inhibit the use of the
program by a large number of
employers.
Another commenter indicated that the
ability of a CO to deny an application
due to a strike or a lockout might
complicate the application process and
increase delays, unsuccessful
applications, and last-minute refusals of
H–2B workers. The Department does not
anticipate that this will be a problem as
long as employers do not seek approval
of an Application for Temporary
Employment Certification while there is
a strike or lockout at the worksite.
v. No recent or future layoffs
(§ 655.20(v)). Proposed § 655.20(v)
modified the dates of impermissible
layoffs of U.S. workers, extending the
period during which an H–2B employer
must not lay off any similarly employed
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U.S. workers from 120 days after the
date of need to the end of the
certification period. The Department
also proposed adding the requirement
that H–2B workers must be laid off
before any U.S. worker in corresponding
employment.
The Department received several
comments that expressed support for
this revision. The Department received
two comments that suggested the period
be extended to 180 days prior to the
date of need, instead of the current
provision of 120 days prior to the date
of need. One commenter, a labor
organization, suggested the 180-day
period in order to be consistent with
one of its other proposed regulatory
changes, discussed in the preamble to
§ 655.20(w). The Department did not
adopt the relevant portion of that
suggested change, and therefore
declines to change this provision. One
commenter asserted that this change
would correspond with a U.S. worker’s
eligibility for unemployment benefits.
Unemployment insurance eligibility
varies by State and can change due to
economic conditions, while the 120-day
period in the layoff provision is tied to
the seasonal nature of the program. The
Department maintains the 120-day
period in this Final Rule.
Several employers commented that
the regulations should specify that this
provision is not intended to address
annual layoffs that occur due to the end
of the peak season. The Department
notes that the provision specifically
permits layoffs due to lawful, job-related
reasons provided that the employer
performs all required recruitment and
contacts all former U.S. employees as
indicated in § 655.20(w). Similarly, one
commenter indicated that this provision
would not allow an employer who laid
off workers due to a natural or manmade
disaster to request H–2B workers when
cleanup work begins and the employer
is unable to find U.S. workers. The
Department concludes that these
commenters’ concerns are unfounded,
as the provision specifically permits
layoffs due to lawful, job-related reasons
such as the end of the peak season or
a natural or manmade disaster, as long
as, if applicable, the employer lays off
H–2B workers first.
w. Contact with former U.S.
employees (§ 655.20(w)). The
Department proposed to require
employers to contact former U.S.
employees who worked for the
employer in the occupation and at the
place of employment listed on the
Application for Temporary Employment
Certification within the last year,
including any U.S. employees who were
laid off within 120 days before the date
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of need. This expanded the existing
requirement that employers contact only
former employees who were laid off
during the 120 days preceding the date
of need. The employer is not required to
contact those who were dismissed for
cause or who abandoned the worksite.
Note, however, that voluntary
abandonment is different from a
constructive discharge, which occurs
when the ‘‘working conditions have
become so intolerable that a reasonable
person in the employee’s position
would have felt compelled to resign.’’
Pennsylvania State Police v. Suders, 542
U.S. 129, 141 (2004).
All comments addressing this issue
supported the change. One advocacy
organization that supported the change
also expressed concern about employers
determining which workers they have
terminated for cause because there is no
requirement that employers keep
records of the reasons why a person was
dismissed. Though the regulations do
not specify a requirement to keep
records of reasons for termination, many
employers keep such records as a matter
of general business practice. Moreover,
such a record would be useful if there
were an investigation to show that the
termination was in fact for cause and
not a layoff.
A labor organization proposed that
the Department require employers to
contact those employees who quit after
having their hours reduced by 25
percent or more during the 180-day
period preceding the submission of the
Application for Temporary Employment
Certification. The Department reminds
employers if qualified former employees
apply during the recruitment period
they, like all qualified U.S. applicants,
must be offered employment. However,
there is no definitive way to determine
the motivation behind an employee’s
resignation. The suggested requirement
would place an unnecessary burden on
both employers seeking to comply with
the provision and Departmental
employees seeking to verify compliance.
The Department therefore declines to
make the suggested change and
maintains the proposed language in the
Final Rule.
x. Area of intended employment and
job opportunity (§ 655.20(x)). Proposed
§ 655.20(x) modified existing § 655.22(l)
by additionally prohibiting the
employer from placing a worker in a job
opportunity not specified on the
Application for Temporary Employment
Certification, clarifying that an H–2B
worker is only permitted to work in the
job and in the location that OFLC
approves unless the employer obtains a
new labor certification. No comments
were received on this section, and the
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provision is adopted in the Final Rule
without change.
y. Abandonment/termination of
employment (§ 655.20(y)). Proposed
§ 655.20(y), which is largely consistent
with the existing notification
requirement in § 655.22(f), described the
requirement that employers notify OFLC
and DHS within 2 days of the separation
of an H–2B worker or worker in
corresponding employment if the
separation occurs before the end date
certified on the Application for
Temporary Employment Certification.
The section also deemed that an
abandonment or abscondment begins
after a worker fails to report for work for
5 consecutive working days, and added
language relieving the employer of its
outbound transportation requirements
introduced in the NPRM under
§ 655.22(j) and 29 CFR 503.16(j) if
separation is due to a worker’s
voluntary abandonment. Additionally,
the proposed section clarified that if a
worker voluntarily abandons
employment or is terminated for cause,
an employer will not be required to
guarantee three-quarters of the work in
the worker’s final partial 6- or 12-week
period, as described in proposed
§ 655.22(f) and 29 CFR 503.16(f).
A professional association asserted
that an employer that fails to provide
notice as required should be relieved of
its three-quarter guarantee obligation if
its notification was innocently or
mistakenly late. Similarly, a coalition
representing agents and employers and
a trade association expressed concern
that the Department’s 2-day window
implies that an employer who waits
until the third day to provide
notification would be in violation. It is
not the Department’s intention in this
preamble to determine whether
hypothetical situations would
ultimately be charged as violations of
this rule. Instead, the Department
reminds the public that WHD will
determine violations of this and other
employer requirements after appropriate
investigative actions, using the clear
criteria defining what constitutes a
violation found in 29 CFR 503.19.
A coalition representing agents and
employers commented that the
Department should define precisely
which day of a separation triggers the
start of the 2-day window; articulate
what happens if the second day falls on
a Federal holiday; articulate what
happens in the event that the
notification is sent within 2 days but
transmission failures delay the
Department’s receipt; provide specific
notification procedures including email
addresses employers should use; and
reduce its fines to conform with those
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of DHS. The Department asserts that its
language in the proposed section
provides employers clear guidance
regarding their notification obligations.
This assertion is backed up by the
Department’s enforcement experience of
the almost identical provision at
existing § 655.22(f); neither WHD nor
employers have expressed confusion
regarding the notification requirements
or articulated concerns similar to the
commenter’s since the introduction of
the requirement in the 2008 Final Rule.
Furthermore, the Department notes that
an identical provision in its H–2A
regulations has not resulted in
confusion for H–2A employers, many of
whom also participate in the H–2B
program. The Department advises
employers to send notification, either in
hard copy or via email, using the
contact information they used to submit
their Application for Temporary
Employment Certification, and to retain
records in accordance with
documentation retention requirements
outlined at 29 CFR 503.17. Finally, the
commenter is correct that the
Department’s penalties for this violation
are different from DHS fines. The
notification requirement serves different
purposes for DHS and the Department,
and the Department believes it is fair
and consistent to treat this violation in
the same way it treats other violations
of employers’ H–2B obligations.
The same commenter also claimed
that the proposed language is unclear
and that the Department should clarify
that an employer is relieved of its
obligations under the three-quarter
guarantee not only in the event of a
voluntary abandonment but also of a
lawful termination. The Department
cites its final sentence in § 655.20(y) and
29 CFR 503.16(y) as unambiguous in
relieving an employer from the
guarantee for both a voluntary
abandonment and a termination for
cause.
Two worker advocacy groups claimed
that unscrupulous employers could
misuse the DHS notification as a threat
to coerce workers, whose immigration
status is tied inextricably to the job, to
endure abusive work conditions. The
Department emphasizes that the
notification requirements in § 655.20(y)
are not intended to be used as threats
against vulnerable foreign workers to
keep them in abusive work situations.
Further, the Department cautions that
coercing workers into performing labor
by threatening potential deportation or
immigration enforcement may violate
anti-trafficking laws such as the William
Wilberforce Trafficking Victims
Protection Act of 2008 (TVPRA), 18
U.S.C. 1584, 1589, among other laws.
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While the worker advocates argue that
the Final Rule should eliminate the DHS
portion of the notification and replace it
with a requirement to notify WHD, the
Department reminds the public that
DHS regulations already compel
employers to notify DHS of early
separations by assisting the agency in
keeping track of foreign nationals in the
United States. Both OFLC’s (which may
share information with WHD) and
DHS’s awareness of early separations
are critical to program integrity,
allowing the agencies to appropriately
monitor and audit employer actions. If
not for proper notification, employers
with histories of frequent and
unjustified early dismissals of workers
could continue to have an Application
for Temporary Employment
Certification certified and an H–2B
Petition approved. In addition, the same
two worker advocacy groups stated that
WHD should investigate and confirm
the veracity of purported terminations
for cause to ensure that employers do
not misuse this provision to escape their
outbound travel obligations and the
three-quarter guarantee. One worker
advocacy group argued that retaliation
for workers asserting their rights should
not be considered legitimate cause for
termination and suggested the
Department require employers to inform
workers that they can quit abusive
conditions and work for another
employer, provided the new
employment is authorized. The
Department reminds the public that
WHD, as part of its enforcement
practices, may in fact investigate
conditions behind the early termination
of foreign workers to ensure that the
dismissals were not effected merely to
relieve an employer of its outbound
transportation and three-quarter
guarantee obligations. Further,
§ 655.20(n) already protects workers
from a dismissal in retaliation for
protected activities.
Several comments related to the
Department’s language describing
abscondment. A private citizen and a
coalition representing agents and
employers claimed there is an
inconsistency between the proposed
rule, which considers abscondment to
occur after 5 days, and some employer
personnel rules that purportedly set the
threshold at 3 days. A worker advocacy
group argued that workers who fail to
report for work due to legitimate injury
or illness should not be considered to
have abandoned employment. The
Department maintains that the proposed
language does not intrude upon or
supersede employer attendance policies.
The proposed requirement that an
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employer provide appropriate
notification if a worker fails to report for
5 consecutive working days does not
preclude an employer from establishing
a different standard for dismissing its
workers. Further, the Department did
not intend the H–2B regulations to
provide job protection to workers in the
case of illness or injury and considers
such determinations beyond its
authority. The proposed rule leaves it
largely to employers to determine the
worker behaviors that trigger a dismissal
for cause, beyond the protected
activities described in § 655.20(n) and
the requirement in § 655.20(z) that the
employer comply with all applicable
employment-related laws.
z. Compliance with applicable laws
(§ 655.20(z)). In proposed § 655.20(z),
which requires H–2B employers to
comply with all other applicable
Federal, State, and local employment
laws, the Department retained much of
the language from the existing provision
at § 655.22(d) and added an explicit
reference to the TVPRA. The
Department received comments from
several worker advocacy organizations
expressing general support for
referencing the Act, which prohibits
employers from holding or confiscating
workers’ immigration documents such
as passports or visas under certain
circumstances. One worker advocacy
organization suggested the Department
broaden the proposed section in two
ways: By including employers’ attorneys
and agents in the prohibition and by
expanding the documents employers are
barred from holding to incorporate
deeds to a worker’s auto, land and
home. The Department does not have
the authority to include documents not
specified in the TVPRA at 18 U.S.C.
1592(a), such as the deeds to an H–2B
worker’s auto, land, or home. However,
the Department agrees that the
prohibition must include attorneys and
agents in order to achieve the intended
worker protection. The Department has
added appropriate language to
§ 655.20(z) of this Final Rule to reflect
the change.
aa. Disclosure of foreign worker
recruitment (§ 655.20(aa)). The NPRM
proposed to require the employer and
its attorney and/or agents to provide a
copy of any agreements with an agent or
recruiter whom it engages or plans to
engage in the international recruitment
of H–2B workers under this Application
for Temporary Employment
Certification (proposed § 655.9), at the
time of filing the application (proposed
§ 655.15(a)). As explained in the
preamble under § 655.9, this Final Rule
adopts that provision as modified to
also include disclosure of persons and
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entities hired by or working for the
recruiter or agent, and any of their
agents or employees, to recruit
prospective foreign workers for the H–
2B job opportunities offered by the
employer. Therefore, the Department is
adding this obligation to the list of
Assurances and Obligations in this Final
Rule, as it as a critical obligation that
will significantly enhance the
recruitment process.
E. Processing of an Application for
Temporary Employment Certification
1. § 655.30 Processing of an
Application and Job Order
In the NPRM, we proposed that, upon
receipt of an Application for Temporary
Employment Certification and copy of
the job order, the CO will promptly
conduct a comprehensive review. The
CO’s review of the Application for
Temporary Employment Certification,
in most cases,11 will no longer entail a
determination of temporary need
following H–2B Registration. Instead, as
proposed, this aspect of the CO’s review
is limited to verifying that the employer
previously submitted a request for and
was granted H–2B Registration, and that
the terms of the Application for
Temporary Employment Certification
have not significantly changed from
those approved under the H–2B
Registration.
The proposed rule also required the
use of next day delivery methods,
including electronic mail, for any notice
or request sent by the CO requiring a
response from the employer and the
employer’s response to such a notice or
request. This proposed section also
contained a long-standing program
requirement that the employer’s
response to the CO’s notice or request
must be sent by the due date or the next
business day if the due date falls on a
Saturday, Sunday, or a Federal holiday.
The Final Rule adopts the language of
the NPRM without change.
One labor organization urged us to
strictly scrutinize applications
requesting 10 or more workers to
perform construction or constructiontype work to guard against
unscrupulous employers’ applications.
While we appreciate the commenter’s
concern, we do not believe that it is
11 As provided in the discussion of § 655.11, each
employer filing an Application for Temporary
Employment Certification is required under the
Final Rule to establish temporary need through the
registration process. However, in limited
circumstances where the employer has applied for
a temporary labor certification on an emergency
basis under emergency procedures in § 655.17
without an approved H–2B Registration, the CO
may be required to also make a determination of
temporary need.
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necessary to strictly scrutinize only
certain types of applications but rather
will continue to thoroughly review all
applications.
Some commenters expressed concern
that the H–2B program would be more
efficient and predictable if we were
subject to more deadlines governing our
decision-making. We have set
timeframes throughout these regulations
for our decision-making (e.g., the CO’s
issuance of Notices of Deficiency and
Notices of Acceptance) that are designed
to ensure application processing
progresses efficiently without sacrificing
program integrity. Different applications
require different periods of time for
review, depending on the quality and
completeness of the application. While
we cannot set more specific timeframes
that would ensure appropriate
adjudication of all applications, we will
process each application as quickly as
possible.
2. § 655.31 Notice of Deficiency
We proposed to require the CO to
issue a formal Notice of Deficiency
where the CO determines that the
Application for Temporary Employment
Certification and/or job order contains
errors or inaccuracies, or fails to comply
with applicable regulatory and program
requirements. The proposed provision
required the CO to issue the Notice of
Deficiency within 7 business days from
the date on which the Chicago NPC
receives the employer’s Application for
Temporary Employment Certification
and job order.
As proposed, once the CO issues a
Notice of Deficiency to the employer,
the CO will provide the SWA and the
employer’s attorney or agent, if
applicable, a copy of the notice. The
Notice of Deficiency would include the
specific reason(s) why the Application
for Temporary Employment
Certification and/or job order is
deficient, identify the type of
modification necessary for the CO to
issue a Notice of Acceptance, and
provide the employer with an
opportunity to submit a modified
Application for Temporary Employment
Certification and/or job order within 10
business days from the date of the
Notice of Deficiency. The Notice of
Deficiency would also inform the
employer that it may, alternatively,
request administrative review before an
Administrative Law Judge (ALJ) within
10 business days of the date of the
Notice of Deficiency and instruct the
employer how to file a request for such
review in accordance with the
administrative review provision under
this subpart. Finally, the Notice of
Deficiency would inform the employer
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that failing to timely submit a modified
Application for Temporary Employment
Certification and/or job order, or request
administrative review, will cause the
CO to deny that employer’s Application
for Temporary Employment
Certification. In the Final Rule, we have
adopted the proposed provisions
without change.
Some commenters suggested limiting
the CO to one Notice of Deficiency,
covering all deficiencies, while another
suggested limiting an employer to a
certain number of Notices of Deficiency
received before restricting it from using
the program in the future. We
understand that these commenters are
interested in processing efficiency, as
are we. However, we have decided to
retain the CO’s ability to issue multiple
Notices of Deficiency, if necessary, to
provide the CO with the needed
flexibility to work with employers
seeking to resolve deficiencies that are
preventing acceptance of their
Application for Temporary Employment
Certification. For example, there are
situations in which a response to a
Notice of Deficiency raises other issues
that must be resolved, requiring the CO
to request more information. The CO
must have the ability to address these
situations. Additionally, we do not
believe that it would be appropriate to
restrict an employer from participating
in the program in the future based on its
receipt of multiple Notices of
Deficiency, as this result would be
unduly harsh, especially if the employer
is new to the program or committed
unintentional errors when submitting its
Application for Temporary Employment
Certification or job order.
3. § 655.32 Submission of a Modified
Application or Job Order
In the NPRM, we proposed to permit
the CO to deny any Application for
Temporary Employment Certification
where the employer neither submits a
modification nor requests a timely
administrative review, and that such a
denial cannot be appealed. The
proposed rule also required the CO to
deny an Application for Temporary
Employment Certification if the
modification(s) made by the employer
do not comply with the requirements for
certification in § 655.50. A denial of a
modified Application for Temporary
Employment Certification may be
appealed.
Under the proposed rule, if the CO
deems a modified application
acceptable, the CO issues a Notice of
Acceptance and requires the SWA to
modify the job order in accordance with
the accepted modification(s), as
necessary. In addition to requiring
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modification before the acceptance of an
Application for Temporary Employment
Certification, we proposed to permit the
CO to require the employer to modify a
job order at any time before the final
determination to grant or deny the
Application for Temporary Employment
Certification if the CO determines that
the job order does not contain all the
applicable minimum benefits, wages,
and working conditions. The proposed
rule required the CO to update the
electronic job registry to reflect the
necessary modification(s) and to direct
the SWA(s) in possession of the job
order to replace the job order in their
active files with the modified job order.
The proposed rule also required the
employer to disclose the modified job
order to all workers who were recruited
under the original job order or
Application for Temporary Employment
Certification. The Final Rule adopts
these provisions.
One commenter suggested that, if we
decide to retain the CO’s ability to
require post-acceptance modifications,
we should provide employers with an
opportunity for immediate de novo
hearings. As discussed further in the
larger discussion of administrative
review process contained in the Final
Rule, we decline to add de novo
hearings in this post-acceptance
certification model. Since the
application will be denied under
§ 655.53, an employer will have the
right of appeal. We decline, however, to
provide for a de novo hearing.
Some commenters opposed the CO
having the ability to require
modifications post-acceptance, arguing
the CO’s ability to issue unlimited
modifications at any point in the
process is inefficient for both the CO
and the employer and is contrary to the
employer’s interest in finality. We have
determined it is contrary to the integrity
of the H–2B program to limit the CO’s
ability to require modification(s) of a job
order, even after acceptance. In some
cases, information may come to the CO’s
attention after acceptance indicating
that the job order does not contain all
the applicable minimum benefits,
wages, and working conditions that are
required for certification. This provision
enables the CO to ensure that the job
order meets all regulatory requirements.
4. § 655.33 Notice of Acceptance
We proposed to require the CO to
issue a formal notice accepting the
employer’s Application for Temporary
Employment Certification for
processing. Specifically, we proposed
that the CO would send a Notice of
Acceptance to the employer (and the
employer’s attorney or agent, if
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10087
applicable), with a copy to the SWA,
within 7 business days from the CO’s
receipt of the Application for
Temporary Employment Certification or
modification, provided that the
Application for Temporary Employment
Certification and job order meet all the
program and regulatory requirements.
As proposed, the Notice of
Acceptance directs the SWA: (1) To
place the job order in intra- and
interstate clearance, including (i)
circulating the job order to the SWAs in
all other States listed on the employer’s
Application for Temporary Employment
Certification and job order as
anticipated worksites and (ii) to any
States to which the CO directs the SWA
to circulate the job order; (2) to keep the
job order on its active file and continue
to refer U.S. workers to the employer
until the end of the recruitment period
defined in § 655.40(c), as well as
transmit those instructions to all other
SWAs to which it circulates the job
order; and (3) to circulate a copy of the
job order to certain labor organizations,
where the job classification is
traditionally or customarily unionized.
As proposed, the Notice of
Acceptance also directs the employer to
recruit U.S. workers in accordance with
employer-conducted recruitment
provisions in §§ 655.40–655.47, as well
as to conduct any additional
recruitment the CO directs, consistent
with § 655.46, within 14 calendar days
from the date of the notice. The Notice
of Acceptance would inform the
employer that such employer-conducted
recruitment is required in addition to
SWA circulation of the job order in
intrastate and interstate clearance under
§ 655.16. In addition, the Notice of
Acceptance would require the employer
to submit a written report of its
recruitment efforts as specified in
§ 655.48.
Under the proposed rule, the Notice
of Acceptance would have also advised
the employer of its obligation to notify
the SWA with which it placed its job
order if the last H–2B worker has not
departed for the place of employment by
the third day preceding the employer’s
date of need. This would have indicated
to the SWA when to stop referring
potential U.S. workers to the employer.
We are adopting the proposed
provisions on the Notice of Acceptance
content, with one modification. For
consistency with an amendment made
to the employer’s obligation to continue
hiring qualified U.S. workers in § 655.20
until 21 days before the date of need, we
have deleted proposed paragraph (b)(3)
of this section, which would have
notified the employer that it must
inform the SWA(s) handling the job
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order in writing if the last H–2B worker
has not departed for the place of
employment by the third day preceding
the employer’s date of need. Further
discussion of this modified position
may be found in the discussion of an
employer’s assurances and obligations
under § 655.20.
Comments about the content of the
Notice of Acceptance focused on the
recruitment instructions contained in
the Notice. One commenter suggested
that we permit SWAs to circulate job
orders nationwide and put the job order
on the Internet to broaden the reach of
U.S. labor market recruitment. In
contrast, another commenter suggested
that the requirement for a SWA to place
the job order in interstate clearance is
both unnecessary and burdensome,
given the introduction of the electronic
job registry, the absence of supply States
for non-agricultural work, and the
difficulty of coordinating processing
among multiple SWAs. We believe both
the electronic job registry and the
interstate clearance process serve
important, but distinct, purposes in
testing the U.S. labor market. The
electronic job registry, available to
anyone with Internet access,
accomplishes the objective of
disseminating job opportunity
information to the widest U.S. audience
possible. Adding nationwide circulation
to the SWAs’ responsibilities would
duplicate the function of the electronic
job registry, unnecessarily burdening
the SWAs. The interstate clearance
process, however, targets local labor
markets that are most likely to have
available U.S. workers, so that those
SWAs can make the job opportunity
information available to the interested,
available, and qualified U.S. workers in
that particular local labor market. While
there are not traditional supply States
for non-agricultural work, the CO may
identify States in which circulating the
job order is likely to target additional
local markets with potentially available
U.S. workers (e.g., designated areas of
substantial unemployment or areas
where mass layoffs have occurred).
Some commenters discussed the
community-based organization contact
requirement. While the Notice of
Acceptance notifies the employer when
the CO has determined that such contact
is appropriate to the occupation and
areas of intended employment, the
community-based organization contact
requirement is an employer recruitment
activity, when appropriate, appearing in
§ 655.45. Accordingly, we have
addressed these comments in the
discussion of § 655.45.
We received many comments on the
proposals in this section that the SWA
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circulate the job order to the applicable
labor organizations and in § 655.44 that
the employer contact the local union.
While some opposed the proposal that
employers not party to a collective
bargaining agreement would be required
to contact a labor organization, others
supported the return to this historic
practice. Many commenters expressed
concern about an employer’s ability to
discern when and what type of labor
organization contact was required,
finding the phrase, where the
occupation or industry is traditionally
or customarily unionized, vague. These
commenters feared that using this
language meant employers and the CO
would disagree about when labor
organization contact was required. Some
suggested changing or removing this
language.
After reviewing the comments, we
have decided to remove this
requirement from the employer’s
recruitment steps in § 655.44, and to
retain the requirement that the SWA
circulate the job order to the applicable
labor organizations under this section.
We believe this modification will
eliminate duplicative efforts and resolve
concerns about an employer’s ability to
determine when and what type of labor
organization contact is required. The
CO, in consultation with the SWA, will
make a determination about whether
labor organization contact is required
and include specific directions to the
SWA in the Notice of Acceptance, as
specified in paragraph (b)(6) of this
section. Under the Final Rule, an
employer will neither have to determine
when such contact is required nor have
to contact the local union; rather, the
Notice of Acceptance will notify the
employer whether the CO has directed
the SWA to initiate such contact.
While the standard used for labor
organization contact is based on
historical knowledge and practice,12 we
are mindful of the fluidity of unionized
occupations and will gauge trends
accordingly. As discussed in the NPRM,
unions have traditionally been
recognized as a reliable source of
referrals of U.S. workers. Because the
SWAs have greater knowledge of the
local labor markets, including labor
organizations, and have traditionally
included labor organizations in their
efforts to match workers with job
12 See, Employment and Training Guidance Letter
21–06, Change 1: Procedures for H–2B Certification
of Temporary Non-Agricultural Occupations.
Attachment A at 7. https://wdr.doleta.gov/directives/
attach/TEGL/TEGL21-06c1a1.pdf. See also, General
Administration Letter 1–95: Procedures for
Temporary Labor Certification in Non-agricultural
Occupations (December 31, 1999). https://
wdr.doleta.gov/directives/attach/GAL195_attach.pdf.
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opportunities, the SWAs are in the best
position to identify whether there are
local labor organizations which cover
the occupation and which local labor
organizations are most likely to refer
qualified and available U.S. workers for
the job opportunity.
In addition to commenting on the
return to this long-standing program
requirement, some commenters
responded to our request for suggestions
on how to best determine the
circumstances which would trigger the
requirement for contacting labor
organizations. Some commenters
suggested we specifically identify
certain industries and/or occupations as
customarily unionized and require
contact with organizations which
represent workers in those occupations/
industries. Other commenters suggested
that we and/or the SWAs work together
with labor organizations to develop a
list of organizations and/or an email
listserv to be publicized for purposes of
ensuring appropriate and consistent
application of the contact requirement.
We appreciate the suggestions for the
circumstances or criteria for contacting
labor organizations. Specifically, we
have taken under advisement the
suggestion that we develop a list of
organizations for the uniform
application of the contact requirement.
Some commenters noted the fluidity of
unionized occupations over time. We
are also mindful that unionization
within industries, occupations, and
areas of intended employment is not
uniform. Because of this lack of
uniformity, we do not think it is
appropriate to base the contact
requirement on a specified industry or
occupation. Rather than create a general
rule in the regulation, we think that a
list of labor organizations to be
contacted must focus on specific
occupations in specific areas of
intended employment and must be
responsive to trends in the marketplace.
Therefore, we believe retaining the labor
organization contact requirement as
proposed in paragraph (b)(5) of this
section will most appropriately include
labor organizations in the U.S. labor
market test. We will notify the public
when such a list is devised. We will
work closely with the SWAs to ensure
a complete and appropriate test of the
labor market, including contacting the
applicable labor organizations, is made
before approving an Application for
Temporary Employment Certification.
Some commenters offered suggestions
about the particular entities that should
be contacted with respect to this
requirement. These suggestions
included requiring contact with a
specific federation of labor
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organizations, requiring contact with all
unions within a State or with
jurisdiction over the area of intended
employment or within an equivalent
geographic distance, or requiring
contact with all unions representing
workers of a specific skill and wage
level. As discussed above, we think the
contact requirement should be based on
the situation in the local labor market,
not on an absolute rule about which
labor organizations to contact. We will
work with the SWAs to develop a
flexible list tailored to local
circumstances.
Finally, some commenters proposed
that we require employers to prove
contact with labor organizations. As this
Final Rule requires the SWA, not the
employer, to initiate contact with labor
organizations as a component of testing
the U.S. labor market, the proof
suggested by these commenters is not
necessary.
One labor and worker advocacy
organization expressed general support
for the application process described in
the proposed rule and agreed with the
provisions ensuring that only the final
job order is used and an employer may
not commence recruitment until the CO
accepts the modified job order. Like the
commenter, we believe the final,
approved version of the job order,
containing the applicable minimum
benefits, wages, and working
conditions, is essential to an appropriate
test of the U.S. labor market.
Some commenters expressed support
for the regulations requiring employers
to submit a recruitment report, asserting
that the requirement makes it more
difficult for unscrupulous employers to
bypass U.S. workers in favor of more
vulnerable foreign workers. We agree
that the requirement adds accountability
and supports program integrity. Further
discussion of the recruitment report
provision can be found in the
discussion of § 655.48.
5. § 655.34 Electronic Job Registry
In the NPRM, we proposed posting
employers’ H–2B job orders, including
modifications and/or amendments
approved by the CO, on an electronic
job registry to disseminate the job
opportunities to the widest audience
possible. The electronic job registry was
initially created to accommodate the
posting of H–2A job orders, but we
proposed to expand the electronic job
registry to include H–2B job orders. As
proposed, the CO would post the job
orders on the electronic job registry after
accepting an Application for Temporary
Employment Certification for the
duration of the recruitment period, as
provided in § 655.40(c). At the
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conclusion of the recruitment period,
we would maintain the job order on the
electronic job registry in inactive status,
making the information available for a
variety of purposes. In the Final Rule,
we have adopted the proposed
provisions without change.
Many commenters supported the
introduction of the electronic job
registry, viewing it as a means to
increase the program’s transparency and
improve U.S. worker awareness of and
access to nonagricultural jobs. Some
also contended that the electronic job
registry will facilitate earlier and more
frequent detection of program abuse.
Commenters supporting the
introduction of the electronic job
registry suggested expanding electronic
job registry postings to the Application
for Temporary Employment
Certification, other job-offer-related
documents, and contracts between
employers and foreign recruiters to
further improve transparency. However,
other commenters expressed concern
about the volume and nature of
information potentially exposed in the
job order posted on the electronic job
registry. These commenters contended
that since employment contracts
typically incorporate employee
handbooks and other documents by
reference, it would be difficult, if not
impossible, to draft a document that
contains all material terms and
conditions and that would be
appropriate to disclose, in its entirety,
on the Internet. The commenters argued
that while an employer could submit
detailed information to the CO for
review (e.g., employee contracts or
handbooks), making such information
available for public viewing would
infringe on an employer’s legitimate
business interest in maintaining the
confidentiality of employment terms.
Comments about transparency and
exposure concerns have been addressed
in the larger discussion of public
disclosure of information under
§ 655.63. Also, as outlined further in the
discussion of the job order content
requirements, the Final Rule details
specific minimum content requirement
for job orders, sensitive to these
concerns, which in turn affect the job
order content to be posted on the
electronic job registry.
One commenter suggested that the job
opportunity appear in the electronic job
registry until the end of the certification
period, rather than just the recruitment
period. As articulated in the NPRM, the
purpose of posting job orders on the
electronic job registry is to serve as an
effective, useable tool for alerting U.S.
workers to jobs for which employers are
recruiting H–2B workers. These jobs are
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accessible to the public through the
Department’s resources, including its
One-Stop Career Centers, and through a
link to the electronic job registry on the
OFLC’s Web site https://
www.foreignlaborcert.doleta.gov/. As a
recruitment tool, we believe it is
appropriate for the job order to appear
as active during the recruitment period
and to be placed in inactive status, but
still accessible, on the electronic job
registry after the recruitment period
ends.
One commenter suggested we give
H–2B workers access to the electronic
job registry so that they can find other
H–2B employment, if they are displaced
(e.g., replaced by a U.S. worker) or
experiencing improper treatment. While
our purpose in introducing the
electronic job registry is to alert U.S.
workers of job opportunities, the
electronic job registry will be accessible
via the Internet to anyone seeking
employment.
One commenter asserted that an
Application for Temporary Employment
Certification involving two or more
SWAs would result in the CO posting
the job order of each of the States on the
electronic job registry, potentially
confusing applicants about the location
of work sites and terms and conditions
of employment, such as requirements to
withhold or pay State income taxes.
While a job order may be circulated
among multiple SWAs, only the job
order placed with the initial SWA,
which identifies all work locations, will
be posted on the electronic job registry.
We also received a suggestion that we
create a simple mechanism, such as an
email listserve, for notifying interested
parties, such as labor organizations who
may have unemployed members seeking
employment in new areas, of job
opportunities. While the Final Rule
adopts the electronic job registry
provisions as proposed, we will also
work with the SWAs to devise
procedures to further publicize the
electronic job registry.
6. § 655.35 Amendments to an
Application or Job Order
We proposed to permit an employer
to request to amend its Application for
Temporary Employment Certification
and/or job order to increase the number
of workers, to change the period of
employment, or to make other changes
to the application, before the CO makes
a final determination to grant or deny
the Application for Temporary
Employment Certification. The
proposed rule would permit an
employer to seek such amendments
only before certification, not after
certification. As discussed in the NPRM,
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these provisions were proposed to
provide clarity to employers and
workers alike of the limitations on and
processes for amending an Application
for Temporary Employment
Certification and the need to inform any
U.S. workers already recruited of the
changed job opportunity. We recognized
that business is not static and employers
can face changed circumstances from
varying sources—from climatic
conditions to cancelled contracts; we
included these provisions to provide
some flexibility to enable employers to
assess and respond to such changes.
At the same time, we proposed certain
limitations to ensure that these job
opportunities are not misrepresented or
materially changed as a result of such
amendments. Specifically, as proposed,
the employer may request an
amendment of the Application for
Temporary Employment Certification
and/or job order to increase the number
of workers initially requested. However,
we proposed limiting such amendments
to increase the number of workers to no
more than 20 percent (50 percent for
employers requesting fewer than 10
workers) above the number specified in
the H–2B Registration.
In addition, we proposed to permit
minor changes to the period of
employment at any time before the CO’s
final determination. However, the
NPRM stated such amendments to the
period of employment may not exceed
14 days and may not cause the total
period to exceed 9 months, except in the
event of a demonstrated one-time
occurrence. This limitation to 14 days
was designed to ensure that the
employer had a legitimate need before
commencing the registration process
and accurately estimated its dates of
need.
As proposed, the employer must
request any amendment(s) to the
Application for Temporary Employment
Certification and/or job order in writing
and any such amendment(s) will not be
effective until approved by the CO.
After reviewing an employer’s request to
amend its Application for Temporary
Employment Certification and/or job
order, the CO will approve these
changes if the CO determines the
proposed amendment(s) are justified
and will not negatively affect the CO’s
ability to make a timely labor
certification determination, including
the ability to thoroughly test the labor
market. Changes will not be approved
which affect the underlying job
registration. Once the CO approves an
amendment to the Application for
Temporary Employment Certification
and/or job order, the CO will submit to
the SWA any necessary change(s) to the
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job order and update the electronic job
registry to reflect the approved
amendment(s). We have decided to
adopt this provision in the Final Rule,
with the modifications discussed below.
We received a few comments on this
proposed provision. One commenter
noted that the following sentence
appeared in the proposed rule at
paragraph (c) of this section, but not at
paragraphs (a) or (b) of this section: ‘‘In
considering whether to approve the
request, the CO will determine whether
the proposed amendment(s) are
sufficiently justified and must take into
account the effect of the changes on the
underlying labor market test for the job
opportunity.’’ The commenter expressed
concern that employers requesting one
type of amendment would be required
to justify their request to the satisfaction
of the CO, while employers requesting
the other types of amendments would
not be required to justify their requests.
We had no intention of applying
different standards and have modified
the language of paragraphs (a) and (b) of
this section to include the sentence that
appears in paragraph (c) of this section.
Some commenters were suspicious of
post-acceptance modification requests,
fearing that employers will use this
provision as an opportunity to move
from their approved H–2B Registration
period of need or number of workers.
We do not intend this provision to allow
employers to amend their applications
beyond the parameters contained in
§ 655.12; rather, part of the CO’s review
will involve comparing the requested
amendments to the content of the
approved H–2B Registration. However,
the Final Rule provision has been
slightly revised to clarify that an
employer may not request a post-filing
amendment that would modify the
number of workers beyond that which
would have been acceptable at the time
of filing under § 655.12. Similarly, an
employer will not be permitted to
expand the period of employment
beyond 9 months. We expect the stated
parameters, which limit the extent of
the change in number of workers or
period of need permitted, and the CO
review process to control the frequency
with which post-acceptance and precertification job order amendments are
requested or approved and maintain the
integrity of the H–2B Registration
process. One commenter expressed
concern about the resources used to
update both the SWA’s labor exchange
system and the electronic job registry to
replace obsolete versions of the job
order, if the CO approves amendments.
As discussed above, we believe the job
order posting on both the SWA’s labor
exchange system and electronic job
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registry serve valuable purposes and
must accurately reflect the final job
order contents, validating the use of
resources.
We have not amended the provision
to reflect the corresponding change
made to the registration provision that
allows an employer to adjust its date of
need by up to 30 days without having
to re-register. Registration covers the
entire period of need for up to 3 years.
This provision, by contrast, allows an
employer to request a deviance of up to
14 days from the previous year,
allowing for up to 2 such deviations
from the initial dates provided in the
registration, as long as the deviations do
not result in a total period of need
exceeding 9 months.
F. Recruitment Requirements
We proposed to maintain and expand
some of the requirements relating to the
recruitment of U.S. workers under the
2008 Final Rule. These efforts included
a requirement that the employer contact
its former U.S. workers; a requirement
to contact labor organizations as well as
community-based organizations, if
appropriate to the occupation and area
of intended employment; and a
requirement to conduct additional
recruitment at the discretion of the CO.
We received a number of comments
from individuals, labor organizations,
worker advocacy organizations, and
coalitions expressing support for the
additional recruitment efforts as
imperative to ensuring the appropriate
test of the labor market and providing
U.S. workers with appropriate access to
these job opportunities. In addition, we
received comments from employers and
industry organizations expressing
opposition to or concerns about the
specific recruitment efforts required in
the NPRM. As discussed in more detail
below, except for the requirement under
§ 655.44 that the employer contact labor
organizations where the occupation or
industry is customarily unionized, the
Final Rule retains these recruitment
requirements as proposed or with
amendments where noted.
1. § 655.40 Employer-Conducted
Recruitment
Unlike under the 2008 Final Rule, in
the NPRM we proposed that the
employer conduct recruitment of U.S.
workers after its Application for
Temporary Employment Certification is
accepted for processing by the CO. We
received a number of comments on this
proposal, most of them in support.
Several commenters suggested that we
take this requirement further by
requiring employers to conduct
recruitment efforts comparable to ones
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that they normally use to recruit
workers in corresponding employment
for the job opportunity. Although the
Department’s Final Rule includes
requirements which are aimed at
approximating the recruitment efforts
typically used by employers outside the
H–2B program, we are not able to adopt
this suggestion because we have no
mechanism for ascertaining those efforts
or ensuring compliance. In addition, we
believe that the existing regulatory
language gives the CO sufficient
authority to order any appropriate
recruitment which will ensure that U.S.
workers get adequate access to these job
opportunities.
We proposed that the employer
conduct recruitment of U.S. workers
within 14 calendar days from the date
of the Notice of Acceptance, unless the
CO provides different instructions to the
employer in the Notice of Acceptance,
and that the employer must accept all
qualified U.S. applicants referred by the
SWA until the third day before the
employer’s date of need or the date the
last H–2B worker departs for
employment, whichever is later. We are
amending this requirement, as described
below.
We received a number of comments
and alternatives for the duration of the
recruitment period. For example,
several labor organizations and worker
advocates proposed that we extend the
recruitment period until 3 days before
the date of need, while one other labor
organization proposed to instead extend
the duration for the posting of the job
order. Employers and industry
commenters generally opposed a longer
recruitment period, but expressed
willingness to accept a recruitment
period of either 30 days or ending 30
days before the date of need.
Most of these comments demonstrate
a misunderstanding of the proposal and
the difference between the 14-day
employer-conducted recruitment period
and the SWA referral period. As
indicated above, we proposed to require
that employers complete specific
recruitment steps outlined in §§ 655.42
through 655.46 within 14 days from the
date of the Notice of Acceptance.
Separate from the employer-conducted
recruitment, the NPRM proposed to
require the SWA, upon acceptance of
the job order and Application for
Temporary Employment Certification by
the CO, to place the job order in
interstate clearance and indicated that
we would post the job order to the
electronic job registry. Thereafter, we
proposed to require employers to
continue to accept all qualified U.S.
applicants referred for employment by
the SWA or who apply for the position
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directly with the employer until the
third day preceding the employer’s date
of need or the date the last H–2B worker
departs for employment, whichever is
later. In order to further the
effectiveness of the longer referral
period and ensure that U.S. workers are
notified of the job opportunities, we
proposed that the job order remain
posted with the SWA for the duration of
the referral period or until the employer
notifies the SWA that the last H–2B
worker has departed. This aspect of the
proposal balanced the need to ensure an
adequate test of the labor market
without requiring the employer to incur
any additional costs in conducting
independent recruitment efforts beyond
the sources and the 14 days specified in
the Notice of Acceptance. As discussed
more fully below, the Final Rule retains
the 14-day recruitment period. After
considering comments on this issue, we
have determined that the 14-day
recruitment period provides an
appropriate timeframe for the employer
to conduct the recruitment described in
§§ 655.42 through 655.46, especially
when combined with the longer referral
period discussed further below.
In addition, we proposed to require
employers to report to the SWA the
actual date of departure of H–2B
workers, if different from the date that
is 3 days before the date of need.
However, for the reasons discussion at
§ 655.20(t), in the Final Rule employers
will only be required to hire qualified
and available U.S. workers until 21 days
before the date of need. Employers are
therefore relieved of the obligation to
report this information to the SWAs.
In the context of the proposal
requiring employers to report to the
SWA the date of last departure of the
last H–2B worker, we specifically
solicited comments on whether it
should also require employers to inform
the Department of the actual number of
H–2B workers hired under the approved
Application for Temporary Employment
Certification, as well as whether the H–
2B workers were hired from a foreign
country or were already present in the
U.S. We have determined to adopt a
modified version of this proposal. Based
on comments received, we have
determined that the best approach to
collecting this type of information is to
request the employer’s information for
the prior year on the Application for
Temporary Employment Certification.
However, we are not requiring that the
employer engage in such reporting in
the context of conducting its
recruitment efforts.
We received several comments
supporting this proposal. One worker
advocacy organization espoused the
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10091
importance of such a collection based
on its value to program integrity.
Another commenter supporting this
proposal suggested that we implement a
reporting requirement that would be
triggered at three specific points
beginning during the referral period and
ending during the period of certified
employment (the first report would be at
30 days before the date of need, the
second 30 days into the period of
employment and the third 30 days
before the end of the period of
employment). This commenter
expressed a concern that we certify
more H–2B positions than the employer
ultimately fills. Another commenter
suggested that we should collect the
information about both the number of
H–2B and the number of U.S. workers
actually hired. Another commenter, a
worker advocacy organization,
suggested that we should collect the age
and gender of H–2B workers who are
hired.
Our role in the H–2B program is to
certify that the employer has a need to
fill a specific number of temporary
positions for which the employer is
unable to find qualified and available
U.S. workers. We do not, however, have
control over how many of those
positions are ultimately filled with H–
2B workers nor the identity of those
workers; the names of alien
beneficiaries are not captured on ETA
Form 9142 since in most cases the
identity of the workers is not known at
that time. We agree, however, that
requiring employers to report the
number of H–2B and U.S. workers
actually hired, and whether the H–2B
workers are hired from within the U.S.
or from abroad, is in the interest of
overall H–2B program integrity and will
assist the Department and other Federal
agencies with ascertaining the actual
use of the program. This is especially so
given the limited number of visas
available, because an employer who
significantly overstates its need for
temporary workers may preclude
another employer with a bona fide
temporary need from getting visas for
workers it equally needs. With respect
to comments that we should collect both
the number of H–2B and the number of
U.S. workers actually hired, our
regulations under § 655.48 already
require the employer to report the
disposition of each U.S. worker who
was referred or self-referred to the
employer for employment. With respect
to the other commenters’ suggestion that
we collect the age and gender of H–2B
workers who are hired by the employer,
the Paperwork Reduction Act requires
the Department to collect only such
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information as is reasonably related to
the administration of our program; at
this time we feel that requiring
employers to report such information
would not be reasonably related to our
administration of the H–2B program. As
discussed above, we have adopted the
proposal to collect the number of H–2B
workers actually hired during the
previous year on the Application for
Temporary Employment Certification.
The NPRM provided that employers
are not required to conduct employment
interviews but that where the employer
wishes to conduct interviews with U.S.
workers, it must do so by telephone or
at a location where workers can
participate at little or no cost to the
workers. The Final Rule retains this
requirement.
We received several comments
supporting this proposal. One
commenter also suggested that we
prohibit employers from interviewing
U.S. workers unless it also conducts
interviews of H–2B workers. Another
commenter proposed that we require
employers to promise to be available for
interviews during normal business
hours throughout the referral period. As
indicated in the NPRM and retained in
the Final Rule, we have explicitly
prohibited employers from offering
preferential treatment to H–2B workers,
including any requirement to interview
for the job opportunity. In addition,
both the NPRM and the Final Rule seek
to ensure that employers conduct a fair
labor market test by requiring employers
that require interviews to conduct them
by phone or provide a procedure for the
interviews to be conducted in the
location where the worker is being
recruited so that the worker incurs little
or no cost. With respect to the
commenters’ suggestion that the
employer be required to be available to
conduct interviews during normal
business hours, we are declining to
adopt this suggestion as it may
unnecessarily infringe on the
employer’s business operations.
However, an employer who requires a
U.S. worker to undergo an interview
must provide such worker with a
reasonable opportunity to meet such a
requirement. The purpose of these
requirements is to ensure that that the
employer does not use the interview
process to the disadvantage of U.S.
workers. For all the reasons articulated
above, we are retaining this provision as
proposed.
2. § 655.41 Advertising Requirements
We proposed to retain the 2008 Final
Rule requirement that all employer
advertisements contain terms and
conditions of employment no less
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favorable than those offered to the H–2B
workers and reflect, at a minimum, the
terms and conditions contained in the
job order. The NPRM also required that
all advertisements direct applicants to
apply for the job opportunity through
the SWA. We have made revisions to
this provision to clarify which terms
and conditions of employment
contained in job orders must be
included in advertisements, and to
clarify that the employer must comply
with but need not actually include the
job order assurances in advertisements.
We received a number of comments
on this proposal. The majority of
commenters expressed strong support
for extending job order requirements to
all recruitment, including the
requirement to identify when the
employer is offering board, lodging or
facilities. Other commenters expressed
concern that including all of the job
order requirements in advertisements
may prove to be costly and burdensome,
particularly where it would result in
lengthy and expensive newspaper
advertisements. Another commenter,
referring to the H–2A program, although
supporting full disclosure, suggested
that the job order requirements often
serve to discourage rather than
encourage applicants from pursuing the
job opportunity due to the sheer length
and complexity of information required
to be included. This commenter
suggested that we should require that a
summary form be provided to the
applicants.
In considering the issues raised by
commenters, we have amended this
section to ensure that all advertisements
include, at a minimum, the terms and
conditions of employment necessary to
apprise U.S. workers of the job
opportunity and have clarified that
those terms and conditions must
conform to the job order assurances,
required by the amended § 655.18(a),
but need not contain those assurances.
Based on the commenter’s suggestions
and in order to ensure that all
recruitment complies with the
requirements applicable to job orders,
we have amended the language of this
section to clarify that advertisements
need not include the text of assurances
applicable to job orders, but that they
must include the minimum terms and
conditions of employment. These
minimum terms and conditions of
employment include a requirement that
the employer make the appropriate
disclosure when it is offering or
providing board, lodging or facilities, as
well as identify any deductions, if
applicable, that will be applied to the
employee’s pay for the provision of such
accommodations. These minimum
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content requirements will address
industry concerns about the cost
inherent in placing potentially lengthy
advertisements, while also ensuring that
entities disclose all necessary
information to all potential applicants.
In addition, as a continuing practice in
the program, employers will be able to
use abbreviations in the advertisements
so long as the abbreviation clearly and
accurately captures the underlying
content requirement.
In order to assist employers to comply
with these requirements, we provide
below specific language which is
minimally sufficient to apprise U.S.
applicants of required items in the
advertisement, and which is intended to
assist the employer in complying with
such requirements. In response to
industry concerns over the potential
length and cost of advertising, the
employer may also abbreviate some of
this language so long as the underlying
guarantee can be clearly understood by
a prospective applicant. The employer
may include the following statements in
its advertisements: 1. Transportation:
Transportation (including meals and, to
the extent necessary, lodging) to the
place of employment will be provided,
or its cost to workers reimbursed, if the
worker completes half the employment
period. Return transportation will be
provided if the worker completes the
employment period or is dismissed
early by the employer. 2. Three-fourths
guarantee: For certified periods of
employment lasting fewer than 120
days: The employer guarantees to offer
work for hours equal to at least threefourths of the workdays in each 6-week
period of the total employment period.
For certified periods of employment
lasting 120 days or more: The employer
guarantees to offer work for hours equal
to at least three-fourths of the workdays
in each 12-week period of the total
employment period. 3. Tools,
equipment and supplies: The employer
will provide workers at no charge all
tools, supplies, and equipment required
to perform the job.
Another commenter expressed
concern that some employers have a
legitimate need to keep the terms and
conditions of employment confidential.
Although we recognize that some
employers may wish for more discretion
in recruitment, our statutory mandate
requires that the employer be permitted
to hire H–2B workers only in
circumstances where there are no
qualified and available U.S. workers,
and where the employment of those H–
2B workers does not have an adverse
effect on the wages and working
conditions of U.S. workers. Therefore,
in the context of the H–2B program, an
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employer must forego some of its
preferences for its usual recruitment
practices in order to comply with our
regulations.
As indicated above, we retained the
requirement that all recruitment
conducted under this section and
§§ 655.42–655.46 comply with the
prohibition on preferential treatment
and also that each job opportunity be
bona fide as required by § 655.18. Some
commenters objected to the bona fide
job opportunity requirement because it
permits the CO to require the employer
to substantiate any job qualification or
requirement contained in the job order.
In particular, one commenter was
concerned that this requirement may
preclude the employers from
conducting background checks.
Our longstanding policy on job
qualifications and requirements has
been that they must be customary; i.e.,
they may not be used to discourage
applicants from applying for the job
opportunity. Including requirements
that do not meet this standard would
undermine a true test of the labor
market. The standard for employment of
H–2B workers in the U.S. is that there
are no U.S. workers capable of
performing such service or labor who
are available for employment. In
accordance with this standard, the
regulations require as a condition of
certification that no qualified persons
who are available to perform the job can
be found. For purposes of complying
with this requirement, we have clarified
in § 655.20(e) the meaning of
qualifications and requirements. A
qualification means a characteristic that
is necessary to the individual’s ability to
perform the job in question. Such
characteristics include but are not
limited to, the ability to use specific
equipment or any education or
experience required for performing a
certain job task. A requirement on the
other hand, means a term or condition
of employment which a worker is
required to accept to obtain or retain the
job opportunity, e.g., the willingness to
complete the full period of employment
or commute to and from the worksite.
This interpretation is consistent with
program history, primarily under the
General Administration Letter 1–95,13
where the State Employment Security
Agencies (now SWAs) were specifically
directed to reject any restrictive job
requirements. To the extent an employer
has requirements that are related to the
U.S. workers’ qualifications or
13 General Administration Letter 1–95,
Procedures for H–2B Temporary Labor Certification
in Nonagricultural Occupations (December 31,
1995).
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availability we will examine those in
consultation with the SWAs to
determine whether they are normal. We
recognize that background checks are
legitimately used in private industry
and it is not our intent here to preclude
the employer from conducting such
checks to the extent that the employer
applies the same criteria to both H–2B
and U.S. workers. However, where such
job requirements are included in the
recruitment materials, we reserve the
right to inquire further as to whether
such requirements are normal and
accepted.
Some comments addressed the
proposal that employer-conducted
recruitment must direct all applicants to
the SWA. Most commenters supported
this proposal, indicating that this
requirement will enhance the likelihood
that workers will be fully apprised of
the job opportunities. A SWA expressed
concern over the availability of funding
to perform the additional referral
functions. We have retained this
requirement because we believe that
allowing SWAs to apprise job applicants
of the terms and conditions of
employment is an essential aspect of
ensuring an appropriate labor market
test. However, notwithstanding the
many benefits of being referred to the
job opportunity by the SWA, U.S.
workers may contact the employer
directly and the Final Rule requires that
employers include their contact
information to enable such direct
contact. With respect to the SWAs’
concerns regarding the availability of
sufficient funding, we anticipate that
the enhanced role of the SWA and the
additional duties inherent in that role
will be offset through the elimination of
the requirement to conduct employment
verification activities.
3. § 655.42 Newspaper Advertisements
We proposed to continue to require
the employer to place two
advertisements in a newspaper of
general circulation for the area of
intended employment that is
appropriate to the occupation and the
workers likely to apply for the job
opportunity and to permit the employer
to place the advertisement(s) in a
language other than English where the
CO determines it appropriate. However,
we proposed to eliminate an employer’s
option to replace one of the newspaper
advertisements with an advertisement
in a professional, trade, or ethnic
newspaper. Instead, we proposed to
allow the CO the discretion to require
an employer to place such an
advertisement in addition to the
required newspaper advertisements
where such an advertisement is
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appropriate for the particular
occupation and area of employment. We
are retaining this provision as proposed
with minor clarifying edits.
Several commenters agreed that we
should continue to require newspaper
advertisements. Others disagreed. One
commenter indicated that newspaper
advertisements are outdated as a
recruitment source and are increasingly
unavailable due to an overall reduction
in newspapers with print editions. This
commenter expressed regret that we did
not use this rulemaking as an
opportunity to replace this requirement
with recruitment efforts that are more
reflective of the current labor market
realities and the decline in newspaper
subscriptions and readership. A worker
advocacy group suggested that
eliminating newspaper advertising will
have a minimal impact on domestic
worker recruitment because very few
U.S. workers search for jobs through
newspapers. This commenter
recommended that the regulations
instead incorporate innovations which
are now widely used by employers of
domestic workers to recruit new
employees, such as web-based
advertising on job search sites and
participation in job fairs. Another
commenter offered as an alternative to
newspaper advertising the use of road
signs as more apt to appeal to workers
typically employed in the H–2B
program. Industry commenters also
noted the expense of placing newspaper
advertisements.
While several other commenters
offered suggestions for disseminating
information about the job opportunity,
they did not indicate whether these
alternatives should be considered in
addition to newspaper advertisements
or instead of them. Consequently, these
suggestions are further discussed under
§ 655.46. It is worth noting, however, in
response to commenters who suggested
web-based advertisements, this Final
Rule requires the CO to post H–2B job
orders on the electronic job registry
maintained by the Department in order
to widely disseminate the job
opportunities.
After due consideration, we continue
to believe that newspapers of general
circulation remain an important source
for recruiting U.S. workers because they
are among the means most likely to
reach the broadest audiences,
particularly those interested in positions
typically found in the H–2B program.
Newspaper advertisements are also
recognized as information sources likely
to generate informal, word of mouth
referrals. Although we do not dispute
that available statistics on subscriptions
and readership favor a view that these
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publications are in decline, we are not
aware of any reliable means for tracking
how many persons have access to a
single printed newspaper before it is
discarded, particularly due to their
availability through community
organizations, centers, public libraries,
and other venues which provide
important access to information for
those seeking jobs. As to one
commenter’s proposal to require the use
of road signs, we note that such a
requirement would not offer appropriate
substitution for newspaper
advertisements, would be costly to the
employer, and would be difficult to
administer and enforce.
We received no comments on the
proposal to prohibit substitution of ads
between newspapers and trade and
ethnic publications. Therefore, after
considering alternatives to newspaper
advertisements proposed by
commenters, we have determined that
no single alternative method of
advertising uniformly applies to the
variety of H–2B job opportunities or is
likely to reach as broad a potential
audience. For that reason, the Final Rule
retains the proposed section in its
entirety with a clarifying edit that
requires the employer that placed any
advertisement in a language other than
English to retain the translations of such
advertisements, as required by § 655.56.
4. § 655.43 Contact With Former U.S.
Employees
The NPRM proposed to require the
employer to contact by mail or other
effective means its former U.S. workers
who were employed by the employer in
the same occupation and the place of
employment during the previous year
before the date of need listed in the
Application for Temporary Employment
Certification. This proposal expanded
the 2008 Final Rule requirement for
contact with former U.S. workers who
have been laid off within 120 days of
the employer’s date of need. Under the
proposal, employers are not required to
contact U.S. workers who abandoned
the worksite or who were terminated for
cause. We have retained the proposed
requirement.
We received a number of comments
from labor organizations and worker
advocates supporting the expanded
requirement contained in the proposal.
Most of the comments focused on the
importance of offering access to these
job opportunities to the greatest number
of U.S. workers, particularly during
times of high unemployment. One
commenter endorsed the expanded
requirement but indicated that the INA
includes a preference for U.S. workers
which is unlimited. According to this
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commenter, U.S. workers quit their jobs
for a variety of reasons and should not
be disqualified in this fashion.
We agree with this commenter and for
that reason the NPRM proposed to limit
the exception to the contact requirement
only to workers who were dismissed for
cause or who abandoned the worksite.
For purposes of this provision,
abandonment has the same meaning as
it does in § 655.20(y), i.e., a worker who
fails to report for work at the regularly
scheduled time for 5 consecutive
working days without the consent of the
employer.
The same commenter raised further
concerns about an employer being
released from contact requirements
where an employee was terminated for
cause, noting experience in the program
where employers use termination for
cause or threat of termination as a
means for retaliating against workers
who were dissatisfied with illegal
treatment. Under the NPRM, as well as
this Final Rule, each employer must
affirmatively attest that it has not
engaged in unfair treatment as defined
in § 655.20(n), i.e., that it has not
retaliated against complaining
employees. Although this commenter
proposes to require the employer to
contact all former workers regardless of
why they left employment with the
employer, we have determined that
such a requirement is overbroad and not
necessary to ensure an appropriate test
of the labor market.
Another commenter suggested that we
expand the window for contacting
former U.S. workers who have been laid
off within 120 days before the date of
need to layoffs within 180 days before
the date of need. Because the provision
as proposed and retained in the Final
Rule requires the employer to contact all
its former U.S. workers who were
employed by the employer in the
occupation at the place of employment
in the last year, expanding the
requirement to contact those laid off
within 180 days will not have any
effect, as those workers are already
included in the provision. Therefore, we
are not accepting this proposal.
A few commenters addressed the
issue of protecting workers whose hours
have been reduced by the employer.
One commenter suggested that we
redefine layoff to include a separation
following a 25 percent reduction in
hours in a 180-day period preceding the
employer’s date of need in order to
expand the exposure of U.S. workers to
the job opportunity. As discussed in the
preamble to § 655.20(w), there is no
definitive way to determine whether a
worker quit because of a reduction in
hours. The suggested requirement
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would place an unnecessary burden
both on employers seeking to comply
with the provision and Departmental
employees seeking to verify compliance,
and we therefore do not accept this
recommendation.
Finally, other commenters proposed
that we require the employer to contact
laid off employees in accordance with
the terms governing recall for the
duration of the recall period provided in
the collective bargaining agreement that
covers the employees in the occupation
and area of intended employment. We
have addressed this commenter’s
concerns by proposing a requirement
that the employer contact former
employees employed by the employer
during the prior year. In addition, the
employer is separately obligated to
comply with the terms and conditions
of the bargaining agreement, to the
extent that the recall provisions cover
workers employed by the employer
beyond the prior year, pursuant to both
the agreement and the requirement at
§ 655.20(z).
Therefore, the Final Rule retains this
provision as proposed.
5. § 655.44 Contact With Labor
Organizations
We proposed to require employers to
formally contact local labor
organizations to inquire about the
availability of U.S. workers to fill the job
opportunities for which the employer
seeks to hire H–2B workers where union
representation is customary in the
occupation or industry. We have
decided to remove this requirement.
We received a number of comments
on the proposal to expand the contact
requirement with labor organizations
beyond those employers who are party
to a collective bargaining agreement
(CBA). Most labor organizations and
worker advocates expressed support for
the proposed requirement and offered
suggestions to enhance it, i.e., by
clarifying when union contact is
required. In addition, we received
comments from industry representatives
and employers objecting to this
requirement as burdensome and
unlikely to result in a greater number of
legitimate applicants who will meet the
employers’ temporary need for workers.
Many commenters strongly objected to
overall enhanced recruitment
requirements, as costly, burdensome,
and unlikely to result in legitimate
applicants or ultimately meet the
employers’ need for temporary labor.
Some industry commenters indicated
that the customarily unionized standard
was vague or ambiguous, and requested
clarification. Others objected to the
application of the requirement to
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employers who were not party to a CBA
or who did not otherwise employ
unionized workers. One commenter also
requested that we eliminate this section
in its entirety.
We agree that the provision should be
deleted. We realize that this
requirement is duplicative of the
activity undertaken by the SWAs in
§ 655.33, where the Notice of
Acceptance will direct the SWAs to
circulate a copy of the job order to both
the State Federation of Labor in the
States(s) in which work will be
performed and to the local unions
representing employees in the same or
substantially equivalent job
classification in the area of intended
employment, where the occupation or
industry is traditionally or customarily
unionized. For this reason, we have
decided to remove this requirement, but
retain in this Final Rule a mechanism by
which labor organizations are still
contacted, increasing the exposure of
such job opportunities to U.S. workers
while reducing the burden on the
employer. For a more detailed
discussion about contacting labor
organizations and the Department’s
request for suggestions on how to best
determine the circumstances which
would trigger the requirement for
contacting labor organizations, please
see § 655.33 above.
6. § 655.45 Contact With Bargaining
Representative and Posting
Requirements and Other Contact
Requirements
The NPRM proposed to require
employers that are party to a CBA to
provide written notice to the bargaining
representative(s) of the employer’s
employees in the job classification in
the area of intended employment.
Where there is no bargaining
representative of the employer’s
employees, we proposed to require the
employer to post a notice to its
employees of the job opportunities for at
least 10 consecutive business days in at
least two conspicuous locations at the
place of intended employment or in
some other manner that provides
reasonable notification to all employees
in the job classification and area in
which work will be performed by the
H–2B workers. We requested comments
on the likelihood this requirement will
result in finding qualified and available
applicants.
The majority of comments supported
this proposal. Most of the commenters
indicated that keeping the bargaining
representative apprised of these job
opportunities will likely result in the
job opportunities being available to U.S.
workers. Most commenters specifically
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supported the new alternative
requirement that the employer post
notice of the job opportunity. A few
commenters offered suggestions for
enhancing the requirement, one of them
proposing that the notice of the job
opportunity be posted at each facility
owned and operated by the employer. A
few commenters suggested that we
extend the duration of the posting.
These suggestions ranged from requiring
a posting through the duration of the
referral period to a recommendation to
increase the posting duration from 10
days to 14 days, or 30 days in some
instances.
After thorough consideration of these
comments, we are unable to accept the
proposal which would require the
posting of the notice at each facility
owned and operated by the employer, as
this requirement is overbroad both with
respect to the burden on the employer
and with respect to the administrative
feasibility of oversight and enforcement.
We have, however, adopted the other
commenters’ suggestion to extend the
duration of the posting from 10 to 15
consecutive business days. This
increase in duration will provide greater
opportunity for the employer’s workers
to learn of the job opportunity and
enhance the likelihood that unemployed
U.S. workers will learn of the job
opportunity.
We also received comments opposing
this proposal. Most of these comments
generally objected to the requirement to
contact the bargaining representative
and indicated that the contacts will not
result in meaningful candidates for the
job opportunities, some indicating that
most referred U.S. workers cannot be
relied upon to complete the duration of
the certified period of employment.
Other commenters specifically objected
to the posting requirement. One
employer association whose members
are subject to special procedures
indicated infeasibility of complying
with the requirement due to the
itinerant nature of their work.
The requirement to contact the
bargaining representative(s) is intended
to ensure that each employer’s existing
U.S. workers receive timely notice of the
job opportunities, thereby increasing the
likelihood that those workers will apply
for the available positions for the
subsequent temporary period of need
and that other U.S. workers, possibly
including former workers, will be more
likely to learn of the job opportunities
as well. The posting of the notice at the
employer’s worksite, in lieu of formal
contact with a representative when one
does not exist, is intended to ensure that
all of the employer’s U.S. workers are
afforded the same access to the job
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opportunities for which the employer
intends to hire H–2B workers. In
addition, the posting of the notice may
result in the sharing of information
between the employer’s unionized and
nonunionized workers and therefore
result in more referrals and a greater
pool of qualified U.S. workers. With
respect to one commenter’s concern
regarding the ability of an itinerant
employer to comply with the posting
requirement, we included in the NPRM
and have retained in the Final Rule a
degree of flexibility for complying with
this requirement; specifically, the
regulation includes the language ‘‘or in
some other manner that provides
reasonable notification to all employees
in the job classification and area in
which the work will be performed by
the H–2B workers.’’ This permits the
employer to devise an alternative
method for disseminating this
information to the employer’s
employees, such as posting the notice in
the same manner and location as for
other notices, such as safety and health
occupational notices, that the employer
is required by law to post. The Final
Rule includes such flexibility and
provides that electronic posting, such as
displaying the notice prominently on
any internal or external Web site that is
maintained by the employer and
customarily used for notices to
employees about terms and conditions
of employment, is sufficient to meet this
posting requirement as long as it
otherwise meets the requirements of this
section. However, under this Final Rule,
employers who are subject to special
procedures under the program will
continue to conduct recruitment
activities in accordance with those
procedures unless or until such a time
when these procedures are modified or
withdrawn by the Administrator, OFLC
in accordance with the regulatory
requirements under § 655.4, except to
the extent that such procedures are in
direct conflict with these regulations.
For all of the reasons discussed above,
we are retaining the requirement that
the employer contact the bargaining
representative or post a notice of the job
opportunity and are extending the
duration for such posting from 10 to 15
business days.
In addition to requiring the employer
to contact the bargaining representative
or post a notice of the job opportunity,
the NPRM included a proposal to,
where appropriate, require the employer
to contact community-based
organizations to disseminate the notice
of the job opportunity. Communitybased organizations are an effective
means of reaching out to domestic
workers interested in specific
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occupations. ETA administers our
nation’s public exchange workforce
system through a series of One-Stop
Career Centers. These One-Stop Centers
provide a wide range of employment
and training services for workers
through job training and outreach
programs such as job search assistance,
job referral and job placement services,
and also provide recruitment services to
businesses seeking workers.
Community-based organizations with
employment programs including
workers who might be interested in
H–2B job opportunities have established
relationships with the One-Stop Career
Center network. The One-Stop Center in
or closest to the area of intended
employment will be, in most cases, the
designated point of contact the CO will
give employers to use to provide notice
of the job opportunity. This provides the
employer with access not only to the
community-based organization, but to a
wider range of services of assistance to
its goal of meeting its workforce needs.
This contact is to be made when
designated specifically by the CO in the
Notice of Acceptance, as appropriate to
the job opportunity and the area of
intended employment. We have decided
to retain this provision as proposed with
minor revisions.
We received several comments on this
proposal. The majority of commenters
expressed strong support for the
requirement that the employer contact
community-based organizations,
indicating that these organizations in
many cases possess specialized
knowledge of local labor market
conditions and practices, and are in the
position to assist with recruitment
efforts, thus ensuring a complete test of
the labor market as well as assist the CO
with identifying potential problems
with the offered terms and conditions of
employment.
Commenters opposing this proposed
requirement suggested that it will not
result in meaningful applicants for the
job opportunity. We note that, not
unlike additional recruitment, contact
with community-based organizations is
intended to broaden the pool of
potential applicants and assist the many
unemployed U.S. workers with finding
meaningful job opportunities. These
organizations are especially valuable
because they are likely to serve those
workers in greatest need of assistance in
finding work, particularly with respect
to H–2B occupations that require little
or no specialized knowledge. Although
we will not require each employer to
make this type of contact, we have
determined that keeping this provision
in the Final Rule will assist with
fulfilling the intent of the H–2B program
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and enhancing the integrity of the labor
market test. Therefore the Final Rule
retains the requirement that the
employer, where ordered by the CO,
contact community-based organizations.
7. § 655.46 Additional EmployerConducted Recruitment
Where the CO determines that the
employer-conducted recruitment,
described in §§ 655.42 through 655.45,
is not sufficient to attract qualified U.S.
workers, the proposed rule authorized
the CO to require the employer to
engage in additional recruitment
activities. In addition to proposing that
the CO require additional recruitment,
we solicited suggestions from the public
on the recruitment means most suitable
for the CO to require. We also proposed
that the CO would specify the
documentation or evidence that the
employer must maintain as proof it met
the additional recruitment step(s). We
are retaining this provision as proposed
with minor clarifying edits.
We received many comments on this
proposal. The majority of commenters
expressed strong support for the
proposal and indicated that the
additional recruitment requirement is
particularly welcome in times of high
unemployment because it will ensure
that U.S. workers have the broadest
exposure to these job opportunities. In
contrast, several other commenters
objected to the proposal on the ground
that it provides the CO with potentially
unfettered discretion to impose
additional requirements on employers;
some requested clarification of when the
additional recruitment will take place.
We also invited comments on the
proposed additional recruitment
methods, including examples of the
types of recruitment typically
conducted in specific industries,
occupations, or job classifications.
Several commenters provided
suggestions for potential recruitment
sources such as the use of the
employer’s Web site, job search Web
sites (such as Craig’s List or
Monster.com), staffing agencies, and
other outreach efforts. Some
commenters also suggested recruitment
efforts they use or have used in the past
to recruit U.S. workers. However, none
of the commenters provided information
about the types of recruitment that are
typically conducted in specific
industries. We thank the commenters
for their input. Where appropriate, the
CO will draw upon these suggestions
when making a determination about
what types of additional recruitment are
appropriate. We have made a clarifying
edit in this section, adding the word
additional to indicate that CO-ordered
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efforts to contact community-based
organizations and/or One-Stop Career
Centers are in addition to the
requirements in §§ 655.16 and 655.45.
A few comments reflected confusion
over the requirement, and encouraged
us to expand it beyond areas of
substantial unemployment. Others
commenters requested that we revisit
the requirement and proposed
alternatives for redefining an area of
substantial unemployment.
Our intention in requiring additional
recruitment including, where
appropriate, in areas of substantial
unemployment, is predicated on the
belief that more recruitment will result
in more opportunities for U.S. workers.
In addition, we recognize that the
increased rate of innovation in the arena
of technology, including its implications
for communication of information about
job opportunities, is changing the way
many U.S. workers search for and find
jobs. In part due to these changes, the
inclusion of this requirement is
intended to allow the CO flexibility to
keep apace with the ever-changing labor
market trends.
In response to comments about not
limiting additional recruitment only to
job opportunities located in areas of
substantial unemployment, we agree
that the recruitment sources the CO uses
should go beyond just the areas of
substantial unemployment, which is
why we only listed areas of substantial
unemployment as one example of an
additional source and why we solicited
information about other available
sources. The requirement as proposed
and retained is intended to provide the
CO with discretion to order additional
positive recruitment whenever the CO
deems it to be appropriate. This
discretion is also not an absolute
requirement but permits us to ensure
the appropriateness and integrity of the
labor market test and determine the
appropriate level of recruitment based
on the specific situation. The COs, with
advice from the SWAs which are
familiar with local employment patterns
and real-time market conditions, are
well-positioned to judge where
additional recruitment may or may not
be required as well as the sources that
should be used by the employer to
conduct such additional recruitment.
For example, it may be reasonable to
require additional recruitment for a job
that requires little training or experience
in an area of substantial unemployment,
since a larger group of available workers
would be qualified for the job. While the
employer will be required to conduct all
the recruitment efforts required under
this section and §§ 655.42–655.46 in
certain circumstances, in other
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circumstances, the CO may determine
that such additional efforts are unlikely
to result in meaningful applications for
the job opportunity. In each instance,
the CO, often in consultation with the
SWAs, will carefully weigh the
projected benefits of additional
recruitment to potential U.S. applicants
against the benefit the employer is
seeking through certification.
We also note that OIG’s October 17,
2011 report recommended the
Department reassess the existing
recruitment provisions that require
employers with itinerant positions
subject to special procedures to actively
recruit only in the State of initial
employment. While recruitment
requirements prior to this Final Rule did
not necessarily limit recruitment of
workers to just one State, neither did
those provisions require recruitment
outside the area of intended
employment, in most cases. This Final
Rule expands required recruitment
activity, when appropriate for labor
market test quality, to additional areas
and sources likely to result in U.S.
worker applicants.
Although we recognize that some
commenters may be concerned over the
discretion the CO has to order
additional positive recruitment, as
discussed above, such discretion is
necessary to permit the CO the
flexibility to ensure an adequate test of
the labor market. However, any
additional positive recruitment will be
conducted in addition to, and occur
within the same time period as the
circulation of the job order and the other
mandatory employer-conducted
recruitment described above, and will
not result in any delay in certification.
While we may not endorse a specific
commercially-available publication or
Web site, the sources used by the CO
will include, but will not be limited to:
additional print advertising; advertising
on the employer’s Web site or another
Web site; contact with additional
community-based organizations that
have contact with potential worker
populations; additional contact with
labor unions; contact with faith-based
organizations; and radio advertisements.
When assessing the appropriateness of a
particular recruitment method, the CO
will take into consideration all options
at her/his disposal, including relying on
the SWA experience and expertise with
local labor markets, and where
appropriate, will opt for the least
burdensome and costly method(s).
8. § 655.47 Referrals of U.S. Workers
We proposed to require SWAs to refer
for employment individuals who have
been informed of the details of the job
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opportunity and indicate that they are
qualified and will be available for
employment. We also eliminated the
requirement that the SWAs conduct
employment (I–9) eligibility
verification. We are retaining the
provision as proposed in part and
revising the proposed provision in other
part.
We received three comments on this
proposal to eliminate the requirement
that the SWAs conduct employment
(I–9) eligibility verification. One
commenter indicated a preference that
the SWAs continue to conduct
employment eligibility verification,
while another supported its elimination.
None of these commenters provided a
rationale for its opinion.
In light of limited resources, we have
determined that the requirement that
SWAs conduct employment eligibility
verification of job applicants is
duplicative of the employer’s
responsibility under the INA. In
addition, the INA provides that SWAs
may, but are not required to, conduct
such verification for those job
applicants they refer to employers. DHS
regulations permit employers to rely on
the employment eligibility verification
voluntarily performed by a State
employment agency in certain limited
circumstances.
We also received several comments
regarding the proposal to require SWAs
to refer for employment individuals
who have been informed of the details
of the job opportunity and who indicate
that they are qualified and will be
available for employment. Some
commenters, primarily worker
advocates and labor organizations,
commended the Department for
ensuring that U.S. workers are provided
with the opportunity to be fully
apprised of the job opportunity prior to
being referred to the employer. These
commenters indicated that this will lead
to greater opportunities for U.S. workers
as well as curb program abuse.
Other commenters focused more on
the proposed role of the SWAs in
referring U.S. applicants to the
employer. One commenter understood
the provision as proposed to require
SWAs to inform prospective U.S.
workers of the details of the job
opportunity and to screen them for
qualifications and availability. Other
commenters, namely employer
associations and employers, expressed
concern regarding this provision,
particularly in the context of the referral
period proposed in the NPRM,
indicating that it will result in an
increase of disingenuous applicants or
unqualified workers replacing available
and qualified H–2B workers that the
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employer already secured under an
arduous process. Two State agencies
expressed some uncertainty over the
scope of their duties in the context of
this proposal and their hope that we
will provide them with resources to
conduct additional employee screenings
and referrals resulting from the new
recruitment requirements.
As stated in the NPRM, it is our
intention that the elimination of the
employment eligibility requirement will
allow the SWAs to focus their staff and
resources on ensuring that U.S. workers
who come to them are apprised of job
opportunities for which the employer
seeks to hire H–2B workers, which is
one of the basic functions of the SWAs
under their foreign labor certification
grants, and to ensure such workers are
qualified and available for the job
opportunities. This does not mean that
every referral must be assisted by SWA
staff to be apprised of the job
opportunity. To the contrary, many H–
2B referrals are not staff-assisted but are
instead self-referrals and we have no
intention of interfering with the current
processes established by most SWAs to
handle these job orders. However, to the
extent that staff are directly involved in
a referral, we expect that the referrals
made would be only of qualified
workers. We do not expect this to be an
additional burden on SWA staff.
Moreover, we do not presume that the
judgment of the SWAs as to an
applicant’s qualifications is irrebuttable
or a complete substitute for the
employer’s business judgment with
respect to any candidate’s suitability for
employment. However, to the extent
that the employer does not hire a SWA
referral who was screened and assessed
as qualified, the employer will have a
heightened burden to demonstrate to us
that the applicant was rejected only for
lawful, job-related reasons.
With respect to the comments
expressing concerns over the ability of
the employer to rely on U.S. workers
completing the duration of the certified
period of employment, the SWAs will
be required to, as part of the screening
process, ascertain that the unemployed
U.S. applicants who request referral to
the job opportunity are sufficiently
informed about the job opportunity,
including the start and end dates of
employment and that they commit to
accepting the job offer if extended by
the employer. However, as discussed
under § 655.57, in recognition that some
employers may nonetheless require
relief in the form of replacing U.S.
workers who fail to show up or
complete the certified period of
employment, we have developed a
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redetermination process to
accommodate these employers.
9. § 655.48 Recruitment Report
Consistent with the requirements of
the 2008 Final Rule, we proposed to
continue to require the employer to
submit to the Chicago NPC a signed
recruitment report. Unlike the 2008
Final Rule, however, we also proposed
to require the employer to send the
recruitment report on a date specified
by the CO in the Notice of Acceptance
instead of at the time of filing its
Application for Temporary Employment
Certification. This change
accommodates the proposed
recruitment model under which the
employer does not begin its recruitment
until directed by the CO in the Notice
of Acceptance. The proposed rule
detailed the information the employer is
required to include in the recruitment
report, such as the recruitment steps
undertaken and their results, as well as
other pertinent information. In addition,
we proposed to require the employer to
update the recruitment report
throughout the referral period to ensure
that the employer accounts for contact
with each prospective U.S. worker. The
proposed rule does not require the
employer to submit the updated
recruitment report but does require the
employer to retain it and make it
available in the event of a postcertification audit, a WHD or other
Federal agency investigation, or upon
request by the CO. We are retaining the
provision as proposed with minor
clarifying edits.
We received a number of comments
offering strong support for the
requirement that employers document
that they have conducted the required
recruitment efforts. One commenter
suggested that we expand the
recruitment report and require the
employer to list all U.S. and foreignborn applicants for the job opportunity.
The provision, as proposed and
retained, requires the employer to
provide the name and contact
information of each U.S. worker who
applied or was referred for the job
opportunity. This reporting allows us to
ensure the employer has met its
obligation and to meet our
responsibility to determine whether
there were insufficient U.S. workers
who are qualified and available to
perform the job for which the employer
seeks certification. In addition, when
WHD conducts an investigation, WHD
may contact U.S. workers listed in the
report to verify the reasons given by the
employer as to why they were not hired,
where applicable. While we do not
foreclose the possibility of expanding
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the content of the recruitment report in
the future, requiring that employers
identify all applicants, including foreign
workers, would impose a heavy burden
on employers and is not necessary for
carrying out our responsibilities under
the H–2B program.
Some commenters objected to the
record-keeping requirements, generally
and as included in the proposed rule.
Because these objections are not specific
to the recruitment report, we address
them in the discussion of document
retention requirements. Other
commenters suggested that the
recruitment report be made available to
the public so they may provide input to
the CO on the contents before a Final
Determination is made on the
Application for Temporary Employment
Certification. For the reasons discussed
under § 655.63, we are not accepting
this suggestion at this time. However,
we continue to reserve the right to post
any documents received in connection
with the Application for Temporary
Employment Certification and will
redact information accordingly.
Therefore we are retaining this
provision as proposed with a minor
clarifying edit that is consistent with
requirements under § 655.43, indicating
that, where applicable, the employer’s
recruitment report must contain
confirmation the employer posted the
job availability to all employees in the
job classification and area in which the
work will be performed by the H–2B
workers.
G. Labor Certification Determinations
1. § 655.50 Determinations
We proposed to retain the same
requirements under this provision as
proposed in the 2008 Final Rule. We are
retaining this provision as proposed
with minor clarifying edits.
We received no comments on the
substance of this provision. However,
we received a number of comments
critical of our failure to provide
processing timeliness or a deadline for
issuing a final determination. One
commenter referred to our past
performance before the attestation-based
model in the 2008 Final Rule and
argued that the processing of
applications under the pre-2008 Final
Rule system involved delays and that
we have fallen short of our processing
targets even under the 2008 Final Rule.
This commenter, along with others,
proposed that we commit to a deadline
such as a return to the 60 days
discussed in the preamble of the 2008
Final Rule or 30 days.
Unlike the other programs we
administer, the INA does not provide a
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statutory deadline for processing H–2B
applications. In order to maximize
integrity in the H–2B program it is
imperative that we take the time
necessary to carefully review each
application and to make certain that
each application we review represents a
legitimate need for temporary workers.
We will be implementing a completely
reengineered program with a new
registration process, new recruitment
requirements, and new obligations that
must be reviewed. OFLC has no baseline
for these processes and therefore cannot
predict at this time the likely processing
time parameters. While we anticipate
that registration, with its emphasis on
the determination of temporary need,
will decrease application adjudication
times, we cannot know to what extent
that additional process will streamline
processing times. However, as is our
practice, we will make every effort to
timely process each application and to
keep employers and other program users
apprised of current processing times.
In addition, we received a few
comments requesting that third parties
be allowed to participate in the
adjudication of a particular Application
for Temporary Employment
Certification or the job order. Some of
these comments are related to the public
availability of the Application for
Temporary Employment Certification
and are discussed elsewhere in this
Final Rule.
Responsibility for the adjudication of
each Application of Temporary
Employment Certification rests with the
Secretary, who has delegated that
responsibility to OFLC. Historically, we
have never permitted third parties to
participate in the adjudication of labor
certification decisions. Such
involvement would create operational
difficulties that would make it
impossible to process these applications
in a timely fashion. For that reason, we
do not adopt the commenters’
suggestion. However, we would
certainly accept, as we do now, any
information bearing on the application
from any interested party.
For the reasons discussed above, we
are retaining this provision as proposed
with a minor clarifying edit to
paragraph (b) of the regulation that
replaces ‘‘grant, partially grant or deny’’
with ‘‘certify or deny.’’ This clarification
was based on our determination that the
word certify encompasses both
determinations to certify or partially
certify an Application for Temporary
Employment Certification.
2. § 655.51 Criteria for Certification
In the majority of cases, the
certification determination will rest on
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a finding that the employer has a valid
H–2B Registration and has demonstrated
full compliance with the requirements
of this subpart. As under the 2008 Final
Rule, in ensuring that the employer
meets its recruitment obligations with
respect to U.S. workers, the CO will
treat as available all those individuals
who were rejected by the employer for
any reason other than a lawful, jobrelated reason. We are retaining this
provision as proposed with a minor
clarifying edit.
We received only one comment
specific to the proposed regulatory
provision. This commenter encouraged
us to add a clause to the certification
criteria indicating that lawful job-related
reasons for rejecting U.S. workers do not
include requirements which are applied
to U.S. workers but not to H–2B
workers.
As discussed elsewhere in this Final
Rule, these regulations expressly
prohibit an employer from offering
preferential treatment to H–2B workers.
That obligation extends to all aspects of
the H–2B program, including
recruitment and consideration of U.S.
workers. Although an employer may not
reject U.S. workers based on
requirements that would not otherwise
disqualify an H–2B worker, we do not
believe that a change in this particular
provision is needed to clarify this
requirement.
Additionally, we proposed to clarify
that we will not grant certifications to
employers that have failed to comply
with one or more sanctions or remedies
imposed by final agency actions under
the H–2B program. We did not receive
any comments on this proposal.
Accordingly, we are retaining this
section as proposed except that we have
clarified that the employer must comply
with criteria necessary to grant the
certification, rather than all program
criteria. This clarification was
necessary, as the criteria for certification
cannot reasonably encompass the
employer’s future compliance, as
contemplated by some of the program
requirements. Such compliance is
addressed through post-certification
audits, integrity measures and
enforcement activities.
3. § 655.52 Approved Certification
We proposed that the CO use next day
delivery methods, and preferably,
electronic mail, to send the Final
Determination letter to the employer.
We are doing so in an effort to expedite
the transmittal of information and
introduce efficiency and cost savings
into the application determination
process. The proposed rule also
provided that the CO will send the
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approved certification to the employer,
with a copy to the employer’s attorney
or agent, if applicable. This is a
departure from the 2008 Final Rule.
This change in procedure has resulted
from years of OFLC program experience
evidencing complications in the
relationship between employers and
their agents or attorneys. Because the
employer must attest to the assurances
and obligations contained in the
Application for Temporary Employment
Certification and be ultimately
responsible for upholding those
assurances and obligations, the
employer should receive and maintain
the original approved certification. We
are retaining this regulatory provision,
as proposed with one minor
clarification.
We received only one comment of
general approval about the proposal to
use next day delivery and no comments
addressing the proposal to send the
approved certification to the employer.
For the reasons above, we are
retaining the provisions as proposed
with one minor edit clarifying that
when and if the Application for
Temporary Employment Certification is
permitted to be filed electronically, the
employer must print, sign and retain the
approved temporary labor certification.
4. § 655.53 Denied Certification
The NPRM proposed to retain the
general provisions on denying
certifications from the 2008 Final Rule,
except that we proposed that the CO
will send the Final Determination letter
by means guaranteeing next day
delivery to the employer, with a copy to
the employer’s attorney or agent. Under
the proposal, the Final Determination
letter will continue to state the reason(s)
that the certification was denied, cite
the relevant regulatory provisions and/
or special procedures that govern, and
provide the applicant with information
sufficient to appeal the determination.
We received no comments on this
proposal and retain the provision as
proposed with a minor clarifying edit
that electronic mail is encompassed in
means normally assuring next day
delivery.
5. § 655.54 Partial Certification
The NPRM proposed to retain the
2008 Final Rule provision explicitly
providing that the CO may issue a
partial certification, reducing either the
period of need or the number of H–2B
workers requested, or both. The
proposed rule clarified that the CO may
reduce the number of workers certified
by subtracting the number of qualified
and available U.S. workers who have
not been rejected for lawful job-related
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10099
reasons from the total number of
workers requested. The Final Rule
retains this provision as proposed.
We received few comments on this
proposal. The majority of commenters
supported the requirement that the
employer not be permitted to hire H–2B
workers unless it has demonstrated that
no qualified U.S. workers are available.
In addition, most commenters
supported the proposal that an
employer must consider for
employment and hire all qualified and
available U.S. workers who are referred
to the employer within the referral
period.
Many industry commenters expressed
concern over the need to have a stable
workforce throughout their certified
period of need. One commenter
requested that we provide a recertification process to allow employers
to hire H–2B workers when U.S.
workers become unavailable. These
commenters expressed significant
concerns over the viability of their
businesses if, after expending significant
resources to hire H–2B workers, those
workers are displaced or not hired due
to the requirement that the employer
hire each U.S. worker who is qualified
and available for employment and the
U.S. workers hired do not report for
work or fail to complete the work
contract period. We agree with these
commenters and have added a new
§ 655.57 to address this issue.
6. § 655.55 Validity of Temporary
Employment Certification
We proposed to retain the provision
in the 2008 Final Rule that an approved
temporary labor certification is only
valid for the period, the number of H–
2B positions, the area of intended
employment, the job classification and
specific services or labor to be
performed as provided on the
Application for Temporary Employment
Certification. While the proposed rule
continued to prohibit the employer from
transferring the labor certification to
another employer, we proposed to allow
the employer to transfer the approved
labor certification to a successor in
interest in case of a merger or
acquisition where the new employer is
willing to continue to employ the
workers certified and take on all of the
legal obligations associated with the
labor certification. We are retaining this
provision as proposed, with minor
clarifying edits.
Most commenters supported the
proposal to limit the validity of the
labor certification as proposed. We
received one comment suggesting that
the transfer to a successor in interest be
limited to legally documented mergers
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or acquisitions. Another commenter
indicated that the prohibition on
transfers will promote appropriate
recruitment of U.S. workers and
prohibit employers from skirting
program requirements.
Similar to the prohibition on transfers
of an H–2B Registration, we believe that
limiting the validity of each certification
to the employer to which it was issued
is essential to ensuring program
integrity. As we have stated elsewhere,
we consider it our obligation to protect
a labor certification against being treated
as a commodity; limiting its use to the
employer who applied for it achieves
that protection. Labor Certification for
the Permanent Employment of Aliens in
the United States; Reducing the
Incentives and Opportunities for Fraud
and Abuse and Enhancing Program
Integrity; Final Rule, 72 FR 27904,
27918, May 17, 2007. As discussed in
the preamble to the proposed rule, we
intend to limit transfers to the successor
in interest solely to legally documented
business transactions such as mergers or
acquisitions, whereby the new owner
assumes all obligations and liabilities of
the employer who originally obtained
the certification.
Therefore, we are retaining this
provision as proposed except that we
have clarified that each temporary labor
certification is valid for the period
approved on the Application for
Temporary Employment Certification,
including any approved modifications.
7. § 655.56 Document Retention
Requirements of H–2B Employers
We proposed to add a section that
delineates all of the document retention
requirements, including the period of
time during which documents must be
retained. These retention requirements
were included solely under their
individual sections under the 2008
Final Rule. The document retention
requirements apply to all employers
who file an Application for Temporary
Employment Certification, regardless of
whether such applications have been
certified, denied, or withdrawn. The
proposed provision outlines the
documents that an employer must
retain. We are keeping this portion of
the provision as proposed, with a minor
expansion to include any documents
that must be retained by the employer
resulting from revisions in the Final
Rule, as well as other minor clarifying
edits, including expressing what the
NPRM already implied, i.e., that the
documents and records retained under
this section must be made available to
the Department as well as other Federal
agencies in the event of an audit or
investigation.
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In addition, we proposed to require
employers to make these documents and
records available to the Administrator,
OFLC within 72 hours following a
request. In response to comments, we
have made certain clarifying edits to
this provision, but are retaining most of
the substantive aspects as proposed.
The majority of commenters
supported this proposal because it
requires employers to document, rather
than merely attest to, compliance. One
commenter expressed strong support for
this requirement and suggested that we
expand it to include records on the
amounts spent by the employer for
transportation, subsistence, visa fees,
and other costs which the employer is
prohibited from shifting to its workers.
Another commenter requested the
record keeping requirement be
expanded to include records about
recruiting fees, including amounts and
recipients.
Some commenters objected to the
requirement, as generally unnecessary
or burdensome in terms of cost and
effort required by the employer, while
other commenters offered suggestions
for enhancing or curbing the
requirements related to specific records
such as payroll/earning records. Where
the substance of those comments is
specific to a particular provision in the
proposed rule, we will address it there.
We agree with commenters
supporting this proposal. The records
that the employer is required to retain
are invaluable to ensuring program
integrity. We use them both in making
current determinations, where needed,
and in evaluating any future
Application for Temporary Employment
Certification. These records permit us to
ensure that the employer complied with
the assurances and obligations of the H–
2B labor certification program. We
believe that the proposed recordkeeping
requirement already encompasses the
commenters’ request to expand that
requirement to information about costs
for subsistence, transportation, visa fees,
or recruiting fees. For example, under
§ 655.20(i), an employer is required to
keep accurate and adequate records
with respect to the workers’ earnings.
This obligation encompasses records of
the amount of any and all deductions
taken from the workers’ wages and
additional payments to the worker. For
clarity, as described below, we added a
new paragraph (c)(6) specifically
addressing transportation and
subsistence. Furthermore, this section in
paragraph (c)(9) requires the employer
to retain copies of all contracts with
agents or recruiters, which will provide
additional information regarding
payments involved in these contracts.
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These records, which may be
maintained electronically, together with
the requirement to keep accurate
earning statements, will assist us in
determining whether the employer has
paid or provided for all other costs
required in the H–2B employment.
Requiring additional documentation is
unnecessary.
We disagree with the commenters
who opposed the document retention
requirement. Document retention has
been an integral part of the H–2B
program, and the proposed regulation is
substantively similar to the existing
requirement under the 2008 Final Rule.
Moreover, it is essential to the
performance of program integrity
activities.
One commenter objected to the
requirement that the employer make
such records available within a 72-hour
period, indicating that the requirement
is burdensome, or impossible to comply
with based on the nature of the
employer’s business. This commenter
further requested clarification of when
the timeframe starts and asked us to
indicate whether electronic records may
be maintained. Other commenters
offered suggestions for the timeframe for
document retention, one suggesting that
all records should be retained for a year
after any H–2B Registration expires and
others proposing a period of time based
on the end of the job opportunity.
We revised paragraph (d) of this
section to clarify that the requirement to
produce records within a 72-hour
period is to produce such records to the
Administrator, WHD for enforcement
purposes, rather than Administrator,
OFLC. When the Administrator, OFLC
makes a request to make records
available, an employer must comply
with the timeframes in the provision
governing the request, e.g., Request for
Information, Notice of Deficiency,
Revocation or Debarment. Additionally,
OFLC will continue to include in the
correspondence requesting records the
deadline by which they must be
produced. This timeframe will
correspond to the regulatory
requirement for the type of request. For
example, in an audit letter under
§ 655.70, the CO will specify a date, not
to exceed 30 calendar days from the
date of the audit letter, to provide a
response, including any documents
which are requested in the audit letter.
Finally, we received several
comments addressing the 3-year
requirement for document retention.
One commenter expressed support for
the 3-year retention requirement noting
that the familiar requirement will make
compliance easy for employers. Another
commenter opposed the 3-year retention
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requirement for applications that have
been withdrawn or denied. One
commenter indicated that the retention
period should be 1 year after the
expiration of the H–2B registration,
while another expressed concerns that
the 3-year retention requirement may
permit an employer with a 3-year
certification to destroy records before
the completion of the job; this
commenter suggested that employers be
required to maintain records and
documents for at least 1 year after the
completion of the job. Finally a
commenter suggested a longer retention
requirement of 5 years.
In response to these comments, we
wish to clarify that employers must
maintain all records required in this
section for the period of 3 years after the
Application for Temporary Employment
Certification is adjudicated or from the
date the CO receives a letter of
withdrawal. The Final Rule also
includes a separate requirement in
§ 655.11(i) that the employer retain
documents pertaining to the H–2B
Registration for a 3-year period after the
end of the validity of the H–2B
Registration. We have concluded that
the two document retention
requirements taken together adequately
address the need to document
compliance with program requirements.
In addition, the regulatory scheme does
not allow that records be destroyed until
the certified period of employment has
concluded. Although we recognize that
the employer may have a temporary
need based on a one-time occurrence
which lasts up to 3 years, the
Department will not grant a 3-year
certification but will require the
employer to file additional Applications
for Temporary Employment
Certification and conduct a labor market
test where the period of employment
exceeds 9 months. Each application
filed by the employer will trigger a new
document retention requirement and
therefore ensure that records are
available to assist the Department in
ascertaining compliance with all
program requirements. The Department
believes, however, that a longer
requirement such as the suggested 5
years is not necessary to ensure program
integrity and would be inconsistent
with document retention requirements
in other labor certification programs.
Finally, the Department disagrees with
a commenter who opposed the 3-year
retention requirement for withdrawn or
denied applications. Based on our
program experience, we have concluded
that requiring all employers to retain
this information will bolster program
integrity and aid in the enforcement of
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program obligations, particularly since
many employers are repeat filers in the
H–2B program. For these reasons we are
retaining the 3-year retention period, as
proposed.
To reflect changes made to § 655.20,
we have added a new subparagraph
(c)(6) to this section to require
employers to retain records of
reimbursement of transportation and
subsistence costs incurred by the
worker. Additionally, in response to
comments and changes made to § 655.9,
we have made edits to subparagraph
(c)(9) of this section to indicate that the
retention of written contracts with
agents or recruiters must also include
the list of the identities and locations of
persons hired by or working for the
recruiter and their agents or employees.
Finally, the provision in the Final
Rule also reminds the employer that if
and when the Application for
Temporary Employment Certification
and the H–2B Registration are permitted
to be filed electronically, the employer
must print, sign, and retain each
adjudicated Application for Temporary
Employment Certification and the H–2B
Registration including any approved
modifications, amendments, or
extensions.
8. § 655.57 Determinations Based on
the Unavailability of U.S. Workers
As discussed earlier in this preamble,
several commenters expressed
significant concerns over the viability of
their businesses if, after expending
significant resources to hire H–2B
workers, those workers are displaced or
not hired due to the requirement that
the employer hire each U.S. worker who
is qualified and available for
employment and the U.S. workers hired
do not report for work or fail to
complete the work contract period.
Specifically, one commenter requested
that we provide a re-certification
process to allow employers to hire H–
2B workers when U.S. workers become
unavailable. We agree with these
commenters and have added this
provision to provide an option to
employers to address their workforce
needs in the continuing absence of U.S.
workers.
Under the Final Rule, as under the
NPRM, an employer is required to hire
all qualified and available U.S. workers
who are referred to it by the SWA
during the referral period specified in
§ 655.40(c). Where the employer’s
request for H–2B workers is reduced by
the number of qualified and available
U.S. workers or denied because the
employer has hired U.S. workers for all
of the positions it seeks to fill and the
U.S. worker(s) subsequently become
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unavailable, the employer has the
option to voluntarily contact the SWA
for additional referrals of U.S. workers.
While this is not a requirement, the
SWA may be able to provide the
employer with replacement workers
without an additional request to the CO.
However, we recognize that there are
circumstances where an employer’s U.S.
workers fail to report to work or quit
before the end of the certified period of
employment, and it is at times not
viable for an employer to seek
additional workers from the SWA. We
have determined that it is prudent to
provide an avenue for relief for those
employers. In the event that some or all
of the employer’s U.S. workers become
unavailable, we are adopting a
regulation similar to that in the H–2A
program which provides the CO with
the authority to issue a redetermination
based on the unavailability of U.S.
workers, upon a timely and proper
request by the employer. Under this
added section, the employer must make
a written request directly to the CO for
a new determination by electronic mail
or other appropriate means, such as a
private courier. The request must be
accompanied by a signed statement
confirming the employer’s assertion and
providing reasons for the
nonavailability (e.g., information
regarding the departure of the workers
after one day, the fact they never
showed up for work on the first day.).
If the employer has not previously
provided notification of abandonment
or termination of a U.S. worker under
655.20(y), the employer will be required
to include in the signed statement the
name and contact information for each
U.S. worker who has become
unavailable. Before granting the
employer’s request, the CO will contact
the SWA in an attempt to locate
qualified replacement workers who are
available or are likely to become
available for the job opportunity. If no
such workers are found, the CO will
grant the employer’s request for a new
determination. The employer may
appeal a denial of its request under the
administrative appeal process in
§ 655.61. For these reasons, we are
adding this new section, Request for
determination based on unavailability of
U.S. workers, to address the concerns
raised by commenters.
H. Post Certification Activities
1. § 655.60 Extensions
In the proposed rule, we identified
instances when an employer will have
a reasonable need for an extension of
the time period that was not foreseen at
the time the employer originally filed
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the Application for Temporary
Employment Certification. This
provision provides flexibility to the
employer in the event of such
circumstances while maintaining the
integrity of the certification and the
determination of temporary need.
We proposed that the employer make
its request to the CO in writing and
submit documentation showing that the
extension is needed and that the
employer could not have reasonably
foreseen the need. Extensions would be
available only to employers whose
original certified period of employment
is less than the maximum period
allowable in this subpart and under
DHS H–2B regulations. Extensions differ
from amendments to the period of need
because extensions are requested after
certification, while amendments are
requested before certification.
Extensions will only be granted if the
employer demonstrates that the need for
the extension arose from unforeseeable
circumstances, such as weather
conditions or other factors beyond the
control of the employer (including
unforeseen changes in market
conditions). We have decided to keep
this provision as proposed, with a few
edits to remove redundancy related to
the maximum period allowable through
extension and employer obligations and
otherwise clarify the provision.
A comment received from a labor
organization suggested that the words
reasonably unforeseeable, when
referring to changes in market
conditions, should replace
unforeseeable. We have determined that
adding the term reasonably would not
confer any additional clarity as it is the
CO who determines whether the
employer has provided a sufficient
reason for the extension based on the
facts of the specific case and evidence
presented.
2. § 655.61 Administrative Review
The Administrative Review provision
in the NPRM was substantially the same
as the 2008 Final Rule, with a proposed
adjustment in the timeframe from 5 to
7 business days each for the submission
of the appeal file by the CO, the
submission of a brief by the CO’s
counsel, and the issuance of a decision
by BALCA. We are adopting the
provision of the NPRM without change
in this Final Rule.
Two commenters recommended that
we provide de novo review in the
administrative review process. As
proposed in the NPRM, a request for
administrative review may contain only
legal arguments and such evidence as
was actually submitted to the CO before
the date the determination was issued.
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By contrast, de novo review would
permit the parties to add additional
information for the BALCA to consider
beyond what was actually submitted to
the CO. After considering this issue, we
decline to change the administrative
process to provide de novo review.
Given that an employer is provided with
multiple opportunities to submit
information and respond to the CO at
each step of the labor certification
adjudication process, record review
provides employers with a fair and
efficient process to appeal the CO’s
determinations. De novo review, if
anything, provides employers with less
of an incentive to submit the required
information or documentation when
requested. Additionally, establishing de
novo proceedings would further
lengthen the adjudication process and
require additional resources that may
produce a backlog in H–2B appeals.
Furthermore, the regulations have
limited BALCA review to the record
considered by the CO for the past 18
months without any problems, and we
believe continuing with this process is
unlikely to cause problems in the future,
for the reasons mentioned previously.
One of these commenters also
recommended that the rule require us to
include all information relating to a
particular matter in the administrative
file. The commenter stated that placing
all material relating to a particular
matter in the administrative file as a
matter of course would enhance public
perception of the fairness of the process
and would likely produce better
outcomes on the merits. The CO already
includes in the administrative file any
documents that it receives from the
employer and third parties that pertain
to the adjudication of the certification.
Therefore, we do not believe that it is
necessary to add to the regulatory
language a requirement that the CO
include in the administrative file all
information that any party states is
related to particular matter in the
administrative file.
This commenter also requested
modification of the rule to establish that
appellate proceedings are adversary
proceedings for the purposes of the
Equal Access of Justice Act (EAJA).
However, Federal courts have
recognized the EAJA is a waiver of the
sovereign’s traditional immunity from
claims for attorneys’ fees and therefore
must be construed strictly in favor of the
U.S. Ruckelshaus v. Sierra Club, 463
U.S. 680, 103 S.Ct. 3274 (1983); Fidelity
Construction Co. v. United States, 700
F.2d 1378, 1385 (Fed. Cir. 1983). In
Smedberg Mach. & Tool, Inc. v.
Donovan, 730 F.2d 1089 (7th Cir. 1984),
the court specifically found that labor
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certification review proceedings are not
adversary adjudication for the purposes
of the EAJA. While the Smedberg
decision dealt with the administrative
review process for the permanent labor
certification program, it is just as
applicable to the H–2B program. The
court found that unless an agency
hearing is statutorily mandated, the
EAJA does not provide for the award of
attorney fees to the prevailing party. See
Smedberg, 730 F.2d at 1092. Because
the INA does not mandate an agency
hearing for the granting or denial of
H–2B labor certifications, EAJA does not
provide for attorneys fee awards to
plaintiffs who prevail in those
proceedings. Therefore, we decline to
establish an H–2B appeal is an
adversary proceeding.
We received a comment about the
provision which increased the time for
the CO to assemble and submit the
appeal file in § 655.61(b) from 5
business days to 7 business days. The
commenter recommended that the rule
require the submission within 3
business days. However, 3 business
days is not, in many cases, enough time
to assemble, review and submit an
appeal file, particularly when coupled
with the CO’s continuing responsibility
to adjudicate other pending applications
within a short timeframe and to prepare
appeal files for other cases on appeal.
Furthermore, 7 business days is an
administratively efficient timeframe,
consistent with similar deadlines for the
Chicago NPC in our other labor
certification programs. Therefore, we
decline to change the deadline to
assemble and submit the appeal file to
3 days and instead maintain the 7
business day deadline proposed.
One commenter recommended that
we establish procedures which would
allow for intervention by workers and/
or organizations of workers to
participate in ALJ hearings. For the
reasons provided in the general
discussion of integrity measures later in
this preamble, we decline to accept this
suggestion.
3. § 655.62 Withdrawal of an
Application for Temporary Employment
Certification
Under the proposed rule, an employer
may withdraw an Application for
Temporary Employment Certification
before it is adjudicated. We are retaining
this provision as proposed with one
clarifying edit. We received one
comment on the withdrawal provision.
This commenter encouraged us to adopt
additional language providing that if an
employer withdraws a pending H–2B
Application for Temporary Employment
Certification, any U.S. workers hired or
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in corresponding employment must still
receive the benefits and protections
provided under that Application for
Temporary Employment Certification.
We decline to accept this suggestion, as
we do not have the authority to enforce
the benefits and protections provided
under an Application for Temporary
Employment Certification if there is no
final determination. Presumably, an
employer can withdraw its application
the day after submission, at which point
no recruitment has begun. Hence, we
distinguish between a request to
withdraw an Application for Temporary
Employment Certification before
adjudication, where the employer makes
a decision not to participate in the
program and is likely to have not
completed the recruitment process, and
a request to withdraw an adjudicated,
i.e. certified (full or partial) or denied,
Application for Temporary Employment
Certification where the employer has
already initiated the recruitment process
on which the CO based the
determination. Where the CO has
already made a final decision on an
employer’s Application for Temporary
Employment Certification, regardless of
whether it is denied or certified, and
where the employer requests
withdrawal after such adjudication, we
have maintained as proposed, within
the integrity measures of both 29 part
503 and this subpart, that the employer
is bound by the assurances and
obligations of the Application for
Temporary Employment Certification to
any U.S. worker hired or any
corresponding workers under the
positions listed in the Application for
Temporary Employment Certification.
Therefore, we are retaining this
provision with one clarifying change.
Although implied in the NPRM, we
have included language in the
regulations to clarify that a withdrawal
of an Application for Temporary
Employment Certification must be
requested in writing.
4. § 655.63 Public Disclosure
This proposed section codifies our
practice of maintaining, apart from the
electronic job registry, an electronic
database accessible to the public
containing information on all employers
that apply for H–2B labor certifications.
The database will continue to include
information such as the number of
workers the employer requests on an
application, the date an application is
filed, and the final disposition of an
application. The continued accessibility
of such information will increase the
transparency of the H–2B program and
process and provide information to
those currently seeking such
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information from the Department
through FOIA requests.
The comments that were received in
regard to public disclosure were
requests that we include additional
information or documentation. These
comments are addressed below.
We received several suggestions as to
the types of documents that should be
posted on the OFLC Web site or
electronic job registry. One labor
organization requested that all
information received from an employer
seeking registration in the H–2B
program be placed on an online
database, in order to facilitate private
enforcement of the regulations. An
advocacy group also stated that program
integrity would be better served by
expanding the database to include all of
the materials that the NPC receives from
employers. While we are committed to
transparency, we have determined that
there are several reasons why it may not
be appropriate or feasible to disclose
every document to the public. Again,
many of the documents now required to
be submitted under the Final Rule may
contain privileged information, which
for legitimate reasons cannot be
disclosed to a third party. In addition,
the amount of time it would take OFLC
staff to appropriately redact and upload
all documentation is beyond OFLC’s
capabilities at this time. That being said,
we reserve the right to post, as
appropriate, any documents pertaining
to an Application for Temporary
Employment Certification in order to
align with the government’s goal to be
as open and transparent as possible.
Another advocacy group specified
different types of information and
documentation that should be included
within the public disclosure such as: the
type of work, the prevailing wage, the
beginning and the ending dates of
employment, and if housing is
provided, then location of the housing.
An additional concern was the
timeliness of disclosure, so as to allow
workers and advocates to participate in
the administrative review processes.
Much of the information listed by the
commenter is contained within the
Application for Temporary Employment
Certification and/or the job order, which
is already disclosed through the
electronic job registry. We decline to
accept the suggestion that documents
related to pre-certification review such
as agreements with agents and/or
recruitment reports, or administrative
actions such as audits should be posted
before a determination is made by the
CO and/or an ALJ to give the public
time to review the documents and
provide information. In addition to
causing delays in processing, such
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information if disseminated during the
administrative process could undermine
the integrity of the certification and
appeal processes. There are mechanisms
for relaying information regarding an
H–2B job opportunity or an employer
application; such information may be
relayed in a complaint lodged through
the Job Service Complaint System, or
may be provided to the Administrator,
OFLC and/or CO at any time. Employers
filing applications are also reminded
that where the employer or its agent/
attorney is found to have provided false
information on the Application for
Temporary Employment Certification,
the application may be subject to
revocation, and that person or entity
may be subject to debarment or
additional penalties, as appropriate.
Several commenters also
recommended that we create a
searchable database with all
enforcement actions. OFLC already
maintains a publically available list of
debarred entities on its Web site, and
WHD also maintains a list of
enforcement actions in closed cases,
which include the violations, on its
Web. As stated above, we continue to be
open to transparency and potentially
developing a process to make additional
information, such as final
determinations, publically available.
However, we do not believe that it
would be appropriate to disclose
information on pending enforcement
actions, as doing so may undermine the
integrity of the audit, investigation, or
adjudication process. Therefore, we
decline to adopt the commenter’s
proposal.
Another commenter recommended
that ETA and WHD file an annual
public report about their enforcement
actions. The commenter is concerned
that without such public reporting the
public will have little idea whether the
changes to the rule are making a
difference. We decline to adopt this
requirement in this Final Rule, as such
information is already available to the
public. As stated above, OFLC already
maintains a publically available list of
debarred entities on its Web site, and
WHD also maintains a list of
enforcement actions in closed cases,
which include the violations, on its Web
site.
Several commenters recommended
that additional information and
documentation should be included on
the electronic job registry, in order to
provide potential workers with a better
sense of the job opportunity and
employer. Some wanted us to include
ETA Forms and other job-offer-related
documents, while others wanted us to
go as far as including contracts between
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employers and foreign recruiters. Other
commenters expressed concern about
the type and amount of information that
could become public via the electronic
job registry. These commenters asserted
that employers have a legitimate
business interest in maintaining the
confidentiality of employment terms. At
this time we have decided not to
include any additional information to
the electronic job registry other than
what was proposed under § 655.34.
Many commenters requested that the
H–2B Registration be included as part of
the public disclosure process. These
commenters contend that such
transparency would permit public
monitoring compliance with regulatory
requirements. For example, members of
the general public could bring to light
evidence that an employer
misrepresented its actual need or the
employer’s need materially changed
after the employer received a multi-year
H–2B Registration. The types of
information that these commenters
wanted incorporated under our public
disclosure are: employer names,
worksite addresses, number of H–2B
workers each employer is seeking to
employ, the industries in which each
employer operates, indication of the
employer’s application stage (e.g.
registration or application), while others
wanted on-going public disclosure of an
employer’s certified payrolls
demonstrating compliance with the
minimum wage requirements of the
H–2B program. Though we understand
why the public may want to see the
H–2B Registration and the specific
information listed above, at this time
because the registration process is one
by which employers may demonstrate
their ability to participate in the H–2B
program and does not provide an
explicit right to access H–2B workers,
we decline to make it part of our public
disclosure.
I. Integrity Measures
Proposed §§ 655.70 through 655.73
have been grouped together under the
heading Integrity Measures, describing
those actions we propose to take to
ensure that an Application for
Temporary Employment Certification
filed with the Department in fact
complies with the requirements of this
subpart.
Several commenters suggested that we
establish procedures to allow for
workers and organizations of workers to
intervene and participate in the audit,
revocation, and debarment processes.
We find that such procedures would be
administratively infeasible and
inefficient and would cause numerous
delays in the adjudication process. For
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example, under this proposal, we would
have to identify which workers and/or
organizations of workers should receive
notice and should be allowed to
intervene. Processing delays would be
exacerbated by the fact that once
identified, we would have to provide
additional time and resources to notify
the parties and provide them with the
opportunity to prepare and present their
information, regardless of whether they
have any specific interest or information
about the particular proceedings at
hand. Workers and worker advocates
continue to have the opportunity to
contact the OFLC or WHD with any
findings or concerns that they have
about a particular employer or
certification, even without a formal
notice and intervention process in
place. For these reasons, we are not
adding procedures to allow workers and
organizations of workers to participate
in the audit, revocation, and debarment
processes.
1. § 655.70
Audits
This proposed section outlined the
process under which OFLC would
conduct audits of adjudicated
applications. The proposed provisions
were similar to the 2008 Final Rule. The
Final Rule retains this provision as
proposed with one clarifying edit.
Our regulatory mandate to ensure that
qualified workers in the U.S. are not
available and that the foreign workers’
employment will not adversely affect
wages and working conditions of
similarly employed U.S. workers serves
as the basis for our authority to audit
adjudicated applications, even if the
employer’s application is ultimately
withdrawn after adjudication or denied.
Adjudicated applications include those
that have been certified, denied, or
withdrawn after certification. There is
real value in auditing denied
applications because they could be used
to establish a record of employer noncompliance with program requirements
and because the information they
contain assists us in determining
whether we need to further investigate
or debar an employer or its agent or
attorney.
Under the proposed rule, OFLC had
the discretion to choose which
Applications for Temporary
Employment Certification will be
audited, including selecting
applications using a random assignment
method. When an Application for
Temporary Employment Certification is
selected for audit, the CO will send a
letter to the employer and, if
appropriate, its attorney or agent, listing
the documentation the employer must
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submit and the date by which the
documentation must be sent to the CO.
The NPRM also provided that an
employer’s failure to comply with the
audit process may result in the
revocation of its certification or in
debarment, under proposed §§ 655.72
and 655.73, or require assisted
recruitment in future filings of an
Application for Temporary Employment
Certification, under § 655.71. The CO
may provide any findings made or
documents received in the course of the
audit to DHS or other enforcement
agencies, as well as WHD. The CO may
also refer any findings that an employer
discriminated against a qualified U.S.
worker to the Department of Justice,
Civil Rights Division, and Office of
Special Counsel for Unfair Immigration
Related Employment Practices.
We received many comments on this
provision. The comments were equally
divided between those that opposed
post-adjudication audits and those that
believed that audits are an effective tool
to enhance integrity and successfully
root out bad actors.
Most comments supported OFLC’s
ability to audit, though one individual
had concerns about the discretion that
OFLC has under the NPRM to choose
which employer that is audited. OFLC
audits both employers about which it
has information suggesting that the
employer may have violated one or
more provisions of the application and
employers selected either randomly or
by industry or other area of concern for
quality assurance purposes. We do not
believe that it is appropriate to limit our
discretion as to which applications may
be audited, as such a limitation could
reduce the effectiveness of the integrity
measures in the H–2B program.
Several commenters brought up the
issue of allowing others to intervene in
the OFLC audit process. As stated above
in the general discussion of the integrity
measures, we have decided that such
procedures would be administratively
infeasible and inefficient and would
cause numerous delays in the
adjudication process.
A comment submitted by several
employer advocacy groups
recommended that the post-adjudication
audit procedure be eliminated as
unnecessary and duplicative. They
argued that post-adjudication audits are
appropriate in the attestation-based
certification model; however, there is no
justification for them under the
compliance model. These groups also
stated that the incorporation of ETA’s
audit procedure coupled with WHD
enforcement cannot be justified at a
time when Federal funding resources
are extremely limited. We disagree with
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these commenters. We have a duty to
use the tools and resources in our power
to protect all workers in the U.S. By
creating multiple checks and balances
within the H–2B program, and allowing
both ETA and WHD the ability to ensure
compliance, we are meeting our goal of
ensuring the protection of workers as
well as keeping employers accountable.
One commenter wanted to be sure
that all findings made by OFLC and all
documents provided during an audit
would be provided to DHS or other
enforcement agencies. We work very
closely with our sister agencies in all
aspects of the H–2B program and will
continue to do so. But we have come to
recognize that providing documentation
before the determination of an audit
may result in unnecessary confusion
and cause unwarranted delays, costs, or
penalties to an employer. In addition,
this commenter requested that we share
information submitted in response to an
audit or action for revocation or
debarment with the SWA, so that the
SWA can provide any relevant
information to promote informed DOL
decisions. As previously discussed, we
have decided that incorporating such
procedures could cause numerous
delays in the adjudication process. A
worker advocacy group suggested that
any person should be able to request
that the CO audit a particular employer.
We reiterate that workers and worker
advocates always have had the
opportunity to contact us with any
information or concerns that they have
about a particular employer or
certification, and they will continue to
have that opportunity, even without a
formal notice and intervention process
in place. We cannot, however, commit
to auditing every employer about which
we receive a complaint or information.
We will evaluate all information and
complaints we receive to determine
whether an audit is appropriate.
This same commenter requested that
the provisions of 29 CFR 503.6 and
503.7 be incorporated into the audit
section under this subpart. However,
though this subpart and 29 CFR part 503
in many instances parallel each other,
there are many provisions in one part
that, based on the different roles of
OFLC and WHD, may not be deemed
appropriate for the other. For example,
one of the provisions in 29 CFR 503.6
(Waiver of rights prohibited) provides
that a person may not seek to have an
H–2B worker, a worker in
corresponding employment, or any
other person’s rights waived. This
provision is not necessarily applicable
to the audits requirements under the
post-adjudication audit section, where
OFLC is auditing the employer’s
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application. It is highly unlikely that the
documentation provided or requested in
an audit would provide evidence of any
waiver of a worker’s rights. Under 29
CFR 503.7 (Investigation authority of the
Secretary) WHD has assumed the
authority delegated to the Secretary
under 8 U.S.C. 1184(c)(14)(B). WHD is
the primary agency within the
Department for investigating employer
compliance with the requirements of the
H–2A and H–2B programs. WHD has the
necessary expertise and knowledge to
enforce and investigate the various
regulatory provisions. Requiring OFLC
to have duplicative investigative
authority under the audit provision
would not be the best use of the
Department’s resources. For the reasons
stated above, we are retaining the
substance of this provision as proposed,
except for several clarifying edits. We
clarified that the Audit Letter will
advise the employer of its obligation to
fully comply with the audit process and
included a consistency change in the
last sentence of paragraph (c) by
replacing the word additional with the
word supplemental.
2. § 655.71 CO-Ordered Assisted
Recruitment
The proposed rule permitted OFLC to
determine that a violation that does not
warrant debarment has occurred and, as
a result, to require an employer to
participate in assisted recruitment. This
provision also applied to those
employers that due to either program
inexperience or confusion, have made
mistakes in their Application for
Temporary Employment Certification
that indicate a need for further
assistance from OFLC.
Under this provision the CO will
notify the employer (and its attorney or
agent, if applicable) in writing of the
requirement to participate in assisted
recruitment for any future filed
Application for Temporary Employment
Certification for a period of up to 2
years. The assisted recruitment will be
at the discretion of the CO, and
determined on the unique
circumstances of the employer.
The assisted recruitment may consist
of, but is not limited to, requiring the
employer to conduct additional
recruitment, reviewing the employer’s
advertisements before posting and
directing the employer where such
advertisements are to be placed and for
how long, requesting and reviewing
copies of all advertisements after they
have been posted, and requiring the
employer to submit proof of contact
with past U.S. workers, and proof of
SWA referrals of U.S. workers. If an
employer fails to comply with the
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requirements of this section, the
employer’s application will be denied
and the employer may be debarred from
future program participation under
§ 655.73.
We also invited comments and
suggestions of industry-specific
recruitment and advertising sources to
be used by the CO in administering
assisted recruitment in the H–2B
program under this section. We are
retaining the proposed provision with
one change. While we received no
suggestions about industry-specific
recruitment sources, the comments did
indicate general support for allowing
the CO to order assisted recruitment as
a means of helping an employer rectify
recruitment problems before more
severe administrative actions are
pursued. One individual stated that the
COs should refrain from inserting
themselves into the employer-attorney/
agent relationship and should only
notify the employer of the need to
participate in assisted recruitment. We
disagree with this commenter. An
employer has the right under the
regulations to seek the advice and
assistance of an attorney or agent. We
know of no reason why we should limit
the areas in which the employer can
seek that advice and assistance.
Having considered comments on this
proposal, we are retaining this provision
in its entirety with one edit in paragraph
(d), where we clarify that the employer’s
failure to comply must be material in
nature.
3. § 655.72 Revocation
Under this section, OFLC can revoke
an approved temporary labor
certification under certain conditions,
including where there is fraud or willful
misrepresentation of a material fact in
the application process or a substantial
failure to comply with the terms and
conditions of the certification. The 2008
Final Rule did not include a similar
revocation provision. We are adopting
the provisions of the NPRM without
change in this Final Rule.
Many commenters expressed general
approval of the new revocation
provision as an important enforcement
technique. Commenters also submitted
comments on specific provisions of this
section.
Several of these commenters
discussed the bases for revocation in
paragraph (a) of this section. The basis
generating the most comments is
paragraph (a)(2), which lists a
substantial failure to comply with the
terms and conditions of the certification
as a basis for revocation and defines a
substantial failure as a willful failure to
comply. Several worker advocacy
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organizations stated the willful standard
is too high. Many of these organizations
suggested an intentional standard,
instead. Several stated an intentional
standard would be consistent with the
Job Service Complaint System and with
the MSPA. One organization noted that
the courts have provided considerable
interpretation of the intentional
standard under MSPA, so use of the
intentional standard would enhance the
standard’s clarity. Another worker
advocacy organization proposed a new
eight-part definition for substantial
failure that included failure to provide
wages, benefits or acceptable working
conditions; violations of H–2B
regulations; and violations of other
laws.
We elect to maintain the willful
standard. The reason for maintaining
this standard is discussed in more depth
at 29 CFR 503.19 (Violations) of the
WHD preamble.
A labor organization suggested that all
of an employer’s existing labor
certifications be revoked if one is
revoked, because the employer has been
found to be untrustworthy. While we
recognize that an employer would be
undermining the integrity of the labor
certification program if it meets any of
the bases for revocation set forth in this
section, we are retaining the language as
proposed in the NPRM, because we do
not believe that violations relating to a
particular certification should not
necessarily be imputed to an employer’s
other certifications. We recognize the
serious impact that a revocation would
have on employers and H–2B workers
alike and do not believe that it should
be applied to certifications for which
there has been no finding of employer
culpability.
However, we acknowledge that in
some situations, the Administrator,
OFLC, may revoke all of an employer’s
existing labor certifications where the
underlying violation applies to all of the
employer’s certifications. For instance,
if the Administrator, OFLC finds that
the employer meets either the basis for
revocation in paragraph (a)(3) of this
section (failure to cooperate with a
Department investigation or with a
Department official performing an
investigation, inspection, audit, or law
enforcement function) or in paragraph
(a)(4) of this section (failure to comply
with sanctions or remedies imposed by
WHD or with decisions or orders of the
Secretary with respect to the H–2B
program), this finding could provide a
basis for revoking any and all of the
employer’s existing labor certifications.
Additionally, where we find violations
of paragraphs (a)(1) or (a)(2) of this
section affect all of the employer’s
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certifications, such as where an
employer misrepresents its legal status,
we also may revoke all of that
employer’s certifications. Lastly, where
an employer’s certification has been
revoked, we certainly would take a more
careful look at the employer’s other
certifications to determine if similar
violations exist that would warrant their
revocation.
Representing the opposite
perspective, one coalition of employers
expressed concern about the effect of
revocation on businesses and concern
that revocation may be too frequent
under the bases proposed in the NPRM.
The coalition wants us to clarify that
revocation is an extreme penalty for
egregious violations. This commenter
also suggested that we consider the
totality of the circumstances, not just
the potential bases listed in paragraph
(a) of this section, when considering
whether or not to revoke a temporary
labor certification.
We cannot say how often revocation
will occur under the Final Rule, because
a similar provision did not exist in the
2008 Final Rule or before. We recognize
the seriousness of revocation as a
remedy; accordingly, the bases for
revocation in paragraph (a) reflect
violations that significantly undermine
the integrity of the H–2B program. We
intend to use the authority to revoke
only when an employer’s actions
warrant such a severe consequence. We
do not intend to revoke certifications if
an employer commits minor mistakes.
Several worker advocacy
organizations also submitted comments
on paragraph (b) of this section, which
details the procedures for revocation.
Three organizations suggested that the
rules should provide for notice to
employees of revocation proceedings
and for intervention by employees in
revocation proceedings. One
organization suggested giving notice of
revocation to entities listed as potential
recruitment sources, such as former
employees. We have decided not to add
procedures for employee or third party
notification and intervention to the
revocation section for the reasons set
forth in the Integrity Measures preamble
at §§ 655.70–655.73.
4. § 655.73
Debarment
The NPRM proposed to revise the
existing debarment provision to
strengthen the enforcement of H–2B
labor certification requirements and to
clarify the bases for a debarment. It also
proposed that WHD have debarment
authority independent of OFLC. The
Final Rule adopts these provisions with
minor changes.
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A number of commenters had
concerns about the willfulness standard
that would apply not only to debarment,
but also to the assessment of violations
and other remedies. However, many of
the comments were based on a
misunderstanding of what a willful
violation entailed. The violations
discussion at 29 CFR 503.19 of the WHD
preamble discusses the willfulness
standard. As explained in that section,
we will judge all violations by the
willfulness standard and will not debar
for minor, unintentional violations.
a. Debarment of an employer. A labor
union encouraged us to extend
debarment to the individual principals
of a company or legal entity to foreclose
the ability of these individuals to
reconstitute under another business
entity. Although we do not have the
authority to routinely seek debarment of
entities that are not listed on the ETA
Form 9142, in appropriate
circumstances, we may pierce the
corporate veil in order to more
effectively remedy the violations found.
b. Debarment of an agent or attorney.
As discussed under § 655.8, the NPRM
raised explicit concerns about the role
of agents in the program, and whether
their presence and participation have
contributed to problems with program
compliance, such as the passing on of
prohibited costs to employees. These
concerns were so significant that we
solicited comments on whether to
continue to permit the representation of
employers by agents in the H–2B
program. As discussed in the preamble
discussion of § 655.8, we have decided
to continue to allow agents to represent
employers. However, as the NPRM also
explained, if we were to continue to
accept applications from agents,
additional requirements might need to
be applied to strengthen program
integrity and we solicited comments on
this issue as well.
Several employers and employer
organizations responded by
acknowledging that bad actors exist in
the H–2B program, and urging us to use
our enforcement authority to pursue
fraud involving agents rather than
prohibiting the legitimate work of agents
in preparing and filing H–2B
applications on behalf of employers. In
addition, several worker advocacy
organizations’ comments expressed
concern about violations committed by
agents and attorneys, and encouraged us
to take stronger actions to prevent such
abuses, primarily by holding employers
strictly liable for the actions of their
agents. We are unable to do that for the
reasons discussed in the preamble
discussion at 29 CFR 503.20.
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As a number of both employer and
worker advocacy organizations noted,
the Department’s statistics show that in
FY 2010, 86 percent of employers filed
H–2B applications using an agent. These
agents are intimately familiar with the
H–2B program requirements. As
commenters affirmed, agents have a
high level of program knowledge and
help guide employers through the
process. The agents and attorneys who
file applications on behalf of employers
certify under penalty of perjury on the
ETA Form 9142 Application for
Temporary Employment Certification
that everything on the application is
true and correct. However, where, for
example, a bad actor agent passes on
prohibited fees to workers in violation
of the prohibition on collecting such
fees in § 655.20(o) and 29 CFR 503.16(o)
while affirming that everything on the
application is true and correct,
including the employer’s declaration
that its agents and/or attorneys have not
sought or received prohibited fees, the
agent is not currently held accountable
for such a violation absent a link to an
employer violation.
In addition, § 655.20(p) and 29 CFR
503.16(p) require an employer to
contractually prohibit an agent or
recruiter from seeking or receiving
payments from prospective employees.
This creates a loophole, under which an
employer may contractually prohibit the
attorney or agent (and agents and
employees) from collecting prohibited
fees, yet the attorney or agent
independently charges the workers for
prohibited fees. In this situation, the
employer will not be debarred for the
independent violation of the agent or
attorney because the employer has not
committed any violation. A coalition of
worker advocacy organizations pointed
out that the proposed regulations
‘‘continue the Department’s efforts to
eliminate the pernicious practice of
foreign workers paying substantial fees
to recruiters to obtain H–2B jobs. While
the proposed changes are praiseworthy,
they are not sufficient to curb these
abuses and may actually help relieve
employers of responsibility for such
charges.’’
In light of the concerns expressed in
the NPRM and the comments received,
we have decided to strengthen program
integrity in the Final Rule by applying
debarment to independent violations by
attorneys and agents, recognizing that
agents and attorneys should be held
accountable for their own independent
willful violations of the H–2B program,
separate from an employer’s violation.
Language to this effect has been added
to the OFLC and WHD debarment
provisions at § 655.73(b) and 29 CFR
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503.24(b), as well as the WHD sanctions
and remedies section, as discussed
further in the preamble at 29 CFR
503.20. These enhanced compliance
measures apply only to the agents and
attorneys who are signatories on the
ETA Form 9142, as these agents and
attorneys have become directly involved
with the H–2B program and have made
attestations to the Department.
A coalition of agents and employers
suggested that we provide guidance on
how we would apply the reckless
disregard standard to agents and
attorneys and the extent to which agents
and attorneys must intrude into the
details of the employer’s business to
avoid showing reckless disregard for the
truthfulness of the agent’s or attorney’s
representations or for whether their
conduct satisfies the required
conditions. We do not intend to make
attorneys or agents strictly liable for
debarrable offenses committed by their
employer clients, nor do we intend to
debar attorneys who obtain privileged
information during the course of
representation about their client’s
violations or whose clients disregard
their legal advice and commit willful
violations. We will be sensitive to the
facts and circumstances in each
particular instance, and when
considering whether an attorney or
agent has participated in an employer’s
violation; we will seek to debar only
those attorneys or agents who work in
collusion with their employer-clients to
either willfully misrepresent material
facts or willfully and substantially fail
to comply with the regulations.
Similarly, where employers have
colluded with their agents or attorneys
to commit willful violations, we will
consider debarment of the employer as
well.
We did not propose in the NPRM to
debar recruiters who are not agent or
attorney signatories to the ETA Form
9142. However, several commenters
specifically recommended that we
maintain a public list of debarred
recruiters. Since recruiters are not
subject to debarment unless they are
signatories to the ETA Form 9142, we
will not maintain a list of debarred
recruiters. However, both OFLC and
WHD already publicly post a list of
employers, agents, or attorneys that
have been debarred under all of the
labor certification programs and to the
extent that a recruiter might also be
debarred, the recruiter would also
appear on the list.
Another commenter requested that we
report debarred attorneys to State bar
associations. We note that there is
nothing in the regulations that restricts
us from making such a report. Where
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10107
circumstances warrant, we may decide
to report debarred attorneys to State bar
associations using the information
provided in the ETA Form 9142 which
provides a field for the attorney’s State
bar association number and State of the
highest court where the attorney is in
good standing. However, we note that
these fields are limited to only one State
bar association. Therefore, while we
may be able to notify the State bar
association listed on the ETA Form
9142, there may be other State bar
associations unknown to us, of which
the attorney is a member that we are
unable to notify. However, as stated in
20 CFR 655.73(h) and 29 CFR 503.24(e),
copies of all final debarment decisions
will be forwarded to DHS and DOS
promptly.
c. Period of debarment. The NPRM
proposed that the Administrator, OFLC
may not debar an employer, attorney, or
agent for less than 1 year nor more than
5 years from the date of the final
debarment decision. The Final Rule
adopts this provision as proposed. One
commenter stated that increasing the
maximum debarment period to 5 years
based on what could be a single
innocent act could result in a
disproportionate and overly harsh
penalty. In addition, a trade association
questioned why a debarment period of
up to 5 years was included in the
NPRM, recommending that we adopt
the-up- to-3-year debarment maximum
rule from the current H–2A regulations
or at least articulate why a more extreme
penalty is justified under the H–2B
program. On the other hand, several
commenters suggested that the
Department remove the 5-year cap and
impose debarment for up to 10 years, or
in some cases permanent debarment, on
repeat violators.
The 1- to 5-year range for the period
of debarment is consistent with the H–
2B enforcement provisions in the INA,
and we believe that it is appropriate to
apply the same standard in our
regulations. 8 U.S.C. 1184(c)(14)(A)(ii).
We do not intend to debar employers,
attorneys, or agents who make minor,
unintentional mistakes in complying
with the program, but rather those who
commit a willful misrepresentation of a
material fact, or a substantial failure to
meet the terms and conditions, in the
H–2B Registration, Application for
Temporary Employment Certification,
or H–2B Petition. Additionally, just
because the Administrator, OFLC has
the authority to debar a party for up to
5 years does not mean that would be the
result for all debarment determinations,
as the Administrator, OFLC retains the
discretion to determine the appropriate
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period of debarment based on the
severity of the violation.
d. Violations. The NPRM proposed
that a single act, as opposed to a pattern
or practice of such actions, would be
sufficient to merit debarment. A labor
union noted that the proposed
regulation text, stating at § 655.73(f)(12)
and 29 CFR 503.24(a)(10) that a single
heinous act showing such flagrant
disregard for the law that future
compliance with program requirements
cannot be reasonably expected implies
that a single violation in one of the
eleven categories listed before the single
act language is insufficient for
debarment. The commenter noted that
this implication was at odds with our
stated intent to make any of the listed
acts sufficient for debarment. The
commenter suggested that the regulation
establish that failure to comply with any
representation, requirement, or offer in
the registration, application, or job order
would warrant per se debarment. By
contrast, a professional organization
took issue with debarment for a single
act, rather than a pattern or practice of
repeat violations, where there was no
evidence of fraud or misrepresentation.
We agree that the single heinous act
language is potentially confusing. We
did not intend to suggest that a single
violation falling into one of the other 13
listed categories of violations may not
be sufficient for debarment. Thus, we
have added language in the Final Rule
text at § 655.73 and 29 CFR 503.24
making one or more acts of commission
or omission debarrable for all of the
listed violations, and have revised
§ 655.73(f)(12) and 29 CFR 503.24(a)(10)
to encompass any other act as opposed
to a single heinous act. As discussed in
the preamble discussion of 29 CFR
503.19, which explains the standard
that applies to all H–2B debarment
actions, any act or omission would have
to be willful to warrant debarment.
A State attorney general
recommended that we add failure to
cooperate in State and local
investigations to the grounds for
debarment. It is beyond our jurisdiction
and the scope of our responsibilities
under the H–2B program to evaluate
whether an entity cooperated with a
State or local investigation and to
penalize the entity for failing to so.
A coalition of worker advocacy
organizations and several additional
worker advocacy organizations
encouraged us to add to the nonexhaustive list of debarrable offenses the
failure to disclose a recruiter’s identity
under the requirement proposed in
§ 655.9, the use of a debarred recruiter,
and the failure of an employer to report
recruiter violations to OFLC and WHD.
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The NPRM did not propose violations
for employer use of a debarred recruiter,
nor did it propose a reporting
requirement for recruiter violations
known to the employer but not to us.
Further, as the list of debarrable offenses
is explicitly non-exhaustive, we decline
to add non-compliance with § 655.9 to
the list. However, we are adding
obligations under § 655.9 to the list of
employer assurances and obligations in
§ 655.20 and 29 CFR 503.16 to clarify
that we view employer (and its agent or
attorney, as applicable) disclosure of
foreign worker recruitment by an agent
or recruiter as a critical obligation. We
will pursue enforcement where
employers (and their agents or
attorneys, as applicable) commit willful
violations of this provision.
A labor union expressed concern
about employer misclassification of
immigrant workers as independent
contractors, and suggested that we add
to the list of debarrable offenses the
misclassification of H–2B workers or
corresponding U.S. employees as
independent contractors. Although the
misclassification of workers as
independent contractors is a matter
WHD might pursue as it relates to its
enforcement authority under statutes
such as the Fair Labor Standards Act,
this type of misclassification has not
been characterized as a violation of the
H–2B regulations, where an employer is
explicitly seeking permission to hire
foreign workers as employees.
Therefore, it would not be appropriate
to add to the list of debarrable offenses.
e. Debarment procedure. A worker
advocacy organization commented that
the debarment timeline should allow
debarment to take place before
employers are able to recruit and hire
workers for the next season, to ensure
that employers who violate worker
protection laws are removed before the
next recruitment cycle. However, the
debarment timeline varies greatly
depending on the timing of when
violations are discovered through OFLC
audits, WHD targeted investigations, or
WHD investigations initiated by
complaints. In other words, there is no
one time within a season when a
debarment proceeding might be
initiated. Additionally, various factors
affect the timing of an investigation that
may lead to debarment, including the
complexity of the case and the number
of violations involved. Parties subject to
debarment also have the right to appeal
the debarment decision. Thus, we
cannot ensure any particular timing for
the debarment process.
f. Concurrent debarment jurisdiction.
Several commenters objected to WHD’s
concurrent debarment authority. These
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comments are fully discussed in the
concurrent actions section at 29 CFR
503.21 of the WHD preamble.
g. Interagency communication. A
commenter recommended amending the
proposed rule to require us to share
information about problem entities with
other departments and agencies that
administer U.S. visa programs to
prevent the offender from refocusing its
efforts on possible alternative visa
programs outside of our jurisdiction.
Also, the commenter recommended that
in more serious cases we should
permanently debar the entity and refer
the entity to the Department of Justice
for prosecution. Similarly, another
commenter recommended that the
regulations require the provision of
regular notices to other agencies about
investigations and enforcement actions
that we have taken against employers
for possible or adjudicated violations of
Department-administered visa programs
and that we should ask other
departments and agencies, i.e., DOS,
USCIS, and ICE, to provide similar
notices to us. We decline to make these
recommended changes to the regulation
text. Paragraph (h) of this section
already provides that copies of final
debarment decisions will be forwarded
to DHS and DOS promptly. Clearly,
where it is warranted, we will notify
additional agencies, such as DOJ, of the
violations, but we do not believe that it
is necessary for the regulation to
provide that as an additional
requirement. Also, we do not believe
that it is appropriate to provide regular
notices to other agencies, or require
such agencies to notify us, of pending
enforcement actions and investigations
of possible violations because that
information is of little practical use
until these actions have been concluded
and a final determination has been
issued. Finally, for the reasons
discussed above, we do not believe that
permanent debarment is appropriate but
rather have determined that the 5-year
maximum period is consistent with the
H–2B enforcement provisions under the
INA.
h. Additional penalties for debarred
employers. Two commenters requested
that the regulations add discontinuation
of job services to the list of sanctions of
debarred employers. Because
discontinuation of services under the
employment service system, along with
other sanctions for non-compliant H–2B
employers, is already governed at
§ 658.500 subpart F of this part, we do
not believe that it is necessary to make
any change to the regulations in this
subpart to reflect that provision.
Additional remedies offered by
commenters that would apply to all
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non-compliant employers, including
those that are debarred, are discussed in
the preamble discussion of the sanctions
and remedies at 29 CFR 503.20.
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III. Addition of 29 CFR Part 503
Effective January 18, 2009, pursuant
to INA section 214(c)(14)(B), DHS
transferred to the Secretary enforcement
authority for the provisions in section
214(c)(14)(A)(i) of the INA which govern
petitions to admit H–2B workers. The
2008 Final Rule contains the regulatory
provisions governing ETA’s processing
of the employer’s Application for
Temporary Employment Certification
and the WHD’s enforcement
responsibilities in ensuring that the
employer has not willfully
misrepresented a material fact or
substantially failed to meet a condition
of such application.
The Department carefully reviewed
the 2008 Final Rule and proposed
substantive changes to both the
certification and enforcement processes
to enhance protection of U.S. and H–2B
workers.
The proposed rule added a new part,
29 CFR part 503, to further define and
clarify the protections for workers. This
proposal and the proposed changes in
20 CFR part 655, Subpart A added
workers in corresponding employment
to the protected worker group, imposed
additional recruitment obligations and
employer obligations for laid off U.S.
workers, and increased wage protections
for H–2B workers and workers in
corresponding employment.
Additionally, the Department proposed
to enhance the WHD’s enforcement role
in administrative proceedings following
a WHD investigation, such as by
allowing WHD to pursue debarment
rather than simply recommending to
ETA that it debar an employer as occurs
under current § 655.65(h).
To ensure consistency and clear
delineation of responsibilities between
Departmental agencies implementing
and enforcing H–2B provisions, this
new Part 503 was written in close
collaboration with ETA and is being
published concurrently with ETA’s
Final Rule in 20 CFR part 655, Subpart
A to amend the employer certification
process. Some editorial changes have
been made to the text of the proposed
regulations, for clarity and to improve
readability. Those changes are not
intended to alter the meaning or intent
of the regulations and are not further
discussed in this preamble. A
discussion of the comments received on
the proposal and substantive changes
made by the Department are discussed
at length below.
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A. General Provisions and Definitions
Proposed §§ 503.0 through 503.8
provided general background
information about the H–2B program
and its operation. Proposed § 503.1 and
§ 503.2 are similar to the existing
regulations at 20 CFR 655.1 and 655.2.
Proposed § 503.3 described how the
Department will coordinate both
internally and with other agencies. One
commenter expressed concerns that the
provision at § 503.3 did not provide
specific information on where to file a
complaint. The Department considers
the guidance provided in § 503.7 to be
sufficient notice to potential
complainants.
Sections 503.0, 503.1, 503.2, and
503.3 are adopted in the Final Rule as
proposed.
1. § 503.4 Definition of Terms
Under this section of the NPRM, the
proposed definitions were identical to
those contained in proposed 20 CFR
part 655, Subpart A, except that this
section contained only those definitions
applicable to this part. The preamble to
20 CFR part 655, Subpart A contains the
relevant discussion of comments
received on and changes made to those
definitions. For the reasons discussed
there, the Final Rule makes identical
conforming changes in this section.
2. § 503.5 Temporary Need
Under this proposed section, the
provision regarding temporary need was
identical to the requirements set forth in
proposed 20 CFR 655.6; the preamble to
that section includes a full discussion of
the comments received in response to
the proposed provisions. The Final Rule
adopts the provision as proposed.
3. § 503.6 Waiver of Rights Prohibited
The Department proposed in § 503.6
to add new language that would
prohibit any employer from seeking to
have workers waive or modify any
rights granted them under these
regulations. The proposed paragraph
would have, with limited exceptions,
voided any agreement purporting to
waive or modify such rights. The
proposed language was consistent with
similar prohibitions against waiver of
rights under other laws, such as the
Family and Medical Leave Act, see 29
CFR 825.220(d), and the H–2A program,
see 29 CFR 501.5. The Department
received several comments concerning
this proposed addition, all of which
supported the change. One advocacy
group cited the vulnerability of the H–
2B workers as a reason for needing this
provision. One union mentioned
concerns that without the provision
unscrupulous employers might attempt
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10109
to use waivers to gut the program. The
Department has retained the section as
proposed in the Final Rule.
4. § 503.7
Secretary
Investigation Authority of
In § 503.7 of the NPRM, the
Department proposed to retain the
current authority established under 20
CFR 655.50, affirming WHD’s authority
to investigate employer compliance
with these regulations and WHD’s
obligation to protect the confidentiality
of complainants. This proposed section
also discussed the reporting of
violations. No comments were received
on this section; the proposed language
has been maintained in the Final Rule.
5. § 503.8 Accuracy of Information,
Statements, Data
Under this proposed section, making
false representations to the government
would make an entity subject to
penalties, including a fine of up to
$250,000 and/or up to 5 years in prison.
A few commenters expressly supported
this provision, stating that the inclusion
of this provision makes it clear to
employer that there are serious
consequences for criminal acts. The
proposed language has been maintained
in the Final Rule.
B. Enforcement Provisions
1. § 503.15
Enforcement
In order to ensure that U.S. workers
are not adversely affected by the
employment of H–2B workers, the
NPRM proposed expanding the type of
workers entitled to protection by WHD
enforcement to workers in
corresponding employment, as defined
under 20 CFR 655.5. Comments
regarding corresponding employment
are discussed fully in that section. The
NPRM proposed to continue WHD
enforcement for H–2B workers and U.S.
workers improperly rejected, laid off, or
displaced. Labor unions supported
WHD’s proposed enforcement, with one
commenting that giving U.S. workers
this means of redress is critical to
effectuating the Secretary of Labor’s
mandate to ensure that the certification
and employment of H–2B aliens does
not harm similarly-situated U.S.
workers, and asserting that it also
prevents U.S. workers being employed
alongside H–2B aliens who might
otherwise receive greater pay, benefits,
and protection from abuse through the
H–2B program than their domestic
counterparts enjoy. Similarly, a State
Attorney General’s office strongly
supported the Department’s
strengthened efforts to protect
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workers—U.S. workers as well as H–2B
workers laboring along side them.
A trade association expressed its
concern that the proposed investigation
and enforcement regulations in this Part
would only be complaint-driven, i.e.,
that WHD would only investigate where
there were complaints from foreign
workers, which would potentially
overlook violations because foreign
workers may be reluctant to file
complaints. However, WHD investigates
complaints filed by both foreign and
U.S. workers affected by the H–2B
program, as well as concerns raised by
other federal agencies, such as USCIS,
regarding particular employers and
agents. WHD also conducts targeted or
directed investigations of H–2B
employers to evaluate program
compliance.
An individual stakeholder questioned
the avenue for filing a complaint
alleging non-compliance with the H–2B
program. Complaints may be filed by
calling WHD at 866–4US–WAGE or by
contacting a local WHD office. Contact
information for local offices is available
online at https://www.dol.gov/whd/
america2.htm.
Several agents and employer
organizations contended that the
Department’s proposed enforcement
authority over H–2B program
compliance exceeded its statutory
authority, as delegated by DHS. Based
on the enforcement authority outlined
in the preamble under 20 CFR 655.2 and
the addition of 29 CFR part 503, and the
detailed discussion of the Department’s
enforcement authority in the 2008 Final
Rule in response to similar comments,
73 FR78020, 78043–44 (debarment)
78046–47 (civil monetary penalties and
remedies), Dec. 19, 2008, the
Department has concluded that it is
authorized to conduct the enforcement
activities described in this Final Rule.
2. § 503.16 Assurances and Obligations
of H–2B Employers
The provisions proposed in this
section were identical to those proposed
in 20 CFR 655.20, with the exception of
the additional obligation in proposed
paragraph (aa) (Cooperation with
investigators) requiring employers to
cooperate in any administrative or
enforcement proceeding. No comments
were received on that paragraph and the
provision is adopted in the Final Rule
as paragraph (bb). Proposed paragraph
§ 503.16(aa) is redesignated as
§ 503.16(bb) in the final rule. Proposed
paragraph (aa), paragraph (bb) in the
Final Rule matches the language of a
new provision at 20 CFR 655.20(aa),
which is consistent with 20 CFR 655.9
of the proposed rule and this Final Rule,
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requiring an employer to provide with
its Application for Temporary
Employment Certification copies of
agreements with foreign labor
contractors and recruiters (see
discussion of 20 CFR 655.9 in this
preamble). The Department carefully
reviewed all comments concerning
employer assurances and obligations (a)
through (z), a full discussion of which
is included in the preamble to 20 CFR
655.20. Identical conforming changes
are made in this Final Rule section as
are made there, for the reasons
discussed in that preamble.
3. § 503.17 Documentation Retention
Requirements of H–2B Employers
In § 503.17 the Department proposed
to consolidate the document retention
requirements previously found
throughout 20 CFR 655, subpart A.
These requirements are similar to those
in 20 CFR 655.56, with minor
differences related to OFLC’s and
WHD’s separate interests. A coalition
representing agents and employers
commented in support of this proposal,
noting that most employers are already
familiar with their obligation to keep
documents for three years to comply
with the FLSA. However one employer
stated that the documentation provision
was complex and demanding for the
employer. As stated in the preamble to
the proposed rule, this section does not
require employers to create any new
documents but simply to preserve those
documents that are already required for
applying for participation in the H–2B
program, and therefore should not place
any further burden on employers. A
commenter representing the outdoor
entertainment industry indicated that it
would be difficult to comply with the
72-hour availability requirement and
urged the Department to allow retention
and provision of required documents in
electronic format. This request was
repeated by an employer advocacy
group. The Department recognizes these
commenters’ concern and reminds them
that under the FLSA employers who
maintain records at a central
recordkeeping office, other than in the
place(s) of employment, are required to
make records available within 72 hours
following notice from WHD. See 29 CFR
516.7. This provision, which has been
in place for decades, has not created
undue burden for employers; as many
H–2B employers are likely covered by
the FLSA, this provision results in no
additional burden. A full discussion of
the use of electronic records can be
found in the preamble to 20 CFR 655.56.
A commenter stated that a retention
period of 3 years was insufficient and
expressed concern that in the case of a
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3-year certification, the employer could
destroy records before completion of the
job. Another comment included a
recommendation that records be
retained for 5 years in case of an
investigation for criminal fraud. The
Department has decided that a 3-year
record retention requirement is
adequate for its civil enforcement
purposes.
Finally, a number of comments
included recommendations that
employers be required to retain records
of the visa, subsistence, transportation,
and recruitment costs, including the
amount, by whom and to whom they
were paid and the time of payment. The
Department considers the general
requirement that employers retain
documents and records to prove
compliance with the regulations to be
sufficient for its enforcement purposes.
Further discussion of recordkeeping
provisions is included in the preamble
of 20 CFR 655, subpart A. The proposed
provision is adopted without change.
4. § 503.18 Validity of Temporary
Labor Certification
In § 503.18 the Department proposed
to include clarifying edits to this section
(which corresponds to existing 20 CFR
655.34 (a) and (b)), providing the time
frame and scope for which an
Application for Temporary Employment
Certification is valid. A discussion of
comments received on this section can
be found in the preamble to 20 CFR
655.55. The proposed provision is
adopted without change.
5. § 503.19 Violations
The NPRM proposed retention of the
willfulness standard for the assessment
of violations, monetary remedies, and
civil money penalties, as well as
determinations concerning revocation
and debarment. As discussed below,
comments from employers, agents,
industry organizations, labor unions,
and worker advocacy organizations
reflected a significant amount of
confusion about the standards by which
violations are determined under the H–
2B program, as well as whether the
standards apply equally to revocation,
debarment, monetary or other remedies,
and civil money penalties. After briefly
summarizing the comments received,
the Department will attempt to clarify
for the benefit of all affected parties the
basis for the continued use of a
willfulness standard for determining
whether a violation has occurred,
regardless of whether the violation
results in revocation imposed by OFLC
pursuant to 20 CFR 655.72, debarment
imposed by OFLC pursuant to 20 CFR
655.73 or WHD pursuant to § 503.24,
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monetary or other remedies assessed by
WHD pursuant to § 503.20, and/or civil
money penalties assessed by WHD
pursuant to § 503.23.
Several worker advocacy
organizations stated the willful standard
is too high. Many of these organizations
suggested an intentional standard,
instead. Several stated an intentional
standard would be consistent with the
Job Service Complaint System and with
the Migrant and Seasonal Agricultural
Worker Protection Act. One
organization noted that the courts have
provided considerable interpretation of
the intentional standard under MSPA,
so use of the intentional standard would
enhance the standard’s clarity. Another
worker advocacy organization proposed
a new eight-part definition for
substantial failure.
Conversely, several employers,
employer coalitions, and trade
associations commented that the
substantial failure standard was too low,
believing this standard would lead the
Department to debar for unintentional,
negligent failures or technical
violations, as opposed to knowing
failures. In addition, several agents and
employer organizations wanted the
Department to clarify that it views the
punishments of revocation and
debarment as extreme penalties for
egregious violations rather than routine
remedies, indistinguishable from back
pay and civil money penalties.
In light of the numerous comments
suggesting what commenters believed to
be the adoption of essentially a higher
or lower standard than the standard
currently in place, the Department
wishes to clarify that violations under
these regulations, both in the 2008 Final
Rule and in the 2011 NPRM, have been
defined to be consistent with the INA’s
provisions regarding violations for H–2B
workers. Specifically, INA section
214(c)(14)(A), 8 U.S.C. 1184(c)(14)(A),
sets forth two potential violations under
the H–2B program: (1) ‘‘a substantial
failure to meet any of the conditions of
the petition’’ and (2) ‘‘a willful
misrepresentation of a material fact in
such petition.’’ The INA further defines
a substantial failure to be a ‘‘willful
failure to comply * * * that constitutes
a significant deviation from the terms
and conditions of a petition.’’ 8 U.S.C.
1184(c)(14)(D). The H–2B Petition
includes the approved Application for
Temporary Employment Certification.
See § 503.4; 20 CFR § 655.5. Therefore,
it is the Department’s view that nonwillful violations are not cognizable
under the H–2B program, and that it is
not appropriate for the Department to
select a lower standard for determining
H–2B violations.
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Thus, in this Final Rule, the basis for
determining violations has not changed
since the 2008 Final Rule, and
continues to be either a
misrepresentation of material fact or a
substantial failure to comply with terms
and conditions, both of which continue
to be willful. See 20 CFR 655.72(a)(1) &
(2) (revocation), 20 CFR 655.73(a)(1)-(3)
(OFLC debarment), § 503.19(a)(1) & (2)
(WHD violations, which lead to
remedies, civil monetary penalties, and/
or debarment). To determine whether a
violation is willful, the Department will
consider whether the employer,
attorney, or agent knows its statement is
false or that its conduct is in violation,
or shows reckless disregard for the
truthfulness of its representation or for
whether its conduct satisfies the
required conditions. See 20 CFR
655.73(d), § 503.19(b). This is consistent
with the longstanding definition of
willfulness. See McLaughlin v. Richland
Shoe Co., 486 U.S. 128 (1988); see also
Trans World Airlines, Inc. v. Thurston,
469 U.S. 111 (1985). Further, tracking
the INA language, a substantial failure
continues to be defined as willful as
well as a significant deviation from the
terms or conditions of a petition. 20 CFR
655.72(a)(2), 20 CFR 655.73(a)(2),
§ 503.19(a)(2). OFLC revocation and
debarment are tied to the definitions in
20 CFR 655.73(d) and (e), which explain
how to determine willfulness and how
to determine whether a substantial
violation is a significant deviation; these
provisions mirror the definitions for
WHD violations in § 503.19(b) and (c).
A labor union that approved of the
willfulness standard and recognized
that it encompasses reckless disregard
suggested that the Department impute
willfulness where there are multiple,
non-willful violations because such
repeated violations evidence reckless
disregard. Rather than imputing
willfulness, when the Department
encounters violations that do not rise to
the level of willfulness, it puts the party
on notice regarding future compliance
and will consider subsequent violations
committed with the knowledge that
such acts or omissions violate H–2B
program requirements to be willful.
The NPRM also proposed an
additional change in the description of
violations in § 503.19. Unlike the
definition of violations in the 2008 Final
Rule, which only mentioned employer
violations specifically, the proposed
definition of violations does not specify
a violator, thus encompassing violations
committed by an employer, attorney
and/or agent. After receiving no
comments, the Department is adopting
this provision of the NPRM without
change in the Final Rule.
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10111
6. § 503.20 Sanctions and Remedies—
General
The NPRM proposed that the
Department continue to pursue
essentially the same remedies upon a
WHD determination that a violation has
occurred, including but not limited to
payment of back wages, recovery of
prohibited fees paid or impermissible
deductions, enforcement of the
provisions of the job order, assessment
of CMPs, make-whole relief for victims
of discrimination, and reinstatement
and make-whole relief for U.S. workers
who were improperly denied
employment. The NPRM also proposed
to give WHD independent debarment
authority, concurrent with ETA’s
debarment authority. Comments
regarding WHD’s debarment authority
are discussed under § 503.21.
Sanctions and remedies in general. In
general, worker advocacy organizations
favored the enforcement measures
proposed in the NPRM, noting that the
H–2B program has been plagued by
wage and hour violations, fraudulent
applications for non-existent jobs, race
and gender discrimination and human
trafficking. Worker advocacy
organizations commented that
debarment, revocation, civil money
penalties, and traditional remedies such
as payment of back wages and
impermissible fees and deductions, as
well as reinstatement for workers
improperly rejected for employment,
were important tools to encourage
compliance. One worker advocacy
organization proposed that the
Department should allow workers who
have been subjected to H–2B violations
and who live outside the United States
to participate in related investigations or
proceedings, recover any damages, and
be recommended for visas for this
purpose. The Department does not
prohibit such participation by workers
who may have returned to their home
country, and it often distributes back
wages to workers who have experienced
violations and have returned to their
home countries. Where appropriate
given the circumstances in any given
investigation or proceeding, the
Department might seek a means for the
worker to travel to the U.S. to
participate in such proceedings.
Liability for prohibited fees collected
by foreign labor recruiters and subcontractors. A coalition of worker
advocacy organizations, several
additional worker advocacy
organizations, and a federation of
national and international labor unions
explained that although the NPRM took
important steps toward reducing
exploitative foreign labor recruiting
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practices by prohibiting the collection of
transportation, visa, recruiting, and
other fees from workers, these
prohibitions would be unenforceable as
a practical matter unless the Department
held employers strictly liable for such
charges levied on workers by the
employer’s recruiters, agents, or subcontracted recruiters and agents. These
commenters cited instances where
employers were insulated from liability
for unlawful fee-charging because the
employers obtained assurances from
their agents that fees were not being
charged, noting that the NPRM would
similarly shield employers from liability
for prohibited fees charged by recruiters
where an employer complied with the
provision requiring it to contractually
prohibit agents from seeking or
receiving payments from workers. In
addition, these commenters noted that
exploitative practices, which leave H–
2B workers in significant preemployment debt, are often left
unchecked because most of the local
recruiters who charge these fees are
beyond the direct regulatory reach of the
Department and it is difficult for
workers to bring actions against
recruiters operating overseas due to
issues of personal jurisdiction, solvency,
cost and collectability.
As the preamble to the 2008 Final
Rule emphasized, 73 FR 78037, the
Department is adamant that recruitment
of foreign workers is an expense to be
borne by the employer and not by the
foreign worker. Examples of
exploitation of foreign workers, who in
some instances have been required to
give recruiters thousands of dollars to
secure a job, have been widely reported
in the comments received by the
Department and elsewhere. The
Department is concerned about the
exploitation of workers who have
heavily indebted themselves to secure a
place in the H–2B program, and believes
that such exploitation may adversely
affect the wages and working conditions
of U.S. workers by creating conditions
akin to indentured servitude, driving
down wages and working conditions for
all workers, foreign and domestic.
The Department believes that
requiring employers to incur the costs of
recruitment is reasonable, even when
taking place in a foreign country.
However, the Department recognizes
that an employer’s ability to control the
actions of agents and sub-contractors
across international borders is
constrained, just as the Department’s
ability to enforce regulations across
international borders is constrained. As
discussed in the preamble to 20 CFR
655.20 (p), the Department is requiring
that the employer, as a condition of
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applying for temporary labor
certification for H–2B workers,
contractually forbid any foreign labor
contractor or recruiter (or any agent or
employee of such agent or recruiter)
whom the employer engages in
international recruitment of H–2B
workers to seek or receive payments
from prospective employees. The
Department will attempt to ensure the
bona fides of such contracts and will
work together with DHS, whose
regulations also generally preclude the
approval of an H–2B Petition and
provide for denial or revocation if the
employer knows or has reason to know
that the worker has paid, or has agreed
to pay, fees to a recruiter, facilitator,
agent, and similar employment service
as a condition of an offer or maintaining
condition of H–2B employment. See 8
CFR 214.2(h)(6)(i)(B). As explained in
WHD Field Assistance Bulletin No.
2011–2, any fee that facilitates an
employee obtaining the visa in order to
be able to work for that employer will
be considered a recruitment fee, which
must be borne by the H–2B employer. In
addition, although employees may
voluntarily pay some fees to
independent third-party facilitators for
services such as assisting the employee
to access the Internet or in dealing with
DOS, such fees may be paid by
employees only if they are not made a
condition of access to the job
opportunity. When employers use
recruiters, and in particular when they
impose the contractual prohibition on
collecting prohibited fees, they must
make it abundantly clear that the
recruiter and its agents or employees are
not to receive remuneration from the
foreign worker recruited in exchange for
access to a job opportunity or in
exchange for having that worker
maintain that job opportunity. For
example, evidence showing that the
employer paid the recruiter no fee or an
extraordinarily low fee, or continued to
use a recruiter about whom the
employer had received credible
complaints, could be an indication that
the contractual prohibition was not
bona fide. In addition, where the
Department determines that workers
have paid these fees and the employer
cannot demonstrate the requisite bona
fide contractual prohibitions, the
Department will require the employer to
reimburse the workers in the amount of
these prohibited fees. However, where
an employer has complied in good faith
with this provision and has
contractually prohibited the collection
of prohibited fees from workers, there is
no willful violation. Thus, the Final
Rule does not impose strict liability on
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employers for the collection of
prohibited fees from workers by others.
Agent and attorney liability. For the
reasons stated in the discussion under
Debarment of Agents and Attorneys in
20 CFR 655.73, this Final Rule holds
agent and attorney signatories to the
Form 9142 liable for their independent
willful violations of the H–2B program,
separate from an employer’s violation.
As noted earlier, the Final Rule adopts
the language proposed in § 503.19 that:
‘‘A willful misrepresentation of a
material fact or a willful failure to meet
the required terms and conditions
occurs when the employer, attorney, or
agent knows its statement is false or that
its conduct is in violation, or shows
reckless disregard for the truthfulness of
its representation or for whether its
conduct satisfies the required
conditions.’’ The Final Rule also adopts
the language proposed in § 503.20(a)
that WHD can seek appropriate relief for
any violation defined in § 503.19,
including recovery of prohibited
recruitment fees. Clarifying language
has been added to § 503.20(b) to reflect
that remedies will be sought directly
from the employer or its successor, or
from the employer’s agent or attorney,
where appropriate. For example, it
would be appropriate to seek
reimbursement of prohibited fees to
affected workers from an attorney or
agent, as opposed to an employer, where
the employer has contractually
prohibited the attorney or agent from
collecting such fees yet the agent or
attorney does so, despite the employer
having affirmed on the Application for
Temporary Employment Certification
that everything in the application is true
and correct, including the employer’s
attestation that ‘‘[t]he employer and its
attorney, agents and/or employees have
not sought or received payment of any
kind from the H–2B worker for any
activity related to obtaining temporary
labor certification, including but not
limited to payment of the employer’s
attorney or agent fees, application fees,
or recruitment costs.’’ On the other
hand, it would not be appropriate to
hold the attorney or agent liable for
unpaid wages when an employer fails to
pay the required wage during the period
of the application where the attorney or
agent was uninvolved in such a
violation.
Make-whole relief. A coalition
representing agents and employers
requested that the Department clarify
the meaning of make-whole relief in this
provision. Specifically, these
commenters were concerned that makewhole relief would include
compensatory damages for injuries
beyond those that occur because of acts
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or omissions related to violations of the
terms and conditions of the H–2B
program, as these damages would
typically be available in a civil court
action but employers would be
disadvantaged if the Department
imposed them in informal
administrative proceedings. These
commenters suggested that make-whole
relief be deleted if the Department did
not provide a clearer definition.
These commenters’ concerns are
unfounded. The Department intended
make-whole relief to be limited to its
traditional meaning, which is that the
party subjected to the violation is
restored to the position, both
economically and in terms of
employment status, that he or she
would have occupied had the violation
never taken place. Make-whole relief
includes equitable and monetary relief
such as reinstatement, hiring, front pay,
reimbursement of monies illegally
demanded or withheld, or the provision
of specific relief such as the cash value
of transportation or subsistence
payments which the employer was
required to, but failed to provide, in
addition to the recovery of back wages,
where appropriate. Nothing in the
regulations allows recovery for injuries
or losses in addition to actual damages
and equitable relief. Therefore, the
Department has decided to retain makewhole relief as one of the types of
remedies available when a violation has
been found, without further
specification.
A federation of national and
international labor unions suggested
that the Department include a new
subsection under this provision
clarifying that ‘‘[i]n any proceeding
concerning unpaid wages or make
whole relief, any monetary remedy will
be determined based on the actual
number of hours worked by similarly
situated employees or the three-fourths
guarantee described in 20 CFR 655.20(f),
whichever is greater.’’ The Department
agrees that this statement accurately
summarizes how such monetary
remedies are calculated under this
section. However, just as the
Department believed it unnecessary to
further define make-whole relief with
respect to compensatory damages, it has
determined that it is not necessary to
add the suggested language to this
section because these concepts and
comparators are already encompassed
under make-whole relief and are
reflected in § 503.23(b) and (c), which
explain that the civil money penalty for
such violations is the difference
between what should have been paid or
earned and the amount that was actually
paid.
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Finally, a State Attorney General
commented specifically regarding the
importance of providing remedies for
unlawful retaliation, particularly so that
H–2B workers who are vulnerable to
retaliation will have adequate protection
when making meritorious complaints
about workplace violations. This
Attorney General’s Office noted that,
because reinstatement is a critical
component of make-whole relief and
may not be possible if the employer is
debarred or chooses not to use the H–
2B program in the future, the
Department might wish to adopt a
provision similar to a recent amendment
to the New York labor law that provides
up to $10,000 in liquidated damages for
each instance of unlawful retaliation.
While the Department appreciates the
utility of this suggestion, liquidated
damages are not consistent with makewhole relief for actual damages.
However, as this Attorney General’s
Office further suggested, the Department
wishes to clarify that make-whole relief
for unlawful retaliation and
discrimination may include front pay
(such as for the duration of the work
remaining in the job order) where
reinstatement is not possible.
Additional comments regarding
sanctions and remedies. A legal
organization suggested that the
Department should encourage the
reporting of non-compliant employers
by offering a reward to employee
whistleblowers equal to a portion of the
fines collected from the non-compliant
employers. The Department does not
believe authority exists to offer rewards
to whistleblowers under the
enforcement authority that has been
delegated by DHS. This commenter also
suggested that non-compliant employers
be required to register for and use EVerify. It is unclear how E-Verify is
relevant to violations of these H–2B
regulations, and mandating the use of EVerify by employers is beyond the
Department’s jurisdiction.
7. § 503.21 Concurrent Actions
The NPRM proposed that OFLC and
WHD would have concurrent
jurisdiction to impose a debarment
remedy under 20 CFR 655.73 and under
§ 503.24, while recognizing the differing
roles and responsibilities of each agency
under the program, as set forth in
§ 503.1. The cross-reference in § 503.3(c)
proposed the safeguard that a specific
violation for which debarment is sought
will be cited in a single debarment
proceeding, and that OFLC and WHD
would coordinate their activities to
achieve this result. This will ensure
streamlined adjudications and that an
employer will not face two debarment
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proceedings for a specific violation. The
Department is adopting the provisions
as proposed without change.
Numerous labor unions, worker
advocacy organizations, and a
congressman welcomed WHD’s
independent debarment authority. On
the other hand, a coalition representing
agents and employers, employer
associations, and a legal association
opposed the Department’s proposal to
grant debarment authority to WHD.
They primarily contended that allowing
both agencies to exercise debarment
authority would likely result in
inefficient and duplicative actions.
However, as noted earlier, the NPRM
proposed a safeguard that requires
coordination rather than duplicative
debarment proceedings.
The coalition representing agents and
employers felt that OFLC should
continue to have exclusive debarment
authority because OFLC has greater
familiarity with the nature and extent of
employer violations in the application
and recruitment process, and would
therefore be better equipped to
determine whether a violation
warranted this type of punishment. This
comment ignores the fact that employers
and the Department have important
roles and obligations during both the H–
2B application and recruitment process
and during the validity of the job order,
when employers must comply with
critical assurances and program
obligations. While OFLC has more
expertise in the application and
recruitment process, and will retain
specific authority to debar for failure to
comply with the Notice of Deficiency
and assisted recruitment processes,
WHD has extensive expertise in
conducting workplace investigations
under numerous statutes, and has been
enforcing H–2B program violations
since the 2008 Final Rule became
effective on January 18, 2009.
Providing WHD with the ability to
order debarment, along with or in lieu
of other remedies, will streamline and
simplify the administrative process, and
eliminate unnecessary bureaucracy by
removing extra steps. Under the 2008
Final Rule, WHD conducts
investigations of H–2B employers, and
may assess back wages, civil money
penalties, and other remedies, which
the employer has the right to challenge
administratively. However, under the
2008 Final Rule, WHD cannot order
debarment, no matter how egregious the
violations, and instead must take the
extra step of recommending that OFLC
issue a Notice of Debarment based on
the exact same facts, which then have to
be litigated again. Contrary to the
commenters’ assertions, allowing WHD
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to impose debarment along with the
other remedies it can already impose in
a single proceeding will simplify and
speed up this duplicative enforcement
process, and result in less bureaucracy
for employers who have received a
debarment determination. Instead,
administrative hearings and appeals of
back wage and civil money penalties,
which the WHD already handles, will
now be consolidated with challenges to
debarment actions based on the same
facts, so that an employer need only
litigate one case and file one appeal
rather than two. This means that both
matters can be resolved more
expeditiously. Moreover, WHD has
extensive debarment experience under
regulations implementing other
programs, such as H–1B, the DavisBacon Act, and the Service Contract
Act. See, e.g., 29 CFR 5.12.
The commenters opposing WHD’s
debarment authority also argued that
WHD’s debarment process was not as
fair as OFLC’s because WHD’s process
does not include a 30-day rebuttal
period. These commenters were
concerned that WHD might make a
determination about a violation and
initiate debarment proceedings before
employers had an opportunity to
provide critical information relating to
the alleged violation. This concern is
misplaced, however, and may reflect a
lack of familiarity with how WHD
conducts investigations and reaches a
determination about whether violations
have occurred and which remedies are
appropriate. During the course of an
investigation, WHD contacts and
interviews both the employer and
workers. WHD investigators discuss
potential violations with the employer
and, when requested, with his or her
legal representative, providing the
employer ample notice and an
opportunity to provide any information
relevant to WHD’s final determination.
Rather than a formal, 30-day rebuttal
period, employers have numerous
opportunities during the course of a
WHD investigation and during a final
conference to provide critical
information regarding violations that
may lead to debarment.
Finally, an employer association
opposed the Department’s proposal to
grant WHD debarment authority because
it believed it would make it easier for
the Department to remove employers
from the program without impartial
review by an independent review panel
or judge. However, the NPRM
specifically included procedural
protections for parties subject to WHD
debarment proceedings, including
notice of debarment, the right to a
hearing before an Administrative Law
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Judge (ALJ), the right to seek judicial
review of an ALJ’s decision by the
Administrative Review Board (ARB).
See Subpart C, Administrative
Proceedings.
8. § 503.22 Representation of the
Secretary
The NPRM proposed to continue to
have the Solicitor of Labor represent the
Administrator, WHD and the Secretary
in all administrative hearings under 8
U.S.C. 1184(c)(14) and these regulations.
After receiving no comments, the
Department is adopting this provision of
the NPRM without change in the Final
Rule.
9. § 503.23 Civil Money Penalty
Assessment
The NPRM proposed a civil money
penalty (CMP) assessment scheme
similar to the CMP assessment
contained in the 2008 Final Rule, with
additional and clarifying language
specifying that WHD may find a
separate violation for each failure to pay
an individual worker properly or to
honor the terms or conditions of the
worker’s employment, as long as the
violation meets the willfulness standard
and/or substantial failure standard in
§ 503.19. Similar to the CMPs in the
2008 Final Rule, the proposed CMP
assessments set CMPs at the amount of
back wages owed for violations related
to wages and impermissible deductions
or prohibited fees, and at the amount
that would have been earned but for an
illegal layoff or failure to hire, up to
$10,000 per violation. The NPRM also
proposed to retain the catch-all CMP
provision for any other violation that
meets the standards in § 503.19, and set
forth the factors WHD will consider in
determining the level of penalties to
assess for all violations but wage
violations.
A coalition representing agents and
employers was concerned that the
NPRM blurred the lines between back
pay remedies and civil money penalties.
Specifically, these commenters
questioned whether the CMPs that are
set at the amount of unpaid wages
(§ 503.23(b) and (c)) were treated as back
wages or as a penalty payable to the U.S.
Treasury rather than to the employee or
applicant. As indicated in the NPRM,
unpaid wages, including the recovery of
wages owed for work performed,
prohibited fees paid or impermissible
deductions from pay, or recovery of
wages due for improperly placing
workers in areas of employment or in
occupations other than those identified
on the Application for Temporary
Employment Certification, are
recoverable as monetary remedies under
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§ 503.20. These monetary remedies
serve to make workers whole based on
the violations to which they have been
subjected. By contrast, the CMP
provision, § 503.23, represents a penalty
for non-compliance, and is payable to
WHD for deposit with the Treasury.
These commenters also noted that the
CMP assessment provision is confusing
because § 503.23(b) and (c) suggest a
formulaic means to determine a CMP
(i.e., the CMP is equal to the wages
owed, up to a maximum of $10,000 per
violation), whereas § 503.23(e) sets forth
the factors WHD will consider in
determining the level of CMPs to assess,
yet the NPRM states that these factors
apply to both § 503.23(c) and (d). The
Department agrees that this is confusing,
and is an unintentional holdover from
the 2008 Final Rule, which contained
the same language. Therefore, in this
Final Rule, the reference to § 503.23(c)
is deleted, in order to clarify that, as the
commenters pointed out, § 503.23(b)
and (c) use a fixed CMP amount and the
factors set forth in § 503.23(e) apply
only to the catch-all provision in
§ 503.23(d).
An individual U.S. worker felt that
the Department should not limit CMPs
to a $10,000 maximum, and should
instead impose treble damages payable
to the worker and a fine covering the
costs of the Department’s investigation
and enforcement. The maximum CMP
amount is set at $10,000 in order to be
consistent with the statutory limit under
8 U.S.C. 1184(c)(14)(A), the statutory
enforcement authority delegated to
WHD by DHS. As stated earlier, the
Department does not believe this
enforcement authority permits
liquidated damages.
10. § 503.24 Debarment
The NPRM’s proposal to provide
WHD with independent debarment
authority is discussed under § 503.21.
For the reasons stated under Debarment
of Agents and Attorneys in 20 CFR
655.73, the Final Rule allows WHD to
seek debarment of agents and attorneys
for their own independent violations,
and § 503.24(b) has been amended to
that effect. Comments received
regarding debarment that apply equally
to OFLC and WHD are also discussed in
the OFLC preamble discussion of
debarment (20 CFR 655.73). With
respect to the comments received from
several worker advocacy organizations
suggesting that the Department establish
procedures to allow for workers and
organizations of workers to intervene in
and participate in WHD’s debarment
process, the Department has concluded
that the Final Rule will not adopt
additional procedures mandating that it
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provide workers a right to intervene and
participate in every case, for the reasons
stated in OFLC’s preamble under
Integrity Measures (20 CFR 655.70–
655.73). In addition to that discussion,
which applies to both OFLC and WHD
proceedings, WHD further notes that
workers already participate in WHD
investigations, which involve interviews
with workers regarding program
compliance. It is WHD’s practice to
provide notice to the individual
complainants and their designated
representatives and/or any third-party
complainants when WHD completes an
investigation by providing them a copy
of the WHD Determination Letter. To
further protect their interests, workers
can seek, and have sought, intervention
upon appeal to an Administrative Law
Judge. See 20 CFR 18.10(c) and (d).
11. § 503.25 Failure To Cooperate With
Investigators
The NPRM defined and expanded the
penalties for failure to cooperate with a
WHD investigation, noting the federal
criminal laws prohibiting interference
with federal officers in the course of
official duties and permitting WHD to
recommend revocation to OFLC and/or
initiate debarment proceedings. Several
worker advocacy organizations
commended the Department for making
it clear to employers that they may face
serious consequences for certain
violations of the regulations. The
Department is adopting this provision of
the NPRM without change in the Final
Rule.
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12. § 503.26 Civil Money Penalties—
Payment and Collection
The NPRM proposed revised language
instructing employers how to submit
payment to WHD. After receiving no
comments, the Department is adopting
this provision of the NPRM without
change in the Final Rule.
C. Administrative Proceedings
The NPRM proposed few changes to
the administrative proceedings from the
2008 Final Rule. These minor changes
were intended to bring clarity to the
administrative proceedings that govern
H–2B hearings, and to achieve general
consistency with the procedural
requirements applicable to H–2A
proceedings. The Department received
no comments on the particular
provisions proposed in subpart C of the
NPRM. However, upon further internal
review, the Department concluded that
additional minor changes were
necessary to make clear that the
procedures contained in this subpart
apply to any party or entity subject to
the Administrator, WHD’s
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determination to assess a civil money
penalty, to debar, or to impose other
appropriate administrative remedies,
including for the recovery of monetary
relief—not just the employer. Therefore,
in the Final Rule, in §§ 503.41, 503.42,
503.43, and 503.50, the term employer
is replaced with the term party or
recipient(s) of the notice. The
Department intends the terms party or
recipient(s) of the notice to include the
employer, agent, or attorney, as
appropriate. These changes correct
internal inconsistencies in the
provisions proposed in this subpart of
the NPRM, and will make these
provisions consistent with the language
used in 20 CFR 655.73(g) (OFLC
debarment procedure).
The Department received numerous
comments from worker advocacy
organizations suggesting that workers
should be provided notice of
administrative actions and a right to
intervene, as workers possess valuable
information relevant to these
proceedings such as the appropriateness
of job qualifications and the assessment
of unlawful recruitment fees. Similarly,
an individual stakeholder, commented
that employers are afforded procedures
for seeking review of the Department’s
determinations, yet such procedures are
not provided for workers.
The importance of worker
communication with WHD by filing
complaints, participating in
investigations, and serving as witnesses
in administrative or judicial
proceedings cannot be understated; it is
essential in carrying out WHD’s
enforcement obligations. However, the
Department has concluded that the
Final Rule will not adopt additional
procedures mandating that it provide
workers notice of administrative actions
and a right to intervene in every case,
for the reasons stated in OFLC’s
preamble under Integrity Measures (20
CFR 655.70–655.73), which also apply
to WHD’s administrative actions.
Further, as noted under § 503.24,
workers already participate in WHD
investigations, which involve interviews
with workers regarding program
compliance. It is WHD’s practice to
provide notice to the individual
complainants and their designated
representatives and/or any third-party
complainants when WHD completes an
investigation by providing them a copy
of the WHD Determination Letter. To
further protect their interests, workers
can seek, and have sought, intervention
upon appeal to an Administrative Law
Judge. See 20 CFR 18.10(c) and (d).
Thus, the Department is adopting the
provisions of this Subpart of the NPRM
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10115
without further change in the Final
Rule.
IV. Administrative Information
A. Executive Orders 12866 and 13563
Under Executive Order (E.O.) 12866
and E.O. 13563, the Department must
determine whether a regulatory action is
significant and, therefore, subject to the
requirements of the E.O. and to review
by the OMB. Section 3(f) of the E.O.
defines an economically significant
regulatory action as an action that is
likely to result in a rule that: (1) Has an
annual effect on the economy of $100
million or more, or adversely and
materially affects a sector of the
economy, productivity, competition,
jobs, the environment, public health or
safety, or State, local or tribal
governments or communities (also
referred to as economically significant);
(2) creates serious inconsistency or
otherwise interferes with an action
taken or planned by another agency; (3)
materially alters the budgetary impacts
of entitlement grants, user fees, or loan
programs, or the rights and obligations
of recipients thereof; or (4) raises novel
legal or policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in the E.O.
The Department has determined that
this rule is an economically significant
regulatory action under section 3(f)(1) of
E.O. 12866. This regulation would have
an annual effect on the economy of $100
million or more; however, it would not
adversely affect the economy or any
sector thereof, productivity,
competition, jobs, the environment, or
public health or safety in a material
way. The Department also has
determined that this rule is a significant
regulatory action under sec. 3(f)(4) of
E.O. 12866. Accordingly, OMB has
reviewed this rule.
1. Need for Regulation
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 practical ramifications 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,
inadequately protecting U.S. workers
who may be paid less than H–2B
workers performing the same jobs,
failing to ensure the integrity of the
program by not requiring employers to
guarantee U.S. and H–2B employees
work for any number of weeks during
the period of the job order) have
undermined the program’s intended
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protection of both U.S. and foreign
workers.
For these reasons the Department is
promulgating the changes contained in
the Final Rule.
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2. Alternatives
The Department has considered a
number of alternatives: (1) To
promulgate the policy changes
contained in this rule; (2) to take no
action, that is, to leave the 2008 Final
Rule intact; and (3) to consider a
number of other options discussed in
more detail below. We believe that this
rule retains the best features of the 2008
Final Rule and adopts additional
provisions to best achieve the
Department’s policy objectives,
consistent with its mandate under the
H–2B program.
The Department considered
alternatives to a number of program
provisions. First, the Department
considered another alternative to the
definition of full-time work: a 40-hour
threshold instead of the 35-hour level
proposed and actually implemented in
this Final Rule. As discussed in detail
in the preamble to proposed 20 CFR
655.5, the Department established a 35hour minimum as the definition of fulltime employment because it more
accurately reflects full-time employment
expectations when coupled with the
obligation for the employer to accurately
disclose the hours of work that will be
offered each week, and is consistent
with other existing Department
standards and practices in the industries
that currently use the H–2B program to
obtain workers.
Second, this rule included a threefourths guarantee requirement, with the
Final Rule requiring that the guarantee
be measured based on 12-week periods
(if the period of the job order is 120 or
more days) and 6 weeks (if the period
of the job order is less than 120 days).
The Department considered using 4week periods, as proposed, and also
considered retaining the language of the
H–2A requirement, under which
employers must guarantee to offer the
worker employment for a total number
of work hours equal to at least threefourths of the workdays of the total
length of the contract. The Department
rejected this alternative because, while
this would provide workers with
significant protection, it would not be
sufficient to discourage the submission
of imprecise dates of need and/or
imprecise numbers of employees
needed and would therefore fail to
protect U.S. and H–2B workers from
periods of unforeseen
underemployment.
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The Department believes that the rule,
which calculates the hours of
employment offered in 12-week and 6week periods, better ensures that
workers’ commitment to a particular
employer will result in real jobs that
meet their reasonable expectations. We
do not believe this Final Rule will create
any additional financial burden on
employers who have accurately
represented their period of need and
number of employees needed, and will
provide an additional incentive for
applicants to correctly state all of their
needs on the H–2B Registration and the
Application for Temporary Employment
Certification.
Third, the Department considered
omitting the registration of H–2B
employers and instead retaining the
current practice for the adjudication of
the employer’s temporary need and the
labor market analysis to occur
simultaneously. While this might be
more advantageous for employers new
to the program, it delays the vast
majority of employers that are recurring
users with relatively stable dates of need
and that would benefit from separate
adjudication of need and adequacy of
recruitment. Moreover, employers and
potential workers benefit from a
recruitment process close in time to the
actual date of need which a registration
process, by pre-determining temporary
need, expressly permits. Therefore, the
Department rejected the alternative of
simultaneous adjudication because it
undercuts the Secretary’s fulfillment of
her obligations under the program.
Fourth, the Final Rule provides that
employers may arrange and pay for
workers’ transportation and subsistence
from the place from which the worker
has come to the place of employment
directly, advance at a minimum, the
most economical and reasonable
common carrier cost, or reimburse the
worker’s reasonable costs if the worker
completes 50 percent of the period of
employment covered by the job order if
the employer has not previously
reimbursed such costs. The Final Rule
continues to require employers to
provide return transportation and
subsistence from the place of
employment; however, the obligation
attaches only if the worker completes
the period of employment covered by
the job order or if the worker is
dismissed from employment for any
reason before the end of the period. In
addition, the Final Rule continues to
provide that if a worker has contracted
with a subsequent employer that has
agreed to provide or pay for the worker’s
transportation to the subsequent
employer’s worksite, the subsequent
employer must provide or pay for such
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expenses; otherwise, if this agreement is
not made, the employer must provide or
pay for that transportation and
subsistence. The Final Rule reminds
employers that the FLSA imposes
independent wage payment obligations,
where it applies. The Department
considered requiring employers to
reimburse the worker in the first
workweek any cost of transportation
and subsistence, as proposed, but
rejected this alternative in response to
commenter concerns.
Finally, the proposed rule required
the employers to extend offers of
employment to qualified U.S. workers
referred by the SWAs until 3 days before
the date of need or the date of departure
of the last H–2B worker, whichever is
later. In consideration of commenter
concerns, and to taking into
consideration USCIS regulations
governing the arrival of H–2B workers,
the Department has modified this
requirement. In the Final Rule,
employers are required to accept SWA
referrals of qualified U.S. applicants
until 21 days before the date of need,
irrespective of the date of departure of
the last H–2B worker.
3. Economic Analysis
The Department derives its estimates
by comparing the baseline, that is, the
program benefits and costs under the
2008 Final Rule, against the benefits and
costs associated with the
implementation of the provisions in this
Final Rule. The benefits and costs of the
provisions of this Final Rule are
estimated as incremental impacts
relative to the baseline. Thus, benefits
and costs attributable to the 2008 Final
Rule are not considered as benefits and
costs of this Final Rule. We explain how
the actions of workers, employers, and
government agencies resulting from the
Final Rule are linked to the expected
benefits and costs.
The Department sought to quantify
and monetize the benefits and costs of
this Final Rule where feasible. Where
we were unable to quantify benefits and
costs—for example, due to data
limitations—we describe them
qualitatively. The analysis covers 10
years (2012 through 2021) to ensure it
captures major benefits and costs that
accrue over time.14 We have sought to
present benefits and costs both
undiscounted and discounted at 7
percent and 3 percent.
In addition, the Department provides
an assessment of transfer payments
associated with certain provisions of the
14 For the purposes of the cost-benefit analysis,
the 10-year period starts on July 1, 2012.
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rule.15 Transfer payments, as defined by
OMB Circular A–4, are payments from
one group to another that do not affect
total resources available to society.
Transfer payments are associated with a
distributional effect, but do not result in
additional benefits or costs to society.
The rule would alter the transfer
patterns and increase the transfers from
employers to workers. The primary
recipients of transfer payments reflected
in this analysis are U.S. workers and H–
2B workers. The primary payors of
transfer payments reflected in this
analysis are H–2B employers, and under
the rule, those employers who choose to
participate are likely to be those that
have the greatest need to access the H–
2B program. When summarizing the
benefits or costs of specific provisions of
this rule, we present the 10-year
averages to reflect the typical annual
effect.
The inputs used to calculate the costs
of this rule are described below.
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a. Number of H–2B Workers
The Department estimates that from
FY 2000–2007, there were an average of
185,879 16 H–2B workers requested per
year and 154,281 H–2B positions
certified. Because the number of H–2B
visas is statutorily limited, only some
portion of these certified positions were
ultimately filled by foreign workers.
The number of visas available in any
given year in the H–2B program is
66,000, assuming no statutory changes
in the number of visas available. Some
costs, such as travel, subsistence, visa
and border crossing, and reproducing
the job order apply to these 66,000
workers. Employment in the H–2B
program represents a very small fraction
of the total employment in the U.S.
economy, both overall and in the
industries represented in this program.
The H–2B program’s annual cap of
66,000 visas issued per year (33,000
allocated semi-annually) represents
approximately 0.05 percent of total
nonfarm employment in the U.S.
economy (129.8 million).17 The number
of visas per year does not fully capture
the number of H–2B workers in the U.S.
at any given time as there are exceptions
to the H–2B cap; additionally, a
nonimmigrant’s H–2B classification may
be extended for qualifying employment
15 The specific provisions associated with transfer
payments are: wages paid to corresponding U.S.
workers, payments for transportation, subsistence,
and lodging for travel to and from the place of
employment, and visa-related fees.
16 Office of Foreign Labor Certification, Public
Disclosure Data.
17 U.S. Bureau of Labor Statistics (BLS). 2011.
Employees on nonfarm payrolls by major industry
sector, 1961 to date. Available at ftp://ftp.bls.gov/
pub/suppl/empsit.ceseeb1.txt.
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for a total stay of up to 3 years without
being counted against the cap. The
Department assumes that half of all H–
2B workers entering the United States
(33,000) in any year stay at least 1
additional year, and half of those
workers (16,500) will stay a third year,
for a total of 115,500 H–2B workers
employed at any given time. This
suggests that 57 percent of H–2B
workers (66,000/115,500) are new
entrants in a given year. Extending the
analysis to the 115,500 H–2B workers
we estimate are in the country at any
given time, the number of H–2B workers
represents approximately 0.09 percent
of total nonfarm employment.
According to H–2B program data for
FY 2007–2009, the average annual
numbers of H–2B positions certified in
the top five industries were as follows:
Landscaping Services—78,027
Janitorial Services—30,902
Construction—30,242
Food Services and Drinking Places—22,948
Amusement, Gambling, and Recreation—
14,041
These numbers overestimate the
number of actual H–2B workers, as the
number of positions certified exceeds
the number of H–2B workers in the
country at a given time.
The Department estimates the number
of H–2B workers in these industries
based on the number of positions
certified by dividing 115,500 H–2B
workers (66,000 plus 33,000 staying one
additional year plus 16,500 staying a
third year) by the 236,706 positions
certified per year on average during FY
2007–2009. This produces a scalar of
48.8 percent. Applying this scalar to the
number of positions certified suggests
that the number of H–2B workers in the
top five industries is:
Landscaping Services—38,073
Janitorial Services—15,079
Construction—14,756
Food Services and Drinking Places—11,197
Amusement, Gambling, and Recreation—
6,851
These employment numbers represent
the following percentages of the total
employment in each of these
industries: 18
Landscaping Services—6.5 percent (38,073/
589,698)
Janitorial Services—1.6 percent (15,079/
933,245)
Construction—0.2 percent (14,756/7,265,648)
Food Services and Drinking Places—0.1
percent (11,197/9,617,597)
Amusement, Gambling, and Recreation—0.5
percent (6,851/1,506,120)
18 U.S. Census Bureau. 2007. 2007 Economic
Census. Available at https://www.census.gov/econ/
census07/.
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10117
As these data illustrate, the H–2B
program represents a small fraction of
the total employment even in each of
the top five industries in which H–2B
workers are found.
b. Number of Affected Employers
The Department estimates that from
FY 2000–2007, an average of 6,425
unique employers applied for H–2B
workers, and of these, an average of
5,298 were granted certifications.
Several of the Final Rule’s provisions
(the requirement for employers to
translate the job order from English to
a language understood by the foreign
workers, and payment of visa and visarelated fees) will predominantly or only
apply to employers that ultimately
employ H–2B workers. As there is no
available source of data on the number
of H–2B employer applicants who
ultimately employ H–2B workers, the
Department uses the ratio of estimated
H–2B workers in the country at a given
time (115,500) to the number of
positions certified in an average year
(154,281) to derive a scale factor of 74.9
percent. Multiplying the average
number of unique certified H–2B
employer applicants from FY2000–2007
(5,298) by the scale factor (74.9) suggests
that there are 3,966 unique certified H–
2B employer applicants who ultimately
employ H–2B workers.
c. Number of Corresponding Workers
Several provisions of the Final Rule
extend to workers in corresponding
employment, defined as those non-H–
2B workers who perform work for an H–
2B employer, where such work is
substantially the same as the work
included in the job order, or is
substantially the same as other work
performed by H–2B workers.
Corresponding workers are U.S. workers
employed by the same employer
performing the substantially the same
tasks at the same location as the H–2B
workers, and they are entitled to at least
the same terms and conditions of
employment as the H–2B workers.
Corresponding workers might be
temporary or permanent; that is, they
could be employed under the same job
order as the H–2B workers for the same
period of employment, or they could
have been employed prior to the H–2B
workers, and might remain after the H–
2B workers leave. However, the Final
Rule excludes two categories of workers
from the definition of corresponding
employment. Corresponding workers
are entitled to the same wages and
benefits that the employer provides to
H–2B workers, including the threefourths guarantee, during the period
covered by the job order. The
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corresponding workers would also be
eligible for the same transportation and
subsistence payments as the H–2B
workers if they travel a long distance to
reach the job site and cannot reasonably
return to their residence each workday.
In addition, as a result of the enhanced
recruiting in this rule, including the
new electronic job registry, certain costs
may be avoided as employers are able to
find U.S. workers in lieu of some H–2B
workers. The Department believes that
the costs associated with hiring a new
U.S. worker would be lower than the
costs associated with hiring an H–2B
worker brought to the U.S. from abroad,
as the costs of visa and border crossing
fees to be paid for by the employer will
be avoided and travel costs may likely
be less (or zero for workers who are able
to return to their residence each day).
There are no reliable data sources on
the number of corresponding workers at
work sites for which H–2B workers are
requested or the hourly wages of those
workers. The Department does not
collect data regarding what we have
defined as corresponding employees,
and therefore cannot identify the
numbers of workers to whom the
obligations would apply.19 The
Department extensively examined
alternative data sources that might be
used to accurately estimate the number
of corresponding workers. First, in the
proposed rule, the Department asked the
public to propose possible sources of
data or information on the number of
corresponding workers at work sites for
which H–2B workers were requested
and the current hourly wage of those
corresponding workers. The Department
reviewed comments received in
response to this request, but
unfortunately, no data were provided by
commenters. Perhaps the most
interesting qualitative feedback from
comments was the apparent dichotomy
in perceptions of the issue of
corresponding workers. Some
commenters indicated there would be
no corresponding workers whose wages
were affected by this rule: they hired
H–2B workers because they could not
find corresponding U.S. workers willing
to do the job. At the opposite end of the
spectrum were commenters who
asserted that many, if not most, of their
permanent employees might require
wage increases as a result of this rule.
However, at least some of the latter
comments reflected a potential
19 The Department only recently began asking
employers (in a non-required field) to state on an
H–2B Application for Temporary Employment
Certification the number of full-time equivalent
employees that they employ. Further, the
Department does not have this information from
concluded investigations.
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misunderstanding of the rule; most
commenters who made such assertions
were misguided in their assumption that
any activity performed by any worker
that is also performed by H–2B workers
would make those workers
corresponding.20
Second, the Department asked its
WHD field staff to provide information
they might have on the number of
corresponding workers employed by
H–2B employers based on the data
gathered during investigations. The
number of U.S. workers similarly
employed varies widely among the
companies investigated, ranging from 0
to 310. No data on the number of H–2B
workers was collected, though, so it is
impossible to compare the pattern of
employment of U.S. and H–2B workers.
Because such data gathering was not the
principal goal of the investigation, the
data provided are the result of chance
and what the investigator happened to
record, rather than a systematic
collection of worker counts relevant to
the estimation of corresponding
employment. Furthermore, the results of
only 36 investigations were available.
Finally, they did not represent a random
sample of H–2B employers, but just that
subset of employers that the Department
had some reason to investigate.
Third, the Department reviewed a
random sample of 225 certified and
partially certified applications from
FY2010 submitted by employers in
response to Request for Information
(RFIs) during the application process.
While the 2011 version of ETA Form
9142 includes an optional item on the
number of non-family full-time
equivalent employees, that number
includes all employees and not only the
employees in corresponding
employment. (See also the instructions
to the Form 9142, which inform the
employer to ‘‘[e]nter the number of fulltime equivalent (FTE) workers the
employer employs.’’) Moreover, even if
this number accounted for the number
of corresponding employees, none of the
applications in the random sample used
the 2011 version of the form. Of the 225
applications reviewed, two applications
gave the current number of employees
20 Comments by the SBA, for example, (ETA–
2011–0001–0438) stated that in some industries
(e.g., landscaping, restaurants), supervisors and
H–2B workers might sometimes perform the same
task (e.g., a landscaping supervisor might mow
lawns if someone calls in sick; a supervisor at a
small restaurant might help clear tables during busy
times). Therefore, as explained in the preamble, the
commenters mistakenly believed that because the
H–2B worker and the supervisor ‘‘perform the same
work,’’ they are corresponding employees, and the
firm must pay the H–2B worker the same wage rate
as the supervisor, which then means all other
workers must be paid the same as the H–2B worker.
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as part of the other information
submitted. Additionally, DOL examined
data in 34 payroll tables that were
provided to supplement the application.
The payroll tables reported data by
month for at least 1 year from 2007 to
2010 and included information such as
the total number of workers, hours
worked, and earnings for all workers
performing work covered by the job
order. These workers were broken down
into categories for permanent workers
(those already employed and performing
the certified job) and for temporary
workers (both H–2B workers and
corresponding workers who responded
to the job order). The Department
divided the total payroll by the total
hours worked across the two categories
of workers to estimate an average hourly
wage per permanent and temporary
worker. The Department compared the
total number of workers in months
where permanent workers were paid
more than and less than temporary
employees for those months in which
both were employed.
The Department found 7,548
temporary and 10,310 permanent
worker-months (defined as one worker,
whether full- or part-time, employed
one month) in the 34 payroll tables
examined. Of these, permanent
employees were paid more than
temporary employees in 9,007 workermonths, and were paid less than
temporary employees in 1,303 worker
months. This suggests the rule would
have no impact on wages for 87 percent
of permanent workers (9,007/10,310).
Conversely, 13 percent of permanent
workers (1,303/10,310), were paid less
than temporary employees and would
receive an increase in wages as a result
of the rule. Calculating the ratio of 1,303
permanent worker-months to 7,548
temporary worker-months when
permanent workers are paid less than
temporary workers suggests that for
every temporary worker-month, there
are 0.17 worker-months where the
permanent worker wage is less than the
temporary worker wage. Extrapolating
this ratio based on the Department’s
estimate that there are a total of 115,500
H–2B employees at any given time, this
suggests that 19,939 permanent workers
(115,500 × 0.17) would be eligible for
pay raises due to the rule.
The Department also calculated the
percentage difference in the
corresponding and temporary worker
wages in months where temporary
workers were paid more. On average,
corresponding workers earning less than
temporary employees would need their
wages to be increased 4.5 percent to
match temporary worker wages.
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For several reasons, however, the
Department did not believe it was
appropriate to use the data in the
payroll tables to extrapolate to the entire
universe of H–2B employers. First,
because of the selective way in which
these payroll records were collected by
the Department, the distribution of
occupations represented in the payroll
tables is not representative of the
distribution of occupations in H–2B
applications. The 34 payroll tables
examined by the Department included
the following occupations:
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Nonfarm Animal Caretakers (12 payroll
tables)
Landscaping and Groundskeeping Workers
(four payroll tables)
Maids and Housekeeping Cleaners (four
payroll tables)
Cooks (two payroll tables)
Waiters and Waitresses (two payroll tables)
Forest and Conservation Workers (two
payroll tables)
Dishwashers (one payroll table)
Dining Room and Cafeteria Attendants and
Bartender Helpers (one payroll table)
Separating, Filtering, Clarifying,
Precipitating, and Still Machine Setters,
Operators, and Tenders (one payroll table)
Food Cooking Machine Operators and
Tenders (one payroll table)
Floor Sanders and Finishers (one payroll
table)
Production Workers, All Other (one payroll
table)
Receptionists and Information Clerks (one
payroll table)
Grounds Maintenance Workers, All Other
(one payroll table)
The four payroll tables for
landscaping and groundskeeping
workers made up only 12 percent of the
payroll tables, while applications for
these workers comprised 35 percent of
FY 2010 applications. Conversely, the
12 payroll tables from nonfarm animal
caretakers made up 35 percent of the
payroll tables in our sample, while
applications for such workers made up
only 6 percent of the FY 2010
applications.
Second, the total number of payroll
tables or payroll records provided to the
Department was very small. We found
only 34 payroll tables in 225 randomly
selected applications. Furthermore,
payroll records in H–2B applications are
provided in specific response to an RFI
or in the course of a post-adjudication
audit. In both instances the primary
purpose of these records is to
demonstrate compliance with program
requirements, usually either to
demonstrate proactively that the need
for workers is a temporary need, or to
demonstrate retroactively compliance
with the wage obligation. Because
payroll tables were submitted in
response to an RFI rather than as a
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matter of routine in the application
process, it is not clear that the data in
the limited number of payroll tables for
a given occupation are representative of
all workers within that occupation in
the H–2B program. Something triggered
the RFI, presumably some indication
that the need for temporary workers was
not apparent, and therefore these
applications are not representative of
the 85 percent of applications that did
not require a payroll table.
Third, the payroll wage information
in these tables is provided at the group
level, and the Department is unable to
estimate how many individual
corresponding workers are paid less
than temporary workers in any given
month. The payroll tables only allow a
gross estimate of whether corresponding
or temporary workers were paid more,
on average, in a given month. Because
wages would only increase for those
U.S. workers currently making less than
the prevailing wage, this information is
necessary to determine the effect the
rule would have on workers in
corresponding employment. Finally, the
Department has no data regarding the
number of employees who would fall
under the two exclusions in the
definition of corresponding
employment.
The Department, therefore, cannot
confidently rely upon the payroll tables
alone and has no other statistically valid
data to quantify the total number of
corresponding workers or the number
that would be eligible for a wage
increase to match the H–2B workers.
Nevertheless, the Department believes
that the payroll tables show that the
impact of the corresponding
employment provision would be
relatively limited, both as to the number
of corresponding workers who would be
paid more and as to the amount their
wages would increase.
Based upon all the information
available to us, including the payroll
tables, the anecdotal evidence in the
comments, and the Department’s
enforcement experience, the Department
has attempted to quantify the impact of
the corresponding employment
provision. We note that the 2008 Final
Rule already protects U.S. workers hired
in response to the required recruitment,
including those U.S. workers who were
laid off within 120 days of the date of
need and offered reemployment.
Therefore, this rule will have no impact
on their wages. This Final Rule simply
extends the same protection to other
employees performing substantially the
same work included in the job order or
substantially the same work that is
actually performed by the H–2B
workers. Based in particular upon the
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10119
numerous employer commenters who
asserted that they were unable to find
U.S. workers to perform the types of
jobs typically encompassed within their
job orders, the Department believes that
a reasonable estimate is that H–2B
workers make up 75% to 90% of the
workers in the particular job and
location covered by a job order; we
assume, therefore, that 10% to 25% of
the workers will be U.S. workers newly
covered by the rule’s wage requirement.
This assumption does not discount at all
for the fact, as noted above, that some
of these U.S. workers already are
covered by the prevailing wage
requirement or could be covered by one
of the two exclusions from the
definition of corresponding
employment. Carrying forward with our
estimate that there are a total of 115,500
H–2B workers employed at any given
time, we thus estimate that there will be
between 12,833 (if 90% are H–2B
workers) and 38,500 (if 75% are H–2B
workers) U.S. workers newly covered by
the corresponding employment
provision.
d. Wages Used in the Analysis
The Department updated the wage
and benefit costs under the proposed
rule by incorporating the most recent
OES wage data available from BLS, and
its most recent estimate of the ratio of
fringe benefit costs to wages, 30.4
percent.21
To represent the hourly compensation
rate for an administrative assistant/
executive secretary, the Department
used the median hourly wage ($22.06)
for SOC 43–6011 (Executive Secretaries
and Executive Administrative
Assistants).22 The hourly compensation
rate for a human resources manager is
the median hourly wage of $47.68 for
SOC 11–3121 (Human Resources
Managers).23 Both wage rates were
multiplied by 1.304 to account for
private-sector employee benefits.
For registry development and
maintenance activities, the proposed
rule used fully loaded rates based on an
Independent Government Cost Estimate
21 U.S. Bureau of Labor Statistics (BLS). 2011a.
Employer Costs for Employee Compensation news
release text. June 8, 2011. Available at https://
www.bls.gov/news.release/ecec.nr0.htm (Accessed
July 12, 2011).
22 U.S. Bureau of Labor Statistics (BLS). 2011b.
Occupational Employment and Wages, May 2010—
43–6011 Executive Secretaries and Executive
Administrative Assistants. Available at https://
www.bls.gov/oes/current/oes436011.htm (Accessed
June 3, 2011).
23 U.S. Bureau of Labor Statistics (BLS). 2011c.
Occupational Employment and Wages, May 2010—
11–3121 Human Resources Managers. Available at
https://www.bls.gov/oes/current/oes113121.htm
(Accessed July 12, 2011).
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(IGCE) produced by OFLC,24 which are
inclusive of direct labor and overhead
costs for each labor category.25 Because
the BLS data used to update other wages
does not include overhead costs, the
Department updated these wage
estimates using the Producer Price
Index (PPI) for software publishers
producing application software to
inflate the loaded wage rates for each
labor category from 2010 (average
annual PPI, 96.8) to 2011 (average of
first five months’ PPIs, 97.0).
The 2011 wages used in the analysis
are summarized in Table 3.
TABLE 3—WAGES USED IN THE ANALYSIS
Occupation
Hourly wage
Administrative Assistant ...............................................................................................................
HR Manager ................................................................................................................................
Program Manager ........................................................................................................................
Computer Systems Analyst II ......................................................................................................
Computer Systems Analyst III .....................................................................................................
Computer Programmer III ............................................................................................................
Computer Programmer IV ...........................................................................................................
Computer Programmer Manager .................................................................................................
Data Architect ..............................................................................................................................
Web Designer ..............................................................................................................................
Database Analyst .........................................................................................................................
Technical Writer II ........................................................................................................................
Help Desk Support Analyst .........................................................................................................
Production Support Manager .......................................................................................................
$22
48
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
Loaded
wage [a]
$29
62
138
92
110
90
108
124
105
125
78
85
55
126
PPI adjusted
wage [b]
........................
N/A
$139
92
110
90
108
124
105
125
78
85
55
126
[a] Accounts
for 30.4 percent fringe.
by ratio of 2011 PPI to 2010 PPI (97.0/96.8).
N/A: Not Applicable.
Sources: BLS, 2011a; BLS, 2011b; BLS, 2011c; BLS, 2011d; BLS, 2011e.
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[b] Multiplied
e. H–2B Employment in the Territory of
Guam
This Final Rule applies to H–2B
employers in the Territory of Guam only
in that it requires them to obtain
prevailing wage determinations in
accordance with the process defined at
20 CFR 655.10. To the extent that this
process incorporates the new
methodology defined in the January
2011 prevailing wage rule, it is possible
that some H–2B employers in Guam will
experience an increase in their H–2B
prevailing wages. The Department
expects that the H–2B employers in
Guam working on Federally-funded
construction projects subject to the
Davis-Bacon and Related Acts (DBRA)
are already paying the Davis-Bacon Act
prevailing wage for the classification of
work performed and that such
employers may not experience an
increase in the wage levels they are
required to pay. Employers performing
work ancillary or unrelated to DBRA
projects, and therefore paying a wage
potentially lower than the Davis-Bacon
Act prevailing wage, may receive
increased prevailing wage
determinations under this Final Rule.
However, because the H–2B program in
Guam is administered and enforced by
the Governor of Guam, or the Governor’s
designated representative, the
Department is unable to quantify the
effect of this provision on H–2B
employers in Guam due to a lack of
data.
24 OFLC. 2010. Independent Government Cost
Estimates.
25 The Department would not typically use a wage
that included overhead costs, but here the
Department uses the services of a contractor to
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4. Subject-by-Subject Analysis
The Department’s analysis below
considers the expected impacts of the
Final Rule provisions against the
baseline (i.e., the 2008 Final Rule). The
sections detail the costs of provisions
that provide additional benefits for H–
2B and/or workers in corresponding
employment, expand efforts to recruit
U.S. workers, enhance transparency and
worker protections, and reduce the
administrative burden on SWAs.
a. Three-Fourths Guarantee
Under the Proposed Rule, the
Department specified that employers
guarantee to offer hours of employment
equal to at least three-fourths of the
certified work days during the job order
period, and that they use successive 4week periods to measure the threefourths guarantee. The use of 4-week
periods was proposed (as opposed to
measuring the three-fourths guarantee
over the course of the entire period of
need as in the H–2A program) in order
to ensure that work is offered during the
entire certified period of employment.
The Department received comments
from employers expressing concern that
they are unable to predict the exact
timing and flow of tasks by H–2B
workers, particularly at the beginning
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and end of the period of certification,
and that they need more scheduling
flexibility due to unexpected events
such as extreme weather or catastrophic
man-made events. Acknowledging these
commenters’ concerns, the Department
lengthened the calculation period from
4 weeks to 12 weeks for job orders
lasting at least 120 days and 6 weeks for
job orders lasting less than 120 days. In
order to ensure that the capped H–2B
visas are appropriately made available
to employers based upon their actual
need for workers, and to ensure that
U.S. workers can realistically evaluate
the job opportunity, the Department
maintains that employers should
accurately state their beginning and end
dates of need and the number of H–2B
workers needed. To the extent that
employers submit Applications for
Temporary Employment Certification
accurately reflecting their needs, the
three-fourths guarantee provision
should not represent a cost to
employers, particularly given the
extended 12-week and 6-week periods
over which to calculate the guarantee.
b. Application of H–2B Wages to
Corresponding Workers
There are two cohorts of
corresponding workers: (1) The U.S.
workers hired in the recruitment
process and (2) other U.S. workers who
work for the employer and who perform
develop the registry, and therefore the fully loaded
wage is more reflective of costs.
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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations
the substantially the same work as the
H–2B workers, other than those that fall
under one of the two exclusions in the
definition. The former are part of the
baseline for purposes of the wage
obligation, as employers have always
been required to pay U.S. workers
recruited under the H–2B program the
same prevailing wage that H–2B
workers get. Of the latter group of
corresponding workers, some will
already be paid a wage equal to or
exceeding the H–2B prevailing wage so
their wages represent no additional cost
to the employer. Those who are
currently paid less than the H–2B
prevailing wage will have to be paid at
a higher rate, with the additional cost to
the employer equal to the difference
between the former wage and the H–2B
wage.
As discussed above, the Department
was unable to identify a reliable source
of data providing the number of
corresponding workers at work sites for
which H–2B workers are requested or
the hourly wages of those workers.
Nevertheless, the Department has
attempted to quantify the impacts
associated with this provision. All
increases in wages paid to
corresponding workers under this
provision represent a transfer from
participating employers to U.S. workers.
In the absence of reliable data, the
Department believes it is reasonable to
assume that H–2B workers make up 75
to 90 percent of the workers in a
particular job and location covered by
the job-order, with the remaining 10 to
25 percent of workers being
corresponding workers newly covered
by the rule’s wage requirement. When
these rates are applied to our estimate
of the total number of H–2B workers
(115,500) employed at any given time,
we estimate that the number of
corresponding workers newly covered
by the corresponding employment
provision will be between 12,833 and
38,500. This is an overestimate of the
rule’s impact, since some of the
employees included in the 10–25
percent proportion of corresponding
workers are those hired in response to
required recruitment and are therefore
already covered by the existing
regulation, and some employees will fall
within one of the two exclusions under
the definition.
The prevailing wage calculation
represents a typical worker’s wage for a
given type of work. Since the prevailing
wage calculation is based on the current
wages received by all workers in the
occupation and area of intended
employment, it is reasonable to assume
that 50 percent of the corresponding
workforce earns a wage that is equal to
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or greater than the calculated prevailing
wage. Conversely, it would be
reasonable to assume that 50 percent of
the workers in corresponding
employment earn less than the
prevailing wage and would have their
wages increased as a result of the Final
Rule. Applying this rate to our estimate
of the number of workers covered by the
corresponding employment provision
would mean that the number of newlycovered workers is between 6,417 and
19,250.
We also believe it is reasonable to
assume that the typical hourly wage
increase for the newly-covered U.S.
workers will be less than the average
increase for H–2B workers resulting
from the Wage Rule. This reflects our
expectation that a majority of the newlycovered corresponding workers are
currently earning close to the new H–2B
prevailing wage (which represents the
mathematical mean wage for the
occupation in the area of intended
employment). These corresponding
workers, who would already be part of
an employer’s staff in occupations for
which a certification is being sought,
have likely experienced some wage
growth during their tenure with the
employer; therefore, their wage increase
should be significantly less than the
hourly wage increase for the H–2B
workers in that occupations.
We also expect that few
corresponding workers are likely to
receive a wage increase that is close to
or greater than the weighted average
hourly increase for H–2B workers. This
small number of incumbent employees
would likely be limited to those hired
shortly before an employer applied for
an H–2B Temporary Employment
Certification. Because they would not
have had sufficient tenure to experience
any wage growth, their hourly wage
increase may be equivalent to the
average wage increases provided to
H–2B workers under the Wage Rule.
Therefore, we believe that U.S.
workers’ wage increases will be largely
distributed between the previous H–2B
prevailing wage and the new prevailing
wage. Using the weighted average
hourly wage increase for H–2B workers
to approximate an upper bound for the
increase in corresponding workers’
wages, we assume that the wage
increases for newly-covered workers
will be distributed between three
hourly-wage intervals: 30 percent of the
newly-covered corresponding workers
will receive an average hourly wage
increase of $1.00; 15 percent will
receive a wage increase of $3.00 per
hour; and, 5 percent will receive an
average hourly increase of $5.00, which
encompasses the weighted average
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10121
hourly wage increase for H–2B workers
from the Wage Rule.
Finally, we estimate that these
workers in corresponding employment
will have their wages increased for
1,365 hours of work. This assumes that
every H–2B employer is certified for the
maximum period of employment of nine
months (39 weeks), and that every
corresponding worker averages 35 hours
of work per week for each of the 39
weeks. This is an upper-bound estimate
since it is based upon every employer
voluntarily providing in excess of the
number of hours of work required by the
three-fourths guarantee for the
maximum number of weeks that can be
certified.
Therefore, based on all the
assumptions noted above, we estimate
the total annual transfer incurred due to
the increase in wages for newly-covered
workers in corresponding employment
ranges from $17.5 million to $52.6
million. See Table 4.
Also, based on our review of available
information on the characteristics of
industries employing H–2B workers,
there will be natural limit on the
number of corresponding workers
whose wages might be affected by the
revised rule. The Department found that
the two industries that most commonly
employ H–2B workers are landscaping
services and janitorial services.
Establishments in these industries
tend to be small: Approximately 7
percent of janitorial service and 3
percent of landscaping establishments
have more than 50 year-round
employees; and, 86 percent of janitorial
services and 91 percent of landscaping
establishments have fewer than 20 yearround employees. Therefore, we believe
that a majority of H–2B employers are
small-sized firms whose workforces are
comprised predominately of H–2B
workers.
This assertion is consistent with
employer comments on the proposed
rule that firms hire H–2B workers
primarily because they find it difficult
to fill those positions with U.S. workers.
This is also consistent with the fact that
20 percent in janitorial services and 30
percent in landscaping do not even
operate year-round. Taken in total, the
small size of a typical H–2B employer
would place limits on the number of
potential corresponding workers.
Finally, to the extent that firms in
landscaping and janitorial services incur
increased payroll costs, those increased
costs are unlikely to have a significant
aggregate impact. U.S. Bureau of
Economic Analysis (BEA) input-output
analysis of the economy demonstrates
that the demand for ‘‘Services to
Buildings and Dwellings’’ (the sector in
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which janitorial and landscaping
services are classified) is highly diffused
throughout the economy.
BEA calculates Direct Requirements
tables that indicate the dollar amount of
input from each industry necessary to
produce one dollar of a specified
industry’s output. These results show
that building services account for a
relatively negligible proportion of
production costs: Of 428 sectors,
building services account of less than
$0.01 for each dollar of output in 414
sectors, and less than $0.005 for each
dollar of output in 343 sectors. The
largest users of these services tend to be
retail trade, government and educational
facilities, hotels, entertainment and
similar sectors. In other words, these
services do not impact industrial
productivity or the production of
commodities that will result in large
impacts that ripple throughout the
economy. To further place this in
perspective, Services to Buildings and
Dwellings, upon which this
characterization is based includes more
than just the janitorial and landscaping
service industries. The estimated 53,173
H–2B workers hired by these industries
account for only 3.1 percent of
employment in the Services to
Buildings and Dwellings sector, even
including impacts through
corresponding employee provisions
(described above as limited), and are
only a small fraction of the already
small direct requirements figures for
this sector.
Therefore, based on the characteristics
of industries that use H–2B workers,
only a relatively small fraction of
employees and firms in those industries
likely will be affected by corresponding
worker provisions.
However, because the Department
does not have data on the number of
corresponding workers or their wages
relative to prevailing wages, it cannot
project firm-level impacts to those firms
that do have permanent corresponding
workers. Standard labor economic
models suggest that an increase in the
cost of employing U.S. workers in
corresponding employment would
reduce the demand for their labor.
Because employers cannot replace U.S.
workers laid off 120 days before the date
of need or through the period of
certification with H–2B workers, the
Department concludes that there would
be no short-term reduction in the
employment of corresponding workers
among participating employers. In the
long-run, however, these firms might be
reluctant to hire additional permanent
staff. The extent to which such
unemployment effects might result from
the prevailing wage provision will be a
function of: The number of permanent
staff requiring wage increases; the
underlying demand for the product or
service provided by the firm during offpeak periods; and the firm’s ability to
substitute for labor to meet that off-peak
demand for its products or services.
First, the fewer the number of
permanent staff receiving wage
increases, then the smaller the increase
in the cost of producing the good or
service. Second, the demand for labor
services is a ‘‘derived demand.’’ That is,
if the product or service provided has
few substitutes, purchasers would prefer
to pay a higher price rather than do
without the product. Third, some goods
and services are more difficult to
produce than others by substituting
equipment or other inputs for labor
services. In summary, if increased wages
result in a small overall cost increase,
demand for the product is inelastic, and
there are few suitable substitutes for
labor in production, then
unemployment effects are likely to be
relatively small.
TABLE 4—COST OF CORRESPONDING WORKER WAGES
Percent
corresponding
employees
Corresponding
employees
$0.00 ............................................................................................................................................
1.00 ..............................................................................................................................................
3.00 ..............................................................................................................................................
5.00 ..............................................................................................................................................
50
30
15
5
6,417
3,850
1,925
642
$0
5,255,250
7,882,875
4,379,375
Total ......................................................................................................................................
100
12,833
17,517,500
............................................................................................................................................
............................................................................................................................................
............................................................................................................................................
............................................................................................................................................
50
30
15
5
19,250
11,550
5,775
1,925
$0
15,765,750
23,648,625
13,138,125
Total ......................................................................................................................................
100
38,500
52,552,500
Hourly wage increase
Total cost
H2B Workers 90% of Occupation at Firm
H2B Workers 75% of Occupation at Firm
$0.00
$1.00
$3.00
$5.00
Source: DOL assumptions.
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c. Transportation to and From the Place
of Employment for H–2B Workers
The Final Rule requires H–2B
employers to provide workers—both H–
2B workers and those in corresponding
employment who are unable to return to
their permanent residences—with
transportation and daily subsistence to
the place of employment from the place
from which the worker has come to
work for the employer, whether in the
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U.S. or abroad, if the worker completes
50 percent of the period of the job order.
The employer must also pay for or
provide the worker with return
transportation and daily subsistence
from the place of employment to the
place from which the worker,
disregarding intervening employment,
departed to work for the employer if the
worker completes the period of the job
order or is dismissed early. The impacts
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of requiring H–2B employers to pay for
employees’ transportation and
subsistence represent transfers from H–
2B employers to workers because they
represent distributional effects, not a
change in society’s resources.26
To estimate the transfer related to
transportation, the Department first
26 For the purpose of this analysis, H–2B workers
are considered temporary residents of the United
States.
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calculated the average number of
certified H–2B positions per year during
FY 2007–2009 from the ten most
common countries of origin, along with
each country’s proportion of this total.27
These figures, presented in Table 5, are
used to create weighted averages of
travel costs in the analysis below.
TABLE 5—NUMBER OF CERTIFIED H–
2B WORKERS BY COUNTRY OF ORIGIN, FY 2007–2009
Positions
certified
Country
Percent of
total
Mexico ..............
Jamaica ............
Guatemala ........
Philippines ........
Romania ...........
South Africa ......
UK .....................
Canada .............
Israel .................
Australia ............
134,226
17,068
6,530
4,963
3,251
3,239
2,511
2,371
1,784
1,577
75.6
9.6
3.7
2.8
1.8
1.8
1.4
1.3
1.0
0.9
Total ..............
177,520
100.0
Source: H–2B Program Data and DHS,
2009.
The Department received a comment
from a worker advocacy organization
requesting clarification that inbound
and outbound transportation costs
include the expenses incurred between
their home community and the consular
city, and between the consular city and
the place of employment in the United
States. In response, the Department
confirms that this is the intent of the
rule. Therefore, in this section the
Department accounts for a cost not
clearly accounted for in the proposed
rule: The cost of travel from the
worker’s home to the consular city to
obtain a visa. As in the proposed rule,
the Department also accounts for travel
from the consular city to the place of
employment (assumed to be St. Louis,
MO for the purpose of cost estimation).
Where these costs were given in foreign
currency, the Department converted
them to U.S. dollars using exchange
rates effective July 11, 2011.28
Transportation costs were calculated
by adding two components: the
estimated cost of a bus or ferry trip from
a regional city 29 to the consular city to
obtain a visa, and the estimated cost of
a trip from the consular city to St. Louis.
Workers from Mexico and Canada (77
percent of the total) are assumed to
travel by bus; workers from all other
countries, by air. In response to the
proposed rule, an employer
representative submitted a comment
expressing concern that the travel
expenses underestimated the cost of
airfare.30 The Department reviewed air
transport costs, found that some have
risen significantly since the NPRM was
published, and revised them
accordingly. The increases are likely
attributable to a combination of
increased fuel costs and decreases in
passenger capacity. The same
commenter expressed concern that the
proposed rule’s requirement that
employers continue hiring U.S. workers
up to 3 days before the listed job start
date means that employers will need to
pay a premium for refundable tickets.
Because this Final Rule changed the last
day an employer must hire U.S.
applicants to 21 days before the date of
need, employers will not have to pay a
premium for refundable fares. This
analysis, therefore, includes only the
cost for non-refundable tickets.
10123
The revised travel cost estimates are
presented in Table 6. The Department
estimated the roundtrip transportation
costs by doubling the weighted average
one-way cost (for a roundtrip travel cost
of $929), then multiplying by the annual
number of H–2B workers entering the
U.S. (66,000). The Department estimates
average annual transfer payments
associated with transportation
expenditures to be approximately $61.3
million. This estimate is an increase of
approximately $23.5 million over the
Proposed Rule estimate of $37.8 million.
The addition of travel costs from the
worker’s hometown to the consular city
accounts for approximately $2.9 million
(12 percent) of this increase and the
overall increase in average airfares
accounts for $20.6 million (88 percent).
It is not possible for the Department to
determine how much of the cost of
transportation the employer is already
paying, however, in order to secure the
workers or because of the employer’s
obligations under the FLSA. (Under the
FLSA, the majority of H–2B employers
are required to pay for the proportion of
inbound and outbound transportation
costs that would otherwise bring a
worker’s earnings below the minimum
wage in the first and last workweeks of
employment.) To the extent that this
does already occur, this transportation
transfer is an upper-bound estimate. The
Department also believes we have overestimated this transfer for the additional
reason that inbound transportation is
only due for workers who complete 50
percent of the job order and outbound
transportation is due only for those who
complete the full job order or are
dismissed early.
TABLE 6—COST OF TRAVEL FOR H–2B WORKERS
Item
Value
66,000
Total one way travel ..............................................................................................................................................................
Jamaica:
One way travel (bus)—Hometown to Kingston 34 ........................................................................................................................
One way travel (air)—Kingston to St. Louis 35 .............................................................................................................................
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New entrants per Year ........................................................................................................................................................................
Mexico:
One way travel (bus)—Hometown to Monterrey 31 ......................................................................................................................
One way travel (bus)—Monterrey to Juarez 32 ............................................................................................................................
One way travel (bus)—El Paso to St. Louis 33 ............................................................................................................................
$347
Total one way travel ..............................................................................................................................................................
Guatemala:
One way travel (bus)—Hometown to Guatemala City 36 .............................................................................................................
One way travel (air)—Guatemala City to St. Louis 37 ..................................................................................................................
$502
Total one way travel ..............................................................................................................................................................
$594
27 U.S. Department of Homeland Security (DHS).
2009. Yearbook of Immigration Statistics. Available
at https://www.dhs.gov/files/statistics/publications/
yearbook.shtm (Accessed June 12, 2011).
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28 Exchange rates sourced from Google’s currency
converter. If no exchange rate is mentioned, then
costs were provided in U.S. dollars.
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$50
$83
$214
$3
$499
$4
$490
29 Where possible, we used a selection of cities to
represent travel from different regions of the
country.
30 ETA–2011–0001–0456.
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TABLE 6—COST OF TRAVEL FOR H–2B WORKERS—Continued
Item
Value
Philippines:
One way travel (ferry)—Hometown to Manila 37 ..........................................................................................................................
One way travel (air)—Manila to St. Louis 37 ................................................................................................................................
$41
$1,083
Total one way travel ..............................................................................................................................................................
Romania:
One way travel (bus)—Hometown to Bucharest 38 ......................................................................................................................
One way travel (air)—Bucharest to St. Louis 37 ...........................................................................................................................
$1,124
Total one way travel ..............................................................................................................................................................
South Africa:
One way travel (bus)—Hometown to Pretoria 39 .........................................................................................................................
One way travel (bus)—Pretoria to O.R. Tambo International Airport (ORTIA) 39 .......................................................................
One way travel (air)—ORTIA to St. Louis 37 ................................................................................................................................
$1,409
Total one way travel ..............................................................................................................................................................
United Kingdom:
One way travel (bus or rail)—Hometown to London 40 ................................................................................................................
One way travel (air)—London to St. Louis 37 ...............................................................................................................................
$21
$1,388
$41
$17
$1,391
$1,449
$32
$1,111
Total one way travel ..............................................................................................................................................................
Canada:
One way travel (air)—Hometown to Ottawa 41 ............................................................................................................................
One way travel (bus)—Ottawa to St. Louis 35 ..............................................................................................................................
$1,143
Total one way travel ..............................................................................................................................................................
Israel:
One way travel (bus)—Hometown to Tel Aviv 42 .........................................................................................................................
One way travel (air)—Tel Aviv to St. Louis 37 ..............................................................................................................................
$353
$175
$178
$11
$1,176
Total one way travel ..............................................................................................................................................................
Australia:
One way travel (bus)—Hometown to Canberra 43 .......................................................................................................................
One way travel (air)—Canberra to St. Louis 37 ............................................................................................................................
$1,187
Total one way travel ..............................................................................................................................................................
$2,156
One way travel—Weighted average ............................................................................................................................................
Roundtrip travel—Weighted average ...........................................................................................................................................
$465
$929
Total Travel Costs—H2B Workers ........................................................................................................................................
$61,328,243
$92
$2,064
All:
sroberts on DSK5SPTVN1PROD with RULES
d. Transportation to and From the Place
of Employment for Corresponding
Workers
The proposed rule did not address
inbound and outbound transportation to
31 Omnibus de Mexico. 2011. Venta en Lınea.
´
´
Available at https://www.odm.com.mx/ (Accessed
July 22, 2011). Averages cost of a bus ticket to
Monterrey from: Tampico (473 pesos), Actopan (680
´
pesos); and Acambaro (585 pesos). Converted from
pesos to US dollars at the rate of 0.0861 pesos per
dollar for an average cost of $50.
32 Omnibus de Mexico. 2011. Venta en Lınea.
´
´
Available at https://www.odm.com.mx/ (Accessed
July 22, 2011). The cost of a bus ticket from
Monterrey to Ciudad Juarez is 970 pesos, converted
from pesos to US dollars at the rate of 0.0861 pesos
per dollar for a cost of $83.
33 Greyhound. 2011. Tickets. Available at
https://www.greyhound.com/farefinder/step1.aspx
(Accessed July 8, 2011).
34 Jamaica Guide. 2011. Getting around. Available
at https://jamaica-guide.info/getting.around/buses/
(Accessed July 11, 2011).
35 Orbitz. 2011. Home Page. Available at https://
www.orbitz.com/ (Accessed July 22, 2011).
36 Virtual Tourist. 2011. Guatemala City
Transportation. Available at https://
www.virtualtourist.com/travel/
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Jkt 226001
Caribbean_and_Central_America/Guatemala/
Departamento_de_Guatemala/Guatemala_City1671108/Transportation-Guatemala_City-TG–C–
1.html (Accessed July 10, 2011).
37 Lonely Planet. 2011a. Ferry travel in the
Philippines. Available at https://
www.lonelyplanet.com/philippines/transport/
getting-around (Accessed July 10, 2011).
38 Mersul Trenulior. 2011. Mersul Trenulior.
Available at https://www.mersultrenurilor.ro
(Accessed July 8, 2011).
39 Computicket. 2011. Computicket Home Page.
Available at https://www.computicket.com/web/
bus_tickets/ (Accessed July 22, 2011).
40 Megabus. 2011. Megabus UK Home Page.
Available at https://uk.megabus.com/
default.aspxhttp\:uk.megabus.com (Accessed July
10, 2011) and Raileasy. 2011. Raileasy Home Page.
Available at https://www.raileasy.co.uk/ (Accessed
July 10, 2011); average of the cost of a bus ticket
from three cities in England to London (GBP 15)
and a train from Northern Ireland to London (GBP
50); Converted at the rate of 1.36 GBP per USD for
an average of $32.
41 Air Canada. 2011. Air Canada Home Page.
Available at https://www.aircanada.com (Accessed
July 10, 2011).
42 Wikitravel. 2011. Bus travel in Israel. Available
at https://wikitravel.org/en/Bus_travel_in_Israel
(Accessed July 10, 2011).
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and from the place of employment for
corresponding workers who are unable
to return daily to their permanent
residences. The Department estimates
an approximate unit cost for each
traveling corresponding worker by
taking the average of the cost of a bus
ticket to St. Louis from Fort Wayne, IN
($91), Pittsburgh, PA ($138), Omaha, NE
($93), Nashville, TN ($86), and
Palmdale, CA ($233).44 Averaging the
cost of travel from these five cities
results in an average one way cost of
$128.20, and a round trip cost of
$256.40 (see Table 7).
43 Greyhound Australia. 2011. Greyhound
Australia Home Page. Available at htttp://
www.greyhound.com.au (Accessed July 11, 2011).
44 Greyhound. 2011. Tickets. Available at
https://www.greyhound.com/farefinder/step1.aspx
(Accessed July 8, 2011).
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Fort Wayne, IN .............................
Pittsburgh, PA ...............................
Omaha, NE ...................................
Nashville, TN ................................
Palmdale, CA ................................
One way travel—Average ............
Roundtrip travel ............................
93
86
233
128
256
Source: Greyhound, 2011.
sroberts on DSK5SPTVN1PROD with RULES
Some employers have expressed
concern that the rule’s provision that
employers reimburse workers for
transportation costs will lead to workers
quitting soon after the start date and
thus in effect receiving a free trip to the
city of their employment. The
Department has addressed this concern
with a provision that workers are not
reimbursed for inbound travel until they
work for half of the job order work
period, and they do not receive
outbound travel unless they complete
the work period or are dismissed early.
Therefore, this estimate also is an
upper-bound estimate for these reasons
as well. Because the Department has no
basis for estimating the number of
workers in corresponding employment
who will travel to the job from such a
distance that they are unable to return
daily to their permanent residence, or to
estimate what percentage of them will
remain on the job through at least half
or all of the job order period, we are
unable to further estimate the total
transfer involved.
e. Subsistence Payments
We estimated the transfer related to
subsistence payments by multiplying
the annual cap set for the number of H–
2B workers generally entering the U.S.
(66,000) by the subsistence per diem
($10.64), and the roundtrip travel time
for the top ten H–2B countries (4 days).
In the Proposed Rule the Department
estimated a weighted average roundtrip
travel time of 1.055 days, but in
response to a comment from a workers’
advocacy organization the Department
has increased this estimate to account
for workers’ travel to the consular city
to obtain a visa. The roundtrip travel
time now includes 3 days to account for
travel from the worker’s home town to
the consular city and from the consular
city to the place of employment, and 1
day to account for the workers’
transportation back to their home
country. Multiplying by 66,000 new
entrants per year and the subsistence
per diem of $10.64 results in average
annual transfers associated with the
subsistence per diem of approximately
$2.8 million (see Table 8). Again, this is
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17:59 Feb 17, 2012
the ten most common countries of origin
are as follows: Monterrey, $11;
Kingston, $13; Guatemala City, $14;
Manila, $7; Bucharest, $11; Pretoria,
$19; London, $22; Ottawa, $30; Tel
Aviv, $22; and Canberra, $26.45 Using
the number of certified H–2B workers
from the top ten countries of origin, we
TABLE 8—COST OF SUBSISTENCE
calculate a weighted average of $11.99
for one night’s stay, and $23.98 for two
PAYMENTS
nights’ stay. Multiplying by the 66,000
Cost component
Value
new entrants per year suggests total
transfers associated with travel lodging
New entrants per year ..............
66,000 of $1.6 million per year (see Table 9).
Subsistence Per Diem ..............
$11
One way travel days—Inbound
3 This cost would not apply to U.S.
workers.
One way travel days—Out-
an upper-bound estimate because the
inbound subsistence reimbursement
only is due for workers who complete
50 percent of the period of the job order
Cost
and outbound subsistence is due only
$91 for those who complete the full job
138 order period or are dismissed early.
TABLE 7—UNIT COSTS OF
CORRESPONDING WORKER TRAVEL
One way travel to St. Louis
10125
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bound ....................................
Roundtrip travel days ...............
Total annual subsistence
costs—H2B workers ......
1
4
$2,808,960
This provision applies not only to H–
2B workers, but also to workers in
corresponding employment on H–2B
worksites who are recruited from a
distance at which the workers cannot
reasonably return to their residence
within the same workday. Assuming
that each worker can reach the place of
employment within 1 day and thus
would be reimbursed for a total of 2
roundtrip travel days at a rate of $10.64
per day, each corresponding worker
would receive $21.28 in subsistence
payments. The Department was unable
to identify adequate data to estimate the
number of corresponding workers who
are unable to return to their residence
daily or, as a consequence, the percent
of corresponding workers requiring
payment of subsistence costs; thus the
total cost of this transfer could not be
estimated.
f. Lodging for H–2B Workers
The Department received a comment
from a workers’ advocacy organization
requesting clarification that inbound
and outbound transportation costs
include the expenses incurred between
their home community and the consular
city and between the consular city and
the place of employment in the U.S. The
Department clarifies that the proposed
rule considered any expenses incurred
between a worker’s hometown and the
consular city to be within the scope of
inbound transportation and subsistence
costs, and therefore includes an
additional cost not accounted for in the
proposed rule: lodging costs while H–2B
workers travel from their hometown to
the consular city to wait to obtain a visa
and from there to the place of
employment. The Department estimates
that H–2B workers will spend an
average of two nights in an inexpensive
hostel-style accommodation and that the
costs of those stays in consular cities of
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Sfmt 4700
TABLE 9—COST OF LODGING FOR H–
2B WORKERS
Cost component
New entrants per year ..........
Nights in Hostel ....................
City
Monterrey ..............................
Kingston ................................
Guatemala City .....................
Manila ...................................
Bucharest ..............................
Pretoria .................................
London ..................................
Ottawa ..................................
Tel Aviv .................................
Canberra ...............................
Weighted Average—One
Night ..................................
Weighted Average—Two
Nights ................................
Total Cost of Lodging ...........
Value
66,000
2
Lodging cost
$11
13
14
7
11
19
22
30
22
26
12
24
1,582,673
Source: Lonely Planet, 2011b.
g. Visa and Consular Fees
Under the 2008 Final Rule, visarelated fees—including fees required by
the Department of State for scheduling
and/or conducting an interview at the
consular post—may be paid by the
temporary worker. This Final Rule,
however, requires employers to pay visa
fees and associated consular expenses.
Requiring employers to bear the full cost
of their decision to hire foreign workers
is a necessary step toward preventing
the exploitation of foreign workers with
its concomitant adverse effect on U.S.
workers. As explained in the Preamble,
government-mandated fees such as
these are integral to the employer’s
choice to use the H–2B program to bring
temporary foreign workers into the
United States.
The reimbursement by employers of
visa application fees and fees for
scheduling and/or conducting an
45 Lonely Planet. 2011b. Hotels & Hostels Search.
Available at https://hotels.lonelyplanet.com/
(Accessed July 12, 2011).
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sroberts on DSK5SPTVN1PROD with RULES
interview at the consular post is a
transfer from employers to H–2B
workers. The Department estimates the
total cost of these expenses by adding
the cost of an H–2B visa and any
applicable appointment and reciprocity
fees. The H–2B visa fee is $150 in all of
the ten most common countries of origin
except Canada, where citizens traveling
to the U.S. for temporary employment
do not need a visa,46 resulting in a
weighted average visa fee of $148. The
same countries charge the following
appointment fees: Mexico ($0),47
Jamaica ($10),48 Guatemala ($12),49
Philippines ($10),50 Romania ($11),51
South Africa ($0),52 the U.K. ($0),53
Canada ($0),54 Israel ($22),55 and
Australia ($105),56 for a weighted
average appointment fee of $3.05.
Additionally, South Africa and
Australia charge reciprocity fees of $85
and $105, respectively, resulting in a
weighted average of $2.48.57
Multiplying the weighted average visa
46 U.S. Department of State. 2011a. Citizens of
Canada, Bermuda and Mexico—When is a Visa
Required? Available at https://travel.state.gov/visa/
temp/without/without_1260.html (Accessed July 22,
2011).
47 Consulate General of the United States—
Monterrey—Mexico. 2011. Temporary worker.
Available at https://monterrey.usconsulate.gov/
work_visa.html (Accessed July 22, 2011).
48 The U.S. Visa Information Service in Jamaica.
2011. How the Online System Works. Available at
https://www.usvisa-jamaica.com/jam/ (Accessed
July 22, 2011).
49 Embassy of the United States—Guatemala.
2011. Application Process. Available at https://
guatemala.usembassy.gov/
niv_how_to_apply.html#appointment (Accessed
July 22, 2011).
50 Embassy of the United States—Manila—
Philippines. 2011. Visa PointTM—The Online Visa
Information and Appointment System. Available at
https://manila.usembassy.gov/wwwhvpnt.html
(Accessed July 22, 2011).
51 Embassy of the United States—Bucharest—
Romania. 2011. Non Immigrant Visas. Available at
https://romania.usembassy.gov/visas/
visa_application_process.html (Accessed July 22,
2011).
52 The U.S. Visa Information Service in South
Africa. 2011. Fee Payment Options. Available at
https://usvisa-info.com/en-ZA/selfservice/
us_fee_payment_options (Accessed July 22, 2011).
53 Embassy of the United States—London—U.K.
2011. MRV Application Fee. Available at https://
london.usembassy.gov/fee.html (Accessed July 22,
2011).
54 U.S. Department of State. 2011a. Citizens of
Canada, Bermuda and Mexico—When is a Visa
Required? Available at https://travel.state.gov/visa/
temp/without/without_1260.html (Accessed July 22,
2011).
55 VisaPoint—Tel Aviv—Jerusalem. 2011. Create
New Login. Available at https://visainfo.usvisaservices.com/Forms/CreateGroupUser.aspx
(Accessed July 22, 2011).
56 Embassy of the United States—Canberra—
Australia. 2011. Nonimmigrant Visas. Available at
https://canberra.usembassy.gov/niv_fees.html
(Accessed July 22, 2011).
57 U.S. Department of State. 2011b. Reciprocity by
Country. Available at https://travel.state.gov/visa/
fees/fees_3272.html (Accessed July 22, 2011).
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17:59 Feb 17, 2012
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cost, appointment fee, and reciprocity
fee by the 66,000 H–2B workers entering
the U.S. annually results in an annual
average transfer of visa-related fees from
H–2B employers to H–2B workers of
$10.1 million (see Table 10). Again, this
is an upper-bound estimate because
many H–2B employers already are
paying these fees in order to ensure
compliance with the FLSA’s minimum
wage requirements.
TABLE 10—COST OF VISA AND
CONSULAR FEES
Cost component
Value
New Entrants per Year .........
Visa Application Fee:
Mexico ...............................
Jamaica .............................
Guatemala .........................
Philippines .........................
Romania ............................
South Africa ......................
UK .....................................
Canada ..............................
Israel .................................
Australia ............................
Weighted Average Visa
Fee ................................
H2B Visa—Total Costs .....
Appointment Fee:
Mexico ...............................
Jamaica .............................
Guatemala .........................
Philippines .........................
Romania ............................
South Africa ......................
UK .....................................
Canada ..............................
Israel .................................
Australia ............................
Weighted Average Appointment Fee ...............
Appointment Fee—Total
Costs .............................
Reciprocity Fee:
Mexico ...............................
Jamaica .............................
Guatemala .........................
Philippines .........................
Romania ............................
South Africa ......................
UK .....................................
Canada ..............................
Israel .................................
Australia ............................
Weighted Average Reciprocity Fee .....................
Reciprocity Fee—Total
Costs .............................
Total Costs:
Total Visa and Consular
Fees ...............................
66,000
$150
150
150
150
150
150
150
0
150
150
148
9,767,773
0
10
12
10
11
0
0
0
22
105
3
201,439
0
0
0
0
0
85
0
0
0
105
2
163,922
10,133,134
Sources: Given in text.
h. Enhanced U.S. Worker Referral
Period
The Final Rule ensures that U.S.
workers are provided with better access
to H–2B job opportunities by requiring
employers to continue to hire any
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Fmt 4701
Sfmt 4700
qualified and available U.S. worker
referred to them from the SWA until 21
days before the date of need,
representing an increase in the
recruitment period compared to the
baseline. The rule also introduces
expanded recruitment provisions,
including requiring employers to notify
their current workforce of the job
opportunity and contact their former
U.S. employees from the previous year.
The enhanced recruitment period and
activities improve the information
exchange between employers, SWAs,
the public and workers about job
availability, increasing the likelihood
that U.S. workers will be hired for those
jobs.
The benefits to U.S. workers also
apply to sections ‘‘i’’ through ‘‘k’’ below,
which discuss additional provisions
aimed at further improving the
recruitment of U.S. workers.
The extension of the referral period in
this Final Rule will likely result in more
U.S. workers applying for these jobs,
requiring more SWA staff time to
process additional referrals. The
Department does not have estimates of
the additional number of U.S.
applicants, and thus is unable to
estimate the costs to SWAs associated
with this provision.
The Department believes that hiring a
U.S. worker will cost employers less
than hiring an H–2B worker, as
transportation and subsistence expenses
will likely be reduced, if not avoided
entirely. The cost of visa fees will be
entirely avoided if U.S. workers are
hired. Because the Department has not
identified appropriate data to estimate
any increase in the number of U.S.
workers that might be hired as a result
of the Final Rule’s enhanced
recruitment, it is unable to estimate total
cost savings. Likewise, the enhanced
recruitment period along with more
extensive recruitment activities and a
number of program changes that should
make these job opportunities more
desirable should generate an increased
number of local referrals for whom no
transportation or subsistence costs will
be incurred. Since the number of such
workers cannot be estimated with
precision, these cost saving are not
factored into this analysis however we
are confident the actual overall costs to
employers for transportation and
subsistence will be lower than the
estimates provided here.
i. Additional Recruitment Directed by
the CO
Under the Final Rule, an employer
may be directed by the CO to conduct
additional recruitment if the CO has
determined that there may be qualified
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U.S. workers available, particularly
when the job opportunity is located in
an area of substantial unemployment.
This provision applies to all employer
applicants regardless of whether they
ultimately employ H–2B workers.
Therefore, the Department estimates
costs using the average number of
unique employer applicants for FY
2000–2007 (6,425), rather than the
average number of employer applicants
that ultimately hire H–2B workers
(4,810). The Department conservatively
estimates that 50 percent of these
employer applicants (3,213) will be
directed by the CO to conduct
additional recruitment.
In response to the NPRM, the
Department received a comment from
an employer expressing concern that the
NPRM understated the cost of placing a
newspaper advertisement that would
capture all the requirements of proposed
20 CFR 655.41. The Department
reexamined its original estimate
($25.09), agrees that it was too low, and
has updated the original calculation.
While the cost estimate has increased, it
does not reflect any additional
advertising requirements beyond those
proposed. The higher estimate is rather
a more accurate reflection of the cost of
an advertisement of sufficient length to
include the required information and
assurances contained in 20 CFR 655.41.
The Department also updated the mix of
newspapers used in the analysis to
better represent different sized
communities in areas in which a
significant number of H–2B positions
were certified in FY 2009.58
To estimate the cost of a newspaper
advertisement, we calculated the cost of
placing a classified advertisement in the
following newspapers: Virginia-Pilot
($725),59 Austin Chronicle ($120),60
Gainesville Sun ($337),61 Plaquemines
(LA) Gazette ($50),62 Aspen Times
($513),63 and Branson Tri-Lakes News
($144),64 for an average cost of $315.
Employers may use other means of
recruiting, such as listings on
Monster.com ($375) 65 and Career
Builder ($419).66 Because so many
newspapers include posting of the
advertisement on their Web sites and/or
Career Builder in the cost of the print
advertisement, we based the estimate on
the cost of newspaper recruiting.
Multiplying the number of unique
employer applicants who will be
directed to conduct additional
recruitment by the average cost of a
newspaper advertisement ($315) results
in a total cost for newspaper ads of
$1.01 million.
The Department estimates that no
more than 10 percent of employer
10127
applicants (i.e., 20 percent of those
directed to conduct additional
recruiting) will need to translate the
advertisement in order to recruit
workers whose primary language is not
English. The Department calculated
translation costs by creating a weighted
average based on U.S. Census data on
the top five non-English languages
spoken in the home 67 and the cost of
translating a one-page document from
English to Spanish ($25.50), Chinese
($28.50), Tagalog ($28.50), French
($25.50), and Vietnamese ($28.50), for a
weighted average cost of $25.88.68
Multiplying the number of employers
performing translation (643) by the
weighted average translation cost results
in total translation costs of $16,627.
To account for labor costs in posting
additional ads, the Department
multiplied the estimated number of
unique employer applicants required to
conduct additional recruiting (3,213) by
the estimated time required to post the
advertisement (0.08 hours, or 5 minutes)
and the loaded hourly compensation
rate of an administrative assistant/
executive secretary ($28.77). The result,
$0.01 million, was added to the average
annual cost of CO-directed recruiting
activities for a total of approximately
$1.1 million (see Table 11).
TABLE 11—COST OF ADDITIONAL RECRUITING
Cost component
Value
sroberts on DSK5SPTVN1PROD with RULES
Number of unique H–2B employer applicants ..............................................................................................................................
Percent directed to conduct additional recruiting ..........................................................................................................................
Employer applicants conducting additional recruiting ...................................................................................................................
Newspaper Advertisement:
Newspaper advertisement—Unit cost ....................................................................................................................................
Total Cost of Newspaper Ad ..................................................................................................................................................
Translating Newspaper Advertisement:
Percent workers needing translation ......................................................................................................................................
Employers performing translation ...........................................................................................................................................
English to Spanish Translation ...............................................................................................................................................
English to Chinese Translation ..............................................................................................................................................
English to Tagalog Translation ...............................................................................................................................................
English to French Translation ................................................................................................................................................
English to Vietnamese Translation .........................................................................................................................................
Weighted Average Translation Cost ......................................................................................................................................
Total Cost of Translation ........................................................................................................................................................
Labor to Post Newspaper Ad:
Time to post advertisement ....................................................................................................................................................
Administrative Assistant hourly wage w/fringe .......................................................................................................................
Administrative Assistant labor per ad .....................................................................................................................................
Total Cost of Labor to Post Newspaper Ad ...........................................................................................................................
58 The calculation in the NPRM included
classified advertising rates from five newspapers
(Augusta Chronicle, Huntsville Times, Los Alamos
Monitor, San Diego Union-Tribune, and Advertiser
Times in Detroit) not included in this final analysis
and one newspaper that is included (Austin
Chronicle).
59 https://selfserve.pilotezads.com/vp-adportal/
classified/.
60 Austin Chronicle. 2011. Place an Ad. Available
at https://ssl.austinchronicle.com/gyrobase/
PlaceAd (Accessed August 1, 2011).
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61 https://gainesvillesun.adperfect.com/.
62 https://plaqueminesgazette.com/?page_id=118).
63 https://classifieds.swiftcom.com/webentry/url/
consumer/c_category.html.
64 Data collected by phone interview with a
member of classified staff, August 12, 2011.
65 Monster.com. 2011. Job Postings Inventory.
Available at https://hiring.monster.com/index
Prospect.Redux.aspx (Accessed August 8, 2011).
66 CareerBuilder. 2011. Job Posting. Available at
https://www.careerbuilder.com/JobPoster/
ECommerce/CartOrderSummary.aspx?cblid=epjob
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6,425
50%
3,213
$315
$1,011,274
10%
643
$26
$29
$29
$26
$29
$26
$16,627
0.08
$29
$2
$7,701
btn&sc_cmp2=JP_HP_PostJobButton&ssl
RedirectCnt=1 (Accessed August 9, 2011).
67 U.S. Census Bureau. 2008. Population:
Ancestry, Language Spoken At Home—Table 53:
Languages Spoken at Home by Language. Available
at https://www.census.gov/compendia/statab/cats/
population/ancestry_language_spoken_at_
home.html (Accessed August 3, 2011).
68 LanguageScape. 2011. How it Works—Cost
Calculator. Available at https://www.language
scape.com/how_works_1.asp (Accessed June 7,
2011).
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TABLE 11—COST OF ADDITIONAL RECRUITING—Continued
Cost component
Value
Total Cost:
Total Cost of Additional Recruiting .........................................................................................................................................
$1,035,601
Sources: BLS, 2011a; BLS, 2011b; U.S. Census, 2008; LanguageScape, 2011; Branson Tri-Lake News; Aspen Times; Austin Chronicle;
Gainesville Sun; Plaquemines Gazette; Virginia-Pilot.
It is possible that employers will
incur costs from interviewing applicants
who are referred to H–2B employers by
the additional recruiting activities.
However, the Department is unable to
quantify the impact.
j. Cost of Contacting Labor
Organizations
The analysis performed for the
Proposed Rule included a cost for
employers to contact the local union to
locate qualified U.S. workers when
seeking to fill positions in occupations
and industries that are traditionally
unionized. Under this Final Rule, union
notification is the responsibility of the
SWA, and no costs to employers are
included.
k. Electronic Job Registry
Under the Final Rule, the Department
will post and maintain employers’ H–2B
job orders, including modifications
approved by the CO, in a national and
publicly accessible electronic job
registry. The electronic job registry will
serve as a public repository of H–2B job
orders for the duration of the referral
period. The job orders will be posted in
the registry by the CO upon the
acceptance of each submitted
Application for Temporary Employment
Certification. The posting of the job
orders will not require any additional
effort on the part of H–2B employers or
SWAs.
temporary workers, in turn, will likely
experience an increase in job
applications from U.S. workers, and
thus may not incur the additional
expenses of hiring H–2B workers. The
Department, however, is not able to
estimate the increase in job applications
resulting from the electronic job
registry, and thus is unable to quantify
this benefit.
ii. Costs
The establishment of an electronic job
registry in this Final Rule represents
increased maintenance costs to the
Department. The Department has
reduced its cost estimates from the
proposed rule as it can rely on design
and development resources already
used in implementing the H–2A job
registry. The Department estimates that
first year costs will be 25 percent of the
first year costs under the H–2A program
(25 percent of $561,365, or $140,341)
and that subsequent year costs will be
10 percent of the costs under the H–2A
program (10 percent of $464,341, or
$46,434). Using the loaded hourly rate
for all relevant labor categories ($1,238)
suggests that 113 labor hours will be
required in the first year, and 38 labor
hours will be required in subsequent
years (see Table 12).
TABLE 12—COST OF ELECTRONIC JOB
REGISTRY
Cost component
sroberts on DSK5SPTVN1PROD with RULES
i. Benefits
The electronic job registry will
improve the visibility of H–2B jobs to
U.S. workers. In conjunction with the
longer referral period under the Final
Rule, the electronic job registry will
expand the availability of information
about these jobs to U.S. workers, and
therefore improve their employment
opportunities. In addition, the
establishment of an electronic job
registry will provide greater
transparency of the Department’s
administration of the H–2B program to
the public, members of Congress, and
other stakeholders. Transferring these
job orders into electronic records for the
electronic job registry will result in a
more complete, real-time record of job
opportunities for which H–2B workers
are sought. Employers seeking
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Value
Sum of All Labor Category
Loaded Wages ......................
Registry development and
maintenance hours—Year 1
Registry maintenance hours—
Year 2–10 .............................
Cost to DOL to Maintain Job
Registry—Year 1 ...................
Cost to DOL to Maintain Job
Registry—Year 2–10 .............
$1,238
113
38
$140,341
$46,434
l. Disclosure of Job Order
The Final Rule requires an employer
to provide a copy of the job order to H–
2B workers outside of the United States
no later than the time at which the
worker applies for the visa, and to a
worker in corresponding employment
no later than the day that work starts.
For H–2B workers changing
employment from one certified H–2B
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employer to another, the copy must be
provided no later than the time the
subsequent H–2B employer makes an
offer of employment. The job order must
be translated to a language understood
by the worker.
We estimate two cost components for
the disclosure of job orders: The cost of
reproducing the document containing
the terms and conditions of
employment, and the cost of translation.
The cost of reproducing job orders
does not apply to employers of
reforestation workers because the
Migrant and Seasonal Agricultural
Worker Protection Act already requires
these employers to make this disclosure
in a language common to the worker.
According to H–2B program data for FY
2000–2007, 88.3 percent of H–2B
workers work in an industry other than
reforestation, suggesting that the job
order will need to be reproduced for
102,012 (88.3 percent of 115,500) H–2B
workers. We estimate the cost of
reproducing the terms and conditions
document by multiplying the number of
affected H–2B workers (102,012) by the
number of pages to be photocopied
(three) and by the cost per photocopy
($0.12). The Department estimates
average annual costs of reproducing the
document containing the terms and
conditions of employment to be
approximately $0.04 million (see Table
13).
For the cost of translation, we assume
the provision will impact only
employers who are hiring H–2B
workers. Therefore, the Department uses
its estimate of the number of certified
employer applicants who ultimately
hire H–2B workers in this calculation.
This suggests that translation costs
potentially apply to 3,966 H–2B
employers. The Department estimates
that 83.9 percent of H–2B workers from
the top ten countries of origin do not
speak English,69 so approximately 3,328
H–2B employers will need to translate
their job orders. The Department
assumes that an employer hires all of its
H–2B workers from a country or set of
countries that speak the same foreign
language; thus, only one translation is
69 U.S. Department of Homeland Security (DHS).
2009. Yearbook of Immigration Statistics. Available
at https://www.dhs.gov/files/statistics/publications/
yearbook.shtm (Accessed June 12, 2011).
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necessary per employer needing
translation. The Department has
updated its estimates of the cost of
translating a three-page document into
English from languages spoken in the
top ten countries of origin as follows:
English to Tagalog, $76.50; English to
Hebrew/Arabic, $76.50; English to
Romanian, $72.00; and English to
Spanish, $67.50.70 Using the percentage
of entrants from the top ten countries of
origin produces a weighted average
translation cost of $68.00 per job order.
Multiplying the number of H–2B
employers who will need to translate
the job order (3,328) by the weighted
10129
average cost of translation ($68) suggests
translation costs will total $0.2 million
(see Table 13).
Summing the costs of reproducing
and translating the job order results in
total costs related to disclosure of the
job order of $0.3 million (see Table 13).
TABLE 13—COST OF DISCLOSURE OF JOB ORDER
Cost component
Value
Reproducing Job Order:
H2B workers ...........................................................................................................................................................................
Percent workers not in reforestation ......................................................................................................................................
Affected workers .....................................................................................................................................................................
Pages to be photocopied .......................................................................................................................................................
Cost per page .........................................................................................................................................................................
Cost per job order ..................................................................................................................................................................
Total Cost of Reproducing Document ....................................................................................................................................
Translating Job Order:
Scaled number of unique certified H–2B employers .............................................................................................................
Percent workers needing translation ......................................................................................................................................
Employers performing translation ...........................................................................................................................................
English to Tagalog—3 page document, 3 day delivery .........................................................................................................
English to Hebrew/Arabic—3 page document, 3 day delivery ..............................................................................................
English to Romanian—3 page document, 3 day delivery ......................................................................................................
English to Spanish—3 page document, 3 day delivery .........................................................................................................
Weighted average translation cost .........................................................................................................................................
Total Translation Cost ............................................................................................................................................................
Total Cost:
Total Cost of Disclosure of Job Order ...................................................................................................................................
115,500
88.3%
102,012
3
$0.12
$0.36
$36,724
3,966
83.9%
3,328
$77
$77
$72
$68
$68
$226,337
$263,061
sroberts on DSK5SPTVN1PROD with RULES
Sources: DHS, 2009; LanguageScape, 2011.
m. Elimination of Attestation-Based
Model
The 2008 Final Rule used an
attestation-based model: employers
conducted the required recruitment
before submitting an Application for
Temporary Employment Certification
and, based on the results of that effort,
applied for certification from the
Department for a number of foreign
workers to fill the remaining openings.
Employers simply attested that they had
undertaken the necessary activities and
made the required assurances to
workers. The Department has
determined that this attestation-based
model does not provide sufficient
protection to workers. In eliminating the
attestation-based model, the recruitment
process under this rule now occurs after
the Application for Temporary
Certification is filed so that employers
have to demonstrate—and not merely
attest—that they have performed an
adequate test of the labor market.
Therefore, the primary effect of
eliminating the attestation based-model
is to change the timing of recruitment
rather than a change in substantive
requirements.
The return to a certification model in
which employers demonstrate
compliance with program obligations
before certification will improve worker
protections and reduce various costs for
several different stakeholders. Greater
compliance will provide improved
administration of the program,
conserving government resources at
both the State and Federal level. In
addition, employers will be subject to
fewer requests for additional
information and denials of
Applications, decreasing the time and
expense of responding to these
Department actions. Finally, it will
result in the intangible benefit of
increased H–2B visa availability to those
employers who have conducted bona
fide recruitment around an actual date
of need. The Department, however, is
not able to estimate the economic
impacts of these several effects and is
therefore unable to quantify the related
benefits.
The elimination of the attestationbased model will impose minimal costs
on employers because they will not be
required to produce new documents,
but only to supplement their
70 LanguageScape. 2011. How it Works—Cost
Calculator. Available at https://
recruitment report with additional
information (including the additional
recruitment conducted, means of
posting the job opportunity, contact
with former U.S. workers, and contact
with labor organizations where the
occupation is customarily unionized).
We estimated two costs for the
elimination of the attestation-based
model: The material cost of reproducing
and mailing the documents, and the
associated labor cost. The Department
estimated material cost equal to $2,023,
calculated by multiplying the scaled
number of H–2B employers (3,966) by
the estimated additional number of
pages that must be submitted (three) and
the additional postage required to ship
those pages ($0.17). Estimated labor cost
of $9,087 was calculated by multiplying
the scaled number of H–2B employers
(3,966) by the time needed to reproduce
and mail the documents (0.08 hours, or
5 minutes) and the hourly labor
compensation of an administrative
assistant/executive secretary ($28.77).
Summing these two components results
in incremental costs of $11,531 per year
associated with the elimination of the
attestation-based model (see Table 14).
www.languagescape.com/how_works_1.asp
(Accessed June 7, 2011).
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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations
TABLE 14—COST OF ELIMINATION OF ATTESTATION-BASED MODEL
Cost component
Value
Postage Costs:
Scaled number of unique certified H–2B employers .............................................................................................................
Additional pages to submit .....................................................................................................................................................
Additional postage ..................................................................................................................................................................
Total Postage Costs ...............................................................................................................................................................
Labor Costs to Photocopy and Mail Documents:
Scaled number of unique certified H–2B employers .............................................................................................................
Labor time to photocopy and mail documents (hours) ..........................................................................................................
Administrative Assistant hourly wage with fringe ...................................................................................................................
Total Labor Costs to Photocopy and Mail Documents ..........................................................................................................
Total Cost:
Total Costs of Elimination of Attestation-Based Model ..........................................................................................................
3,966
3
$0.17
$2,023
3,966
0.08
$29
$9,508
$11,531
Sources: BLS, 2011a; BLS, 2011b.
SWA to non-agricultural job orders, and
inspect and verify the employment
Under the Final Rule, H–2B
eligibility documents furnished by the
employers must retain documentation
applicants. Under this Final Rule SWAs
Cost component
Value
in addition to that required by the 2008
will no longer be required to complete
Total Document Retention
Final Rule. The Department assumes
this process, resulting in cost savings.
Costs .....................................
$321,186 Due to a lack of data on the number of
that each H–2B employer will purchase
a filing cabinet at a cost of $49.99 71 (an
SWA referrals, we are not able to
Source: OfficeMax, 2011.
increase of the proposed rule estimate of
quantify this benefit.
o. Departure Time Determination
$21.99) in which to store the additional
q. Read and Understand the Rule
The Proposed Rule would have
documents starting in the first year of
During the first year that the Final
required employers to notify the local
the rule. To obtain the cost of storing
Rule will be in effect, H–2B employer
SWA of the time at which the last H–
documents, we multiply the scaled
applicants will need to learn about the
2B worker departs for the place of
number of H–2B employers (6,425) by
new processes and requirements. We
employment, if the last worker has not
the cost per file cabinet for a total onedeparted for the work site at least 3 days estimate the cost to read and understand
time cost of $0.3 million (see Table 15).
the rule by multiplying the average
This cost is likely an overestimate, since before the date of need. Under the Final
Rule, the obligation to hire U.S. workers number of unique H–2B employer
the 2008 Final Rule also required
will end 21 days before the date of need applicants in FY 2000–2007 (6,425) by
document retention and many
the time required to read the new rule
and the employer is not required to
employers who already use the H–2B
and associated educational and outreach
provide any notice to the local SWA,
program will already have bought a file
materials (3 hours), and the loaded
thus eliminating the costs associated
cabinet to store the documents they
hourly wage of a human resources
with this proposed provision.
must retain under that rule.
manager ($62.17). In the first year of the
p. SWA Administrative Burden
rule, this amounts to approximately $1.2
TABLE 15—COST OF DOCUMENT
Under this Final Rule, SWAs will see
million in labor costs (see Table 16).
both additions to and reductions from
RETENTION
its current, baseline workload.
TABLE 16—COST TO READ AND
Additional responsibilities that the
Cost component
Value
UNDERSTAND RULE
SWAs will take on include contacting
Scaled number of unique cerlabor organizations to inform them
Cost component
Value
tified H–2B employers ...........
6,425 about a job opportunity when the
Filing cabinet ............................
$50 occupation or industry is customarily
Number of unique H–2B employer applicants ...................
6,425
unionized, and accepting and
71 Prices at Stapes, the source cited in the
Time to read rule and materials
3
processing a likely higher number of
HR Manager hourly wage ........
$62
proposed rule, have risen to $69.99. The current
U.S. applicants during the newly
Total Cost to Read and Underprice is for a similar item at a lower price.
extended recruitment period. The
OfficeMax. 2011. Vertical File Cabinets. Available
stand Rule .............................
$1,198,418
Department, however, does not have
at https://www.officemax.com/office-furniture/fileSources: BLS, 2011a; BLS, 2011c.
reliable data to measure these increased
cabinets-accessories/vertical-file-cabinets?
activities and is therefore unable to
history=utozftma%7CcategoryId%7E10001%5
r. Job Posting Requirement
EcategoryName%7EOffice%2BFurniture%5Eparent provide an estimate of any increased
CategoryID%7Ecategory_root%5Eprod
The Final Rule requires employers
workload.
Page%7E25%5Eregion%7E1%40porkedzu%7
applying for H–2B certification to post
In contrast, SWAs will no longer be
CcategoryId%7E40%5EcategoryName%7EFile%2
responsible for conducting employment a notice of the job opportunity in two
BCabinets%2B%2526%2BAccessories%5Eparent
conspicuous locations at the place of
eligibility verification activities. These
CategoryID%7Ecat_10001%5EprodPage%7E25%5
Eregion%7E1%5Erefine%7E1%40wih8mfsy%7C
activities include completion of Form I– anticipated employment (when there is
prodPage%7E15%5Erefine%7E1%5
no union representative) for at least 15
9 and vetting of application documents
Eregion%7E1%5EcategoryName%7Evertical-fileconsecutive days. This provision entails
by SWA personnel.
cabinets%5EcategoryId%7E91%5EparentCategory
Under the 2008 Final Rule, SWAs are additional reproduction costs. To obtain
ID%7Ecat_40&view=list&position=1&
required to complete Form I–9 for
the total cost incurred due to the job
prodPage=15&sort=Price+%28Low-High%29
applicants who are referred through the posting requirement, we multiplied the
(Accessed July 11, 2011).
sroberts on DSK5SPTVN1PROD with RULES
n. Document Retention
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TABLE 15—COST OF DOCUMENT
RETENTION—Continued
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average number of unique H–2B
employer applicants FY 2000–2007
(6,425) by the cost per photocopy
($0.12) and the number of postings per
place of employment (2), which
amounts to $1,542 per year (see Table
17).
TABLE 17—COST OF JOB
REQUIREMENT
Cost component
Number of unique H–2B employer applicants ...................
Job Postings per Website ........
Cost per photocopy ..................
Total Cost to Post Job Opportunity ......................................
be in English and, to the extent
necessary and as provided by the
Secretary, foreign language(s) common
to a significant portion of the workers if
they are not fluent in English. To
estimate the cost of producing workers’
rights posters, we multiply the
estimated number of H–2B employers
(6,425) by the cost of downloading and
POSTING
printing the poster ($0.12). In total, the
cost of producing workers’ rights posters
is $771 per year (see Table 18). If an
Value
employer needs to download and print
additional versions of the poster in
6,425 languages other than English, this
2 would result in increased costs.
$0.12
TABLE 18—COST OF WORKERS’
RIGHTS POSTER
$1,542
s. Workers’ Rights Poster
Cost component
In addition, the Final Rule requires
employers to post and maintain in a
conspicuous location at the place of
employment a poster provided by the
Secretary which sets out the rights and
protections for workers. The poster must
Value
Number of unique certified H–
2B employers ........................
Cost per Poster ........................
Total Cost of Workers’ Rights
Poster ....................................
6,425
$0.12
10131
5. Summary of Cost-Benefit Analysis
Table 19 presents a summary of the
costs associated with this Final Rule.
Because of data limitations on the
number of corresponding workers and
U.S. workers expected to fill positions
currently held by H–2B workers, the
Department was not able to monetize
any costs of the rule that would arise as
a result of deadweight losses associated
with higher employment costs under the
Final Rule. However, because the size of
the H–2B program is limited, the
Department expects that any
deadweight loss would be small.
The monetized costs displayed are the
yearly summations of the calculations
described above. The total undiscounted
costs of the rule in Years 1–10 are
expected to total approximately $15.2
million.
$771
TABLE 19—TOTAL COSTS—UNDISCOUNTED
Cost component
Year 1 costs
Transfers:
Corresponding Workers’ Wages—90 Percent .........................................................
Corresponding Workers’ Wages—75 percent ..........................................................
Transportation ...........................................................................................................
Subsistence ..............................................................................................................
Lodging .....................................................................................................................
Visa and Border Crossing Fees ...............................................................................
Total Transfers—Low ...............................................................................................
Total Transfers—High ..............................................................................................
Annual Costs to Employers:
Additional Recruiting .................................................................................................
Disclosure of Job Order ...........................................................................................
Elimination of Attestation-Based Model ...................................................................
Post Job Opportunity ................................................................................................
Workers Rights Poster .............................................................................................
Total Annual Costs to Employers .............................................................................
First Year Costs to Employers:
Read and Understand Rule ......................................................................................
Document Retention .................................................................................................
Total First Year Costs to Employers ........................................................................
First Year Costs to Government:
Electronic Job Registry .............................................................................................
Enhanced U.S. Worker Referral Period ...................................................................
Total First Year Costs to Government .....................................................................
Total Costs:
Total Costs & Transfers—Low .................................................................................
Total Costs & Transfers—High ................................................................................
Total Transfers—Low ...............................................................................................
Total Transfers—High ..............................................................................................
Total Costs ...............................................................................................................
Year 2–10 costs
Year 1–10 costs
$17,517,500
52,552,500
61,328,243
2,808,960
1,582,673
10,133,134
93,370,510
128,405,510
$17,517,500
52,552,500
61,328,243
2,808,960
1,582,673
10,133,134
93,370,510
128,405,510
$17,517,500
525,525,000
613,282,432
28,089,600
15,826,727
101,331,343
933,705,103
1,284,055,103
1,035,601
263,061
11,531
1,542
771
1,312,506
1,035,601
263,061
11,531
1,542
771
1,312,506
10,356,014
2,630,608
115,307
15,420
7,710
13,125,058
1,198,418
321,186
1,519,603
0
0
0
1,198,418
321,186
1,519,603
140,341
Not Estimated
140,341
46,434
Not Estimated
46,434
558,248
Not Estimated
558,248
96,342,961
131,377,961
93,370,510
128,405,510
2,972,451
94,729,450
129,764,450
93,370,510
128,405,510
1,358,940
948,908,012
1,299,258,012
933,705,103
1,284,055,103
15,202,910
sroberts on DSK5SPTVN1PROD with RULES
Note: Totals may not sum due to rounding.
Summing the present value of the
costs in Years 1–10 results in total
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discounted costs over 10 years of $10.3
million to $12.8 million (with 7 percent
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and 3 percent discounting, respectively)
(see Table 20).
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TABLE 20—TOTAL COSTS—SUM OF
PRESENT VALUES
Cost component
Year 1–10 costs
Present Value—7%:
Total Costs & Transfers—Low ..................
Total Costs & Transfers—High ..................
Total Transfers—Low ....
Total Transfers—High ...
Total Costs ....................
Present Value—3%:
Total Costs & Transfers—Low ..................
Total Costs and Transfers—High ..................
Total Transfers—Low ....
Total Transfers—High ...
Total Costs ....................
623,222,403
853,195,468
612,892,890
842,865,955
10,329,513
786,046,544
1,076,197,666
773,271,254
1,063,422,377
12,775,290
sroberts on DSK5SPTVN1PROD with RULES
Note: Totals may not sum due to rounding.
Because the Department was not able
to monetize any benefits for this Final
Rule due to the lack of adequate data,
the monetized costs exceed the
monetized benefits both at a 7 percent
and a 3 percent discount rate.
The Department was unable to
identify data to provide monetary
estimates of several important benefits
to society, including increased
employment opportunities for U.S.
workers and enhancement of worker
protections for U.S. and H–2B workers.
These important benefits result from the
following provisions of this Final Rule:
transportation to and from the place of
employment, payment of visa and
consular fees, the enhanced U.S. worker
referral period, additional recruiting
directed by the CO, the electronic job
registry, the job posting requirement,
and enhanced integrity and enforcement
provisions. Because the enhanced
referral period extends the time during
which jobs are available to U.S. workers,
it increases the likelihood that U.S.
workers are hired for those jobs. In
addition, the electronic job registry will
improve the visibility of H–2B jobs to
U.S. workers and enhance their
employment opportunities. In addition,
the establishment of a electronic job
registry will provide greater
transparency with respect to the
Department’s administration of the H–
2B program to the public, members of
Congress, and other stakeholders. These
benefits, however, are difficult to
quantify due to data limitations.
Several unquantifiable benefits result
in the form of cost savings. As more U.S.
workers are hired as a result of this
Final Rule, employers will avoid visa
and consular fees for positions that
might have otherwise been filled with
H–2B workers; it is also likely that
transportation costs will be lower.
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Under the 2008 Final Rule, SWAs are
required to complete Form I–9 for nonagricultural job orders, and inspect and
verify the employment eligibility
documents furnished by the applicants.
Under this Final Rule, SWAs will no
longer be required to complete this
process, resulting in cost savings to
SWAs. We were not able to quantify
these cost savings due to a lack of data
regarding the number of I–9
verifications SWAs have been
performing for H–2B referrals.
After considering both the
quantitative and qualitative impacts of
this Final Rule, the Department has
concluded that the societal benefits of
the rule justify the societal costs.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of
1980, as amended (RFA), requires
agencies to prepare regulatory flexibility
analyses and make them available for
public comment when proposing
regulations that will have a significant
economic impact on a substantial
number of small entities. 5 U.S.C. 603.
If the rule is not expected to have a
significant economic impact on a
substantial number of small entities, the
RFA allows an agency to certify such, in
lieu of preparing an analysis. See 5
U.S.C. 605. For the reasons explained in
this section, the Department believes
this rule is not likely to have a
significant impact on a substantial
number of small entities and, therefore,
a Final Regulatory Flexibility Analysis
(FRFA) is not required by the RFA.
However, in the interest of transparency
we have prepared the following FRFA to
assess the impact of this regulation on
small entities, as defined by the
applicable Small Business
Administration (SBA) size standards.
The Chief Counsel for Advocacy of the
Small Business Administration was
notified of a draft of this rule upon
submission of the rule to OMB under
E.O. 12866, as amended, ‘‘Regulatory
Planning and Review’’ (58 FR 51735,
Oct. 4, 1993; 67 FR 9385, Feb. 28, 2002;
72 FR 2763, Jan. 23, 2007).
1. Statement of the Need for, and
Objectives of, the Rule
The Department seeks to help
employers meet their legitimate shortterm temporary labor needs where and
when there are no available U.S.
workers and to increase worker
protections and strengthen program
integrity under the H–2B labor
certification program. The legal basis for
the rule is the Department’s authority,
as delegated from DHS under 8 U.S.C.
1184(c) and its regulations at 8 CFR
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214.2(h)(6), to grant temporary labor
certifications under the H–2B program.
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 practical ramifications 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,
inadequately protecting U.S. workers
who may be paid less than H–2B
workers performing the same jobs,
failing to ensure the integrity of the
program by not requiring employers to
guarantee U.S. and H–2B employees
work for any number of weeks during
the period of the job order) have
undermined the program’s intended
protection of both U.S. and foreign
workers.
The protections in this rule are
essential to meet the regulatory mandate
to prevent adverse effect on wages and
working conditions for U.S. workers,
including measures to ensure greater
access to jobs for U.S. workers through
enhanced recruitment in order to satisfy
the statutory requirement that
certifications be granted only if no U.S.
workers are available.
Additionally, the rule seeks to help
employers meet legitimate short-term
temporary labor needs where and when
there are no available U.S. workers. 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 to the
detriment of other employers with a
legitimate temporary need that are
ultimately denied access to the program
due to the annual cap on available visas.
By preventing employers with a longterm 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.
For these reasons the Department is
promulgating the changes contained in
the Final Rule.
2. Comments Filed by the Chief Counsel
for Advocacy of the Small Business
Administration and Significant Issues
Raised by the Public to the Proposed
Rule, the Department’s Response, and
Changes Made as a Result of the
Comments
The Department received and
carefully considered written comments
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to the proposed rule submitted by the
Chief Counsel for Advocacy of the SBA
(Advocacy), along with written
comments and significant regulatory
alternatives from small businesses and
their representatives. We also
considered feedback gathered during an
April 26, 2011 roundtable discussion
conducted by the SBA which included
Department representatives, small
businesses, and the SBA itself. A brief
summary of significant comments and
Department responses follows, but
because the concerns of Advocacy and
small businesses were largely similar to
those expressed by the wider universe
of all employers, the preceding
preamble sections contain far more
extensive responses and explanations.
Advocacy stated that the economic
impact calculated in the IRFA was
underestimated because it failed to
account for higher wages that employers
may have to pay resulting from a
separate rule published by the
Department on January 13, 2011
changing the way H–2B prevailing
wages are determined. Further,
Advocacy believed that the IRFA also
underestimated the proportion of small
businesses that would be impacted. An
employer association commented that in
order to accurately assess the proposed
rule’s impact to small businesses, the
Department could have conducted a
survey to identify the number of small
businesses affected and the number in
each of the industry sectors that
commonly uses the H–2B program.
In response to Advocacy’s assertions,
the Department notes that it accounted
for the full cost impact of the January
2011 prevailing wage Final Rule in that
rule’s FRFA. Regarding this rule’s IRFA
calculation of the proportion of small
businesses affected, the Department
evaluated the economic impact across
1.1 million employers, which represents
all small businesses (according to the
SBA’s definition of a small entity)
within the five most common industries
using the H–2B program. In calculating
the impact of this rule, the Department
used this universe of small businesses to
be consistent with SBA guidance (see A
Guide for Government Agencies: How to
Comply with the RFA, Small Business
Administration, at 20: ‘‘the
substantiality of the number of
businesses affected should be
determined on an industry-specific
basis and/or the number of small
businesses overall.’’) and because any of
those small employers could request
certification for H–2B workers. In the
Application for Temporary Employment
Certification, the Department only
recently added a non-mandatory field
asking for annual dollar revenue and
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therefore cannot determine how many
H–2B employers typically are small
businesses. The Department did not
conduct its own small business surveys
as an employer association suggested
because doing so would have required
an extended clearance process under the
Paperwork Reduction Act, a process that
would have been impossible to fulfill
given the time constraints. Instead, we
relied on other, more expeditious
methods to estimate data. However,
even if all 6,980 employers that receive
H–2B certifications in an average year
were, in fact, small businesses, this
Final Rule would not impact a
substantial number of small entities
because it would only affect less than
1 percent of all small businesses.
An employer association also
commented that proposed provisions
would remove most temporary labor
supply services from H–2B program
eligibility, and that the IRFA failed to
account for the lost revenue to these
U.S. businesses. While the NPRM
proposed to eliminate all job contractors
from participating in the H–2B program,
the Final Rule allows job contractors to
continue to participate in the program
only if they are able to demonstrate
through documentation their own onetime occurrence or seasonal need, and
not that of their employer-clients. The
Department recognizes that while
providing necessary protections to U.S.
workers, this rulemaking may also result
in some small businesses receiving
fewer, or no, temporary labor
certifications. However, in typical years,
demand for H–2B visas exceeds the
program’s annual statutory cap of
66,000, meaning that other small
businesses will benefit from the
opportunity to have their H–2B
petitions approved. The Department
was unable to accurately project the
monetary losses and benefits of scarce
visas transitioning from some
employers, and even industries, to
others.
Though this rulemaking will not
impose a significant economic burden
on a substantial number of small
businesses, the Department did make a
number of changes to the proposed rule
that should alleviate many of the
concerns Advocacy expressed and that
were expressed in the comments
received from other small business
employers. For instance, Advocacy,
other employers, and their
representatives articulated the difficulty
of fulfilling the three-fourths guarantee
in 4-week increments given
unpredictability of the weather, acts of
God, and acts of man. As explained
further in the preamble to 20 CFR
655.20(f) and (g), the Department
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10133
responded by extending the length of
the three-fourths guarantee calculation
period to 12 weeks (for job orders that
last 120 days or longer, which is the vast
majority of job orders) and to 6 weeks
(for job orders lasting less than 120
days). We also added catastrophic manmade events such as oil spills or
controlled flooding to the proposed list
of triggers that employers could use to
request cancellation of job orders, send
workers home, and relief from
obligations such as the three-fourths
guarantee. Though Advocacy describes
as a burden the small business
employer’s requirement to inform the
CO in a timely manner after a
catastrophic event, the Department
maintains that it is a relatively low
threshold to meet in order to seek
termination of the job order.
Small business owners who
participated in Advocacy’s roundtable
discussion were most concerned about
the proposed requirement that
employers continue to accept SWA
referrals of U.S. applicants until 3 days
before the date of need or the time of the
last H–2B worker’s departure,
whichever is later. The provision also
required employers to inform the SWA
if the last H–2B worker had not
departed by 3 days before the start of the
job order, and to notify the SWA of the
new departure date when available so
the SWA would know when to stop
referring qualified U.S. workers. The
concerns of the roundtable participants
were consistent with comments
submitted by many other businesses in
response to these proposed changes.
Some small businesses called the
provision unworkable and claimed it
would disrupt their hiring and training
plans. As explained more in depth in
the preamble to 20 CFR 655.20(t), the
Department believes the current
recruitment period—a 10-day window
that occurs up to 4 months before the
date of need—is far too short and takes
place too far in advance of the job
order’s start date for U.S. applicants to
realistically be able to apply. As such,
the existing 10-day recruitment period
compromises the Department’s
regulatory mandate to grant H–2B
certifications only after ensuring that no
qualified U.S. workers are available.
However, based upon the comments
from small businesses and Advocacy
about the potential burdens of this
provision, this Final Rule has been
changed. The referral period has been
reduced so that it ends 21 days before
the date of need. Additionally,
employers are no longer obligated to
continue accepting U.S. applicants after
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that point, a change that eliminates the
related SWA notification requirements.
Advocacy expressed its belief that the
IRFA underestimated its members’
exposure to inbound travel expenses,
asserting that the price premium on
tickets purchased close to the date of
need and the cost of transporting U.S.
workers represent significant burdens to
employers and were not accounted for
in the original cost estimates. Because
this Final Rule changed the last day an
employer must hire U.S. applicants to
21 days before the date of need, the
Department does not calculate the extra
cost of refundable fares. The FRFA
responds to Advocacy’s request to
account for the transportation of
corresponding workers and estimates a
per ticket cost to and from the
workplace. Moreover, as discussed in
the preamble to 20 CFR 655.20(j), this
Final Rule also responds to small
business concerns about U.S. worker
travel by providing that employers may
require workers to complete 50 percent
of the period of employment before
reimbursing the reasonable costs of
inbound travel and subsistence if the
employer has not already paid for or
reimbursed such costs. Further,
employers will be required to pay the
costs of outbound transportation only
for workers who complete the job order
period of employment or are dismissed
early. And to the extent that employers
do hire qualified U.S. applicants
responding to national job registry
postings and requiring inbound travel,
this FRFA estimates that the costs of
their travel expenses would be a fraction
of those for foreign workers. In addition,
hiring these U.S. workers would not
require employers to pay the visa or
consular expenses related to bringing in
workers from foreign countries.
Advocacy cited comments from small
businesses that use the H–2B program
expressing concern that the new,
potentially higher wage rates under the
recently changed prevailing wage
determination process will interact with
the proposed rule’s corresponding
employment provision, forcing
employers to raise payroll across their
entire workforce. For example, small
landscape companies worried that
temporarily assigning to a landscaping
supervisor the duties of a landscape
laborer who has called in sick would
require all laborers to be paid the
supervisor’s higher wage rate. As
discussed in more depth in the
preamble to 20 CFR 655.5, this
landscape example and other similar
examples in the employer comments
represent a misunderstanding of what
the definition of corresponding
employment requires: Corresponding
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workers who perform substantially the
same work specified in the job order or
substantially the same work that H–2B
workers actually perform are entitled to
at least the same wage rate as the H–2B
workers. Employers are not required to
apply corresponding employment in the
other direction and, in this example,
pay laborers the same wage paid to the
supervisors. Advocacy also articulated
small businesses’ recommendation that
the Department reconsider the
corresponding worker provision because
it may impose too great a cost on small
H–2B employers. After carefully
considering Advocacy’s comments and
other comments submitted separately
from small businesses, the definition of
corresponding employment was
retained with modifications (also fully
discussed in the preamble to 20 CFR
655.5) because it is a critical component
in the Department’s mandate to protect
similarly employed U.S. workers from
adverse impacts of the H–2B program;
however, the Department did modify
the definition to clarify that occasional,
insignificant instances of overlapping
job duties would not transform a U.S.
worker employed in one job into
someone in corresponding employment
with an H–2B worker employed in
another job.
Advocacy also challenged the IRFA’s
lack of data which prevented the
Department from calculating the effects
of corresponding employment.
Similarly, an employer association
commented that the Department could
have conducted its own corresponding
employment survey to solve any gaps in
data. Both organizations stated that the
Department could have used an
assumed value of 50 percent to estimate
the ratio of corresponding workers to H–
2B workers, purportedly similar to an
estimate used elsewhere in the IRFA.
The Department appreciates the
proffered solutions and notes that the
proposed rule requested that the public
suggest data sources we could use to
estimate corresponding employment. No
such sources were ultimately provided.
However, pursuing a statistically valid
survey would not only have been
prohibitively time-consuming given the
Department’s time constraints, but also
would have required a lengthy clearance
process under the Paperwork Reduction
Act. The 50 percent estimate found in
the IRFA was used in a different context
and would have been an inappropriate
and misguided way to estimate the ratio
of corresponding workers to H–2B
workers. In reality, the prevalence of
corresponding workers spans a very
wide range among businesses: Most
comments from employers indicated
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that employers use H–2B workers to fill
most if not all of their needs; other
businesses commented that they hire
very few H–2B workers as a way to
supplement a wider staff only during a
seasonal peak. The Department
attempted to use its own data from a
random sample of 225 applications to
estimate the number of corresponding
employees, but as explained in the
Executive Order 12866 section, there
were too few files that contained
employee data to be statistically
reliable, and those few files that did
contain a breakdown of the numbers of
H–2B and U.S. workers were not from
a representative pool of the industries
that participate in the H–2B program.
Further, the 34 of the 225 files that
contained payroll data were not a
random subset, because the data was
provided in response to an RFI or an
audit rather than as a routine part of the
application process. Nevertheless, the
Department attempted to quantify the
impact associated with this provision by
estimating that 50 percent of incumbent
corresponding workers in a given
industry earn less than the prevailing
wage and would have their wages
increased as a result of the Final Rule.
Department believes the cost of
providing H–2B prevailing wages to
corresponding workers will likely not be
the undue burden that small businesses
fear, because the prevailing wage
calculation is representative of a typical
worker’s wage for a given type of work
in a particular area. Since this
calculation uses the current wages
received by corresponding U.S. workers,
many, if not most, of the non-H–2B
workers will already be making at least
the required prevailing wage rate, and
therefore, small business employers will
not be obligated to increase the wages of
such workers. The Department’s
estimate assumed that workers in
corresponding employment would
receive a range of wage increases. The
Department’s estimate further assumed
that all U.S. workers in corresponding
employment would work 35 hours per
week for 39 weeks (the maximum
allowable certification period) in order
to determine an upper-bound estimate.
Therefore, the Department believes it
has been responsive to commenter
concerns with the cost of the
corresponding employment provision.
Finally, small business participants
who attended the SBA roundtable
discussion expressed concerns
regarding the proposed bifurcation of
the certification process into registration
and application processes. As Advocacy
summarized in its written comments to
the proposed rule, small businesses
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were concerned that the bifurcated
process creates many complicated layers
of review by federal and state officials,
which may add delays, requests for
information and overall administrative
paperwork. A complete discussion of
the new process can be found at the
preamble to 20 CFR 655.11. In
summary, the Department believes that
OFLC and employers will recognize
administrative efficiencies once
registration is introduced and the
assessment of temporary need is
adjudicated separately from and in
advance of the determination of U.S.
worker availability. In many cases, the
determination of temporary need will be
required only once every 3 years, which
will reduce RFIs that may happen
annually under the existing application
process, reducing the burden on
employers and clearing the way for a
more efficient adjudication of
Applications for Temporary
Employment Certification and more
effective recruitment of U.S. workers
closer to the date of need. On behalf of
SBA’s small business members,
Advocacy recommended that the
Department reconsider the bifurcated
registration and application processes
and retain the current attestation-based
system. As explained in both the NPRM
and in RFA Section 1, above, the current
application process does not provide
adequate worker protections that are
essential for the Department to meet its
regulatory mandates of ensuring that
foreign workers may be employed only
if qualified U.S. workers are not
available and that the hiring of H–2B
workers will not adversely affect the
wages and working conditions of
similarly employed U.S. workers.
3. Description and Estimate of the
Number of Small Entities to Which the
Rule Will Apply Definition of a Small
Business
A small entity is one that is
independently owned and operated and
that is not dominant in its field of
operation. The definition of small
business varies from industry to
industry to properly reflect industry size
differences. An agency must either use
the SBA definition for a small entity or
establish an alternative definition for
the industry. The Department has
conducted a small entity impact
analysis on small businesses in the five
industries with the largest number of H–
2B workers and for which data were
available, as mentioned in the Executive
Order 12866 analysis: Landscaping
Services; Janitorial Services (includes
housekeeping services); Food Services
and Drinking Places; Amusement,
Gambling, and Recreation; and
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Construction. These top five industries
accounted for almost 75 percent of the
total number of H–2B job opportunities
certified during FY 2007–2009.72 73 One
industry, Forest Services, made the
initial top five list but is not included
in this analysis because the only data
available for forestry also include
various agriculture, fishing, and hunting
activities. Relevant data for Forestry
only were not available.
We have adopted the Small Business
Administration (SBA) small business
size standard for each of the five
industries, which is a firm with annual
revenues equal to or less than the
following:
Landscaping Services, $7 million;
Janitorial Services, $16.5 million;
Construction, $20.7 million; 74 75
Food Services and Drinking Places, $7
million; and
Amusement, Gambling, and Recreation, $7
million.
In order to convert the SBA’s revenuebased definitions to employment sizeclass based definitions that can be used
in conjunction with U.S. Census’s
Statistics of U.S. Businesses data,76 the
Department calculated average revenue
per firm by employment size class for
the top five industries, and found the
largest employment size class for which
average revenue per firm was below the
SBA’s size standard. This method
obtained the following employment
size-class based definitions (see Table
18):
Landscaping Services, 499 employees;
Janitorial Services, 499 employees;
72 According to H–2B program data, the average
annual number of firms (of all sizes) and H–2B
workers certified for these industries during
FY2007–2009 were as follows: Landscaping
Services, Firms—2,754, Workers—78,027; Janitorial
Services, Firms—788, Workers—30,902; Food
Services and Drinking Places, Firms—851,
Workers—22,948; Amusement, Gambling, and
Recreation, Firms—227, Workers—14,041; and
Construction, Firms—860, Workers—30,242.
73 As explained above, the distribution of
certified job opportunities might not perfectly
reflect the distribution of H–2B workers; however,
it serves as a valuable proxy for the purposes of this
analysis.
74 U.S. Small Business Administration (SBA).
2010. Table of Small Business Size Standards
Matched to North American Industry Classification
System Codes (effective November 5, 2010).
Available at https://www.sba.gov/content/tablesmall-business-size-standards.
75 The SBA small business size standards for
construction range from $7 million (land
subdivision) to $33.5 million (general building and
heavy construction). However, because employers
representing all types of construction businesses
may apply for certification to employ H–2B
workers, the Department used an average of $20.7
million as the size standard for construction.
76 U.S. Census Bureau. 2007. Statistics of U.S.
Businesses. Available at https://www.census.gov/
econ/susb/data/susb2007.html. While 2008 data
were available at the time of this analysis, 2007 is
the most recent year with revenue data included.
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Construction, 99 employees;
Food Services and Drinking Places, 99
employees; and
Amusement, Gambling, and Recreation, 499
employees.
Employers seeking to participate in
the H–2B program come from virtually
all segments of the economy; those
participating businesses make up a
small portion of the industries they
represent as well as of the national
economy overall. A Guide for
Government Agencies: How to Comply
with the RFA, Small Business
Administration, at 20 (‘‘the
substantiality of the number of
businesses affected should be
determined on an industry-specific
basis and/or the number of small
businesses overall’’). Accordingly, the
Department believes that the rule will
not impact a substantial number of
small entities in a particular industry or
segment of the economy.
Employment in the H–2B program
represents a very small fraction of the
total employment in the U.S. economy,
both overall and in the industries
represented in the H–2B program. The
H–2B program is capped at 66,000 visas
issued per year, and the Department
estimates that at any given time there
are 115,500 H–2B workers in the
country (66,000 plus 33,000 who return
in the second year and 16,500 who
return in the third year). This represents
approximately 0.09 percent of total
nonfarm employment in the U.S.
economy (129.8 million).77 As described
in the Executive Order 12866 analysis,
the average annual number of H–2B
workers in the top five industries is
small in absolute terms and relative to
total employment in that occupation.
Landscaping Services: 38,073 H–2B workers;
6.5 percent of occupation
Janitorial Services: 15,079 H–2B workers; 1.6
percent of occupation
Construction: 14,756 H–2B workers; 0.2
percent of occupation
Food Services and Drinking Places: 11,197
H–2B workers; 0.1 percent of occupation
Amusement, Gambling, and Recreation:
6,851 H–2B workers; 0.5 percent of
occupation
The Department receives an average
of 8,717 applications from 6,425 unique
employer applicants annually. An
average of 6,980 of those applications
results in petitions for H–2B workers
that are approved by DHS, of which
5,298 are from unique employer
applicants. Even if all 6,980
applications were filed by unique small
entities, all of which were in the top five
77 U.S. Bureau of Labor Statistics (BLS). 2011.
Employees on nonfarm payrolls by major industry
sector, 1961 to date. Available at ftp://ftp.bls.gov/
pub/suppl/empsit.ceseeb1.txt.
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industries, the percentage of small
entities authorized to employ temporary
non-agricultural workers will be less
than 1 percent of the total number of
small entities in these industries.78
Based on this analysis, the Department
estimates that the rule will impact less
than 1 percent of the total number of
small businesses. A detailed industryby-industry analysis is provided below.
Regarding the Territory of Guam, this
Final Rule applies to H–2B employers
there only in that it requires them to
obtain prevailing wage determinations
in accordance with the process defined
at 20 CFR 655.10. To the extent that this
process incorporates the new
methodology defined in the January
2011 prevailing wage rule, it is possible
that some H–2B employers in Guam will
experience an increase in their H–2B
prevailing wages. The Department
expects that the H–2B employers in
Guam working on Federally funded
construction projects subject to the
Davis-Bacon and Related Acts (DBRA)
are already paying the Davis-Bacon Act
prevailing wage for the classification of
work performed and that such
employers may not experience an
increase in the wage levels they are
required to pay. Employers performing
work ancillary or unrelated to DBRA
projects, and therefore paying a wage
potentially lower than the Davis-Bacon
Act prevailing wage, may receive
increased prevailing wage
determinations under this Final Rule.
However, because the H–2B program in
Guam is administered and enforced by
the Governor of Guam, or the Governor’s
designated representative, the
Department is unable to quantify the
effect of this provision on H–2B
employers in Guam due to a lack of
data.
4. Projected Reporting, Recordkeeping,
and Other Compliance Requirements of
the Rule
The Department estimated the
incremental costs for small businesses
from the baseline. For this rule, the
baseline is the 2008 Final Rule.79 This
analysis reflects the incremental cost of
this rule as it adds to the requirements
in the 2008 Final Rule. Using available
data, we have estimated the costs of the
payment of transportation and
subsistence to workers, visa and
consular fees, corresponding
employment, the disclosure of job
orders, additional recruiting directed by
the CO, the time required to read and
review the Final Rule, and other
impacts.
To examine the impact of this rule on
small entities, the Department evaluates
the impact of the incremental costs on
a hypothetical small entity of average
size, in terms of the total number of both
U.S. and foreign workers, in each
industry if it were to fill 50 percent of
its workforce with H–2B workers. There
are no available data to estimate the
breakdown of the workforce into U.S.
and foreign workers. Based on the U.S.
Census’ Statistics of U.S. Businesses
data, the total number of workers
(including both U.S. and foreign
workers) for this hypothetical small
business is as follows 80: Landscaping
Services, 5.3 employees; Janitorial
Services, 10.9 employees; Construction,
6.2 employees; Food Services and
Drinking Places, 11.5 employees; and
Amusement, Gambling, and Recreation,
13.9 employees.
These data do not distinguish
between U.S. workers and foreign
workers. For the purposes of producing
a cost estimate, the Department assumes
that 50 percent of these employees are
H–2B workers, suggesting the total
number of H–2B workers for the
hypothetical small business is as
follows: Landscaping Services, 2.7 H–2B
employees; Janitorial Services, 5.5 H–2B
employees; Construction, 3.1 H–2B
employees; Food Services and Drinking
Places, 5.7 H–2B employees; and
Amusement, Gambling, and Recreation,
7.0 H–2B employees.
Also using U.S. Census 81 data, we
derived the annual revenues per small
firm for each of the top five industries
by dividing total revenue by total
employment. The Department estimates
that small businesses in the top five
industries have the following annual
revenues:
Landscaping Services, $0.5 million;
Janitorial Services, $0.4 million;
Construction, $1.3 million;
Food Services and Drinking Places, $0.5
million; and
Amusement, Gambling, and Recreation, $0.8
million.
These key small business data are
summarized in Table 21.
TABLE 21—PROFILE OF SMALL FIRMS IN THE TOP FIVE H–2B INDUSTRIES
Size
standards in
millions of
dollars
Industry
Size
standards in
number of
employees
Small firms
$7.0
16.5
7.0
7.0
20.7
499
499
99
499
99
91,483
50,061
415,225
65,979
791,396
Landscaping Services ......................................................
Janitorial Services ............................................................
Food Services and Drinking Places ................................
Amusement, Gambling, and Recreation ..........................
Construction [a] .................................................................
Average
employees
per small
firm
5.3
10.9
11.5
13.9
6.2
Average
H–2B
employees
per small
firm
2.7
5.5
5.7
7.0
3.1
Average
revenue per
small firm
$517,105
425,693
516,055
846,948
1,292,201
[a] Average
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of Construction Size Standards.
Sources: SBA, 2011; U.S. Census, 2007.
78 The total number of firms classified as small
entities in these industries is as follows:
Landscaping Services, 63,210; Janitorial Services,
45,495; Food Services and Drinking Places, 293,373;
Amusement, Gambling, and Recreation, 43,726; and
Construction, 689,040.
79 The Department published a revised final rule
modifying the methodology by which prevailing
wage rates are calculated for the H–2B program. 76
FR 3452, Jan. 10, 2011, 76 FR 45667, August 1,
2011. However, because that final rule is limited to
the prevailing wage rate issue, the baseline for this
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rule remains the non-prevailing wage rate
provisions of the 2008 Final Rule.
80 U.S. Census Bureau. 2007. Statistics of U.S.
Businesses. Available at https://www.census.gov/
econ/susb/data/susb2007.html. Compare to data
obtained from H–2B program data for FY 2007–
2009, which indicated that the average annual
number of firms (of all sizes) and H–2B workers
certified for these industries during FY 2007–2009
were as follows: Landscaping Services, Firms—
2,754, Workers—78,027, an average of 28 workers
per firm; Janitorial Services, Firms—788, Workers—
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30,902, an average of 39 workers per firm; Food
Services and Drinking Places, Firms—851,
Workers—22,948, and average of 27 workers per
firm; Amusement, Gambling, and Recreation,
Firms—227, Workers—14,041, an average of 62
workers per firm; and Construction, Firms—860,
Workers—30,242, an average of 35 workers per
firm.
81 U.S. Census Bureau. 2007. Statistics of U.S.
Businesses. Available at https://www.census.gov/
econ/susb/data/susb2007.html.
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work performed by H–2B workers, with
two exceptions for employees that meet
certain criteria. These provisions
include the application of H–2B wages
to workers in corresponding
employment, the three-fourths
guarantee, transportation and
subsistence payments for workers who
cannot reasonably return to their
residence each workday and who
complete the required portion of the job
order period, and the disclosure of the
job order. As discussed in the Executive
Order 12866 analysis, although there is
no statistically valid data available, the
Department has estimated the number of
corresponding employees for purposes
of estimating the cost of the increased
wages due based upon this provision.
The following sections present the
impacts that this rule is estimated to
have on a small business that chooses to
hire H–2B workers, including impacts
on the application of H–2B wages to
workers in corresponding employment,
transportation and subsistence costs,
visa-related and consular fees,
disclosure of job orders, additional
recruiting that may be directed by the
CO, reading and reviewing the new
processes and requirements, and other
impacts. Note that the costs estimated
below are not costs to all small
businesses or to the average small
business in an industry, but rather are
the expected value of the cost to any
given H–2B employer that is a small
business. Most small businesses in the
relevant industry do not hire H–2B
workers and, therefore, incur no cost
burden from the rule. The costs
estimated apply only to the relatively
small number of firms that are expected
to hire H–2B workers. In the estimates
below, the hypothetical firm that
chooses to hire H–2B workers is
assumed to be of the average total
employment and revenue size for small
businesses in its industry.
a. Three-fourths Guarantee
Under the proposed rule, the
Department specified that employers
guarantee to offer hours of employment
10137
identified a reliable source of data to
estimate the number of workers in
corresponding employment at work
sites on which H–2B workers are
requested or the hourly wages of those
workers, the Department has attempted
to quantify the impacts associated with
this provision. The Department believes
that H–2B workers will make up 75 to
90 percent of the workers in a particular
job and location covered by the job
order, with the remaining 10 to 25
percent of the workers being
corresponding employees newly
covered by the wage requirements. This
10 to 25 percent figure is an
overestimate of the Final Rule’s impact
since some of the employees included
in this proportion of corresponding
workers are those hired in response to
the required recruitment and are
therefore already covered by the existing
regulation, and some workers will be
excluded by the two new exceptions.
Since the required H–2B wage is an
average wage that generally prevails
among existing workers in the
occupation in the area of employment,
we also estimate that half of the
corresponding workers will already be
earning a wage at least equal to the H–
2B wage, and thus will not require wage
increases. Finally, we estimate that the
50 percent of remaining corresponding
workers who are eligible for wage
increases will be normally distributed at
wage levels between the mean wage
level and the previous H–2B prevailing
wage.
Table 22 shows the average estimated
costs of increased wages for
corresponding workers at a typical small
business in each of the five most
common H–2B industries. For each
H–2B worker, the corresponding
employment requirement will result in
an estimated increase in corresponding
worker wages of between $152
(assuming H–2B workers comprise 90
percent of a firm’s employees in the job
order occupation) and $455 (assuming
H–2B workers comprise 75 percent of
those employees) per firm.
equal to at least three-fourths of the
work days during the job order period,
and that they use successive 4-week
periods to measure the three-fourths
guarantee. The use of 4-week periods
was proposed (instead of measuring the
three-fourths guarantee over the course
of the entire time period of need as in
the H–2A program) in order to ensure
that work is offered during the entire
certified period of employment. The
Department received comments from
Advocacy, an employer association, and
small businesses expressing concern
that they are unable to predict the exact
timing and flows of tasks by H–2B
workers, particularly at the beginning
and end of the period of employment,
and that they need more scheduling
flexibility due to unexpected events
such as extreme weather or catastrophic
man-made events. Acknowledging these
commenters’ concerns, the Department
lengthened the calculation period from
4 weeks to 12 weeks for job orders
lasting at least 120 days and to 6 weeks
for job orders lasting less than 120 days.
In order to ensure that the capped H–2B
visas are appropriately made available
to employers based upon their actual
need for workers, and to ensure that
U.S. workers can realistically evaluate
the job opportunity, the Department
maintains that employers should
accurately state their beginning and end
dates of need and the number of H–2B
workers needed. To the extent that
employers, including small businesses,
submit Applications for Temporary
Employment Certification accurately
reflecting their needs, the three-fourths
guarantee should not represent a cost to
employers, particularly given the
extended 12-week and 6-week periods
over which to calculate the guarantee.
b. Application of H–2B Wages to
Corresponding Workers
The rule requires that workers in
corresponding employment be paid at
least the same wages paid to foreign
workers under the H–2B program.
However, while the Department has not
TABLE 22—COSTS FOR CORRESPONDING WORKER WAGES AT SMALL FIRMS
Hourly wage increase
Percent
Firm with
one H–2B
worker
Landscaping
services
Janitorial
services
Food
services
and drinking
places
Amusement,
gambling,
and
recreation
Construction
5.7
7.0
3.1
0.32
0.39
0.17
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H–2B Workers per Small Firm
N/A ...........................................................
N/A
1.0
2.7
5.5
H–2B Workers 90 Percent of Occupation at Firm
Number of Corresponding Workers per Small Firm in Each Category:
$0.00 .................................................
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TABLE 22—COSTS FOR CORRESPONDING WORKER WAGES AT SMALL FIRMS—Continued
Hourly wage increase
Percent
Firm with
one H–2B
worker
Landscaping
services
Food
services
and drinking
places
Janitorial
services
Amusement,
gambling,
and
recreation
Construction
$1.00 .................................................
$3.00 .................................................
$5.00 .................................................
30
15
5
0.03
0.02
0.01
0.09
0.04
0.01
0.18
0.09
0.03
0.19
0.10
0.03
0.23
0.12
0.04
0.10
0.05
0.02
Total ...........................................
100
0.11
0.30
0.61
0.64
0.77
0.35
.................................................
.................................................
.................................................
.................................................
50
30
15
5
$0
46
68
38
$0
121
182
101
$0
249
373
207
$0
261
391
217
$0
317
475
264
$0
142
213
118
Total ...........................................
100
152
404
830
869
1,056
473
Cost per Firm:
$0.00
$1.00
$3.00
$5.00
H–2B Workers 75 Percent of Occupation at Firm
Number of Corresponding Workers per Small Firm in Each Category:
$0.00
$1.00
$3.00
$5.00
.................................................
.................................................
.................................................
.................................................
50
30
15
5
0.17
0.10
0.05
0.02
0.44
0.27
0.13
0.04
0.91
0.55
0.27
0.09
0.96
0.57
0.29
0.10
1.16
0.70
0.35
0.12
0.52
0.31
0.16
0.05
Total ...........................................
100
0.33
0.89
1.82
1.91
2.32
1.04
.................................................
.................................................
.................................................
.................................................
50
30
15
5
$0
137
205
114
$0
364
546
303
$0
747
1,120
622
$0
782
1,173
652
$0
951
1,426
792
$0
426
639
355
Total ...........................................
100
455
1,212
1,489
2,607
3,169
1,419
Cost per Firm:
$0.00
$1.00
$3.00
$5.00
Source: DOL Estimate.
sroberts on DSK5SPTVN1PROD with RULES
c. Transportation To and From the Place
of Employment for H–2B Workers
The rule requires H–2B employers to
provide H–2B workers with
transportation to and from the place of
employment. In general, transportation
costs are calculated by first estimating
the cost of a bus trip from a regional city
to the consular city to obtain a visa.
Then we estimate the cost of the trip
from the consular city to St. Louis. In
the case of the 77 percent of H–2B
workers who come to the U.S. from
Mexico and Canada, we assume this is
a bus trip. For employees from other
countries, we assume this trip is by air.
We estimate the weighted average
roundtrip travel cost per employee to be
approximately $929 per H–2B worker,
as detailed in the Executive Order 12866
analysis section titled ‘‘Transportation
to and from the Place of Employment for
H–2B Workers.’’ This increase from the
estimate included in the IRFA is due to
two factors. First, a bus or ferry fare was
added to account for an H–2B worker’s
trip from their home to a consular city
to obtain a visa. Second, since
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publication of the NPRM, air fares have
increased substantially, attributable to a
combination of market condition such
as increased fuel costs, anticipated
increases in demand for workers from
improving economic conditions, and
reduced passenger capacity. (Because
this Final Rule changed the last day an
employer must hire U.S. applicants to
21 days before the date of need, the
Department does not account for the
extra cost of refundable fares.) We then
multiplied the weighted average
roundtrip travel cost per employee by
the number of H–2B workers per
average small entity and the probability
that the worker is a new entrant to the
country (57 percent).82 For a
hypothetical small firm with one
employee, the annual average roundtrip
82 The
H–2B program is capped at 66,000 new
visas per year. We estimate the probability that the
worker is a new entrant by dividing 66,000 by the
total number of H–2B workers (115,500), which
includes both new entrants and H–2B workers who
entered in the previous 2 years. We assume that
33,000 of the 66,000 workers stay one additional
year and 16,500 workers stay two additional years,
for a total of 115,500 H–2B workers in any given
year.
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transportation cost is $531. The total
annual average roundtrip transportation
costs incurred by the average small
employer in the top five industries are
listed in Table 23.
TABLE 23—TRAVEL COSTS FOR H–2B
WORKERS AT SMALL FIRMS
Industry
Firm with One H–2B Employee
Landscaping Services ..............
Janitorial Services ....................
Food Services and Drinking
Places ...................................
Amusement, Gambling, and
Recreation .............................
Construction ..............................
Transportation cost
$531
1,415
2,905
3,043
3,698
1,656
Sources: Given in text.
We do not know the extent to which
employers are currently paying for this
cost in order to secure these workers or
to comply with their obligations under
the FLSA. To the extent that some
employers are already paying for
inbound and outbound transportation,
these calculations represent upper-
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bound estimates. These are also upperbound estimates because workers are
entitled to reimbursement of inbound
transportation expenses only if they
complete 50 percent of the job order
period; moreover, they are entitled to
outbound transportation expenses only
if they complete the entire job order or
are dismissed early.
d. Transportation To and From the Place
of Employment for Corresponding
Workers
The rule requires H–2B employers to
provide workers in corresponding
employment unable to return each day
to their permanent residence with
transportation to the place of
employment if they complete at least
half the period of the job order and from
the place of employment if they
complete the full period of the job order.
However, there is no basis for estimating
what percentage of the workers in
corresponding employment will be new
employees coming from outside the
commuting area who will continue to
work for at least half or all of the job
order period. Therefore, while the
Department is unable to estimate the
number of corresponding workers at a
given small firm who would receive
reimbursement, the Department
estimates an approximate unit cost for
each traveling corresponding worker by
taking the average of the cost of a bus
ticket to St. Louis from Fort Wayne, IN
($91); Pittsburgh, PA ($138); Omaha, NE
($93); Nashville, TN ($86); and
Palmdale, CA ($233). Averaging the cost
of travel from these five cities results in
an average one way cost of $128.20, and
a round trip cost of $256.40 (see Table
24) representing a transfer from
employers to H–2B workers. The
inbound transportation costs would be
incurred only for those workers who
fulfill the required portion of the
certified period of employment; the
outbound transportation costs would
only be incurred for those who work
until the end of the certified period of
employment or who are dismissed early
by the employer.
TABLE 24—COST OF CORRESPONDING
WORKER TRAVEL FOR SMALL FIRMS
One way travel to St. Louis
e. Subsistence Payments
As discussed in the E.O. 12866
analysis, we estimated the per-worker
cost of subsistence by multiplying the
subsistence per diem ($10.64) by the
number of roundtrip travel days (4 days)
by the probability that the worker is a
new entrant to the country (57 percent).
The length of time for an H–2B worker
to complete round-trip travel reflects an
increase from the proposed rule and was
made in response to a comment from a
worker advocacy organization. The
estimate was increased to account for 2
days to obtain the visa (travel time from
the home town and time spent in the
consular city), 1 day to travel from the
consular city to the place of
employment, and 1 day of outbound
transportation back to the worker’s
home country. We estimate the average
annual cost of subsistence to be $24.32
($10.64 × 4 × 0.57) per H–2B worker.
The total annual average subsistence
costs incurred by the average small
employer in the top five industries are
presented in Table 23.
This provision applies not only to H–
2B workers, but also to workers in
corresponding employment on H–2B
worksites who are recruited from a
distance at which the workers cannot
reasonably return to their residence
within the same workday. While we
were unable to identify adequate data to
estimate the number of corresponding
workers who would travel to the job
from outside the reasonable commuting
area and be eligible to receive
compensation for subsistence, the
Department assumes that it would take
1 travel day to travel from one city in
the U.S. to another, and 1 day to return.
Thus each corresponding worker would
receive $21.28 in subsistence payments
(see Table 25). Both of these estimates
are upper-bound estimates, as the
inbound subsistence would be incurred
only for workers who fulfill the required
portion of the certification period, and
outbound subsistence would only be
incurred for those who work until the
end of the job order or who are
dismissed by the employer.
TABLE 25—COST OF SUBSISTENCE
PAYMENTS FOR WORKERS AT SMALL
FIRMS
Cost
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Cost component
Fort Wayne, IN .........................
Pittsburgh, PA ...........................
Omaha, NE ...............................
Nashville, TN ............................
Palmdale, CA ............................
One way travel—Average ........
Roundtrip travel ........................
$91
138
93
86
233
128
256
Source: Greyhound, 2011.
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17:59 Feb 17, 2012
Jkt 226001
Value
Subsistence Per Diem ..............
Weighted Average Roundtrip
Travel Days—H–2B Workers
Firm with One H–2B Employee
Landscaping Services ..............
Janitorial Services ....................
Food Services and Drinking
Places ...................................
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$11
$4
$24
$65
$133
$139
10139
TABLE 25—COST OF SUBSISTENCE
PAYMENTS FOR WORKERS AT SMALL
FIRMS—Continued
Cost component
Amusement, Gambling, and
Recreation .............................
Construction ..............................
Roundtrip Travel Days—Corresponding Workers ..............
Roundtrip Subsistence per Corresponding Worker ................
Value
$169
$76
2
$21
f. Lodging for H–2B Workers En Route
to the Place of Employment
In response to a comment from a
worker advocacy organization, the
Department includes a cost in the FRFA
not accounted for in the proposed rule:
lodging costs while H–2B workers travel
from their hometown to the consular
city to obtain a visa and from there to
the place of employment. This change
does not reflect any additional
obligation since the publication of the
NPRM, but clarifies the Final Rule’s
intent that lodging expenses incurred
between a worker’s hometown and
consular city are part of inbound
transportation and subsistence costs.
The Department estimates that H–2B
workers will spend an average of two
nights in an inexpensive hostel-style
accommodation. The Department
estimates the nightly cost of this stay in
common consular cities of the top ten
countries of origin as follows:
Monterrey, $11; Kingston, $13;
Guatemala City, $14; Manila, $7;
Bucharest, $11; Pretoria, $19; London,
$22; Ottawa, $30; Tel Aviv, $22; and
Canberra, $26.83 Using the number of
certified H–2B workers from the top ten
countries of origin, we calculated a
weighted average of $11.99 for one
night’s stay, and $23.98 for two nights’
stay. We then multiplied the weighted
average lodging cost per employee by
the number of H–2B workers per
average small entity and the probability
that the worker is a new entrant to the
country (57 percent). For a hypothetical
small firm with one employee, the
annual average lodging cost is $13.70
(.57 × $23.98). The total annual average
lodging costs incurred by the average
small employer in the top five
industries are presented in Table 26.
83 Lonely Planet. 2011b. Hotels & Hostels Search.
Available at https://hotels.lonelyplanet.com/
(Accessed July 12, 2011).
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TABLE 26—COST OF LODGING FOR H– employers may already be paying these
fees in order to ensure their compliance
2B WORKERS AT SMALL FIRMS
Cost component
Value
Firm with One H–2B Employee
Landscaping Services ..............
Janitorial Services ....................
Food Services and Drinking
Places ...................................
Amusement, Gambling, and
Recreation .............................
Construction ..............................
$14
37
75
79
95
43
Source: Lonely Planet, 2011b.
with the FLSA, this represents an
upper-bound estimate. Similarly, to the
extent that our estimate that 57 percent
of H–2B workers are new is
conservative, our estimate of visa and
consular fees is an upper-bound
estimate.85
TABLE 27—COST OF VISA AND CONSULAR FEES FOR H–2B WORKERS
AT SMALL FIRMS
g. Visa-Related and Consular Fees
Cost component
Under the 2008 Final Rule, visa fees
are permitted to be paid by the
temporary worker. This Final Rule,
however, requires visa fees and related
fees to be paid by the employer.
Requiring employers to bear the full cost
of hiring foreign workers is a necessary
step toward preventing the exploitation
of foreign workers with its concomitant
adverse effect on domestic workers.
The Department estimated the cost of
visa fees by adding the weighted average
visa cost per H–2B worker ($148),84
weighted average appointment fee
($3.05), and the weighted average
reciprocity fee ($2.48), then multiplying
by the average number of H–2B
employees in small entities in each of
the top five industries and the
probability that the worker is a new
entrant to the country (57 percent, or
66,000/115,500). The total annual
average visa fee and related costs
incurred by the average small employer
in the top five industries are listed in
Table 27. Again, to the extent that some
Value
Firm with One H–2B Employee
Landscaping Services ..............
Janitorial Services ....................
Food Services and Drinking
Places ...................................
Amusement, Gambling, and
Recreation .............................
Construction ..............................
$88
234
480
503
611
274
Source: U.S. Department of State, 2010.
h. Additional Recruiting Directed by the
Certifying Officer
Under the Final Rule, the CO may
direct an employer to conduct
additional recruitment if the CO has
determined that there may be qualified
U.S. workers available, particularly
where the job opportunity is located in
an area of substantial unemployment.
There is no such provision in the 2008
Final Rule.
In response to an employer comment
expressing concern that the NPRM
understated the cost of running a
newspaper advertisement that would
capture all the requirements contained
in 20 CFR 655.41, the Department
updated the original calculation in the
NPRM. The higher estimated cost does
not reflect any additional advertising
requirement beyond those in 20 CFR
655.41, but is rather is a more accurate
reflection of the cost of an
advertisement that includes the required
information.
We estimate the cost of this
requirement by multiplying the average
cost of a newspaper advertisement
($315) by 0.5 based on our estimate that
50 percent of H–2B employer applicants
can be expected to be directed by the
CO to conduct additional recruitment
for a total cost of $157 ($315 × 0.50) per
employer.86 We also added the cost for
10 percent of employer applicants to
translate the advertisement into a
language other than English at an
average cost of $2.59 ($25.88 × 0.1), and
labor cost to post the advertisement. The
latter cost was calculated by multiplying
the estimated time required to post the
advertisement (0.08 hours, or 5 minutes)
by the scaled hourly compensation rate
of an administrative assistant/executive
secretary ($28.77) and our estimate that
50 percent of H–2B employers can be
expected to be directed by the CO to
conduct additional recruiting for a total
labor cost of $1.20 (0.08 × $28.77 × 0.50)
per employer applicant. Thus, the total
annual cost of CO-directed recruiting is
estimated to be $161.18 ($157 + $2.59 +
$1.20) per employer (see Table 28).
TABLE 28—COST OF ADDITIONAL RECRUITING FOR SMALL FIRMS
Cost component
Value
sroberts on DSK5SPTVN1PROD with RULES
Percent directed to conduct additional recruiting ..........................................................................................................................
Newspaper Advertisement:
Percent translating advertisement ..........................................................................................................................................
Newspaper advertisement—Unit cost ....................................................................................................................................
Average cost of newspaper advertisement ............................................................................................................................
Translating Newspaper Advertisement:
Translation—Weighted Average Cost ....................................................................................................................................
Average cost of newspaper advertisement ............................................................................................................................
Labor to Post Newspaper Ad:
Time to post advertisement ....................................................................................................................................................
Administrative Assistant hourly wage w/fringe .......................................................................................................................
Administrative Assistant labor per ad .....................................................................................................................................
Average cost of labor to post ad ............................................................................................................................................
Total Cost:
84 U.S. Department of State. 2010. Nonimmigrant
Visa Application Fees to Increase June 4. Available
at https://www.state.gov/r/pa/prs/ps/2010/05/
142155.htm. The visa fee of $150 went into effect
on June 4, 2010.
85 The Department is confident that 66,000 new
workers enter the country under H–2B visas each
year; it has less information concerning the number
of H–2B workers that remain in the U.S. for more
than one year. To the extent that more than 67
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percent of each year’s cohort remains in the U.S. for
a second and third year, then the Department has
overestimated the percent of H–2B workers that are
new, and we have overestimated visa and consular
fees.
86 To obtain the average cost of a newspaper
advertisement, we averaged the rates for a model H–
2B advertisement in the following newspapers:
Branson Tri-Lakes News, Aspen Times, Austin
Chronicle, Gainesville Sun, the Plaquemines
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50%
10%
$315
$157
$26
$3
0.05
$29
$2
$1
Gazette, and Virginia Pilot. These newspapers were
chosen because they are located in areas in which
a significant number of H–2B positions were
certified in FY 2009. Other means of recruiting are
possible under this rule (such as listings on
Monster.com and Career Builder), but they may be
more costly, while other recruiting means (such as
contacting community-based organizations) may be
less costly.
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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations
10141
TABLE 28—COST OF ADDITIONAL RECRUITING FOR SMALL FIRMS—Continued
Cost component
Value
Total Cost of Additional Recruiting per Firm ..........................................................................................................................
$161
Sources: BLS, 2011a; BLS, 2011b.
It is possible that there will be
additional costs incurred by small
employers due to interviewing
additional applicants who are referred
to H–2B employers by job
advertisements. The Department does
not have valid data on referrals resulting
from job advertisements and therefore is
unable to quantify this impact.
i. Contacting Labor Organizations
The analysis performed for the
proposed rule included a cost for
employers to contact the local union to
locate qualified U.S. workers where the
occupation is customarily unionized.
Under this Final Rule, union
notification is the responsibility of the
SWA and employers incur no costs.
j. Disclosure of Job Order
The rule requires an employer to
provide a copy of the job order to an
H–2B worker no later than the time at
which the worker outside of the U.S.
applies for the H–2B visa or to a worker
in corresponding employment no later
than on the day that work starts. The job
order must be translated to a language
understood by the worker. For an H–2B
worker changing employment from an
H–2B employer to a subsequent H–2B
employer, the copy must be provided no
later than the time the subsequent H–2B
employer makes an offer of
employment.
We estimate two cost components of
the disclosure of job orders: The cost of
reproducing the document containing
the terms and conditions of
employment, and the cost of translation.
We obtained the cost of reproducing the
terms and conditions by multiplying the
number of pages to be photocopied
(three) by the cost per photocopy ($0.12)
and the percent of certified H–2B
workers that are not involved in
reforestation (88.3 percent).87 We
estimate average annual reproduction
costs for an employer with one H–2B
employee of $0.32 per year (3 × $0.12
× 0.883). We then multiplied this
product by the average number of H–2B
workers in the top five industries to
obtain the average annual costs per
small employer; these costs are
summarized in Table B–9.
For the cost of translation, the
Department assumes that an employer
hires all of its H–2B workers from a
country or set of countries that speak
the same foreign language; thus, only
one translation is necessary per
employer needing translation. Using
DHS data, we determined that
approximately 83.92 percent of H–2B
workers from the top ten countries of
origin do not speak English.88 We used
this as a proxy for the probability that
an H–2B employer will need to translate
the job order. We obtained the cost of
translation by multiplying the percent of
H–2B workers who do not speak English
(83.92) by the weighted average cost of
translation ($68).89 We estimate average
annual translation costs of $57.07 per
employer (0.8392 × $68).
Summing reproduction and
translation costs results in the average
annual job order disclosure costs per
small employer (listed in Table 29).
TABLE 29—COST OF DISCLOSURE OF JOB ORDER FOR SMALL FIRMS
Cost component
Value
Percent workers not in reforestation .............................................................................................................................................
Reproducing Job Order:
Pages to be photocopied .......................................................................................................................................................
Cost per page .........................................................................................................................................................................
Cost per job order ..................................................................................................................................................................
Firm with One H–2B Employee ..............................................................................................................................................
Landscaping Services—Cost to Reproduce ..........................................................................................................................
Janitorial Services—Cost to Reproduce ................................................................................................................................
Food Services and Drinking Places—Cost to Reproduce .....................................................................................................
Amusement, Gambling, and Recreation—Cost to Reproduce ..............................................................................................
Construction—Cost to Reproduce ..........................................................................................................................................
Translating Job Order:
Weighted average translation cost .........................................................................................................................................
Translation Cost per H–2B Employer ....................................................................................................................................
Total Cost of Disclosure of Job Order:
Firm with One H–2B Employee ..............................................................................................................................................
Landscaping Services ............................................................................................................................................................
Janitorial Services ..................................................................................................................................................................
Food Services and Drinking Places .......................................................................................................................................
Amusement, Gambling, and Recreation ................................................................................................................................
Construction ............................................................................................................................................................................
88.3%
3
$0.12
$0.36
$0.32
$0.85
$2
$2
$2
$1
sroberts on DSK5SPTVN1PROD with RULES
Sources: DHS, 2009; LanguageScape, 2011.
87 The requirement to disclose the job order does
not result in a new cost to reforestation employers
because the Migrant and Seasonal Agricultural
Worker Protection Act presently requires
reforestation employers to make this disclosure.
According to H–2B program data for FY2000–
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FY2009, 88.3 percent of H–2B workers work in an
industry other than reforestation.
88 U.S. Department of Homeland Security (DHS).
2009. Yearbook of Immigration Statistics. Available
at https://www.dhs.gov/files/statistics/publications/
yearbook.shtm (Accessed June 12, 2011).
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89 LanguageScape. 2011. How it Works—Cost
Calculator. Available at https://
www.languagescape.com/how_works_1.asp
(Accessed June 7, 2011).
E:\FR\FM\21FER2.SGM
21FER2
$68
$57
$57
$58
$59
$59
$59
$58
10142
Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations
k. Elimination of Attestation-Based
Model
The 2008 Final Rule implemented an
attestation-based model: employers
conduct the required recruitment in
advance of application filing and, based
on the results of that effort, apply for
certification from the Department for the
remaining openings. The Department
has determined that there are
insufficient worker protections in the
current attestation-based model. In
eliminating the attestation-based model,
the rule shifts the recruitment process to
after the filing of the Application for
Temporary Employment Certification so
that employers have to demonstrate—
and not merely attest—that they have
performed an adequate test of the labor
market. Therefore, the primary effect of
eliminating the attestation-based model
is a change in the timing of recruitment
rather than a substantive change in
required activities.
The elimination of the attestationbased model will impose minimal costs
on employers because they will only
need to include additional information
in the recruitment report they are
already required to submit, including
information on additional recruitment
conducted, means of posting, and
contact with former U.S. workers. We
estimated two costs for the elimination
of the attestation-based model: the
material cost to reproduce and mail the
additional pages of the documents, and
the labor cost to reproduce and mail the
additional pages. To estimate the cost of
reproducing and mailing the
documents, we multiplied the
additional number of pages that must be
submitted (three) by the additional
postage required to ship those pages
($0.17). We estimate this cost to be
approximately $0.51 per employer. To
estimate the labor cost of reproducing
and mailing the documents, we
multiplied the time needed to reproduce
and mail the documents (0.08 hours, or
5 minutes) by the scaled hourly labor
compensation of an administrative
assistant/executive secretary ($28.77).
We estimate this cost to be
approximately $2.40 per employer.
Summing material and labor costs
results in total costs per small firm of
$2.91 (see Table 30).
TABLE 30—COST OF ELIMINATION OF ATTESTATION-BASED MODEL FOR SMALL FIRMS
Cost component
Value
Postage Costs:
Additional pages to submit .....................................................................................................................................................
Additional postage ..................................................................................................................................................................
Postage Cost per Small Firm ........................................................................................................................................................
Labor Costs to Photocopy and Mail Documents:
Labor time to photocopy and mail documents .......................................................................................................................
Administrative Assistant hourly wage w/fringe .......................................................................................................................
Photocopying Cost per Small Firm ........................................................................................................................................
Total Cost of Elimination of Attestation-Based Model:
Total Cost per Small Firm ......................................................................................................................................................
3
$0.17
$0.51
0.08
$29
$2
$3
Sources: BLS, 2011a; BLS, 2011b.
l. Document Retention
m. Departure Time Determination
Under the rule, H–2B employers must
retain documentation beyond that
required by the 2008 Final Rule. The
Department assumes that each H–2B
employer will purchase a filing cabinet
($49.99) in which to store the additional
documents starting in the first year of
the rule.90 The cost for each employer
is likely an overestimate, since the 2008
Final Rule already contains document
retention requirements, and many
employers who already use the H–2B
program will already have bought a file
cabinet to store the documents they
must retain under that rule.
The Proposed Rule would have
required employers to provide notice to
the local SWA of the time at which the
last H–2B worker departs for the place
of employment, if the last worker has
not departed at least 3 days before the
date of need. Under the Final Rule, the
obligation to hire U.S. workers will end
21 days before the date of need and the
employer is not required to provide any
notice to the local SWA, thus
eliminating the costs associated with
this provision of the Proposed Rule.
sroberts on DSK5SPTVN1PROD with RULES
90 OfficeMax.
2011. Vertical File Cabinets.
Available at https://www.officemax.com/officefurniture/file-cabinets-accessories/vertical-filecabinets?history=utozftma%7CcategoryId%
7E10001%5EcategoryName%7EOffice%2B
Furniture%5EparentCategoryID%7Ecategory_root%
5EprodPage%7E25%5Eregion%7E1%40
porkedzu%7CcategoryId%7E40%5Ecategory
Name%7EFile%2BCabinets%2B%2526%2B
Accessories%5EparentCategoryID%7Ecat_
10001%5EprodPage%7E25%5Eregion%7E1%5
Erefine%7E1%40wih8mfsy%7CprodPage%
7E15%5Erefine%7E1%5Eregion%7E1%5Ecategory
Name%7Evertical-file-cabinets%5Ecategory
Id%7E91%5EparentCategoryID%7Ecat_40&view=
list&position=1&prodPage=15&sort=Price+%28
Low-High%29 (Accessed July 11, 2011).
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n. Read and Understand the Rule
During the first year that this rule
would be in effect, employers would
need to learn about the new processes
and requirements. We estimated this
cost for a hypothetical small entity that
is interested in applying for H–2B
workers by multiplying the time
required to read the new rule and any
educational and outreach materials that
explain the H–2B application process
under the rule by the average
compensation of a human resources
manager. In the first year that the Final
Rule is effective, the Department
estimates that the average small
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business participating in the program
will spend approximately three hours of
staff time to read and review the new
processes and requirements, which
amounts to approximately $186.52
($62.17 × 3) in labor costs in the first
year.
o. Job Posting Requirement
The rule requires employer applicants
to post the availability of the job
opportunity in at least two conspicuous
locations at the place of intended
employment for at least 15 consecutive
days. This provision entails additional
reproduction costs. For the job posting
requirement, the total cost to photocopy
the additional job postings (two) is
$0.24 per employer applicant. Those
employer applicants who need to print
the posting in languages other than
English may face a small additional
cost.
p. Workers Rights Poster
The Final Rule requires employers to
post and maintain in a conspicuous
location at the place of employment, a
poster provided by the Secretary that
sets out the rights and protections for
workers. The poster must be in English
and, to the extent necessary and as
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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations
provided by the Secretary, foreign
language(s) common to a significant
portion of the workers if they are not
fluent in English. We estimate the cost
of producing the workers’ rights poster
to be $0.12.
q. Total Cost Burden for Small Entities
The Department’s calculations
indicate that for a hypothetical small
entity in the top five industries that
applies for one worker (representing the
smallest of the small entities that hire
H–2B workers), the total annualized
first-year costs and annual costs are
between $1,058 (using the low estimate
of corresponding worker wages and
annualizing at 3 percent over 10 years)
and $1,367 (using the high estimate and
annualizing at 7 percent over 10 years).
Using the low estimate of corresponding
worker wages and annualizing at
3 percent and using the high estimate of
corresponding worker wages and
annualizing at 7 percent, respectively,
the total annualized first-year and
annual costs for employers in the top
five industries that hire the average
number of employees for their
respective industries are as follows:
10143
estimated revenues for small entities in
the top five industries are as follows:
Landscaping Services, $2,404 to $3,218;
Janitorial Services, $4,673 to $6,339;
Food Services and Drinking Places, $4,884 to
$6,628;
Amusement, Gambling, and Recreation,
$5,881 to $8,000;
Construction, $2,772 to $3,724.
A rule is considered to have a
significant economic impact when the
total annual cost associated with the
rule is equal to or exceeds 1 percent of
annual revenue. To evaluate this
impact, the Department calculates the
total cost burden as a percent of revenue
for each of the top five industries. The
Landscaping Services, $517,105;
Janitorial Services, $425,693;
Food Services and Drinking Places,
$516,055;
Amusement, Gambling, and Recreation,
$846,948;
Construction, $1,292,201.91
The Department then divides the total
cost burden for small entities by the
total estimated revenue for small
entities in each of the top five
industries. The total costs as a percent
of revenues for the top five industries
are summarized in Table 31:
Landscaping Services, 0.46 to 0.62 percent;
Janitorial Services, 1.10 to 1.549 percent;
Food Services and Drinking Places, 0.95 to
1.28 percent;
Amusement, Gambling, and Recreation,
0.69 to 0.94 percent;
Construction, 0.21 to 0.29 percent.
TABLE 31—TOTAL COSTS FOR SMALL FIRMS
Industry
Cost per
firm with
one H–2B
worker
Landscaping
services
Janitorial
services
Food
services
and drinking
places
Amusement,
gambling,
and
recreation
Construction
1.0
2.7
5.5
5.7
7.0
3.1
$152
$455
$531
$24
$14
$88
$161
$57
$3
$0.24
$0.12
$404
$1,212
$1,415
$65
$37
$234
$161
$58
$3
$0.24
$0.12
$830
$2,489
$2,905
$133
$75
$480
$161
$59
$3
$0.24
$0.12
$869
$2,607
$3,043
$139
$79
$503
$161
$59
$3
$0.24
$0.12
$1056
$3,169
$3,698
$169
$95
$611
$161
$59
$3
$0.24
$0.12
$473
$1,419
$1,656
$76
$43
$274
$161
$58
$3
$0.24
$0.12
Total Annual Costs—Low ..................................
Total Annual Costs—High .................................
$1,030
$1,334
$2,376
$3,185
$4,646
$6,305
$4,856
$6,594
$5,854
$7,966
$2,744
$3,690
First Year Costs to Employers:
Read and Understand Rule ......................................
Document Retention .................................................
Total First Year Costs ...............................................
Annualized First Year Costs (7%) ............................
Annualized First Year Costs (3%) ............................
$187
$50
$237
$34
$28
$187
$50
$237
$34
$28
$187
$50
$237
$34
$28
$187
$50
$237
$34
$28
$187
$50
$237
$34
$28
$187
$50
$237
$34
$28
Total Costs per Small Firm (Annualized First Year and
Annual Costs, 7%)
Total Costs—Low ..............................................
Total Costs—High .............................................
Total Revenue ...................................................
sroberts on DSK5SPTVN1PROD with RULES
H–2B Workers ..................................................................
Annual Costs to Employers:
Corresponding Workers’ Wages—Low ....................
Corresponding Workers’ Wages—High ....................
Transportation ...........................................................
Subsistence ..............................................................
Lodging .....................................................................
Visa and Consular Fees ...........................................
Additional Recruiting .................................................
Disclosure of Job Order ............................................
Elimination of Attestation ..........................................
Post Job Opportunity ................................................
Workers Rights Poster ..............................................
$1,064
$1,367
N/A
$2,410
$3,218
$517,105
$4,679
$6,339
$425,693
$4,890
$6,628
$516,055
$5,877
$8,000
$846,948
$2,778
$3,724
$1,292,201
Costs as a Percent of Revenue—Low .....................
Cost as a Percent of Revenue—High ......................
Total Costs per Small Firm (Annualized First Year and
Annual Costs, 3%):
Total Costs—Low ..............................................
N/A
N/A
0.47%
0.63%
1.10%
1.50%
0.95%
1.29%
0.70%
0.95%
0.21%
0.29%
$1,058
$2,404
$4,673
$4,884
$5,881
$2,772
Total Costs—High .............................................
Total Revenue ...................................................
$1,361
N/A
$3,212
$517,105
$6,333
$425,693
$6,622
$516,055
$7,994
$846,948
$3,718
$1,292,201
91 U.S. Census Bureau. 2007. Statistics of U.S.
Businesses. Available at https://www.census.gov/
econ/susb/data/susb2007.html. c.
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TABLE 31—TOTAL COSTS FOR SMALL FIRMS—Continued
Industry
Cost per
firm with
one H–2B
worker
Costs as a Percent of Revenue—Low .....................
Cost as a Percent of Revenue—High ......................
N/A
N/A
Landscaping
services
Janitorial
services
0.46%
0.62%
Food
services
and drinking
places
Amusement,
gambling,
and
recreation
Construction
0.95%
1.28%
0.69%
0.94%
0.21%
0.29%
1.10%
1.549%
N/A: Not Applicable.
Note: Totals may not sum due to rounding.
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This rule is expected to have a
significant economic impact (at least 1
percent of annual revenue) on the
average participating small entity in two
of the five most common industries:
Janitorial Services, and Food Services
and Drinking Places. Although applying
to hire H–2B workers is voluntary, and
any employer (small or otherwise) may
choose not to apply, an employer,
whether it continues to participate in
the H–2B program or fills its workforce
with U.S. workers, could face costs
equal to or slightly greater than 1
percent of annual revenue. However, in
the Department’s view, increased
employment opportunities for U.S.
workers and higher wages for both U.S.
and H–2B workers provide a broad
societal benefit that outweighs these
costs.
The Department considers that a rule
has an impact on a ‘‘substantial number
of small entities’’ when the total number
of small entities impacted by the rule is
equal to or exceeds 10 percent of the
relevant universe of small entities in a
given industry. See, e.g., 76 FR 3476,
Jan. 19, 2011. The Department has used
the 10 percent threshold in previous
regulations. As discussed earlier in the
analysis, the percentage of small entities
authorized to employ temporary nonagricultural workers would be less than
1 percent of the total number of small
entities in the top five industries with
the greatest number of H–2B workers.
Therefore, this rule is not expected to
impact a substantial number of small
entities.
5. Alternatives Considered as Options
for Small Businesses
We have concluded that this Final
Rule will not have a significant
economic impact on a substantial
number of small entities. This Final
Rule sets minimum standards to ensure
that foreign workers may be employed
only if qualified domestic workers are
not available and that the hiring of
H–2B workers will not adversely affect
the wages and working conditions of
similarly employed domestic workers.
While we recognize the concerns
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expressed by small businesses and have
made every effort to minimize the
burden on the relatively small number
of businesses that use the program,
creating different and likely lower
standards for one class of employers
(e.g., small businesses) would
essentially sanction the very adverse
effects that we are compelled to prevent.
Under the existing H–2B program, an
employer must first apply for a
temporary labor certification from the
Secretary of Labor. That certification
informs USCIS that U.S. workers
qualified to perform 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. Our obligation
to ensure 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 was
reaffirmed in a recent court decision,
CATA v. Solis, Civil No. 2:09–cv–240,
2011 WL 2414555 (E.D. Pa. 20100),
which made clear that our consideration
of hardship to employers when setting
the January 1, 2012 effective data was
contrary to our responsibilities under
the INA.
While our responsibilities in the
H–2B labor certification program first
and foremost are to ensure that U.S.
workers are given priority for temporary
non-agricultural job opportunities and
to protect U.S. workers’ wages and
working conditions, we solicited and
considered public comments on a
number of alternatives that would
balance the needs of small businesses
while providing adequate protection to
U.S. and H–2B workers. A discussion on
each alternative considered and our
final determination is below.
First, we proposed to change the
definition of full-time from 30 or more
hours of work per workweek to 35 or
more hours of work per week in
response to the District Court’s decision
in CATA v. Solis, 2010 WL 3431761,
which invalidated the 2008 H–2B Final
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Rule’s 30-hour definition because our
decision was not supported by
empirical data. We stated in the NPRM
that a 35-hour work week was
supported by empirical data and was
more representative of the actual needs
of employers and expectations of
workers. However in the NPRM, we
requested comments on whether
extending the definition of full-time to
at least 40 hours is more protective of
U.S workers and better conforms to
employer standards and needs.
As discussed in this preamble, several
trade associations and private
businesses supported retaining the 2008
Final Rule’s standard of 30 hours per
workweek, citing the difficulties of
scheduling work around unpredictable
and uncontrollable events, particularly
the weather. Other employers suggested
that full-time employment should be
determined not in each individual
workweek, but by averaging workweeks
over the length of the certified
employment period. In addition, several
businesses stated that a 35-hour
workweek would be burdensome in
combination with other aspects of the
proposed rule, particularly the threequarter guarantee. We concluded, after a
thorough review of the comments, to
retain the definition of full-time as 35 or
more hours of work per week. This
standard more accurately reflects fulltime employment expectations than the
current 30-hour definition, would not
compromise worker protections, and is
consistent with other existing
Department standards and practices in
the industries that currently use the
H–2B program to obtain workers.
The NPRM also proposed to eliminate
job contractors from participating in the
H–2B program based on our 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. We received
a comment that questioned our
underlying assumption that all job
contractors have a permanent need and
asserted that the bar on job contractors
should not be complete because to the
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extent that any one job contractor does
not have a year-round need and
routinely does not employ workers in a
particular occupation for a specific
segment of the year, its needs are
seasonal. The commenter asserted that
job contractors should be afforded the
same opportunity as all other employers
to prove they have a temporary need for
services or labor. Upon further
consideration, we recognize that there
very well may be job contractors who
only operate several months out of the
year and thus have a genuine temporary
need and that these job contractors
should not be excluded from the
program. Additionally, we recognize
that job contractors with a one-time
need may also have a genuine
temporary need and should not be
excluded from the program. Therefore,
we revised § 655.6 to permit only those
job contractors that demonstrate through
documentation their own temporary
need, not that of their employer-clients,
to continue to participate in the H–2B
program. Job contractors will only be
permitted to file applications based on
seasonal need and one-time
occurrences.
We also introduced in the NPRM a
three-fourths guarantee provision that
would require that H–2B employers
guarantee to offer the worker
employment for a total number of hours
equal to at least three-fourths of the
workdays in each 4-week period of the
certified period of employment. We
believed that this guarantee would
motivate employers to carefully
consider the extent of their workforce
needs before applying for certification
and discourage employers from
applying for unnecessary workers or
from promising work which may not
exist. While we stated in the NPRM that
an hours’ guarantee is necessary to
protect the integrity of the H–2B
program and to protect the interests of
both workers and employers in the
program, we invited the public to
suggest alternative guarantee systems
that may better serve the goals of the
guarantee. In particular, the Department
sought comments on whether a 4-week
increment is the best period of time for
measuring the three-fourths guarantee or
whether a shorter or longer time period
would be more appropriate.
Many small businesses expressed
concerns about the guarantee. They
were particularly concerned about the
impact of the weather on their ability to
meet the guarantee and their ability to
meet the guarantee in the event of
unforeseen events like oil spills or
health department or conservation
closures that, for example, can make the
harvesting and processing of crabs
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impossible. Numerous other employers
similarly stated that if a guarantee
remains in the Final Rule, it should be
spread over the entire certification
period, as it is in the H–2A regulations.
They noted that this would provide
flexibility and enhance their ability to
meet the guarantee without cost,
because often the loss of demand for
work in one period is shifted to another
point in the season, but such a
guarantee would still deter egregious
cases of employers misstating their need
for H–2B employees. A number of
commenters also suggested that the
guarantee should be based upon pay for
three-fourths of the hours, rather than
three-fourths of the hours, so that
employers could take credit for any
overtime paid at time-and-a-half. After
careful consideration of all comments
received, we decided to retain the threefourths guarantee of the hours, but
lengthen the increment over which the
guarantee is measured from 4 weeks to
12 weeks, if the period of employment
covered by the job order is 120 days or
more and to 6 weeks, if the period of
employment covered by the job order is
less than 120 days.
The NPRM continued to reflect our
commitment to ensuring that U.S.
workers have priority for H–2B job
opportunities by proposing that
employers hire qualified U.S. workers
referred by the SWA or who respond to
recruitment until 3 days before the date
of need or the last H–2B worker departs
for the workplace for the certified job
opportunity, whichever is later. We
believed that this proposal would
increase the opportunity for U.S.
workers to fill the available positions
without unnecessarily burdening the
employer. The proposal would have
required the employer to inform the
appropriate SWA(s) in writing of the
later departure so that the SWA would
know when to stop referring potential
U.S. workers to the employer.
We received many comments from
employers and their advocates arguing
that accepting U.S. applicants until 3
days before the date of need would be
unworkable for employers. Some of
these commenters suggested that we
require the SWA to keep the job order
posted for 30 days (instead of the
current 10), while others recommended
changing the closing date from 3 days to
30 days or 60 days before the date of
need. We carefully reviewed all
comments and weighed these concerns
against our mandate to ensure that U.S.
workers rather than foreign workers be
employed whenever possible. As a
result, we changed the day through
which employers must accept SWA
referrals of qualified U.S. applicants
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10145
from 3 days to 21 days before the date
of need. The Department believes that
increasing the number of days before the
date of need that referrals are cut off as
well as removing the clause or the date
that the last H–2B worker departs for the
job opportunity will alleviate a number
of employer concerns without
compromising our obligation to U.S.
workers. In addition, this change takes
into consideration the USCIS
requirement that H–2B workers not
enter the United States until 10 days
before the date of need, providing
employers the certainty that their H–2B
workers will have sufficient time to
obtain their visas and eliminating the
employer concern that an H–2B worker
could be displaced by a U.S. worker
after beginning inbound travel.
Employers and small businesses
generally opposed our proposed
provisions that would require an
employer to provide, pay, or reimburse
the worker in the first workweek the
cost of transportation and subsistence
from the place from which the worker
has come to the place of employment,
and for H–2B workers’ visa, visa
processing, and other related consular
fees including those fees mandated by
the government (but not for passport
expenses or other charges primarily for
the benefit of the workers). Employers
and small businesses asserted that
paying such fees would be too costly
and that transportation costs should be
the responsibility of the employee or
paid at the discretion of the employer.
A number of commenters suggested that
the Department adopt the H–2A
provision requiring that workers must
complete at least 50 percent of the work
contract to be reimbursed for inbound
transportation and subsistence
expenses. After careful consideration of
all comments, we have made two
changes. While we will continue to
require employers to provide inbound
transportation and subsistence to H–2B
workers and to U.S. workers who are
not reasonably able to return to their
residence within the same workday, the
Final Rule now provides that employers
may arrange and pay for the
transportation and subsistence directly,
advance at a minimum, the most
economical and reasonable common
carrier cost, or reimburse a worker’s
reasonable costs, after the worker
completes 50 percent of the period of
employment covered by the job order if
the employer has not previously
reimbursed such costs. We also
continue in the Final Rule to require
employers to provide return
transportation and subsistence from the
place of employment; however, these
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obligations have been revised to
stipulate that an employer is only
required to provide return
transportation and subsistence if the
worker completes the period of
employment covered by the job order or
if the worker is dismissed from
employment for any reason by the
employer before the end of the period.
In addition, the Final Rule continues to
provide that if a worker has contracted
with a subsequent employer that has
agreed to provide or pay for the worker’s
transportation to the subsequent
employer’s worksite, the subsequent
employer must provide or pay for such
expenses; otherwise, if this agreement
has not been made, the employer must
provide or pay for that transportation
and subsistence. The Final Rule also
continues to require employers to
reimburse all visa, visa processing, and
other related consular fees in the first
workweek.
We received several comments from
employers noting the need to have a
stable workforce throughout their
certified period of need. Employers
were concerned that after expending
significant resources to hire H–2B
workers, these workers could be
displaced to hire U.S. workers referred
by the SWA who may not report for
work, or might fail to complete the
contract period. One employer
requested that we consider new
provisions that would allow an
employer to hire H–2B workers if the
hired U.S. workers become unavailable.
We considered these comments and
agreed to address the circumstances
where an employer’s U.S. workers fail to
report to work or quit before the end of
the certified period of employment by
providing the CO the authority to issue
a redetermination based on the
unavailability of U.S. workers. While we
have provided a means by which
employers may request a new
determination, we strongly encourage
employers to make an additional effort
to voluntarily contact the SWA for
additional referrals for qualified U.S.
workers.
Finally, the Small Business
Administration’s Office of Advocacy
and several industry groups requested
an exemption from the job order
obligations for man-made catastrophic
events such as an oil-spill or controlled
flooding that is wholly outside of the
employer’s control. The Department
proposed that a CO could only
terminate the employer’s obligations
under the guarantee in the event of fire,
weather, or another Act of God. The
Department agreed with commenters
that this provision should be expanded
to allow a CO to terminate an
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employer’s job order based upon these
man-made catastrophes.
C. Unfunded Mandates Reform Act of
1995
Title II of the Unfunded Mandates
Reform Act of 1995 (2 U.S.C. 1531)
directs agencies to assess the effects of
Federal regulatory actions on State,
local, and tribal governments, and the
private sector. The rule has no Federal
mandate, which is defined in 2 U.S.C.
658(6) to include either a Federal
intergovernmental mandate or a Federal
private sector mandate. A Federal
mandate is any provision in a regulation
that imposes an enforceable duty upon
State, local, or tribal governments, or
imposes a duty upon the private sector
that is not voluntary. A decision by a
private entity to obtain an H–2B worker
is purely voluntary and is, therefore,
excluded from any reporting
requirement under the Act.
SWAs are mandated to perform
certain activities for the Federal
Government under the H–2B program,
and receive grants to support the
performance of these activities. Under
the 2008 Final Rule the SWA role was
changed to accommodate the
attestation-based process. The current
regulation requires SWAs to accept and
place job orders into intra- and
interstate clearance, review referrals,
and verify employment eligibility of the
applicants who apply to the SWA to be
referred to the job opportunity. Under
the Final Rule the SWA will continue to
play a significant and active role. The
Department continues to require that
employers submit their job orders to the
SWA having jurisdiction over the area
of intended employment as is the case
in the current regulation, with the
added requirement that the SWA review
the job order prior to posting it. The
Final Rule further requires that the
employer provide a copy of the
Application for Temporary Employment
Certification to the SWA; however, this
is simply a copy for disclosure purposes
and would require no additional
information collection or review
activities by the SWA. The Department
will also continue to require SWAs to
place job orders into clearance, as well
as provide employers with referrals
received in connection with the job
opportunity. Additionally, the Final
Rule requires SWAs to contact labor
organizations where union
representation is customary in the
occupation and area of intended
employment. The Department
recognizes that SWAs may experience a
slight increase in their workload in
terms of review, referrals, and employer
guidance. However, the Department is
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eliminating the employment verification
responsibilities the SWA has under the
current regulations. The elimination of
workload created by the employment
verification requirement will allow the
SWAs to apply those resources to the
additional recruitment requirements
under this rule.
SWA activities under the H–2B
program are currently funded by the
Department through grants provided
under the Wagner-Peyser Act. 29 U.S.C.
49 et seq, and directly through
appropriated funds for administration of
the Department’s foreign labor
certification program.
D. Small Business Regulatory
Enforcement Fairness Act of 1996
(SBREFA)
We have determined that this
rulemaking does not impose a
significant impact on a substantial
number of small entities under the RFA.
We have similarly concluded that this
Final Rule is a major rule requiring
review by the Congress under the
SBREFA because it will likely result in
an annual effect on the economy of $100
million.
E. Executive Order 13132—Federalism
We have reviewed this Final Rule in
accordance with E.O. 13132 on
federalism and have determined that it
does not have federalism implications.
The Final Rule does not have
substantial direct effects on States, on
the relationship between the States, or
on the distribution of power and
responsibilities among the various
levels of government as described by
E.O. 13132. Therefore, we have
determined that this Final Rule will not
have a sufficient federalism implication
to warrant the preparation of a summary
impact statement.
F. Executive Order 13175—Indian
Tribal Governments
We reviewed this Final Rule under
the terms of E.O. 13175 and determined
it not to have tribal implications. The
Final Rule does not have substantial
direct effects on one or more Indian
tribes, on the relationship between the
Federal Government and Indian tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian tribes. As a
result, no tribal summary impact
statement has been prepared.
G. Assessment of Federal Regulations
and Policies on Families
Section 654 of the Treasury and
General Government Appropriations
Act, enacted as part of the Omnibus
Consolidated and Emergency
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Supplemental Appropriations Act of
1999 (Pub. L. 105–277, 112 Stat. 2681)
requires us to assess the impact of this
Final Rule on family well-being. A rule
that is determined to have a negative
effect on families must be supported
with an adequate rationale. We have
assessed this Final Rule and determined
that it will not have a negative effect on
families.
H. Executive Order 12630—Government
Actions and Interference With
Constitutionally Protected Property
Rights
The Final Rule is not subject to E.O.
12630, Governmental Actions and
Interference with Constitutionally
Protected Property Rights, because it
does not involve implementation of a
policy with takings implications.
I. Executive Order 12988—Civil Justice
The Final Rule has been drafted and
reviewed in accordance with E.O.
12988, Civil Justice Reform, and will not
unduly burden the Federal court
system. The Department has developed
the Final Rule to minimize litigation
and provide a clear legal standard for
affected conduct, and has reviewed the
Final Rule carefully to eliminate
drafting errors and ambiguities.
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J. Plain Language
We drafted this Final Rule in plain
language.
K. Paperwork Reduction Act
As part of its continuing effort to
reduce paperwork and respondent
burden, the U.S. Department of Labor
(the Department) conducts a
preclearance consultation process to
provide the general public and Federal
agencies with an opportunity to
comment on proposed and continuing
collections of information in accordance
with the Paperwork Reduction Act of
1995 (PRA) (44 U.S.C. 3506(c)(2)(A)).
This helps to ensure that the public
understands the Department’s collection
instructions; respondents can provide
the requested data in the desired format,
reporting burden (time and financial
resources) is minimized, collection
instruments are clearly understood, and
the Department can properly assess the
impact of collection requirements on
respondents. Persons are not required to
respond to a collection of information
unless it displays a currently valid OMB
control number as required in 5 CFR
1320.11(l).
The information collected is
mandated in this Final Rule at Title 20
CFR 655.8, 655.9, 655.11, 655.12,
655.13, 655.15, 655.16, 655.17, 655.20,
655.32, 655.33, 655.35, 655.40, 655.42,
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655.43, 655.45, 655.46, 655.47, 655.48,
655.56, 655.57, 655.60, 655, 61, 655.62,
655.70, 655.71, 655.72, 655.73, and Title
29 CFR 503.16, 503.17, 503.43, and
503.51. In accordance with the PRA (44
U.S.C. 3501) information collection
requirements, which must be
implemented as a result of this
regulation, a clearance package
containing proposed changes to the
already approved collection was
submitted to OMB on March 18, 2011,
as part of the proposed rule to reform
the H–2B program for hiring temporary
non-agricultural aliens. The public was
given 60 days to comment on this
information collection.
The Department did not receive any
comments specifically related to this
section. The Department did receive
several comments suggesting that it
collect information about how many
U.S. workers and H–2B workers an
employer hires as a result of its
participation in this program and how
many of the H–2B workers were hired
from abroad as opposed to from within
the United States. The Department
agrees that this would be valuable
information and has decided to amend
ETA Form 9142 to collect from the
employer the number of H–2B and U.S.
workers it actually hired from within
the U.S. or from abroad based on its last
H–2B labor certification application, if
applicable.
The forms used to comply with this
Final Rule include those that were
required under the 2008 Final Rule,
except that ETA Form 9142, Appendix
B was modified to reflect the assurances
and obligations of the H–2B employer as
required under the compliance-based
system proposed in the NPRM and
retained in this Final Rule. Also, a new
form was created for registering as an
H–2B employer—the ETA Form 9155,
H–2B Registration—was developed at
the time of the NPRM in compliance
with the new provisions first proposed
in the NPRM and retained in the Final
Rule, and was available for public
comment.
The Department has made changes to
this Final Rule after receiving comments
to the NPRM. In addition to the change
discussed above, the Department has
also made changes to the forms for
consistency with other changes to the
Final Rule and for clarity. However,
these changes do not impact the overall
annual burden hours for the H–2B
program information collection. The
total costs associated with the form, as
defined by the PRA, are zero dollars per
employer for ETA Forms 9141, 9142,
and 9155.
This Final Rule utilizes the
information collection, which OMB first
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10147
approved on November 21, 2008 under
OMB control number 1205–0466. The
Department has simultaneously
submitted with this Final Rule an
information collection containing the
revised ETA Forms 9141 and ETA 9142,
and the new ETA Form 9155. The ETA
Form 9141 has a public reporting
burden estimated to average 1 hour per
response or application filed. The ETA
Form 9142 with Appendix B.1 has a
public reporting burden estimated to
average 1 hour per response or
application filed. Additionally, the ETA
Form 9155 has a public reporting
burden estimated to average 1 hour per
response or application filed.
For an additional explanation of how
the Department calculated the burden
hours and related costs, the PRA
packages for these information
collections may be obtained from the
RegInfo.gov Web site at https://
www.reginfo.gov/public/do/PRAMain or
by contacting the Department at: Office
of Policy Development and Research,
U.S. Department of Labor, 200
Constitution Ave. NW., Washington, DC
20210 or by phone request to 202–693–
3700 (this is not a toll-free number) or
by email at DOL_PRA_PUBLIC@dol.gov.
List of Subjects
20 CFR Part 655
Administrative practice and
procedure, Employment, Employment
and training, Enforcement, Foreign
workers, Forest and forest products,
Fraud, Health professions, Immigration,
Labor, Longshore and harbor work,
Migrant workers, Nonimmigrant
workers, Passports and visas, Penalties,
Reporting and recordkeeping
requirements, Unemployment, Wages,
Working conditions.
29 CFR Part 503
Administrative practice and
procedure, Employment, Foreign
Workers, Housing, Housing standards,
Immigration, Labor, Nonimmigrant
workers, Penalties, Transportation,
Wages.
Accordingly, the Department of Labor
amends 20 CFR part 655 and adds 29
CFR part 503 as follows:
Title 20—Employees’ Benefits
PART 655—TEMPORARY
EMPLOYMENT OF FOREIGN
WORKERS IN THE UNITED STATES
1. The authority citation for part 655
continues to read as follows:
■
Authority: Section 655.0 issued under 8
U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i)
and (ii), 1182(m), (n) and (t), 1184(c), (g), and
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(j), 1188, and 1288(c) and (d); sec. 3(c)(1),
Pub. L. 101–238, 103 Stat. 2099, 2102 (8
U.S.C. 1182 note); sec. 221(a), Pub. L. 101–
649, 104 Stat. 4978, 5027 (8 U.S.C. 1184
note); sec. 303(a)(8), Pub. L. 102–232, 105
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec.
323(c), Pub. L. 103–206, 107 Stat. 2428; sec.
412(e), Pub. L. 105–277, 112 Stat. 2681 (8
U.S.C. 1182 note); sec. 2(d), Pub. L. 106–95,
113 Stat. 1312, 1316 (8 U.S.C. 1182 note);
Pub. L. 109–423, 120 Stat. 2900; and 8 CFR
214.2(h)(4)(i).
Section 655.00 issued under 8 U.S.C.
1101(a)(15)(H)(ii), 1184(c), and 1188; and 8
CFR 214.2(h).
Subparts A and C issued under 8 CFR
214.2(h).
Subpart B issued under 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8
CFR 214.2(h).
Subparts D and E authority repealed.
Subparts F and G issued under 8 U.S.C.
1288(c) and (d); and sec. 323(c), Pub. L. 103–
206, 107 Stat. 2428.
Subparts H and I issued under 8 U.S.C.
1101(a)(15)(H)(i)(b) and (b)(1), 1182(n) and
(t), and 1184(g) and (j); sec. 303(a)(8), Pub. L.
102–232, 105 Stat. 1733, 1748 (8 U.S.C. 1101
note); sec. 412(e), Pub. L. 105–277, 112 Stat.
2681; and 8 CFR 214.2(h).
Subparts J and K authority repealed.
Subparts L and M issued under 8 U.S.C.
1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d),
Pub. L. 106–95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109–423, 120 Stat. 2900;
and 8 CFR 214.2(h).
2. In subpart A, revise §§ 655.1
through 655.6 to read as follows:
■
Subpart A—Labor Certification Process for
Temporary Non-Agricultural Employment in
the United States (H–2B Workers)
Sec.
655.1 Scope and purpose of subpart A.
655.2 Authority of the agencies, offices, and
divisions in the Department of Labor.
655.3 Territory of Guam.
655.4 Special procedures.
655.5 Definition of terms.
655.6 Temporary need.
*
*
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§ 655.1
*
*
*
Scope and purpose of subpart A.
The Immigration and Nationality Act
(INA) at 8 U.S.C. 1184(c)(1) requires the
Secretary of the Department of
Homeland Security (DHS) to consult
with appropriate agencies before
authorizing the entry of H–2B workers.
DHS regulations at 8 CFR 214.2(h)(6)(iv)
provide that an employer’s petition to
employ nonimmigrant workers on H–2B
visas for temporary non-agricultural
employment in the United States (U.S.),
except for Guam, must be accompanied
by an approved temporary labor
certification from the Secretary of Labor
(Secretary).
(a) Purpose. The temporary labor
certification reflects a determination by
the Secretary that:
(1) There are not sufficient U.S.
workers who are qualified and who will
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be available to perform the temporary
services or labor for which an employer
desires to hire foreign workers, and that
(2) The employment of the H–2B
worker(s) will not adversely affect the
wages and working conditions of U.S.
workers similarly employed.
(b) Scope. This subpart sets forth the
procedures governing the labor
certification process for the temporary
employment of nonimmigrant foreign
workers in the H–2B visa category, as
defined in 8 U.S.C. 1101(a)(15)(H)(ii)(b).
It also establishes obligations with
respect to the terms and conditions of
the temporary labor certification with
which H–2B employers must comply, as
well as their obligations to H–2B
workers and workers in corresponding
employment. Additionally, this subpart
sets forth integrity measures for
ensuring employers’ continued
compliance with the terms and
conditions of the temporary labor
certification.
§ 655.2 Authority of the agencies, offices,
and divisions in the Department of Labor.
(a) Authority and role of the Office of
Foreign Labor Certification (OFLC). The
Secretary has delegated her authority to
make determinations under this subpart,
pursuant to 8 CFR 214.2(h)(6)(iv), to the
Assistant Secretary for the Employment
and Training Administration (ETA),
who in turn has delegated that authority
to OFLC. Determinations on an
Application for Temporary Employment
Certification in the H–2B program are
made by the Administrator, OFLC who,
in turn, may delegate this responsibility
to designated staff members, e.g., a
Certifying Officer (CO).
(b) Authority of the Wage and Hour
Division (WHD). Pursuant to its
authority under the INA, 8 U.S.C.
1184(c)(14)(B), DHS has delegated to the
Secretary certain investigatory and law
enforcement functions with respect to
terms and conditions of employment in
the H–2B program. The Secretary has, in
turn, delegated that authority to WHD.
The regulations governing WHD
investigation and enforcement
functions, including those related to the
enforcement of temporary labor
certifications, issued under this subpart,
may be found in 29 CFR part 503.
(c) Concurrent authority. OFLC and
WHD have concurrent authority to
impose a debarment remedy under
§ 655.73 or under 29 CFR 503.24.
§ 655.3
Territory of Guam.
Subpart A of this part does not apply
to temporary employment in the
Territory of Guam, except that an
employer seeking certification for a job
opportunity on Guam must obtain a
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prevailing wage from the Department in
accordance with § 655.10 of this
subpart. The U.S. Department of Labor
(Department or DOL) does not certify to
the United States Citizenship and
Immigration Services (USCIS) of DHS
the temporary employment of
nonimmigrant foreign workers under
H–2B visas, or enforce compliance with
the provisions of the H–2B visa
program, in the Territory of Guam.
Under DHS regulations, administration
of the H–2B temporary labor
certification program is undertaken by
the Governor of Guam, or the Governor’s
designated representative.
§ 655.4
Special procedures.
To provide for a limited degree of
flexibility in carrying out the Secretary’s
responsibilities, the Administrator,
OFLC has the authority to establish,
continue, revise, or revoke special
procedures in the form of variances for
processing certain H–2B applications.
Employers must request and
demonstrate in writing to the
Administrator, OFLC that special
procedures are necessary. Before making
determinations under this section, the
Administrator, OFLC may consult with
affected employers and worker
representatives. Special procedures in
place on the effective date of this
regulation, including special procedures
currently in effect for handling
applications for tree planters and related
reforestation workers, professional
athletes, boilermakers coming to the
U.S. on an emergency basis, and
professional entertainers, will remain in
force until modified or withdrawn by
the Administrator, OFLC.
§ 655.5
Definition of terms.
For purposes of this subpart:
Act means the Immigration and
Nationality Act or INA, as amended, 8
U.S.C. 1101 et seq.
Administrative Law Judge (ALJ) means
a person within the Department’s Office
of Administrative Law Judges appointed
under 5 U.S.C. 3105.
Administrator, Office of Foreign Labor
Certification (OFLC) means the primary
official of the Office of Foreign Labor
Certification, ETA, or the
Administrator’s designee.
Administrator, Wage and Hour
Division (WHD) means the primary
official of the WHD, or the
Administrator’s designee.
Agent. (1) Agent means a legal entity
or person who:
(i) Is authorized to act on behalf of an
employer for temporary nonagricultural
labor certification purposes;
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(ii) Is not itself an employer, or a joint
employer, as defined in this part with
respect to a specific application; and
(iii) Is not an association or other
organization of employers.
(2) No agent who is under suspension,
debarment, expulsion, disbarment, or
otherwise restricted from practice before
any court, the Department, the
Executive Office for Immigration
Review under 8 CFR 1003.101, or DHS
under 8 CFR 292.3 may represent an
employer under this part.
Agricultural labor or services means
those duties and occupations defined in
subpart B of this part.
Applicant means a U.S. worker who
is applying for a job opportunity for
which an employer has filed an
Application for Temporary Employment
Certification (ETA Form 9142 and the
appropriate appendices).
Application for Temporary
Employment Certification means the
Office of Management and Budget
(OMB)-approved ETA Form 9142 and
the appropriate appendices, a valid
wage determination, as required by
§ 655.10, and a subsequently-filed U.S.
worker recruitment report, submitted by
an employer to secure a temporary labor
certification determination from DOL.
Area of intended employment means
the geographic area within normal
commuting distance of the place
(worksite address) of the job
opportunity for which the certification
is sought. There is no rigid measure of
distance that constitutes a normal
commuting distance or normal
commuting area, because there may be
widely varying factual circumstances
among different areas (e.g., average
commuting times, barriers to reaching
the worksite, or quality of the regional
transportation network). If the place of
intended employment is within a
Metropolitan Statistical Area (MSA),
including a multistate MSA, any place
within the MSA is deemed to be within
normal commuting distance of the place
of intended employment. The borders of
MSAs are not controlling in the
identification of the normal commuting
area; a location outside of an MSA may
be within normal commuting distance
of a location that is inside (e.g., near the
border of) the MSA.
Area of substantial unemployment
means a contiguous area with a
population of at least 10,000 in which
there is an average unemployment rate
equal to or exceeding 6.5 percent for the
12 months preceding the determination
of such areas made by the ETA.
Attorney means any person who is a
member in good standing of the bar of
the highest court of any State,
possession, territory, or commonwealth
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of the U.S., or the District of Columbia.
No attorney who is under suspension,
debarment, expulsion, disbarment, or
otherwise restricted from practice before
any court, the Department, the
Executive Office for Immigration
Review under 8 CFR 1003.101, or DHS
under 8 CFR 292.3 may represent an
employer under this subpart.
Board of Alien Labor Certification
Appeals (BALCA or Board) means the
permanent Board established by part
656 of this chapter, chaired by the Chief
Administrative Law Judge (Chief ALJ),
and consisting of ALJs assigned to the
Department and designated by the Chief
ALJ to be members of BALCA.
Certifying Officer (CO) means an
OFLC official designated by the
Administrator, OFLC to make
determinations on applications under
the H–2B program. The Administrator,
OFLC is the National CO. Other COs
may also be designated by the
Administrator, OFLC to make the
determinations required under this
subpart.
Chief Administrative Law Judge (Chief
ALJ) means the chief official of the
Department’s Office of Administrative
Law Judges or the Chief Administrative
Law Judge’s designee.
Corresponding employment. (1)
Corresponding employment means the
employment of workers who are not
H–2B workers by an employer that has
a certified H–2B Application for
Temporary Employment Certification
when those workers are performing
either substantially the same work
included in the job order or
substantially the same work performed
by the H–2B workers, except that
workers in the following two categories
are not included in corresponding
employment:
(i) Incumbent employees
continuously employed by the H–2B
employer to perform substantially the
same work included in the job order or
substantially the same work performed
by the H–2B workers during the 52
weeks prior to the period of
employment certified on the
Application for Temporary Employment
Certification and who have worked or
been paid for at least 35 hours in at least
48 of the prior 52 workweeks, and who
have worked or been paid for an average
of at least 35 hours per week over the
prior 52 weeks, as demonstrated on the
employer’s payroll records, provided
that the terms and working conditions
of their employment are not
substantially reduced during the period
of employment covered by the job order.
In determining whether this standard
was met, the employer may take credit
for any hours that were reduced by the
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10149
employee voluntarily choosing not to
work due to personal reasons such as
illness or vacation; or
(ii) Incumbent employees covered by
a collective bargaining agreement or an
individual employment contract that
guarantees both an offer of at least 35
hours of work each workweek and
continued employment with the H–2B
employer at least through the period of
employment covered by the job order,
except that the employee may be
dismissed for cause.
(2) To qualify as corresponding
employment, the work must be
performed during the period of the job
order, including any approved
extension thereof.
Date of need means the first date the
employer requires services of the H–2B
workers as listed on the Application for
Temporary Employment Certification.
Department of Homeland Security
(DHS) means the Federal Department
having jurisdiction over certain
immigration-related functions, acting
through its agencies, including USCIS.
Employee means a person who is
engaged to perform work for an
employer, as defined under the general
common law. Some of the factors
relevant to the determination of
employee status include: the hiring
party’s right to control the manner and
means by which the work is
accomplished; the skill required to
perform the work; the source of the
instrumentalities and tools for
accomplishing the work; the location of
the work; the hiring party’s discretion
over when and how long to work; and
whether the work is part of the regular
business of the hiring party. Other
applicable factors may be considered
and no one factor is dispositive. The
terms employee and worker are used
interchangeably in this subpart.
Employer means a person (including
any individual, partnership, association,
corporation, cooperative, firm, joint
stock company, trust, or other
organization with legal rights and
duties) that:
(1) Has a place of business (physical
location) in the U.S. and a means by
which it may be contacted for
employment;
(2) Has an employer relationship
(such as the ability to hire, pay, fire,
supervise or otherwise control the work
of employees) with respect to an H–2B
worker or a worker in corresponding
employment; and
(3) Possesses, for purposes of filing an
Application for Temporary Employment
Certification, a valid Federal Employer
Identification Number (FEIN).
Employer-client means an employer
that has entered into an agreement with
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a job contractor and that is not an
affiliate, branch or subsidiary of the job
contractor, under which the job
contractor provides services or labor to
the employer on a temporary basis and
will not exercise substantial, direct dayto-day supervision and control in the
performance of the services or labor to
be performed other than hiring, paying
and firing the workers.
Employment and Training
Administration (ETA) means the agency
within the Department which includes
OFLC and has been delegated authority
by the Secretary to fulfill the Secretary’s
mandate under the DHS regulations for
the administration and adjudication of
an Application for Temporary
Employment Certification and related
functions.
Federal holiday means a legal public
holiday as defined at 5 U.S.C. 6103.
Full-time means 35 or more hours of
work per week.
H–2B Petition means the DHS Petition
for a Nonimmigrant Worker form, or
successor form, and accompanying
documentation required by DHS for
employers seeking to employ foreign
persons as H–2B nonimmigrant workers.
The H–2B Petition includes the
approved Application for Temporary
Employment Certification and the Final
Determination letter.
H–2B Registration means the OMBapproved ETA Form 9155, submitted by
an employer to register its intent to hire
H–2B workers and to file an Application
for Temporary Employment
Certification.
H–2B worker means any temporary
foreign worker who is lawfully present
in the U.S. and authorized by DHS to
perform nonagricultural labor or
services of a temporary or seasonal
nature under 8 U.S.C.
1101(a)(15)(H)(ii)(b).
Job contractor means a person,
association, firm, or a corporation that
meets the definition of an employer and
that contracts services or labor on a
temporary basis to one or more
employers, which is not an affiliate,
branch or subsidiary of the job
contractor and where the job contractor
will not exercise substantial, direct dayto-day supervision and control in the
performance of the services or labor to
be performed other than hiring, paying
and firing the workers.
Job offer means the offer made by an
employer or potential employer of H–2B
workers to both U.S. and H–2B workers
describing all the material terms and
conditions of employment, including
those relating to wages, working
conditions, and other benefits.
Job opportunity means one or more
openings for full-time employment with
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the petitioning employer within a
specified area(s) of intended
employment for which the petitioning
employer is seeking workers.
Job order means the document
containing the material terms and
conditions of employment relating to
wages, hours, working conditions,
worksite and other benefits, including
obligations and assurances under 29
CFR part 503 and this subpart that is
posted between and among the State
Workforce Agencies (SWAs) on their job
clearance systems.
Joint employment means that where
two or more employers each have
sufficient definitional indicia of being
an employer to be considered the
employer of a worker, those employers
will be considered to jointly employ
that worker. Each employer in a joint
employment relationship to a worker is
considered a joint employer of that
worker.
Layoff means any involuntary
separation of one or more U.S.
employees without cause.
Metropolitan Statistical Area (MSA)
means a geographic entity defined by
OMB for use by Federal statistical
agencies in collecting, tabulating, and
publishing Federal statistics. A metro
area contains a core urban area of 50,000
or more population, and a micro area
contains an urban core of at least 10,000
(but fewer than 50,000) population.
Each metro or micro area consists of one
or more counties and includes the
counties containing the core urban area,
as well as any adjacent counties that
have a high degree of social and
economic integration (as measured by
commuting to work) with the urban
core.
National Prevailing Wage Center
(NPWC) means that office within OFLC
from which employers, agents, or
attorneys who wish to file an
Application for Temporary Employment
Certification receive a prevailing wage
determination (PWD).
NPWC Director means the OFLC
official to whom the Administrator,
OFLC has delegated authority to carry
out certain NPWC operations and
functions.
National Processing Center (NPC)
means the office within OFLC which is
charged with the adjudication of an
Application for Temporary Employment
Certification or other applications. For
purposes of this subpart, the NPC
receiving a request for an H–2B
Registration and an Application for
Temporary Employment Certification is
the Chicago NPC whose address is
published in the Federal Register.
NPC Director means the OFLC official
to whom the Administrator, OFLC has
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delegated authority for purposes of
certain Chicago NPC operations and
functions.
Non-agricultural labor and services
means any labor or services not
considered to be agricultural labor or
services as defined in subpart B of this
part. It does not include the provision
of services as members of the medical
profession by graduates of medical
schools.
Occupational employment statistics
(OES) survey means the program under
the jurisdiction of the Bureau of Labor
Statistics (BLS) that provides annual
wage estimates for occupations at the
State and MSA levels.
Offered wage means the wage offered
by an employer in an H–2B job order.
The offered wage must equal or exceed
the highest of the prevailing wage or
Federal, State or local minimum wage.
Office of Foreign Labor Certification
(OFLC) means the organizational
component of the ETA that provides
national leadership and policy guidance
and develops regulations to carry out
the Secretary’s responsibilities for the
admission of foreign workers to the U.S.
to perform work described in 8 U.S.C.
1101(a)(15)(H)(ii)(b).
Prevailing wage determination (PWD)
means the prevailing wage for the
position, as described in § 655.10, that
is the subject of the Application for
Temporary Employment Certification.
The PWD is made on ETA Form 9141,
Application for Prevailing Wage
Determination.
Professional athlete is defined in 8
U.S.C. 1182(a)(5)(A)(iii)(II), and means
an individual who is employed as an
athlete by:
(1) A team that is a member of an
association of six or more professional
sports teams whose total combined
revenues exceed $10,000,000 per year, if
the association governs the conduct of
its members and regulates the contests
and exhibitions in which its member
teams regularly engage; or
(2) Any minor league team that is
affiliated with such an association.
Secretary means the Secretary of
Labor, the chief official of the U.S.
Department of Labor, or the Secretary’s
designee.
Secretary of the Department of
Homeland Security means the chief
official of the U.S. Department of
Homeland Security (DHS) or the
Secretary of DHS’s designee.
Secretary of State means the chief
official of the U.S. Department of State
or the Secretary of State’s designee.
State Workforce Agency (SWA) means
a State government agency that receives
funds under the Wagner-Peyser Act (29
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U.S.C. 49 et seq.) to administer the
State’s public labor exchange activities.
Strike means a concerted stoppage of
work by employees as a result of a labor
dispute, or any concerted slowdown or
other concerted interruption of
operation (including stoppage by reason
of the expiration of a collective
bargaining agreement).
Successor in interest means:
(1) Where an employer has violated
29 CFR part 503, or this subpart, and
has ceased doing business or cannot be
located for purposes of enforcement, a
successor in interest to that employer
may be held liable for the duties and
obligations of the violating employer in
certain circumstances. The following
factors, as used under Title VII of the
Civil Rights Act and the Vietnam Era
Veterans’ Readjustment Assistance Act,
may be considered in determining
whether an employer is a successor in
interest; no one factor is dispositive, but
all of the circumstances will be
considered as a whole:
(i) Substantial continuity of the same
business operations;
(ii) Use of the same facilities;
(iii) Continuity of the work force;
(iv) Similarity of jobs and working
conditions;
(v) Similarity of supervisory
personnel;
(vi) Whether the former management
or owner retains a direct or indirect
interest in the new enterprise;
(vii) Similarity in machinery,
equipment, and production methods;
(viii) Similarity of products and
services; and
(ix) The ability of the predecessor to
provide relief.
(2) For purposes of debarment only,
the primary consideration will be the
personal involvement of the firm’s
ownership, management, supervisors,
and others associated with the firm in
the violation(s) at issue.
United States (U.S.) means the
continental U.S., Alaska, Hawaii, the
Commonwealth of Puerto Rico, and the
territories of Guam, the U.S. Virgin
Islands, and the Commonwealth of the
Northern Mariana Islands (CNMI).
United States Citizenship and
Immigration Services (USCIS) means the
Federal agency within DHS that makes
the determination under the INA
whether to grant petitions filed by
employers seeking H–2B workers to
perform temporary non-agricultural
work in the U.S.
United States worker (U.S. worker)
means a worker who is:
(1) A citizen or national of the U.S.;
(2) An alien who is lawfully admitted
for permanent residence in the U.S., is
admitted as a refugee under 8 U.S.C.
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1157, is granted asylum under 8 U.S.C.
1158, or is an immigrant otherwise
authorized (by the INA or by DHS) to be
employed in the U.S.; or
(3) An individual who is not an
unauthorized alien (as defined in 8
U.S.C. 1324a(h)(3)) with respect to the
employment in which the worker is
engaging.
Wage and Hour Division (WHD)
means the agency within the
Department with investigatory and law
enforcement authority, as delegated
from DHS, to carry out the provisions
under 8 U.S.C. 1184(c).
Wages mean all forms of cash
remuneration to a worker by an
employer in payment for personal
services.
§ 655.6
Temporary need.
(a) An employer seeking certification
under this subpart must establish that
its need for non-agricultural services or
labor is temporary, regardless of
whether the underlying job is
permanent or temporary. 8 CFR
214.2(h)(6)(ii)(A).
(b) The employer’s need is considered
temporary if justified to the CO as one
of the following: A one-time occurrence;
a seasonal need; a peakload need; or an
intermittent need, as defined by DHS. 8
CFR 214.2(h)(6)(ii)(B). Except where the
employer’s need is based on a one-time
occurrence, the CO will deny a request
for an H–2B Registration or an
Application for Temporary Employment
Certification where the employer has a
need lasting more than 9 months.
(c) A job contractor will only be
permitted to seek certification if it can
demonstrate through documentation its
own temporary need, not that of its
employer-client(s). A job contractor will
only be permitted to file applications
based on a seasonal need or a one-time
occurrence.
■ 3. In subpart A, add §§ 655.7 through
655.9 to read as follows:
Subpart A—Labor Certification Process for
Temporary Non-Agricultural Employment in
the United States (H–2B Workers)
*
*
*
*
*
Sec.
655.7 Persons and entities authorized to
file.
655.8 Requirements for agents.
655.9 Disclosure of foreign worker
recruitment.
*
*
§ 655.7
file.
*
*
*
Persons and entities authorized to
(a) Persons authorized to file. In
addition to the employer applicant, a
request for an H–2B Registration or an
Application for Temporary Employment
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10151
Certification may be filed by an attorney
or agent, as defined in § 655.5.
(b) Employer’s signature required.
Regardless of whether the employer is
represented by an attorney or agent, the
employer is required to sign the H–2B
Registration and Application for
Temporary Employment Certification
and all documentation submitted to the
Department.
§ 655.8
Requirements for agents.
An agent filing an Application for
Temporary Employment Certification on
behalf of an employer must provide:
(a) A copy of the agent agreement or
other document demonstrating the
agent’s authority to represent the
employer; and
(b) A copy of the Migrant and
Seasonal Agricultural Worker Protection
Act (MSPA) Farm Labor Contractor
Certificate of Registration, if the agent is
required under MSPA, at 29 U.S.C. 1801
et seq., to have such a certificate,
identifying the specific farm labor
contracting activities the agent is
authorized to perform.
§ 655.9 Disclosure of foreign worker
recruitment.
(a) The employer, and its attorney or
agent, as applicable, must provide a
copy of all agreements with any agent or
recruiter whom it engages or plans to
engage in the international recruitment
of H–2B workers under this Application
for Temporary Employment
Certification. These agreements must
contain the contractual prohibition
against charging fees as set forth in
§ 655.20(p).
(b) The employer, and its attorney or
agent, as applicable, must also provide
the identity and location of all persons
and entities hired by or working for the
recruiter or agent referenced in
paragraph (a) of this section, and any of
the agents or employees of those
persons and entities, to recruit
prospective foreign workers for the
H–2B job opportunities offered by the
employer.
(c) The Department will maintain a
publicly available list of agents and
recruiters who are party to the
agreements referenced in paragraph (a)
of this section, as well as the persons
and entities referenced in paragraph (b)
of this section and the locations in
which they are operating.
■ 4a. In subpart A add an undesignated
center heading before § 655.10 to read as
follows:
Prefiling Procedures
4b. In § 655.10, revise paragraphs (a),
(c) through (e), (h), and (i), and add
paragraphs (j) and (k), to read as follows:
■
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§ 655.10
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Prevailing wage.
§ 655.11
(a) Offered wage. The employer must
advertise the position to all potential
workers at a wage at least equal to the
prevailing wage obtained from the
NPWC, or the Federal, State or local
minimum wage, whichever is highest.
The employer must offer and pay this
wage (or higher) to both its H–2B
workers and its workers in
corresponding employment. The
issuance of a PWD under this section
does not permit an employer to pay a
wage lower than the highest wage
required by any applicable Federal,
State or local law.
*
*
*
*
*
(c) Request for PWD. (1) An employer
must request and receive a PWD from
the NPWC before filing the job order
with the SWA.
(2) The PWD must be valid on the
date the job order is posted.
(d) Multiple worksites. If the job
opportunity involves multiple worksites
within an area of intended employment
and different prevailing wage rates exist
for the opportunity within the area of
intended employment, the prevailing
wage is the highest applicable wage
among all the worksites.
(e) NPWC action. The NPWC will
provide the PWD, indicate the source,
and return the Application for
Prevailing Wage Determination (ETA
Form 9141) with its endorsement to the
employer.
*
*
*
*
*
(h) Validity period. The NPWC must
specify the validity period of the
prevailing wage, which in no event may
be more than 365 days and no less than
90 days from the date that the
determination is issued.
(i) Professional athletes. In computing
the prevailing wage for a professional
athlete when the job opportunity is
covered by professional sports league
rules or regulations, the wage set forth
in those rules or regulations is
considered the prevailing wage. 8 U.S.C.
1182(p)(2).
(j) Retention of documentation. The
employer must retain the PWD for 3
years from the date of issuance or the
date of a final determination on the
Application for Temporary Employment
Certification, whichever is later, and
submit it to a CO if requested by a
Notice of Deficiency, described in
§ 655.31, or audit, as described in
§ 655.70, or to a WHD representative
during a WHD investigation.
(k) Guam. The requirements of this
paragraph apply to any request filed for
an H–2B job opportunity on Guam.
■ 5. Revise § 655.11 to read as follows:
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Registration of H–2B employers.
All employers that desire to hire
H–2B workers must establish their need
for services or labor is temporary by
filing an H–2B Registration with the
Chicago NPC.
(a) Registration filing. An employer
must file an H–2B Registration. The
H–2B Registration must be accompanied
by documentation evidencing:
(1) The number of positions that will
be sought in the first year of registration;
(2) The time period of need for the
workers requested;
(3) That the nature of the employer’s
need for the services or labor to be
performed is non-agricultural and
temporary, and is justified as either a
one-time occurrence, a seasonal need, a
peakload need, or an intermittent need,
as defined at 8 CFR 214.2(h)(6)(ii)(B)
and § 655.6 (or in the case of job
contractors, a seasonal need or one-time
occurrence); and
(4) For job contractors, the job
contractor’s own seasonal need or onetime occurrence, such as through the
provision of payroll records.
(b) Original signature. The H–2B
Registration must bear the original
signature of the employer (and that of
the employer’s attorney or agent if
applicable). If and when the H–2B
Registration is permitted to be filed
electronically, the employer will satisfy
this requirement by signing the H–2B
Registration as directed by the CO.
(c) Timeliness of registration filing. A
completed request for an H–2B
Registration must be received by no less
than 120 calendar days and no more
than 150 calendar days before the
employer’s date of need, except where
the employer submits the H–2B
Registration in support of an emergency
filing under § 655.17.
(d) Temporary need. (1) The employer
must establish that its need for nonagricultural services or labor is
temporary, regardless of whether the
underlying job is permanent or
temporary. 8 CFR 214.2(h)(6)(ii)(A). A
job contractor must also demonstrate
through documentation its own seasonal
need or one-time occurrence.
(2) The employer’s need will be
assessed in accordance with the
definitions provided by the Secretary of
DHS and as further defined in § 655.6.
(e) NPC review. The CO will review
the H–2B Registration and its
accompanying documentation for
completeness and make a determination
based on the following factors:
(1) The job classification and duties
qualify as non-agricultural;
(2) The employer’s need for the
services or labor to be performed is
temporary in nature, and for job
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contractors, demonstration of the job
contractor’s own seasonal need or onetime occurrence;
(3) The number of worker positions
and period of need are justified; and
(4) The request represents a bona fide
job opportunity.
(f) Mailing and postmark
requirements. Any notice or request
pertaining to an H–2B Registration sent
by the CO to an employer requiring a
response will be mailed to the address
provided on the H–2B Registration using
methods to assure next day delivery,
including electronic mail. The
employer’s response to the notice or
request must be mailed using methods
to assure next day delivery, including
electronic mail, and be sent by the due
date specified by the CO or by the next
business day if the due date falls on a
Saturday, Sunday or Federal holiday.
(g) Request for information (RFI). If
the CO determines the H–2B
Registration cannot be approved, the CO
will issue an RFI. The RFI will be issued
within 7 business days of the CO’s
receipt of the H–2B Registration. The
RFI will:
(1) State the reason(s) why the H–2B
Registration cannot be approved and
what supplemental information or
documentation is needed to correct the
deficiencies;
(2) Specify a date, no later than 7
business days from the date the RFI is
issued, by which the supplemental
information or documentation must be
sent by the employer;
(3) State that, upon receipt of a
response to the RFI, the CO will review
the H–2B Registration as well as any
supplemental information and
documentation and issue a Notice of
Decision on the
H–2B Registration. The CO may, at his
or her discretion, issue one or more
additional RFIs before issuing a Notice
of Decision on the H–2B Registration;
and
(4) State that failure to comply with
an RFI, including not responding in a
timely manner or not providing all
required documentation within the
specified timeframe, will result in a
denial of the H–2B Registration.
(h) Notice of Decision. The CO will
notify the employer in writing of the
final decision on the H–2B Registration.
(1) Approved H–2B Registration. If the
H–2B Registration is approved, the CO
will send a Notice of Decision to the
employer, and a copy to the employer’s
attorney or agent, if applicable. The
Notice of Decision will notify the
employer that it is eligible to seek H–2B
workers in the occupational
classification for the anticipated number
of positions and period of need stated
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on the approved H–2B Registration. The
CO may approve the H–2B Registration
for a period of up to 3 consecutive years.
(2) Denied H–2B Registration. If the
H–2B Registration is denied, the CO will
send a Notice of Decision to the
employer, and a copy to the employer’s
attorney or agent, if applicable. The
Notice of Decision will:
(i) State the reason(s) why the H–2B
Registration is denied;
(ii) Offer the employer an opportunity
to request administrative review under
§ 655.61 within 10 business days from
the date the Notice of Decision is issued
and state that if the employer does not
request administrative review within
that period the denial is final.
(i) Retention of documents. All
employers filing an H–2B Registration
are required to retain any documents
and records not otherwise submitted
proving compliance with this subpart.
Such records and documents must be
retained for a period of 3 years from the
date of certification of the last
Application for Temporary Employment
Certification supported by the H–2B
Registration, if approved, or 3 years
from the date the decision is issued if
the H–2B Registration is denied or 3
years from the day the Department
receives written notification from the
employer withdrawing its pending H–
2B Registration.
(j) Transition period. In order to allow
OFLC to make the necessary changes to
its program operations to accommodate
the new registration process, OFLC will
announce in the Federal Register a
separate transition period for the
registration process, and until that time,
will continue to adjudicate temporary
need during the processing of
applications.
■ 6. In subpart A, add §§ 655.12 and
655.13 to read as follows:
sroberts on DSK5SPTVN1PROD with RULES
§ 655.12 Use of registration of H–2B
employers.
(a) Upon approval of the H–2B
Registration, the employer is authorized
for the specified period of up to 3
consecutive years from the date the H–
2B Registration is approved to file an
Application for Temporary Employment
Certification, unless:
(1) The number of workers to be
employed has increased by more than
20 percent (or 50 percent for employers
requesting fewer than 10 workers) from
the initial year;
(2) The dates of need for the job
opportunity have changed by more than
a total of 30 calendar days from the
initial year for the entire period of need;
(3) The nature of the job classification
and/or duties has materially changed; or
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(4) The temporary nature of the
employer’s need for services or labor to
be performed has materially changed.
(b) If any of the changes in paragraphs
(a)(1) through (4) of this section apply,
the employer must file a new H–2B
Registration in accordance with
§ 655.11.
§ 655.13
Review of PWDs.
(a) Request for review of PWDs. Any
employer desiring review of a PWD
must make a written request for such
review to the NPWC Director within 7
business days from the date the PWD is
issued. The request for review must
clearly identify the PWD for which
review is sought; set forth the particular
grounds for the request; and include any
materials submitted to the NPWC for
purposes of securing the PWD.
(b) NPWC review. Upon the receipt of
the written request for review, the
NPWC Director will review the
employer’s request and accompanying
documentation, including any
supplementary material submitted by
the employer, and after review shall
issue a Final Determination letter; that
letter may:
(1) Affirm the PWD issued by the
NPWC; or
(2) Modify the PWD.
(c) Request for review by BALCA. Any
employer desiring review of the NPWC
Director’s decision on a PWD must
make a written request for review of the
determination by BALCA within 10
business days from the date the Final
Determination letter is issued.
(1) The request for BALCA review
must be in writing and addressed to the
NPWC Director who made the final
determinations. Upon receipt of a
request for BALCA review, the NPWC
will prepare an appeal file and submit
it to BALCA.
(2) The request for review, statements,
briefs, and other submissions of the
parties must contain only legal
arguments and may refer to only the
evidence that was within the record
upon which the decision on the PWD
was based.
(3) BALCA will handle appeals in
accordance with § 655.61.
■ 7. In subpart A, add an undesignated
center heading above § 655.15 to read as
follows:
Application for Temporary
Employment Certification Filing
Procedures
■
8. Revise § 655.15 to read as follows:
§ 655.15
Application filing requirements.
All registered employers that desire to
hire H–2B workers must file an
Application for Temporary Employment
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10153
Certification with the NPC designated
by the Administrator, OFLC. Except for
employers that qualify for emergency
procedures at § 655.17, employers that
fail to register under the procedures in
§ 655.11 and/or that fail to submit a
PWD obtained under § 655.10 will not
be eligible to file an Application for
Temporary Employment Certification
and their applications will be returned
without review.
(a) What to file. A registered employer
seeking H–2B workers must file a
completed Application for Temporary
Employment Certification (ETA Form
9142 and the appropriate appendices
and valid PWD), a copy of the job order
being submitted concurrently to the
SWA serving the area of intended
employment, as set forth in § 655.16,
and copies of all contracts and
agreements with any agent and/or
recruiter, executed in connection with
the job opportunities and all
information required, as specified in
§§ 655.8 and 655.9.
(b) Timeliness. A completed
Application for Temporary Employment
Certification must be filed no more than
90 calendar days and no less than 75
calendar days before the employer’s
date of need.
(c) Location and method of filing. The
employer must submit the Application
for Temporary Employment
Certification and all required supporting
documentation to the NPC. At a future
date the Department may also permit an
Application for Temporary Employment
Certification to be filed electronically in
addition to or instead of by mail. Notice
of such procedure will be published in
the Federal Register.
(d) Original signature. The
Application for Temporary Employment
Certification must bear the original
signature of the employer (and that of
the employer’s authorized attorney or
agent if the employer is so represented).
If and when an Application for
Temporary Employment Certification is
permitted to be filed electronically, the
employer will satisfy this requirement
by signing the Application for
Temporary Employment Certification as
directed by the CO.
(e) Requests for multiple positions.
Certification of more than one position
may be requested on the Application for
Temporary Employment Certification as
long as all H–2B workers will perform
the same services or labor under the
same terms and conditions, in the same
occupation, in the same area of intended
employment, and during the same
period of employment.
(f) Separate applications. Only one
Application for Temporary Employment
Certification may be filed for worksite(s)
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within one area of intended
employment for each job opportunity
with an employer for each period of
employment. Except where otherwise
permitted under § 655.4, an association
or other organization of employers is not
permitted to file master applications on
behalf of its employer-members under
the H–2B program.
(g) One-time occurrence. Where a onetime occurrence lasts longer than 1 year,
the CO will instruct the employer on
any additional recruitment requirements
with respect to the continuing validity
of the labor market test or offered wage
obligation.
(h) Information dissemination.
Information received in the course of
processing a request for an H–2B
Registration, an Application for
Temporary Employment Certification or
program integrity measures such as
audits may be forwarded from OFLC to
WHD, or any other Federal agency as
appropriate, for investigative and/or
enforcement purposes.
■ 9. Add § 655.16 to read as follows:
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§ 655.16
Filing of the job order at the SWA.
(a) Submission of the job order. (1)
The employer must submit the job order
to the SWA serving the area of intended
employment at the same time it submits
the Application for Temporary
Employment Certification and a copy of
the job order to the NPC in accordance
with § 655.15. If the job opportunity is
located in more than one State within
the same area of intended employment,
the employer may submit the job order
to any one of the SWAs having
jurisdiction over the anticipated
worksites, but must identify the
receiving SWA on the copy of the job
order submitted to the NPC with its
Application for Temporary Employment
Certification. The employer must inform
the SWA that the job order is being
placed in connection with a
concurrently submitted Application for
Temporary Employment Certification
for H–2B workers.
(2) In addition to complying with
State-specific requirements governing
job orders, the job order submitted to
the SWA must satisfy the requirements
set forth in § 655.18.
(b) SWA review of the job order. The
SWA must review the job order and
ensure that it complies with criteria set
forth in § 655.18. If the SWA determines
that the job order does not comply with
the applicable criteria, the SWA must
inform the CO at the NPC of the noted
deficiencies within 6 business days of
receipt of the job order.
(c) Intrastate and interstate clearance.
Upon receipt of the Notice of
Acceptance, as described in § 655.33,
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the SWA must promptly place the job
order in intrastate clearance and provide
to other states as directed by the CO.
(d) Duration of job order posting and
SWA referral of U.S. workers. Upon
receipt of the Notice of Acceptance, any
SWA in receipt of the employer’s job
order must keep the job order on its
active file until the end of the
recruitment period, as set forth in
§ 655.40(c), and must refer to the
employer in a manner consistent with
§ 655.47 all qualified U.S. workers who
apply for the job opportunity or on
whose behalf a job application is made.
(e) Amendments to a job order. The
employer may amend the job order at
any time before the CO makes a final
determination, in accordance with
procedures set forth in § 655.35.
■ 10. Revise § 655.17 to read as follows:
§ 655.17
Emergency situations.
(a) Waiver of time period. The CO may
waive the time period(s) for filing an
H–2B Registration and/or an
Application for Temporary Employment
Certification for employers that have
good and substantial cause, provided
that the CO has sufficient time to
thoroughly test the domestic labor
market on an expedited basis and to
make a final determination as required
by § 655.50.
(b) Employer requirements. The
employer requesting a waiver of the
required time period(s) must submit to
the NPC a request for a waiver of the
time period requirement, a completed
Application for Temporary Employment
Certification and the proposed job order
identifying the SWA serving the area of
intended employment, and must
otherwise meet the requirements of
§ 655.15. If the employer did not
previously apply for an H–2B
Registration, the employer must also
submit a completed H–2B Registration
with all supporting documentation, as
required by § 655.11. If the employer
did not previously apply for a PWD, the
employer must also submit a completed
PWD request. The employer’s waiver
request must include detailed
information describing the good and
substantial cause that has necessitated
the waiver request. Good and
substantial cause may include, but is
not limited to, the substantial loss of
U.S. workers due to Acts of God, or a
similar unforeseeable man-made
catastrophic event (such as an oil spill
or controlled flooding) that is wholly
outside of the employer’s control,
unforeseeable changes in market
conditions, or pandemic health issues.
A denial of a previously submitted
H–2B Registration in accordance with
the procedures set forth in § 655.11 does
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not constitute good and substantial
cause necessitating a waiver under this
section.
(c) Processing of emergency
applications. The CO will process the
emergency H–2B Registration and/or
Application for Temporary Employment
Certification and job order in a manner
consistent with the provisions of this
subpart and make a determination on
the Application for Temporary
Employment Certification in accordance
with § 655.50. If the CO grants the
waiver request, the CO will forward a
Notice of Acceptance and the approved
job order to the SWA serving the area
of intended employment identified by
the employer in the job order. If the CO
determines that the certification cannot
be granted because, under paragraph (a)
of this section, the request for
emergency filing is not justified and/or
there is not sufficient time to make a
determination of temporary need or
ensure compliance with the criteria for
certification contained in § 655.51, the
CO will send a Final Determination
letter to the employer in accordance
with § 655.53.
■ 11. Add §§ 655.18 and 655.19 to read
as follows:
§ 655.18 Job order assurances and
contents.
(a) General. Each job order placed in
connection with an Application for
Temporary Employment Certification
must at a minimum include the
information contained in paragraph (b)
of this section. In addition, by
submitting the Application for
Temporary Employment Certification,
an employer agrees to comply with the
following assurances with respect to
each job order:
(1) Prohibition against preferential
treatment. The employer’s job order
must offer to U.S. workers no less than
the same benefits, wages, and working
conditions that the employer is offering,
intends to offer, or will provide to
H–2B workers. Job offers may not
impose on U.S. workers any restrictions
or obligations that will not be imposed
on the employer’s H–2B workers. This
does not relieve the employer from
providing to H–2B workers at least the
minimum benefits, wages, and working
conditions which must be offered to
U.S. workers consistent with this
section.
(2) Bona fide job requirements. Each
job qualification and requirement must
be listed in the job order and must be
bona fide and consistent with the
normal and accepted qualifications and
requirements imposed by non-H–2B
employers in the same occupation and
area of intended employment.
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(b) Contents. In addition to complying
with the assurances in paragraph (a) of
this section, the employer’s job order
must meet the following requirements:
(1) State the employer’s name and
contact information;
(2) Indicate that the job opportunity is
a temporary, full-time position,
including the total number of job
openings the employer intends to fill;
(3) Describe the job opportunity for
which certification is sought with
sufficient information to apprise U.S.
workers of the services or labor to be
performed, including the duties, the
minimum education and experience
requirements, the work hours and days,
and the anticipated start and end dates
of the job opportunity;
(4) Indicate the geographic area of
intended employment with enough
specificity to apprise applicants of any
travel requirements and where
applicants will likely have to reside to
perform the services or labor;
(5) Specify the wage that the employer
is offering, intends to offer, or will
provide to H–2B workers, or, in the
event that there are multiple wage offers
(such as where an itinerary is
authorized through special procedures
for an employer), the range of wage
offers, and ensure that the wage offer
equals or exceeds the highest of the
prevailing wage or the Federal, State, or
local minimum wage;
(6) If applicable, specify that overtime
will be available to the worker and the
wage offer(s) for working any overtime
hours;
(7) If applicable, state that on-the-job
training will be provided to the worker;
(8) State that the employer will use a
single workweek as its standard for
computing wages due;
(9) Specify the frequency with which
the worker will be paid, which must be
at least every 2 weeks or according to
the prevailing practice in the area of
intended employment, whichever is
more frequent;
(10) If the employer provides the
worker with the option of board,
lodging, or other facilities, including
fringe benefits, or intends to assist
workers to secure such lodging, disclose
the provision and cost of the board,
lodging, or other facilities, including
fringe benefits or assistance to be
provided;
(11) State that the employer will make
all deductions from the worker’s
paycheck required by law. Specify any
deductions the employer intends to
make from the worker’s paycheck which
are not required by law, including, if
applicable, any deductions for the
reasonable cost of board, lodging, or
other facilities;
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(12) Detail how the worker will be
provided with or reimbursed for
transportation and subsistence from the
place from which the worker has come
to work for the employer, whether in the
U.S. or abroad, to the place of
employment, if the worker completes
50 percent of the period of employment
covered by the job order, consistent
with § 655.20(j)(1)(i);
(13) State that the employer will
provide or pay for the worker’s cost of
return transportation and daily
subsistence from the place of
employment to the place from which
the worker, disregarding intervening
employment, departed to work for the
employer, if the worker completes the
certified period of employment or is
dismissed from employment for any
reason by the employer before the end
of the period, consistent with
§ 655.20(j)(1)(ii);
(14) If applicable, state that the
employer will provide daily
transportation to and from the worksite;
(15) State that the employer will
reimburse the H–2B worker in the first
workweek for all visa, visa processing,
border crossing, and other related fees,
including those mandated by the
government, incurred by the H–2B
worker (but need not include passport
expenses or other charges primarily for
the benefit of the worker);
(16) State that the employer will
provide to the worker, without charge or
deposit charge, all tools, supplies, and
equipment required to perform the
duties assigned, in accordance with
§ 655.20(k);
(17) State the applicability of the
three-fourths guarantee, offering the
worker employment for a total number
of work hours equal to at least threefourths of the workdays of each 12-week
period, if the period of employment
covered by the job order is 120 or more
days, or each 6-week period, if the
period of employment covered by the
job order is less than 120 days, in
accordance with § 655.20(f); and
(18) Instruct applicants to inquire
about the job opportunity or send
applications, indications of availability,
and/or resumes directly to the nearest
office of the SWA in the State in which
the advertisement appeared and include
the SWA contact information.
§ 655.19 Job contractor filing
requirements.
(a) Provided that a job contractor and
any employer-client are joint employers,
a job contractor may submit an
Application for Temporary Employment
Certification on behalf of itself and that
employer-client.
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10155
(b) A job contractor must have
separate contracts with each different
employer-client. Each contract or
agreement may support only one
Application for Temporary Employment
Certification for each employer-client
job opportunity within a single area of
intended employment.
(c) Either the job contractor or its
employer-client may submit an ETA
Form 9141, Application for Prevailing
Wage Determination, describing the job
opportunity to the NPWC. However,
each of the joint employers is separately
responsible for ensuring that the wage
offer listed on the Application for
Temporary Employment Certification,
ETA Form 9142, and related recruitment
at least equals the prevailing wage rate
determined by the NPWC and that all
other wage obligations are met.
(d)(1) A job contractor that is filing as
a joint employer with its employerclient must submit to the NPC a
completed Application for Temporary
Employment Certification, ETA Form
9142, that clearly identifies the joint
employers (the job contractor and its
employer-client) and the employment
relationship (including the actual
worksite), in accordance with the
instructions provided by the
Department. The Application for
Temporary Employment Certification
must bear the original signature of the
job contractor and the employer-client
and be accompanied by a recruitment
report bearing both joint employers’
signatures and the contract or agreement
establishing the employers’ relationship
related to the workers sought.
(2) By signing the Application for
Temporary Employment Certification,
each employer independently attests to
the conditions of employment required
of an employer participating in the H–
2B program and assumes full
responsibility for the accuracy of the
representations made in the application
and for all of the responsibilities of an
employer in the H–2B program.
(e)(1) Either the job contractor or its
employer-client may place the required
job order and conduct recruitment as
described in § 655.16 and §§ 655.42–46.
Also, either one of the joint employers
may assume responsibility for
interviewing applicants. However, both
of the joint employers must sign the
recruitment report that is submitted to
the NPC with the Application for
Temporary Employment Certification,
ETA Form 9142.
(2) The job order and all recruitment
conducted by joint employers must
satisfy the content requirements
identified in § 655.18 and § 655.41.
Additionally, in order to fully apprise
applicants of the job opportunity and
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avoid potential confusion inherent in a
job opportunity involving two
employers, joint employer recruitment
must clearly identify both employers
(the job contractor and its employerclient) by name and must clearly
identify the worksite location(s) where
workers will perform labor or services.
(3)(i) Provided that all of the
employer-clients’ job opportunities are
in the same occupation and area of
intended employment and have the
same requirements and terms and
conditions of employment, including
dates of employment, a job contractor
may combine more than one of its joint
employer employer-clients’ job
opportunities in a single advertisement.
Each advertisement must fully apprise
potential workers of the job opportunity
available with each employer-client and
otherwise satisfy the advertising content
requirements required for all H–2Brelated advertisements, as identified in
§ 655.41. Such a shared advertisement
must clearly identify the job contractor
by name, the joint employment
relationship, and the number of workers
sought for each job opportunity,
identified by employer-client name and
location (e.g. 5 openings with EmployerClient 1 (worksite location), 3 openings
with Employer-Client 2 (worksite
location)).
(ii) In addition, the advertisement
must contain the following statement:
‘‘Applicants may apply for any or all of
the jobs listed. When applying, please
identify the job(s) (by company and
work location) you are applying to for
the entire period of employment
specified.’’ If an applicant fails to
identify one or more specific work
location(s), that applicant is presumed
to have applied to all work locations
listed in the advertisement.
(f) If an application for joint
employers is approved, the NPC will
issue one certification and send it to the
job contractor. In order to ensure notice
to both employers, a courtesy copy of
the certification cover letter will be sent
to the employer-client.
(g) When submitting a certified
Application for Temporary Employment
Certification to USCIS, the job
contractor should submit the complete
ETA Form 9142 containing the original
signatures of both the job contractor and
employer-client.
12. In subpart A, add an undesignated
center heading before § 655.20 to read as
follows:
■
Assurances and Obligations
■
13. Revise § 655.20 to read as follows:
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§ 655.20 Assurances and obligations of
H–2B employers.
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
following conditions with respect to its
H–2B workers and any workers in
corresponding employment:
(a) Rate of pay. (1) The offered wage
in the job order equals or exceeds the
highest of the prevailing wage or
Federal minimum wage, State minimum
wage, or local minimum wage. The
employer must pay at least the offered
wage, free and clear, during the entire
period of the Application for Temporary
Employment Certification granted by
OFLC.
(2) The offered wage is not based on
commissions, bonuses, or other
incentives, including paying on a piecerate basis, unless the employer
guarantees a wage earned every
workweek that equals or exceeds the
offered wage.
(3) If the employer requires one or
more minimum productivity standards
of workers as a condition of job
retention, the standards must be
specified in the job order and the
employer must demonstrate that they
are normal and usual for non-H–2B
employers for the same occupation in
the area of intended employment.
(4) An employer that pays on a piecerate basis must demonstrate that the
piece rate is no less than the normal rate
paid by non-H–2B employers to workers
performing the same activity in the area
of intended employment. The average
hourly piece rate earnings must result in
an amount at least equal to the offered
wage. If the worker is paid on a piece
rate basis and at the end of the
workweek the piece rate does not result
in average hourly piece rate earnings
during the workweek at least equal to
the amount the worker would have
earned had the worker been paid at the
offered hourly wage, then the employer
must supplement the worker’s pay at
that time so that the worker’s earnings
are at least as much as the worker would
have earned during the workweek if the
worker had instead been paid at the
offered hourly wage for each hour
worked.
(b) Wages free and clear. The payment
requirements for wages in this section
will be satisfied by the timely payment
of such wages to the worker either in
cash or negotiable instrument payable at
par. The payment must be made finally
and unconditionally and ‘‘free and
clear.’’ The principles applied in
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determining whether deductions are
reasonable and payments are received
free and clear and the permissibility of
deductions for payments to third
persons are explained in more detail in
29 CFR part 531.
(c) Deductions. The employer must
make all deductions from the worker’s
paycheck required by law. The job order
must specify all deductions not required
by law which the employer will make
from the worker’s pay; any such
deductions not disclosed in the job
order are prohibited. The wage payment
requirements of paragraph (b) of this
section are not met where unauthorized
deductions, rebates, or refunds reduce
the wage payment made to the worker
below the minimum amounts required
by the offered wage or where the worker
fails to receive such amounts free and
clear because the worker ‘‘kicks back’’
directly or indirectly to the employer or
to another person for the employer’s
benefit the whole or part of the wages
delivered to the worker. Authorized
deductions are limited to: Those
required by law, such as taxes payable
by workers that are required to be
withheld by the employer and amounts
due workers which the employer is
required by court order to pay to
another; deductions for the reasonable
cost or fair value of board, lodging, and
facilities furnished; and deductions of
amounts which are authorized to be
paid to third persons for the worker’s
account and benefit through his or her
voluntary assignment or order or which
are authorized by a collective bargaining
agreement with bona fide
representatives of workers which covers
the employer. Deductions for amounts
paid to third persons for the worker’s
account and benefit which are not so
authorized or are contrary to law or
from which the employer, agent or
recruiter including any agents or
employees of these entities, or any
affiliated person derives any payment,
rebate, commission, profit, or benefit
directly or indirectly, may not be made
if they reduce the actual wage paid to
the worker below the offered wage
indicated on the Application for
Temporary Employment Certification.
(d) Job opportunity is full-time. The
job opportunity is a full-time temporary
position, consistent with § 655.5, and
the employer must use a single
workweek as its standard for computing
wages due. An employee’s workweek
must be a fixed and regularly recurring
period of 168 hours—seven consecutive
24-hour periods. It need not coincide
with the calendar week but may begin
on any day and at any hour of the day.
(e) Job qualifications and
requirements. Each job qualification and
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requirement must be listed in the job
order and must be bona fide and
consistent with the normal and accepted
qualifications and requirements
imposed by non-H–2B employers in the
same occupation and area of intended
employment. The employer’s job
qualifications and requirements
imposed on U.S. workers must be no
less favorable than the qualifications
and requirements that the employer is
imposing or will impose on H–2B
workers. A qualification means a
characteristic that is necessary to the
individual’s ability to perform the job in
question. A requirement means a term
or condition of employment which a
worker is required to accept in order to
obtain the job opportunity. The CO may
require the employer to submit
documentation to substantiate the
appropriateness of any job qualification
and/or requirement specified in the job
order.
(f) Three-fourths guarantee. (1) The
employer must guarantee to offer the
worker employment for a total number
of work hours equal to at least threefourths of the workdays in each 12-week
period (each 6-week period if the period
of employment covered by the job order
is less than 120 days) beginning with
the first workday after the arrival of the
worker at the place of employment or
the advertised first date of need,
whichever is later, and ending on the
expiration date specified in the job
order or in its extensions, if any. See the
exception in paragraph (y) of this
section.
(2) For purposes of this paragraph a
workday means the number of hours in
a workday as stated in the job order. The
employer must offer a total number of
hours of work to ensure the provision of
sufficient work to reach the threefourths guarantee in each 12-week
period (each 6-week period if the period
of employment covered by the job order
is less than 120 days) during the work
period specified in the job order, or
during any modified job order period to
which the worker and employer have
mutually agreed and that has been
approved by the CO.
(3) In the event the worker begins
working later than the specified
beginning date the guarantee period
begins with the first workday after the
arrival of the worker at the place of
employment, and continues until the
last day during which the job order and
all extensions thereof are in effect.
(4) The 12-week periods (6-week
periods if the period of employment
covered by the job order is less than 120
days) to which the guarantee applies are
based upon the workweek used by the
employer for pay purposes. The first
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12-week period (or 6-week period, as
appropriate) also includes any partial
workweek, if the first workday after the
worker’s arrival at the place of
employment is not the beginning of the
employer’s workweek, with the
guaranteed number of hours increased
on a pro rata basis (thus, the first period
may include up to 12 weeks and 6 days
(or 6 weeks and 6 days, as appropriate)).
The final 12-week period (or 6-week
period, as appropriate) includes any
time remaining after the last full
12-week period (or 6-week period) ends,
and thus may be as short as 1 day, with
the guaranteed number of hours
decreased on a pro rata basis.
(5) Therefore, if, for example, a job
order is for a 32-week period (a period
greater than 120 days), during which the
normal workdays and work hours for
the workweek are specified as 5 days a
week, 7 hours per day, the worker
would have to be guaranteed
employment for at least 315 hours (12
weeks × 35 hours/week = 420 hours ×
75 percent = 315) in the first 12-week
period, at least 315 hours in the second
12-week period, and at least 210 hours
(8 weeks × 35 hours/week = 280 hours
× 75 percent = 210) in the final partial
period. If the job order is for a 16-week
period (less than 120 days), during
which the normal workdays and work
hours for the workweek are specified as
5 days a week, 7 hours per day, the
worker would have to be guaranteed
employment for at least 157.5 hours (6
weeks × 35 hours/week = 210 hours ×
75 percent = 157.5) in the first 6-week
period, at least 157.5 hours in the
second 6-week period, and at least 105
hours (4 weeks × 35 hours/week = 140
hours × 75 percent = 105) in the final
partial period.
(6) If the worker is paid on a piece rate
basis, the employer must use the
worker’s average hourly piece rate
earnings or the offered wage, whichever
is higher, to calculate the amount due
under the guarantee.
(7) A worker may be offered more
than the specified hours of work on a
single workday. For purposes of meeting
the guarantee, however, the worker will
not be required to work for more than
the number of hours specified in the job
order for a workday. The employer,
however, may count all hours actually
worked in calculating whether the
guarantee has been met. If during any
12-week period (6-week period if the
period of employment covered by the
job order is less than 120 days) during
the period of the job order the employer
affords the U.S. or H–2B worker less
employment than that required under
paragraph (f)(1) of this section, the
employer must pay such worker the
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10157
amount the worker would have earned
had the worker, in fact, worked for the
guaranteed number of days. An
employer has not met the work
guarantee if the employer has merely
offered work on three-fourths of the
workdays in an 12-week period (or 6week period, as appropriate) if each
workday did not consist of a full
number of hours of work time as
specified in the job order.
(8) Any hours the worker fails to
work, up to a maximum of the number
of hours specified in the job order for a
workday, when the worker has been
offered an opportunity to work in
accordance with paragraph (f)(1) of this
section, and all hours of work actually
performed (including voluntary work
over 8 hours in a workday), may be
counted by the employer in calculating
whether each 12-week period (or 6-week
period, as appropriate) of guaranteed
employment has been met. An employer
seeking to calculate whether the
guaranteed number of hours has been
met must maintain the payroll records
in accordance with this part.
(g) Impossibility of fulfillment. If,
before the expiration date specified in
the job order, the services of the worker
are no longer required for reasons
beyond the control of the employer due
to fire, weather, or other Act of God, or
similar unforeseeable man-made
catastrophic event (such as an oil spill
or controlled flooding) that is wholly
outside the employer’s control that
makes the fulfillment of the job order
impossible, the employer may terminate
the job order with the approval of the
CO. In the event of such termination of
a job order, the employer must fulfill a
three-fourths guarantee, as described in
paragraph (f) of this section, for the time
that has elapsed from the start date
listed in the job order or the first
workday after the arrival of the worker
at the place of employment, whichever
is later, to the time of its termination.
The employer must make efforts to
transfer the H–2B worker or worker in
corresponding employment to other
comparable employment acceptable to
the worker and consistent with the INA,
as applicable. If a transfer is not
effected, the employer must return the
worker, at the employer’s expense, to
the place from which the worker
(disregarding intervening employment)
came to work for the employer, or
transport the worker to the worker’s
next certified H–2B employer,
whichever the worker prefers.
(h) Frequency of pay. The employer
must state in the job order the frequency
with which the worker will be paid,
which must be at least every 2 weeks or
according to the prevailing practice in
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the area of intended employment,
whichever is more frequent. Employers
must pay wages when due.
(i) Earnings statements. (1) The
employer must keep accurate and
adequate records with respect to the
workers’ earnings, including but not
limited to: Records showing the nature,
amount and location(s) of the work
performed; the number of hours of work
offered each day by the employer
(broken out by hours offered both in
accordance with and over and above the
three-fourths guarantee in paragraph (f)
of this section); the hours actually
worked each day by the worker; if the
number of hours worked by the worker
is less than the number of hours offered,
the reason(s) the worker did not work;
the time the worker began and ended
each workday; the rate of pay (both
piece rate and hourly, if applicable); the
worker’s earnings per pay period; the
worker’s home address; and the amount
of and reasons for any and all
deductions taken from or additions
made to the worker’s wages.
(2) The employer must furnish to the
worker on or before each payday in one
or more written statements the
following information:
(i) The worker’s total earnings for
each workweek in the pay period;
(ii) The worker’s hourly rate and/or
piece rate of pay;
(iii) For each workweek in the pay
period the hours of employment offered
to the worker (showing offers in
accordance with the three-fourths
guarantee as determined in paragraph (f)
of this section, separate from any hours
offered over and above the guarantee);
(iv) For each workweek in the pay
period the hours actually worked by the
worker;
(v) An itemization of all deductions
made from or additions made to the
worker’s wages;
(vi) If piece rates are used, the units
produced daily;
(vii) The beginning and ending dates
of the pay period; and
(viii) The employer’s name, address
and FEIN.
(j) Transportation and visa fees. (1)(i)
Transportation to the place of
employment. The employer must
provide or reimburse the worker for
transportation and subsistence from the
place from which the worker has come
to work for the employer, whether in the
U.S. or abroad, to the place of
employment if the worker completes 50
percent of the period of employment
covered by the job order (not counting
any extensions). The employer may
arrange and pay for the transportation
and subsistence directly, advance at a
minimum the most economical and
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reasonable common carrier cost of the
transportation and subsistence to the
worker before the worker’s departure, or
pay the worker for the reasonable costs
incurred by the worker. When it is the
prevailing practice of non-H–2B
employers in the occupation in the area
to do so or when the employer extends
such benefits to similarly situated H–2B
workers, the employer must advance the
required transportation and subsistence
costs (or otherwise provide them) to
workers in corresponding employment
who are traveling to the employer’s
worksite. The amount of the
transportation payment must be no less
(and is not required to be more) than the
most economical and reasonable
common carrier transportation charges
for the distances involved. The amount
of the daily subsistence must be at least
the amount permitted in § 655.173 of
subpart B of this part. Where the
employer will reimburse the reasonable
costs incurred by the worker, it must
keep accurate and adequate records of:
The cost of transportation and
subsistence incurred by the worker; the
amount reimbursed; and the dates of
reimbursement. Note that the FLSA
applies independently of the H–2B
requirements and imposes obligations
on employers regarding payment of
wages.
(ii) Transportation from the place of
employment. If the worker completes
the period of employment covered by
the job order (not counting any
extensions), or if the worker is
dismissed from employment for any
reason by the employer before the end
of the period, and the worker has no
immediate subsequent H–2B
employment, the employer must
provide or pay at the time of departure
for the worker’s cost of return
transportation and daily subsistence
from the place of employment to the
place from which the worker,
disregarding intervening employment,
departed to work for the employer. If the
worker has contracted with a
subsequent employer that has not
agreed in the job order to provide or pay
for the worker’s transportation from the
employer’s worksite to such subsequent
employer’s worksite, the employer must
provide or pay for that transportation
and subsistence. If the worker has
contracted with a subsequent employer
that has agreed in the job order to
provide or pay for the worker’s
transportation from the employer’s
worksite to such subsequent employer’s
worksite, the subsequent employer must
provide or pay for such expenses.
(iii) Employer-provided
transportation. All employer-provided
transportation must comply with all
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applicable Federal, State, and local laws
and regulations and must provide, at a
minimum, the same vehicle safety
standards, driver licensure
requirements, and vehicle insurance as
required under 49 CFR parts 390, 393,
and 396.
(iv) Disclosure. All transportation and
subsistence costs that the employer will
pay must be disclosed in the job order.
(2) The employer must pay or
reimburse the worker in the first
workweek for all visa, visa processing,
border crossing, and other related fees
(including those mandated by the
government) incurred by the H–2B
worker, but not for passport expenses or
other charges primarily for the benefit of
the worker.
(k) Employer-provided items. The
employer must provide to the worker,
without charge or deposit charge, all
tools, supplies, and equipment required
to perform the duties assigned.
(l) Disclosure of job order. The
employer must provide to an H–2B
worker if outside of the U.S. no later
than the time at which the worker
applies for the visa, or to a worker in
corresponding employment no later
than on the day work commences, a
copy of the job order including any
subsequent approved modifications. For
an H–2B worker changing employment
from an H–2B employer to a subsequent
H–2B employer, the copy must be
provided no later than the time an offer
of employment is made by the
subsequent H–2B employer. The
disclosure of all documents required by
this paragraph must be provided in a
language understood by the worker, as
necessary or reasonable.
(m) Notice of worker rights. The
employer must post and maintain in a
conspicuous location at the place of
employment a poster provided by the
Department which sets out the rights
and protections for H–2B workers and
workers in corresponding employment.
The employer must post the poster in
English. To the extent necessary, the
employer must request and post
additional posters, as made available by
the Department, in any language
common to a significant portion of the
workers if they are not fluent in English.
(n) No unfair treatment. The employer
has not and will not intimidate,
threaten, restrain, coerce, blacklist,
discharge or in any manner discriminate
against, and has not and will not cause
any person to intimidate, threaten,
restrain, coerce, blacklist, discharge, or
in any manner discriminate against, any
person who has:
(1) Filed a complaint under or related
to 8 U.S.C. 1184(c), 29 CFR part 503, or
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this subpart, or any other Department
regulation promulgated thereunder;
(2) Instituted or caused to be
instituted any proceeding under or
related to 8 U.S.C. 1184(c), 29 CFR part
503, or this subpart or any other
Department regulation promulgated
thereunder;
(3) Testified or is about to testify in
any proceeding under or related to 8
U.S.C. 1184(c), 29 CFR part 503, or this
subpart or any other Department
regulation promulgated thereunder;
(4) Consulted with a workers’ center,
community organization, labor union,
legal assistance program, or an attorney
on matters related to 8 U.S.C. 1184(c),
29 CFR part 503, or this subpart or any
other Department regulation
promulgated thereunder; or
(5) Exercised or asserted on behalf of
himself/herself or others any right or
protection afforded by 8 U.S.C. 1184(c),
29 CFR part 503, or this subpart or any
other Department regulation
promulgated thereunder.
(o) Comply with the prohibitions
against employees paying fees. The
employer and its attorney, agents, or
employees have not sought or received
payment of any kind from the worker
for any activity related to obtaining H–
2B labor certification or employment,
including payment of the employer’s
attorney or agent fees, application and
H–2B Petition fees, recruitment costs, or
any fees attributed to obtaining the
approved Application for Temporary
Employment Certification. For purposes
of this paragraph, payment includes, but
is not limited to, monetary payments,
wage concessions (including deductions
from wages, salary, or benefits),
kickbacks, bribes, tributes, in kind
payments, and free labor. All wages
must be paid free and clear. This
provision does not prohibit employers
or their agents from receiving
reimbursement for costs that are the
responsibility and primarily for the
benefit of the worker, such as
government-required passport fees.
(p) Contracts with third parties to
comply with prohibitions. The employer
must contractually prohibit in writing
any agent or recruiter (or any agent or
employee of such agent or recruiter)
whom the employer engages, either
directly or indirectly, in international
recruitment of H–2B workers to seek or
receive payments or other compensation
from prospective workers. The contract
must include the following statement:
‘‘Under this agreement, [name of agent,
recruiter] and any agent of or employee
of [name of agent or recruiter] are
prohibited from seeking or receiving
payments from any prospective
employee of [employer name] at any
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time, including before or after the
worker obtains employment. Payments
include but are not limited to, any direct
or indirect fees paid by such employees
for recruitment, job placement,
processing, maintenance, attorneys’
fees, agent fees, application fees, or
petition fees.’’
(q) Prohibition against preferential
treatment of foreign workers. The
employer’s job offer must offer to U.S.
workers no less than the same benefits,
wages, and working conditions that the
employer is offering, intends to offer, or
will provide to H–2B workers. Job offers
may not impose on U.S. workers any
restrictions or obligations that will not
be imposed on the employer’s H–2B
workers. This does not relieve the
employer from providing to H–2B
workers at least the minimum benefits,
wages, and working conditions which
must be offered to U.S. workers
consistent with this section.
(r) Non-discriminatory hiring
practices. The job opportunity is, and
through the period set forth in
paragraph (t) of this section must
continue to be, open to any qualified
U.S. worker regardless of race, color,
national origin, age, sex, religion,
disability, or citizenship. Rejections of
any U.S. workers who applied or apply
for the job must only be for lawful, jobrelated reasons, and those not rejected
on this basis have been or will be hired.
In addition, the employer has and will
continue to retain records of all hired
workers and rejected applicants as
required by § 655.56.
(s) Recruitment requirements. The
employer must conduct all required
recruitment activities, including any
additional employer-conducted
recruitment activities as directed by the
CO, and as specified in §§ 655.40–
655.46.
(t) Continuing requirement to hire
U.S. workers. The employer has and
will continue to cooperate with the
SWA by accepting referrals of all
qualified U.S. workers who apply (or on
whose behalf a job application is made)
for the job opportunity, and must
provide employment to any qualified
U.S. worker who applies to the
employer for the job opportunity, until
21 days before the date of need.
(u) No strike or lockout. There is no
strike or lockout at any of the
employer’s worksites within the area of
intended employment for which the
employer is requesting H–2B
certification at the time the Application
for Temporary Employment
Certification is filed.
(v) No recent or future layoffs. The
employer has not laid off and will not
lay off any similarly employed U.S.
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10159
worker in the occupation that is the
subject of the Application for
Temporary Employment Certification in
the area of intended employment within
the period beginning 120 calendar days
before the date of need through the end
of the period of certification. A layoff for
lawful, job-related reasons such as lack
of work or the end of a season is
permissible if all H–2B workers are laid
off before any U.S. worker in
corresponding employment.
(w) Contact with former U.S.
employees. The employer will contact
(by mail or other effective means) its
former U.S. workers, including those
who have been laid off within 120
calendar days before the date of need
(except those who were dismissed for
cause or who abandoned the worksite),
employed by the employer in the
occupation at the place of employment
during the previous year, disclose the
terms of the job order, and solicit their
return to the job.
(x) Area of intended employment and
job opportunity. The employer must not
place any H–2B workers employed
under the approved Application for
Temporary Employment Certification
outside the area of intended
employment or in a job opportunity not
listed on the approved Application for
Temporary Employment Certification
unless the employer has obtained a new
approved Application for Temporary
Employment Certification.
(y) Abandonment/termination of
employment. Upon the separation from
employment of worker(s) employed
under the Application for Temporary
Employment Certification or workers in
corresponding employment, if such
separation occurs before the end date of
the employment specified in the
Application for Temporary Employment
Certification, the employer must notify
OFLC in writing of the separation from
employment not later than 2 work days
after such separation is discovered by
the employer. In addition, the employer
must notify DHS in writing (or any other
method specified by the Department or
DHS in the Federal Register or the Code
of Federal Regulations) of such
separation of an H–2B worker. An
abandonment or abscondment is
deemed to begin after a worker fails to
report for work at the regularly
scheduled time for 5 consecutive
working days without the consent of the
employer. If the separation is due to the
voluntary abandonment of employment
by the H–2B worker or worker in
corresponding employment, and the
employer provides appropriate
notification specified under this
paragraph, the employer will not be
responsible for providing or paying for
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the subsequent transportation and
subsistence expenses of that worker
under this section, and that worker is
not entitled to the three-fourths
guarantee described in paragraph (f) of
this section. The employer’s obligation
to guarantee three-fourths of the work
described in paragraph (f) ends with the
last full 12-week period (or 6-week
period, as appropriate) preceding the
worker’s voluntary abandonment or
termination for cause.
(z) Compliance with applicable laws.
During the period of employment
specified on the Application for
Temporary Employment Certification,
the employer must comply with all
applicable Federal, State and local
employment-related laws and
regulations, including health and safety
laws. In compliance with such laws,
including the William Wilberforce
Trafficking Victims Protection
Reauthorization Act of 2008, 18 U.S.C.
1592(a), neither the employer nor the
employer’s agents or attorneys may hold
or confiscate workers’ passports, visas,
or other immigration documents.
(aa) Disclosure of foreign worker
recruitment. The employer, and its
attorney or agent, as applicable, must
comply with § 655.9 by providing a
copy of all agreements with any agent or
recruiter whom it engages or plans to
engage in the international recruitment
of H–2B workers, and the identity and
location of the persons or entities hired
by or working for the agent or recruiter
and any of the agents or employees of
those persons and entities, to recruit
foreign workers. Pursuant to § 655.15(a),
the agreements and information must be
filed with the Application for
Temporary Employment Certification.
§§ 655.21–655.24
[Removed and Reserved]
13. Remove and reserve §§ 655.21
through 655.24.
■ 14. In subpart A, add an undesignated
center heading before § 655.30 to read as
follows:
■
Processing of an Application for
Temporary Employment Certification
15. In subpart A, revise §§ 655.30
through 655.35 to read as follows:
■
Subpart A—Labor Certification Process for
Temporary Non-Agricultural Employment in
the United States (H–2B Workers)
sroberts on DSK5SPTVN1PROD with RULES
*
*
*
*
*
Sec.
655.30 Processing of an application and job
order.
655.31 Notice of deficiency.
655.32 Submission of a modified
application or job order.
655.33 Notice of acceptance.
655.34 Electronic job registry.
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655.35 Amendments to an application or
job order.
*
*
*
*
*
§ 655.30 Processing of an application and
job order.
(a) NPC review. The CO will review
the Application for Temporary
Employment Certification and job order
for compliance with all applicable
program requirements.
(b) Mailing and postmark
requirements. Any notice or request sent
by the CO to an employer requiring a
response will be mailed to the address
provided in the Application for
Temporary Employment Certification
using methods to assure next day
delivery, including electronic mail. The
employer’s response to such a notice or
request must be mailed using methods
to assure next day delivery, including
electronic mail, and be sent by the due
date or the next business day if the due
date falls on a Saturday, Sunday or
Federal holiday.
(c) Information dissemination. OFLC
may forward information received in the
course of processing an Application for
Temporary Employment Certification
and program integrity measures to
WHD, or any other Federal agency, as
appropriate, for investigation and/or
enforcement purposes.
§ 655.31
Notice of deficiency.
(a) Notification timeline. If the CO
determines the Application for
Temporary Employment Certification
and/or job order is incomplete, contains
errors or inaccuracies, or does not meet
the requirements set forth in this
subpart, the CO will notify the employer
within 7 business days from the CO’s
receipt of the Application for
Temporary Employment Certification. If
applicable, the Notice of Deficiency will
include job order deficiencies identified
by the SWA under § 655.16. The CO
will send a copy of the Notice of
Deficiency to the SWA serving the area
of intended employment identified by
the employer on its job order, and if
applicable, to the employer’s attorney or
agent.
(b) Notice content. The Notice of
Deficiency will:
(1) State the reason(s) why the
Application for Temporary Employment
Certification or job order fails to meet
the criteria for acceptance and state the
modification needed for the CO to issue
a Notice of Acceptance;
(2) Offer the employer an opportunity
to submit a modified Application for
Temporary Employment Certification or
job order within 10 business days from
the date of the Notice of Deficiency. The
Notice will state the modification
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needed for the CO to issue a Notice of
Acceptance;
(3) Offer the employer an opportunity
to request administrative review of the
Notice of Deficiency before an ALJ
under provisions set forth in § 655.61.
The notice will inform the employer
that it must submit a written request for
review to the Chief ALJ of DOL within
10 business days from the date the
Notice of Deficiency is issued by
facsimile or other means normally
assuring next day delivery, and that the
employer must simultaneously serve a
copy on the CO. The notice will also
state that the employer may submit any
legal arguments that the employer
believes will rebut the basis of the CO’s
action; and
(4) State that if the employer does not
comply with the requirements of this
section by either submitting a modified
application within 10 business days or
requesting administrative review before
an ALJ under § 655.61, the CO will deny
the Application for Temporary
Employment Certification. The notice
will inform the employer that the denial
of the Application for Temporary
Employment Certification is final, and
cannot be appealed. The Department
will not further consider that
Application for Temporary Employment
Certification.
§ 655.32 Submission of a modified
application or job order.
(a) Review of a modified Application
for Temporary Employment
Certification or job order. Upon receipt
of a response to a Notice of Deficiency,
including any modifications, the CO
will review the response. The CO may
issue one or more additional Notices of
Deficiency before issuing a Notice of
Decision. The employer’s failure to
comply with a Notice of Deficiency,
including not responding in a timely
manner or not providing all required
documentation, will result in a denial of
the Application for Temporary
Employment Certification.
(b) Acceptance of a modified
Application for Temporary Employment
Certification or job order. If the CO
accepts the modification(s) to the
Application for Temporary Employment
Certification and/or job order, the CO
will issue a Notice of Acceptance to the
employer. The CO will send a copy of
the Notice of Acceptance to the SWA
instructing it to make any necessary
modifications to the not yet posted job
order and, if applicable, to the
employer’s attorney or agent, and follow
the procedure set forth in § 655.33.
(c) Denial of a modified Application
for Temporary Employment
Certification or job order. If the CO finds
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the response to Notice of Deficiency
unacceptable, the CO will deny the
Application for Temporary Employment
Certification in accordance with the
labor certification determination
provisions in § 655.51.
(d) Appeal from denial of a modified
Application for Temporary Employment
Certification or job order. The
procedures for appealing a denial of a
modified Application for Temporary
Employment Certification and/or job
order are the same as for appealing the
denial of a non-modified Application
for Temporary Employment
Certification outlined in § 655.61.
(e) Post acceptance modifications.
Irrespective of the decision to accept the
Application for Temporary Employment
Certification, the CO may require
modifications to the job order at any
time before the final determination to
grant or deny the Application for
Temporary Employment Certification if
the CO determines that the offer of
employment does not contain all the
minimum benefits, wages, and working
condition provisions as set forth in
§ 655.18. The employer must make such
modification, or certification will be
denied under § 655.53. The employer
must provide all workers recruited in
connection with the job opportunity in
the Application for Temporary
Employment Certification with a copy of
the modified job order no later than the
date work commences, as approved by
the CO.
sroberts on DSK5SPTVN1PROD with RULES
§ 655.33
Notice of acceptance.
(a) Notification timeline. If the CO
determines the Application for
Temporary Employment Certification
and job order are complete and meet the
requirements of this subpart, the CO
will notify the employer in writing
within 7 business days from the date the
CO received the Application for
Temporary Employment Certification
and job order or modification thereof. A
copy of the Notice of Acceptance will be
sent to the SWA serving the area of
intended employment identified by the
employer on its job order and, if
applicable, to the employer’s attorney or
agent.
(b) Notice content. The notice will:
(1) Direct the employer to engage in
recruitment of U.S. workers as provided
in §§ 655.40–655.46, including any
additional recruitment ordered by the
CO under § 655.46;
(2) State that such employerconducted recruitment is in addition to
the job order being circulated by the
SWA(s) and that the employer must
conduct recruitment within 14 calendar
days from the date the Notice of
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Acceptance is issued, consistent with
§ 655.40;
(3) Direct the SWA to place the job
order into intra- and interstate clearance
as set forth in § 655.16 and to commence
such clearance by:
(i) Sending a copy of the job order to
other States listed as anticipated
worksites in the Application for
Temporary Employment Certification
and job order, if applicable; and
(ii) Sending a copy of the job order to
the SWAs for all States designated by
the CO for interstate clearance;
(4) Instruct the SWA to keep the
approved job order on its active file
until the end of the recruitment period
as defined in § 655.40(c), and to
transmit the same instruction to other
SWAs to which it circulates the job
order in the course of interstate
clearance;
(5) Where the occupation or industry
is traditionally or customarily
unionized, direct the SWA to circulate
a copy of the job order to the following
labor organizations:
(i) The central office of the State
Federation of Labor in the State(s) in
which work will be performed; and
(ii) The office(s) of local union(s)
representing employees in the same or
substantially equivalent job
classification in the area(s) in which
work will be performed;
(6) Advise the employer, as
appropriate, that it must contact the
appropriate designated communitybased organization(s) with notice of the
job opportunity; and
(7) Require the employer to submit a
report of its recruitment efforts as
specified in § 655.48.
§ 655.34
Electronic job registry.
(a) Location of and placement in the
electronic job registry. Upon acceptance
of the Application for Temporary
Employment Certification under
§ 655.33, the CO will place for public
examination a copy of the job order
posted by the SWA on the Department’s
electronic job registry, including any
amendments or required modifications
approved by the CO.
(b) Length of posting on electronic job
registry. The Department will keep the
job order posted on the electronic job
registry until the end of the recruitment
period, as set forth in § 655.40(c).
(c) Conclusion of active posting. Once
the recruitment period has concluded
the job order will be placed in inactive
status on the electronic job registry.
§ 655.35 Amendments to an application or
job order.
(a) Increases in number of workers.
The employer may request to increase
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10161
the number of workers noted in the
H–2B Registration by no more than 20
percent (50 percent for employers
requesting fewer than 10 workers). All
requests for increasing the number of
workers must be made in writing and
will not be effective until approved by
the CO. In considering whether to
approve the request, the CO will
determine whether the proposed
amendment(s) are sufficiently justified
and must take into account the effect of
the changes on the underlying labor
market test for the job opportunity.
Upon acceptance of an amendment, the
CO will submit to the SWA any
necessary changes to the job order and
update the electronic job registry. The
employer must promptly provide copies
of any approved amendments to all U.S.
workers hired under the original job
order.
(b) Minor changes to the period of
employment. The employer may request
minor changes to the total period of
employment listed on its Application
for Temporary Employment
Certification and job order, for a period
of up to 14 days, but the period of
employment may not exceed a total of
9 months, except in the event of a onetime occurrence. All requests for minor
changes to the total period of
employment must be made in writing
and will not be effective until approved
by the CO. In considering whether to
approve the request, the CO will
determine whether the proposed
amendment(s) are sufficiently justified
and must take into account the effect of
the changes on the underlying labor
market test for the job opportunity.
Upon acceptance of an amendment, the
CO will submit to the SWA any
necessary changes to the job order and
update the electronic job registry. The
employer must promptly provide copies
of any approved amendments to all U.S.
workers hired under the original job
order.
(c) Other amendments to the
Application for Temporary Employment
Certification and job order. The
employer may request other
amendments to the Application for
Temporary Employment Certification
and job order. All such requests must be
made in writing and will not be
effective until approved by the CO. In
considering whether to approve the
request, the CO will determine whether
the proposed amendment(s) are
sufficiently justified and must take into
account the effect of the changes on the
underlying labor market test for the job
opportunity. Upon acceptance of an
amendment, the CO will submit to the
SWA any necessary changes to the job
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order and update the electronic job
registry.
(d) Amendments after certification are
not permitted. The employer must
promptly provide copies of any
approved amendments to all U.S.
workers hired under the original job
order.
§§ 655.36–655.39
[Added and Reserved]
16. Add and reserve §§ 655.36 through
655.39.
■ 17–18. Add an undesignated center
heading and §§ 655.40 through 655.48 to
read as follows:
■
Subpart A—Labor Certification Process for
Temporary Non-Agricultural Employment in
the United States (H–2B Workers)
*
*
*
*
*
Post-Acceptance Requirements
Sec.
655.40 Employer-conducted recruitment.
655.41 Advertising requirements.
655.42 Newspaper advertisements.
655.43 Contact with former U.S. employees.
655.44 [Reserved]
655.45 Contact with bargaining
representative, posting and other contact
requirements.
655.46 Additional employer-conducted
recruitment.
655.47 Referrals of U.S. workers.
655.48 Recruitment report.
*
*
*
*
*
Post-Acceptance Requirements
sroberts on DSK5SPTVN1PROD with RULES
§ 655.40
Employer-conducted recruitment.
(a) Employer obligations. Employers
must conduct recruitment of U.S.
workers to ensure that there are not
qualified U.S. workers who will be
available for the positions listed in the
Application for Temporary Employment
Certification. U.S. Applicants can be
rejected only for lawful job-related
reasons.
(b) Employer-conducted recruitment
period. Unless otherwise instructed by
the CO, the employer must conduct the
recruitment described in §§ 655.42–
655.46 within 14 calendar days from the
date the Notice of Acceptance is issued.
All employer-conducted recruitment
must be completed before the employer
submits the recruitment report as
required in § 655.48.
(c) U.S. worker referrals. Employers
must continue to accept referrals of all
U.S. applicants interested in the
position until 21 days before the date of
need.
(d) Interviewing U.S. workers.
Employers that wish to require
interviews must conduct those
interviews by phone or provide a
procedure for the interviews to be
conducted in the location where the
worker is being recruited so that the
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worker incurs little or no cost.
Employers cannot provide potential
H–2B workers with more favorable
treatment with respect to the
requirement for, and conduct of,
interviews.
(e) Qualified and available U.S.
workers. The employer must consider
all U.S. applicants for the job
opportunity. The employer must accept
and hire any applicants who are
qualified and who will be available.
(f) Recruitment report. The employer
must prepare a recruitment report
meeting the requirements of § 655.48.
§ 655.41
Advertising requirements.
(a) All recruitment conducted under
§§ 655.42–655.46 must contain terms
and conditions of employment that are
not less favorable than those offered to
the H–2B workers and, at a minimum,
must comply with the assurances
applicable to job orders as set forth in
§ 655.18(a).
(b) All advertising must contain the
following information:
(1) The employer’s name and contact
information;
(2) The geographic area of intended
employment with enough specificity to
apprise applicants of any travel
requirements and where applicants will
likely have to reside to perform the
services or labor;
(3) A description of the job
opportunity for which certification is
sought with sufficient information to
apprise U.S. workers of the services or
labor to be performed, including the
duties, the minimum education and
experience requirements, the work
hours and days, and the anticipated
start and end dates of the job
opportunity;
(4) A statement that the job
opportunity is a temporary, full-time
position including the total number of
job openings the employer intends to
fill;
(5) If applicable, a statement that
overtime will be available to the worker
and the wage offer(s) for working any
overtime hours;
(6) If applicable, a statement
indicating that on-the-job training will
be provided to the worker;
(7) The wage that the employer is
offering, intends to offer or will provide
to the H–2B workers, or in the event that
there are multiple wage offers (such as
where an itinerary is authorized through
special procedures for an employer), the
range of applicable wage offers, each of
which must equal or exceed the highest
of the prevailing wage or the Federal,
State, or local minimum wage;
(8) If applicable, any board, lodging,
or other facilities the employer will offer
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to workers or intends to assist workers
in securing;
(9) All deductions not required by law
that the employer will make from the
worker’s paycheck, including, if
applicable, reasonable deduction for
board, lodging, and other facilities
offered to the workers;
(10) A statement that transportation
and subsistence from the place where
the worker has come to work for the
employer to the place of employment
and return transportation and
subsistence will be provided, as
required by § 655.20(j)(1);
(11) If applicable, a statement that
work tools, supplies, and equipment
will be provided to the worker without
charge;
(12) If applicable, a statement that
daily transportation to and from the
worksite will be provided by the
employer;
(13) A statement summarizing the
three-fourths guarantee as required by
§ 655.20(f); and
(14) A statement directing applicants
to apply for the job opportunity at the
nearest office of the SWA in the State in
which the advertisement appeared, the
SWA contact information, and, if
applicable, the job order number.
§ 655.42
Newspaper advertisements.
(a) The employer must place an
advertisement (which may be in a
language other than English, where the
CO determines appropriate) on 2
separate days, which may be
consecutive, one of which must be a
Sunday (except as provided in
paragraph (b) of this section), in a
newspaper of general circulation serving
the area of intended employment and
appropriate to the occupation and the
workers likely to apply for the job
opportunity.
(b) If the job opportunity is located in
a rural area that does not have a
newspaper with a Sunday edition, the
CO may direct the employer, in place of
a Sunday edition, to advertise in the
regularly published daily edition with
the widest circulation in the area of
intended employment.
(c) The newspaper advertisements
must satisfy the requirements in
§ 655.41.
(d) The employer must maintain
copies of newspaper pages (with date of
publication and full copy of the
advertisement), or tear sheets of the
pages of the publication in which the
advertisements appeared, or other proof
of publication furnished by the
newspaper containing the text of the
printed advertisements and the dates of
publication, consistent with the
document retention requirements in
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§ 655.56. If the advertisement was
required to be placed in a language
other than English, the employer must
maintain a translation and retain it in
accordance with § 655.56.
§ 655.43 Contact with former U.S.
employees.
The employer must contact (by mail
or other effective means) its former U.S.
workers, including those who have been
laid off within 120 calendar days before
the date of need (except those who were
dismissed for cause or who abandoned
the worksite), employed by the
employer in the occupation at the place
of employment during the previous
year, disclose the terms of the job order,
and solicit their return to the job. The
employer must maintain documentation
sufficient to prove such contact in
accordance with § 655.56.
§ 655.44
§ 655.46 Additional employer-conducted
recruitment.
[Reserved]
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§ 655.45 Contact with bargaining
representative, posting and other contact
requirements.
(a) If there is a bargaining
representative for any of the employer’s
employees in the occupation and area of
intended employment, the employer
must provide written notice of the job
opportunity, by providing a copy of the
Application for Temporary Employment
Certification and the job order, and
maintain documentation that it was sent
to the bargaining representative(s). An
employer governed by this paragraph
must include information in its
recruitment report that confirms that the
bargaining representative(s) was
contacted and notified of the position
openings and whether the organization
referred qualified U.S. worker(s),
including the number of referrals, or
was non-responsive to the employer’s
requests.
(b) If there is no bargaining
representative, the employer must post
the availability of the job opportunity in
at least 2 conspicuous locations at the
place(s) of anticipated employment or in
some other manner that provides
reasonable notification to all employees
in the job classification and area in
which the work will be performed by
the H–2B workers. Electronic posting,
such as displaying the notice
prominently on any internal or external
Web site that is maintained by the
employer and customarily used for
notices to employees about terms and
conditions of employment, is sufficient
to meet this posting requirement as long
as it otherwise meets the requirements
of this section. The notice must meet the
requirements under § 655.41 and be
posted for at least 15 consecutive
business days. The employer must
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maintain a copy of the posted notice
and identify where and when it was
posted in accordance with § 655.56.
(c) If appropriate to the occupation
and area of intended employment, as
indicated by the CO in the Notice of
Acceptance, the employer must provide
written notice of the job opportunity to
a community-based organization, and
maintain documentation that it was sent
to any designated community-based
organization. An employer governed by
this paragraph must include information
in its recruitment report that confirms
that the community-based organization
was contacted and notified of the
position openings and whether the
organization referred qualified U.S.
worker(s), including the number of
referrals, or was non-responsive to the
employer’s requests.
Jkt 226001
(a) Requirement to conduct additional
recruitment. The employer may be
instructed by the CO to conduct
additional recruitment. Such
recruitment may be required at the
discretion of the CO where the CO has
determined that there may be U.S.
workers who are qualified and who will
be available for the work, including but
not limited to where the job opportunity
is located in an Area of Substantial
Unemployment.
(b) Nature of the additional employerconducted recruitment. The CO will
describe the precise number and nature
of the additional recruitment efforts.
Additional recruitment may include,
but is not limited to, posting on the
employer’s Web site or another Web
site, contact with additional
community-based organizations,
additional contact with State One-Stop
Career Centers, and other print
advertising, such as using a
professional, trade or ethnic publication
where such a publication is appropriate
for the occupation and the workers
likely to apply for the job opportunity.
(c) Proof of the additional employerconducted recruitment. The CO will
specify the documentation or other
supporting evidence that must be
maintained by the employer as proof
that the additional recruitment
requirements were met. Documentation
must be maintained as required in
§ 655.56.
§ 655.47
Referrals of U.S. workers.
SWAs may only refer for employment
individuals who have been apprised of
all the material terms and conditions of
employment and who are qualified and
will be available for employment.
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§ 655.48
10163
Recruitment report.
(a) Requirements of the recruitment
report. The employer must prepare,
sign, and date a recruitment report. The
recruitment report must be submitted by
a date specified by the CO in the Notice
of Acceptance and contain the following
information:
(1) The name of each recruitment
activity or source (e.g., job order and the
name of the newspaper);
(2) The name and contact information
of each U.S. worker who applied or was
referred to the job opportunity up to the
date of the preparation of the
recruitment report, and the disposition
of each worker’s application. The
employer must clearly indicate whether
the job opportunity was offered to the
U.S. worker and whether the U.S.
worker accepted or declined;
(3) Confirmation that former U.S.
employees were contacted, if applicable,
and by what means;
(4) Confirmation that the bargaining
representative was contacted, if
applicable, and by what means, or that
the employer posted the availability of
the job opportunity to all employees in
the job classification and area in which
the work will be performed by the
H–2B workers;
(5) Confirmation that the communitybased organization designated by the CO
was contacted, if applicable;
(6) If applicable, confirmation that
additional recruitment was conducted
as directed by the CO; and
(7) If applicable, for each U.S. worker
who applied for the position but was
not hired, the lawful job-related
reason(s) for not hiring the U.S. worker.
(b) Duty to update recruitment report.
The employer must continue to update
the recruitment report throughout the
recruitment period. The updated report
need not be submitted to the
Department, but must be made available
in the event of a post-certification audit
or upon request by DOL.
§ 655.49
[Added and Reserved]
19. Add and reserve § 655.49.
■ 20. Add an undesignated center
heading before § 655.50 to read as
follows:
■
Labor Certification Determinations
■
21. Revise § 655.50 to read as follows:
§ 655.50
Determinations.
(a) Certifying Officers (COs). The
Administrator, OFLC is the
Department’s National CO. The
Administrator, OFLC and the CO(s), by
virtue of delegation from the
Administrator, OFLC, have the authority
to certify or deny Applications for
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Temporary Employment Certification
under the H–2B nonimmigrant
classification. If the Administrator,
OFLC directs that certain types of
temporary labor certification
applications or a specific Application
for Temporary Employment
Certification under the H–2B
nonimmigrant classification be handled
by the OFLC’s National Office, the
Director of the NPC will refer such
applications to the Administrator,
OFLC.
(b) Determination. Except as
otherwise provided in this paragraph,
the CO will make a determination either
to certify or deny the Application for
Temporary Employment Certification.
The CO will certify the application only
if the employer has met all the
requirements of this subpart, including
the criteria for certification in § 655.51,
thus demonstrating that there is an
insufficient number of U.S. workers
who are qualified and who will be
available for the job opportunity for
which certification is sought and that
the employment of the H–2B workers
will not adversely affect the benefits,
wages, and working conditions of
similarly employed U.S. workers.
22–23. In subpart A, add §§ 655.51
through 655.57 to read as follows:
■
Subpart A—Labor Certification Process for
Temporary Non-Agricultural Employment in
the United States (H–2B Workers)
*
*
*
*
*
Sec.
655.51 Criteria for certification.
655.52 Approved certification.
655.53 Denied certification.
655.54 Partial certification.
655.55 Validity of temporary labor
certification.
655.56 Document retention requirements of
H–2B employers.
655.57 Request for determination based on
nonavailability of U.S. workers.
*
*
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§ 655.51
*
*
*
Criteria for certification.
(a) The criteria for certification
include whether the employer has a
valid H–2B Registration to participate in
the H–2B program and has complied
with all of the requirements necessary to
grant the labor certification.
(b) In making a determination
whether there are insufficient U.S.
workers to fill the employer’s job
opportunity, the CO will count as
available any U.S. worker referred by
the SWA or any U.S. worker who
applied (or on whose behalf an
application is made) directly to the
employer, but who was rejected by the
employer for other than a lawful jobrelated reason.
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(c) A certification will not be granted
to an employer that has failed to comply
with one or more sanctions or remedies
imposed by final agency actions under
the H–2B program.
§ 655.52
Approved certification.
If a temporary labor certification is
granted, the CO will send the approved
Application for Temporary Employment
Certification and a Final Determination
letter to the employer by means
normally assuring next day delivery,
including electronic mail, and a copy, if
applicable, to the employer’s attorney or
agent. If and when the Application for
Temporary Employment Certification
will be permitted to be electronically
filed, the employer must sign the
certified Application for Temporary
Employment Certification as directed by
the CO. The employer must retain a
signed copy of the Application for
Temporary Employment Certification,
as required by § 655.56.
§ 655.53
Denied certification.
If a temporary labor certification is
denied, the CO will send the Final
Determination letter to the employer by
means normally assuring next day
delivery, including electronic mail, and
a copy, if applicable, to the employer’s
attorney or agent. The Final
Determination letter will:
(a) State the reason(s) certification is
denied, citing the relevant regulatory
standards and/or special procedures;
(b) Offer the employer an opportunity
to request administrative review of the
denial under § 655.61; and
(c) State that if the employer does not
request administrative review in
accordance with § 655.61, the denial is
final and the Department will not accept
any appeal on that Application for
Temporary Employment Certification.
§ 655.54
Partial certification.
The CO may issue a partial
certification, reducing either the period
of need or the number of H–2B workers
or both for certification, based upon
information the CO receives during the
course of processing the Application for
Temporary Employment Certification.
The number of workers certified will be
reduced by one for each referred U.S.
worker who is qualified and who will be
available at the time and place needed
to perform the services or labor and who
has not been rejected for lawful jobrelated reasons. If a partial labor
certification is issued, the CO will
amend the Application for Temporary
Employment Certification and then
return it to the employer with a Final
Determination letter, with a copy to the
employer’s attorney or agent, if
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applicable. The Final Determination
letter will:
(a) State the reason(s) why either the
period of need and/or the number of
H–2B workers requested has been
reduced, citing the relevant regulatory
standards and/or special procedures;
(b) If applicable, address the
availability of U.S. workers in the
occupation;
(c) Offer the employer an opportunity
to request administrative review of the
partial certification under § 655.61; and
(d) State that if the employer does not
request administrative review in
accordance with § 655.61, the partial
certification is final and the Department
will not accept any appeal on that
Application for Temporary Employment
Certification.
§ 655.55 Validity of temporary labor
certification.
(a) Validity period. A temporary labor
certification is valid only for the period
as approved on the Application for
Temporary Employment Certification.
The certification expires on the last day
of authorized employment.
(b) Scope of validity. A temporary
labor certification is valid only for the
number of H–2B positions, the area of
intended employment, the job
classification and specific services or
labor to be performed, and the employer
specified on the approved Application
for Temporary Employment
Certification, including any approved
modifications. The temporary labor
certification may not be transferred from
one employer to another unless the
employer to which it is transferred is a
successor in interest to the employer to
which it was issued.
§ 655.56 Document retention requirements
of H–2B employers.
(a) Entities required to retain
documents. All employers filing an
Application for Temporary Employment
Certification requesting H–2B workers
are required to retain the documents
and records proving compliance with 29
CFR part 503 and this subpart,
including but not limited to those
specified in paragraph (c) of this
section.
(b) Period of required retention. The
employer must retain records and
documents for 3 years from the date of
certification of the Application for
Temporary Employment Certification,
or from the date of adjudication if the
Application for Temporary Employment
Certification is denied, or 3 years from
the day the Department receives the
letter of withdrawal provided in
accordance with § 655.62. For the
purposes of this section, records and
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documents required to be retained in
connection with an H–2B Registration
must be retained in connection with all
of the Applications for Temporary
Employment Certification that are
supported by it.
(c) Documents and records to be
retained by all employer applicants. All
employers filing an H–2B Registration
and an Application for Temporary
Employment Certification must retain
the following documents and records
and must provide the documents and
records to the Department and other
Federal agencies in the event of an audit
or investigation:
(1) Documents and records not
previously submitted during the
registration process that substantiate
temporary need;
(2) Proof of recruitment efforts, as
applicable, including:
(i) Job order placement as specified in
§ 655.16;
(ii) Advertising as specified in
§§ 655.41 and 655.42;
(iii) Contact with former U.S. workers
as specified in § 655.43;
(iv) Contact with bargaining
representative(s), or a copy of the
posting of the job opportunity, if
applicable, as specified in § 655.45(a) or
(b); and
(v) Additional employer-conducted
recruitment efforts as specified in
§ 655.46;
(3) Substantiation of the information
submitted in the recruitment report
prepared in accordance with § 655.48,
such as evidence of nonapplicability of
contact with former workers as specified
in § 655.43;
(4) The final recruitment report and
any supporting resumes and contact
information as specified in § 655.48;
(5) Records of each worker’s earnings,
hours offered and worked, location(s) of
work performed, and other information
as specified in § 655.20(i);
(6) If appropriate, records of
reimbursement of transportation and
subsistence costs incurred by the
workers, as specified in § 655.20(j).
(7) Evidence of contact with U.S.
workers who applied for the job
opportunity in the Application for
Temporary Employment Certification,
including documents demonstrating
that any rejections of U.S. workers were
for lawful, job-related reasons, as
specified in § 655.20(r);
(8) Evidence of contact with any
former U.S. worker in the occupation at
the place of employment in the
Application for Temporary Employment
Certification, including documents
demonstrating that the U.S. worker had
been offered the job opportunity in the
Application for Temporary Employment
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Certification, as specified in
§ 655.20(w), and that the U.S. worker
either refused the job opportunity or
was rejected only for lawful, job-related
reasons, as specified in § 655.20(r);
(9) The written contracts with agents
or recruiters as specified in §§ 655.8 and
655.9, and the list of the identities and
locations of persons hired by or working
for the agent or recruiter and these
entities’ agents or employees, as
specified in § 655.9;
(10) Written notice provided to and
informing OFLC that an H–2B worker or
worker in corresponding employment
has separated from employment before
the end date of employment specified in
the Application for Temporary
Employment Certification, as specified
in § 655.20(y);
(11) The H–2B Registration, job order
and a copy of the Application for
Temporary Employment Certification. If
and when the Application for
Temporary Employment Certification
and H–2B Registration is permitted to be
electronically filed, a printed copy of
each adjudicated Application for
Temporary Employment Certification,
including any modifications,
amendments or extensions will be
signed by the employer as directed by
the CO and retained;
(12) The H–2B Petition, including all
accompanying documents; and
(13) Any collective bargaining
agreement(s), individual employment
contract(s), or payroll records from the
previous year necessary to substantiate
any claim that certain incumbent
workers are not included in
corresponding employment, as specified
in § 655.5.
(d) Availability of documents for
enforcement purposes. An employer
must make available to the
Administrator, WHD within 72 hours
following a request by the WHD the
documents and records required under
29 CFR part 503 and this section so that
the Administrator, WHD may copy,
transcribe, or inspect them.
§ 655.57 Request for determination based
on nonavailability of U.S. workers.
(a) Standards for requests. If a
temporary labor certification has been
partially granted or denied, based on the
CO’s determination that qualified U.S.
workers are available, and, on or after 21
calendar days before the date of need,
some or all of those qualified U.S.
workers are, in fact no longer available,
the employer may request a new
temporary labor certification
determination from the CO. Prior to
making a new determination the CO
will promptly ascertain (which may be
through the SWA or other sources of
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10165
information on U.S. worker availability)
whether specific qualified replacement
U.S. workers are available or can be
reasonably expected to be present at the
employer’s establishment with 72 hours
from the date the employer’s request
was received. The CO will
expeditiously, but in no case later than
72 hours after the time a complete
request (including the signed statement
included in paragraph (b) of this
section) is received, make a
determination on the request. An
employer may appeal a denial of such
a determination in accordance with
procedures contained in § 655.61.
(b) Unavailability of U.S. workers. The
employer’s request for a new
determination must be made directly to
the CO by electronic mail or other
appropriate means and must be
accompanied by a signed statement
confirming the employer’s assertion. In
addition, unless the employer has
provided to the CO notification of
abandonment or termination of
employment as required by § 655.20(y),
the employer’s signed statement must
include the name and contact
information of each U.S. worker who
became unavailable and must supply
the reason why the worker has become
unavailable.
(c) Notification of determination. If
the CO determines that U.S. workers
have become unavailable and cannot
identify sufficient available U.S.
workers who are qualified or who are
likely to become available, the CO will
grant the employer’s request for a new
determination. However, this does not
preclude an employer from submitting
subsequent requests for new
determinations, if warranted, based on
subsequent facts concerning purported
nonavailability of U.S. workers or
referred workers not being qualified
because of lawful job-related reasons.
§§ 655.58–655.59
[Added and Reserved]
24. Add and reserve §§ 655.58 through
655.59.
■ 25. Add an undesignated center
heading before § 655.60 to read as
follows:
■
Post Certification Activities
■
26. Revise § 655.60 to read as follows:
§ 655.60
Extensions.
An employer may apply for
extensions of the period of employment
in the following circumstances. A
request for extension must be related to
weather conditions or other factors
beyond the control of the employer
(which may include unforeseeable
changes in market conditions), and must
be supported in writing, with
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documentation showing why the
extension is needed and that the need
could not have been reasonably foreseen
by the employer. The CO will notify the
employer of the decision in writing. The
CO will not grant an extension where
the total work period under that
Application for Temporary Employment
Certification and the authorized
extension would exceed 9 months for
employers whose temporary need is
seasonal, peakload, or intermittent, or 3
years for employers that have a one-time
occurrence of temporary need, except in
extraordinary circumstances. The
employer may appeal a denial of a
request for an extension by following
the procedures in § 655.61. The H–2B
employer’s assurances and obligations
under the temporary labor certification
will continue to apply during the
extended period of employment. The
employer must immediately provide to
its workers a copy of any approved
extension.
■ 27. In subpart A, add §§ 655.61
through 655.63 to read as follows:
Subpart A—Labor Certification Process for
Temporary Non-Agricultural Employment in
the United States (H–2B Workers)
*
*
*
*
*
Sec.
655.61 Administrative review.
655.62 Withdrawal of an Application for
Temporary Employment Certification.
655.63 Public disclosure.
*
*
sroberts on DSK5SPTVN1PROD with RULES
§ 655.61
*
*
§ 655.62 Withdrawal of an Application for
Temporary Employment Certification.
*
Administrative review.
(a) Request for review. Where
authorized in this subpart, employers
may request an administrative review
before the BALCA of a determination by
the CO. In such cases, the request for
review:
(1) Must be sent to the BALCA, with
a copy simultaneously sent to the CO
who denied the application, within 10
business days from the date of
determination;
(2) Must clearly identify the particular
determination for which review is
sought;
(3) Must set forth the particular
grounds for the request;
(4) Must include a copy of the CO’s
determination; and
(5) May contain only legal argument
and such evidence as was actually
submitted to the CO before the date the
CO’s determination was issued.
(b) Appeal file. Upon the receipt of a
request for review, the CO will, within
7 business days, assemble and submit
the Appeal File using means to ensure
same day or next day delivery, to the
BALCA, the employer, and the
Associate Solicitor for Employment and
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Training Legal Services, Office of the
Solicitor, U.S. Department of Labor.
(c) Briefing schedule. Within 7
business days of receipt of the Appeal
File, the counsel for the CO may submit,
using means to ensure same day or next
day delivery, a brief in support of the
CO’s decision.
(d) Assignment. The Chief ALJ may
designate a single member or a three
member panel of the BALCA to consider
a particular case.
(e) Review. The BALCA must review
the CO’s determination only on the
basis of the Appeal File, the request for
review, and any legal briefs submitted
and must:
(1) Affirm the CO’s determination; or
(2) Reverse or modify the CO’s
determination; or
(3) Remand to the CO for further
action.
(f) Decision. The BALCA should
notify the employer, the CO, and
counsel for the CO of its decision within
7 business days of the submission of the
CO’s brief or 10 business days after
receipt of the Appeal File, whichever is
later, using means to ensure same day
or next day delivery.
Employers may withdraw an
Application for Temporary Employment
Certification after it has been accepted
and before it is adjudicated. The
employer must request such withdrawal
in writing.
§ 655.63
Public disclosure.
The Department will maintain an
electronic file accessible to the public
with information on all employers
applying for temporary nonagricultural
labor certifications. The database will
include such information as the number
of workers requested, the date filed, the
date decided, and the final disposition.
§ 655.64
■
28. Add and reserve § 655.64.
§ 655.65
■
[Added and Reserved]
[Removed and Reserved]
29. Remove and reserve § 655.65.
§§ 655.66–655.69
[Added and Reserved]
30. Add and reserve §§ 655.66 through
655.69.
■
31. Add an undesignated center
heading before § 655.70 to read as
follows:
■
Integrity Measures
Frm 00130
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*
*
Sec.
655.70
655.71
655.72
655.73
*
Sfmt 4700
*
*
*
Audits.
CO-ordered assisted recruitment.
Revocation.
Debarment.
*
§ 655.70
*
*
*
Audits.
The CO may conduct audits of
adjudicated temporary labor
certification applications.
(a) Discretion. The CO has the sole
discretion to choose the applications
selected for audit.
(b) Audit letter. Where an application
is selected for audit, the CO will send
an audit letter to the employer and a
copy, if appropriate, to the employer’s
attorney or agent. The audit letter will:
(1) Specify the documentation that
must be submitted by the employer;
(2) Specify a date, no more than 30
calendar days from the date the audit
letter is issued, by which the required
documentation must be sent to the CO;
and
(3) Advise that failure to fully comply
with the audit process may result:
(i) In the requirement that the
employer undergo the assisted
recruitment procedures in § 655.71 in
future filings of H–2B temporary labor
certification applications for a period of
up to 2 years, or
(ii) In a revocation of the certification
and/or debarment from the H–2B
program and any other foreign labor
certification program administered by
the Department.
(c) Supplemental information request.
During the course of the audit
examination, the CO may request
supplemental information and/or
documentation from the employer in
order to complete the audit. If
circumstances warrant, the CO can issue
one or more requests for supplemental
information.
(d) Potential referrals. In addition to
measures in this subpart, the CO may
decide to provide the audit findings and
underlying documentation to DHS,
WHD, or other appropriate enforcement
agencies. The CO may refer any findings
that an employer discouraged a
qualified U.S. worker from applying, or
failed to hire, discharged, or otherwise
discriminated against a qualified U.S.
worker, to the Department of Justice,
Civil Rights Division, Office of Special
Counsel for Unfair Immigration Related
Employment Practices.
§ 655.71
32. In subpart A, revise §§ 655.70
through 655.73 to read as follows:
■
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Subpart A—Labor Certification Process for
Temporary Non-Agricultural Employment in
the United States (H–2B Workers)
CO-ordered assisted recruitment.
(a) Requirement of assisted
recruitment. If, as a result of audit or
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otherwise, the CO determines that a
violation has occurred that does not
warrant debarment, the CO may require
the employer to engage in assisted
recruitment for a defined period of time
for any future Application for
Temporary Employment Certification.
(b) Notification of assisted
recruitment. The CO will notify the
employer (and its attorney or agent, if
applicable) in writing of the assisted
recruitment that will be required of the
employer for a period of up to 2 years
from the date the notice is issued. The
notification will state the reasons for the
imposition of the additional
requirements, state that the employer’s
agreement to accept the conditions will
constitute their inclusion as bona fide
conditions and terms of a temporary
labor certification, and offer the
employer an opportunity to request an
administrative review. If administrative
review is requested, the procedures in
§ 655.61 apply.
(c) Assisted recruitment. The assisted
recruitment process will be in addition
to any recruitment required of the
employer by §§ 655.41 through 655.47
and may consist of, but is not limited to,
one or more of the following:
(1) Requiring the employer to submit
a draft advertisement to the CO for
review and approval at the time of filing
the Application for Temporary
Employment Certification;
(2) Designating the sources where the
employer must recruit for U.S. workers,
including newspapers and other
publications, and directing the
employer to place the advertisement(s)
in such sources;
(3) Extending the length of the
placement of the advertisement and/or
job order;
(4) Requiring the employer to notify
the CO and the SWA in writing when
the advertisement(s) are placed;
(5) Requiring an employer to perform
any additional assisted recruitment
directed by the CO;
(6) Requiring the employer to provide
proof of the publication of all
advertisements as directed by the CO, in
addition to providing a copy of the job
order;
(7) Requiring the employer to provide
proof of all SWA referrals made in
response to the job order;
(8) Requiring the employer to submit
any proof of contact with all referrals
and past U.S. workers; and/or
(9) Requiring the employer to provide
any additional documentation verifying
it conducted the assisted recruitment as
directed by the CO.
(d) Failure to comply. If an employer
materially fails to comply with
requirements ordered by the CO under
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this section, the certification will be
denied and the employer and/or its
attorney or agent may be debarred under
§ 655.73.
§ 655.72
Revocation.
(a) Basis for DOL revocation. The
Administrator, OFLC may revoke a
temporary labor certification approved
under this subpart, if the Administrator,
OFLC finds:
(1) The issuance of the temporary
labor certification was not justified due
to fraud or willful misrepresentation of
a material fact in the application
process, as defined in § 655.73(d);
(2) The employer substantially failed
to comply with any of the terms or
conditions of the approved temporary
labor certification. A substantial failure
is a willful failure to comply that
constitutes a significant deviation from
the terms and conditions of the
approved certification and is further
defined in § 655.73(d) and (e);
(3) The employer failed to cooperate
with a DOL investigation or with a DOL
official performing an investigation,
inspection, audit (under § 655.73), or
law enforcement function under 29 CFR
part 503 or this subpart; or
(4) The employer failed to comply
with one or more sanctions or remedies
imposed by WHD, or with one or more
decisions or orders of the Secretary with
the respect to the H–2B program.
(b) DOL procedures for revocation.
(1) Notice of Revocation. If the
Administrator, OFLC makes a
determination to revoke an employer’s
temporary labor certification, the
Administrator, OFLC will send to the
employer (and its attorney or agent, if
applicable) a Notice of Revocation. The
notice will contain a detailed statement
of the grounds for the revocation and
inform the employer of its right to
submit rebuttal evidence or to appeal. If
the employer does not file rebuttal
evidence or an appeal within 10
business days from the date the Notice
of Revocation is issued, the notice is the
final agency action and will take effect
immediately at the end of the 10-day
period.
(2) Rebuttal. If the employer timely
submits rebuttal evidence, the
Administrator, OFLC will inform the
employer of the final determination on
the revocation within 10 business days
of receiving the rebuttal evidence. If the
Administrator, OFLC determines that
the certification should be revoked, the
Administrator, OFLC will inform the
employer of its right to appeal according
to the procedures of § 655.61. If the
employer does not appeal the final
determination, it will become the final
agency action.
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(3) Appeal. An employer may appeal
a Notice of Revocation, or a final
determination of the Administrator,
OFLC after the review of rebuttal
evidence, according to the appeal
procedures of § 655.61. The ALJ’s
decision is the final agency action.
(4) Stay. The timely filing of rebuttal
evidence or an administrative appeal
will stay the revocation pending the
outcome of those proceedings.
(5) Decision. If the temporary labor
certification is revoked, the
Administrator, OFLC will send a copy
of the final agency action to DHS and
the Department of State.
(c) Employer’s obligations in the event
of revocation. If an employer’s
temporary labor certification is revoked,
the employer is responsible for:
(1) Reimbursement of actual inbound
transportation and other expenses;
(2) The workers’ outbound
transportation expenses;
(3) Payment to the workers of the
amount due under the three-fourths
guarantee; and
(4) Any other wages, benefits, and
working conditions due or owing to the
workers under this subpart.
§ 655.73
Debarment.
(a) Debarment of an employer. The
Administrator, OFLC may not issue
future labor certifications under this
subpart to an employer or any successor
in interest to that employer, subject to
the time limits set forth in paragraph (c)
of this section, if the Administrator,
OFLC finds that the employer
committed the following violations:
(1) Willful misrepresentation of a
material fact in its H–2B Registration,
Application for Temporary Employment
Certification, or H–2B Petition;
(2) Substantial failure to meet any of
the terms and conditions of its H–2B
Registration, Application for Temporary
Employment Certification, or H–2B
Petition. A substantial failure is a willful
failure to comply that constitutes a
significant deviation from the terms and
conditions of such documents; or
(3) Willful misrepresentation of a
material fact to the DOS during the visa
application process.
(b) Debarment of an agent or attorney.
If the Administrator, OFLC finds, under
this section, that an attorney or agent
committed a violation as described in
paragraphs (a)(1) through (3) of this
section or participated in an employer’s
violation, the Administrator, OFLC may
not issue future labor certifications to an
employer represented by such agent or
attorney, subject to the time limits set
forth in paragraph (c) of this section.
(c) Period of debarment. Debarment
under this subpart may not be for less
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than 1 year or more than 5 years from
the date of the final agency decision.
(d) Determining whether a violation is
willful. A willful misrepresentation of a
material fact or a willful failure to meet
the required terms and conditions
occurs when the employer, attorney, or
agent knows a statement is false or that
the conduct is in violation, or shows
reckless disregard for the truthfulness of
its representation or for whether its
conduct satisfies the required
conditions.
(e) Determining whether a violation is
significant. In determining whether a
violation is a significant deviation from
the terms and conditions of the H–2B
Registration, Application for Temporary
Employment Certification, or H–2B
Petition, the factors that the
Administrator, OFLC may consider
include, but are not limited to, the
following:
(1) Previous history of violation(s)
under the H–2B program;
(2) The number of H–2B workers,
workers in corresponding employment,
or improperly rejected U.S. applicants
who were and/or are affected by the
violation(s);
(3) The gravity of the violation(s);
(4) The extent to which the violator
achieved a financial gain due to the
violation(s), or the potential financial
loss or potential injury to the worker(s);
and
(5) Whether U.S. workers have been
harmed by the violation.
(f) Violations. Where the standards set
forth in paragraphs (d) and (e) in this
section are met, debarrable violations
would include but would not be limited
to one or more acts of commission or
omission which involve:
(1) Failure to pay or provide the
required wages, benefits or working
conditions to the employer’s H–2B
workers and/or workers in
corresponding employment;
(2) Failure, except for lawful, jobrelated reasons, to offer employment to
qualified U.S. workers who applied for
the job opportunity for which
certification was sought;
(3) Failure to comply with the
employer’s obligations to recruit U.S.
workers;
(4) Improper layoff or displacement of
U.S. workers or workers in
corresponding employment;
(5) Failure to comply with one or
more sanctions or remedies imposed by
the Administrator, WHD for violation(s)
of obligations under the job order or
other H–2B obligations, or with one or
more decisions or orders of the
Secretary or a court under this subpart
or 29 CFR part 503;
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(6) Failure to comply with the Notice
of Deficiency process under this
subpart;
(7) Failure to comply with the assisted
recruitment process under this subpart;
(8) Impeding an investigation of an
employer under 29 CFR part 503 or an
audit under this subpart;
(9) Employing an H–2B worker
outside the area of intended
employment, in an activity/activities
not listed in the job order, or outside the
validity period of employment of the job
order, including any approved
extension thereof;
(10) A violation of the requirements of
§ 655.20(o) or (p);
(11) A violation of any of the
provisions listed in § 655.20(r);
(12) Any other act showing such
flagrant disregard for the law that future
compliance with program requirements
cannot reasonably be expected;
(13) Fraud involving the H–2B
Registration, Application for Temporary
Employment Certification or the H–2B
Petition; or
(14) A material misrepresentation of
fact during the registration or
application process.
(g) Debarment procedure. (1) Notice of
Debarment. If the Administrator, OFLC
makes a determination to debar an
employer, attorney, or agent, the
Administrator, OFLC will send the party
a Notice of Debarment. The Notice will
state the reason for the debarment
finding, including a detailed
explanation of the grounds for and the
duration of the debarment and inform
the party subject to the notice of its right
to submit rebuttal evidence or to request
a debarment hearing. If the party does
not file rebuttal evidence or request a
hearing within 30 calendar days of the
date of the Notice of Debarment, the
notice is the final agency action and the
debarment will take effect at the end of
the 30-day period. The timely filing of
an rebuttal evidence or a request for a
hearing stays the debarment pending the
outcome of the appeal as provided in
paragraphs (g)(2)–(6) of this section.
(2) Rebuttal. The party who received
the Notice of Debarment may choose to
submit evidence to rebut the grounds
stated in the notice within 30 calendar
days of the date the notice is issued. If
rebuttal evidence is timely filed, the
Administrator, OFLC will issue a final
determination on the debarment within
30 calendar days of receiving the
rebuttal evidence. If the Administrator,
OFLC determines that the party should
be debarred, the Administrator, OFLC
will inform the party of its right to
request a debarment hearing according
to the procedures in this section. The
party must request a hearing within 30
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calendar days after the date of the
Administrator, OFLC’s final
determination, or the Administrator
OFLC’s determination will be the final
agency order and the debarment will
take effect at the end of the 30-day
period.
(3) Hearing. The recipient of a Notice
of Debarment seeking to challenge the
debarment must request a debarment
hearing within 30 calendar days of the
date of a Notice of Debarment or the
date of a final determination of the
Administrator, OFLC after review of
rebuttal evidence submitted under
paragraph (g)(2) of this section. To
obtain a debarment hearing, the
recipient must, within 30 days of the
date of the Notice or the final
determination, file a written request
with the Chief ALJ, United States
Department of Labor, 800 K Street, NW.,
Suite 400–N, Washington, DC 20001–
8002, and simultaneously serve a copy
on the Administrator, OFLC. The
debarment will take effect 30 calendar
days from the date the Notice of
Debarment or final determination is
issued, unless a request for review is
timely filed. Within 10 business days of
receipt of the request for a hearing, the
Administrator, OFLC will send a
certified copy of the ETA case file to the
Chief ALJ by means normally assuring
next day delivery. The Chief ALJ will
immediately assign an ALJ to conduct
the hearing. The procedures in 29 CFR
part 18 apply to such hearings, except
that the request for a hearing will not be
considered to be a complaint to which
an answer is required.
(4) Decision. After the hearing, the
ALJ must affirm, reverse, or modify the
Administrator, OFLC’s determination.
The ALJ will prepare the decision
within 60 calendar days after
completion of the hearing and closing of
the record. The ALJ’s decision will be
provided to the parties to the debarment
hearing by means normally assuring
next day delivery. The ALJ’s decision is
the final agency action, unless either
party, within 30 calendar days of the
ALJ’s decision, seeks review of the
decision with the Administrative
Review Board (ARB).
(5) Review by the ARB. (i) Any party
wishing review of the decision of an ALJ
must, within 30 calendar days of the
decision of the ALJ, petition the ARB to
review the decision. Copies of the
petition must be served on all parties
and on the ALJ. The ARB will decide
whether to accept the petition within 30
calendar days of receipt. If the ARB
declines to accept the petition, or if the
ARB does not issue a notice accepting
a petition within 30 calendar days after
the receipt of a timely filing of the
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petition, the decision of the ALJ is the
final agency action. If a petition for
review is accepted, the decision of the
ALJ will be stayed unless and until the
ARB issues an order affirming the
decision. The ARB must serve notice of
its decision to accept or not to accept
the petition upon the ALJ and upon all
parties to the proceeding.
(ii) Upon receipt of the ARB’s notice
to accept the petition, the Office of
Administrative Law Judges will
promptly forward a copy of the
complete hearing record to the ARB.
(iii) Where the ARB has determined to
review the decision and order, the ARB
will notify each party of the issue(s)
raised, the form in which submissions
must be made (e.g., briefs or oral
argument), and the time within which
the presentation must be submitted.
(6) ARB Decision. The ARB’s final
decision must be issued within 90
calendar days from the notice granting
the petition and served upon all parties
and the ALJ.
(h) Concurrent debarment
jurisdiction. OFLC and the WHD have
concurrent jurisdiction to debar under
this section or under 29 CFR 503.24.
When considering debarment, OFLC
and the WHD will coordinate their
activities. A specific violation for which
debarment is imposed will be cited in
a single debarment proceeding. Copies
of final debarment decisions will be
forwarded to DHS and DOS promptly.
(i) Debarment from other foreign labor
programs. Upon debarment under this
subpart or 29 CFR 503.24, the debarred
party will be disqualified from filing
any labor certification applications or
labor condition applications with the
Department by, or on behalf of, the
debarred party for the same period of
time set forth in the final debarment
decision.
§§ 655.74–655.76, 655.80, and 655.81
[Removed and Reserved]
33. In subpart A, remove and reserve
§§ 655.74 through 655.76, 655.80, and
655.81.
■
§§ 655.82–655.99
[Added and Reserved]
34. In subpart A, add and reserve
§§ 655.82 through 655.99.
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■
Title 29—Labor
■
35. Add part 503 to read as follows:
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10169
PART 503—ENFORCEMENT OF
OBLIGATIONS FOR TEMPORARY
NONIMMIGRANT NONAGRICULTURAL WORKERS
ADMITTED UNDER SECTION 214(c)(1)
OF THE IMMIGRATION AND
NATIONALITY ACT
Record
503.56 Retention of official record.
Subpart A—General Provisions
Sec.
503.0 Introduction.
503.1 Scope and purpose.
503.2 Territory of Guam.
503.3 Coordination among Governmental
agencies.
503.4 Definition of terms.
503.5 Temporary need.
503.6 Waiver of rights prohibited.
503.7 Investigation authority of Secretary.
503.8 Accuracy of information, statements,
data.
The regulations in this part cover the
enforcement of all statutory and
regulatory obligations, including
requirements under 8 U.S.C. 1184(c)
and 20 CFR part 655, Subpart A,
applicable to the employment of H–2B
workers admitted under the
Immigration and Nationality Act (INA),
8 U.S.C. 1101(a)(15)(H)(ii)(b), and
workers in corresponding employment,
including obligations to offer
employment to eligible United States
(U.S.) workers and to not lay off or
displace U.S. workers in a manner
prohibited by the regulations in this part
or 20 CFR part 655, Subpart A.
Subpart B—Enforcement
503.15 Enforcement.
503.16 Assurances and obligations of H–2B
employers.
503.17 Documentation retention
requirements of H–2B employers.
503.18 Validity of temporary labor
certification.
503.19 Violations.
503.20 Sanctions and remedies—general.
503.21 Concurrent actions.
503.22 Representation of the Secretary.
503.23 Civil money penalty assessment.
503.24 Debarment.
503.25 Failure to cooperate with
investigators.
503.26 Civil money penalties—payment
and collection.
Subpart C—Administrative Proceedings
503.40 Applicability of procedures and
rules.
Procedures Related to Hearing
503.41 Administrator, WHD’s
determination.
503.42 Contents of notice of determination.
503.43 Request for hearing.
Rules of Practice
503.44 General.
503.45 Service of pleadings.
503.46 Commencement of proceeding.
503.47 Caption of proceeding.
503.48 Conduct of proceeding.
Procedures Before Administrative Law Judge
503.49 Consent findings and order.
Post-Hearing Procedures
503.50 Decision and order of
Administrative Law Judge.
Review of Administrative Law Judge’s
Decision
503.51 Procedures for initiating and
undertaking review.
503.52 Responsibility of the Office of
Administrative Law Judges (OALJ).
503.53 Additional information, if required.
503.54 Submission of documents to the
Administrative Review Board.
503.55 Final decision of the Administrative
Review Board.
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Authority: 8 U.S.C. 1101(a)(15(H)(ii(b) and
1184(c) and 8 CFR 214.2(h).
Subpart A—General Provisions
§ 503.0
§ 503.1
Introduction.
Scope and purpose.
(a) Statutory standard. 8 U.S.C.
1184(c)(1) requires the Secretary of the
Department of Homeland Security
(DHS) to consult with appropriate
agencies before authorizing the entry of
H–2B workers. DHS regulations 8 CFR
214.2(h)(6)(iv) provide that a petition to
bring nonimmigrant workers on H–2B
visas into the U.S. for temporary
nonagricultural employment may not be
approved by the Secretary of DHS
unless the petitioner has applied for and
received a temporary labor certification
from the U.S. Secretary of Labor
(Secretary). The temporary labor
certification reflects a determination by
the Secretary that:
(1) There are not sufficient U.S.
workers who are qualified and will be
available at the time and place needed
to perform the labor or services involved
in the petition; and
(2) The employment of the foreign
worker will not adversely affect the
wages and working conditions of U.S.
workers similarly employed.
(b) Role of the Employment and
Training Administration (ETA). The
issuance and denial of labor
certifications under 8 U.S.C. 1184(c) has
been delegated by the Secretary to ETA,
an agency within the U.S. Department of
Labor (the Department or DOL), which
in turn has delegated that authority to
the Office of Foreign Labor Certification
(OFLC). In general, matters concerning
the obligations of an H–2B employer
related to the temporary labor
certification process are administered by
OFLC, including obligations and
assurances made by employers,
overseeing employer recruitment, and
assuring program integrity. The
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Office of Management and Budget
(OMB)-approved ETA Form 9142 and
the appropriate appendices, a valid
wage determination, as required by 20
CFR 655.10, and a subsequently-filed
U.S. worker recruitment report,
submitted by an employer to secure a
temporary labor certification
determination from DOL.
Area of intended employment means
the geographic area within normal
commuting distance of the place
(worksite address) of the job
opportunity for which the certification
is sought. There is no rigid measure of
distance that constitutes a normal
commuting distance or normal
commuting area, because there may be
widely varying factual circumstances
among different areas (e.g., average
commuting times, barriers to reaching
the worksite, or quality of the regional
transportation network). If the place of
§ 503.4 Definition of terms.
intended employment is within a
For purposes of this part:
Metropolitan Statistical Area (MSA),
Act means the Immigration and
including a multistate MSA, any place
Nationality Act or INA, as amended, 8
within the MSA is deemed to be within
U.S.C. 1101 et seq.
normal commuting distance of the place
Administrative Law Judge (ALJ) means
of intended employment. The borders of
a person within the Department’s Office
MSAs are not controlling in the
of Administrative Law Judges appointed
identification of the normal commuting
under 5 U.S.C. 3105.
Administrator, Office of Foreign Labor area; a location outside of an MSA may
be within normal commuting distance
Certification (OFLC) means the primary
of a location that is inside (e.g., near the
official of the Office of Foreign Labor
border of) the MSA.
Certification, ETA, or the
Attorney means any person who is a
Administrator’s designee.
member in good standing of the bar of
Administrator, Wage and Hour
the highest court of any State,
Division (WHD) means the primary
possession, territory, or commonwealth
official of the WHD, or the
of the U.S., or the District of Columbia.
Administrator’s designee.
No attorney who is under suspension,
Agent. (1) Agent means a legal entity
debarment, expulsion, disbarment, or
or person who:
otherwise restricted from practice before
(i) Is authorized to act on behalf of an
employer for temporary nonagricultural any court, the Department, the
Executive Office for Immigration
labor certification purposes;
(ii) Is not itself an employer, or a joint Review under 8 CFR 1003.101, or DHS
under 8 CFR 292.3 may represent an
employer, as defined in this part with
employer under this part.
§ 503.2 Territory of Guam.
respect to a specific application; and
Certifying Officer (CO) means an
(iii) Is not an association or other
This part does not apply to temporary
OFLC official designated by the
organization of employers.
employment in the Territory of Guam.
(2) No agent who is under suspension, Administrator, OFLC to make
The Department does not certify to the
determinations on applications under
debarment, expulsion, disbarment, or
United States Citizenship and
otherwise restricted from practice before the H–2B program. The Administrator,
Immigration Services (USCIS) of DHS
OFLC is the National CO. Other COs
any court, the Department, the
the temporary employment of
may also be designated by the
Executive Office for Immigration
nonimmigrant foreign workers under
Administrator, OFLC to make the
H–2B visas, or enforce compliance with Review under 8 CFR 1003.101, or DHS
determinations required under 20 CFR
the provisions of the H–2B visa program under 8 CFR 292.3 may represent an
part 655, Subpart A.
employer under this part.
in the Territory of Guam. Under DHS
Chief Administrative Law Judge (Chief
Agricultural labor or services means
regulations, 8 CFR 214.2(h)(6)(v),
those duties and occupations defined in ALJ) means the chief official of the
administration of the H–2B temporary
Department’s Office of Administrative
20 CFR 655.100.
labor certification program is
Law Judges or the Chief Administrative
Applicant means a U.S. worker who
undertaken by the Governor of Guam, or
Law Judge’s designee.
is applying for a job opportunity for
the Governor’s designated
Corresponding employment. (1)
which an employer has filed an
representative.
Application for Temporary Employment Corresponding employment means the
§ 503.3 Coordination among Governmental Certification (ETA Form 9142 and the
employment of workers who are not
agencies.
H–2B workers by an employer that has
appropriate appendices).
a certified H–2B Application for
Application for Temporary
(a) Complaints received by ETA or
Temporary Employment Certification
Employment Certification means the
any State Workforce Agency (SWA)
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regulations pertaining to the issuance,
denial, and revocation of labor
certification for temporary foreign
workers by the OFLC are found in 20
CFR part 655, Subpart A.
(c) Role of the Wage and Hour
Division (WHD). DHS, effective January
18, 2009, under section 214(c)(14)(B) of
the INA, 8 U.S.C. 1184(c)(14)(B), has
delegated to the Secretary certain
investigatory and law enforcement
functions to carry out the provisions
under 8 U.S.C. 1184(c). The Secretary
has delegated these functions to the
WHD. In general, matters concerning the
rights of H–2B workers and workers in
corresponding employment under this
part and the employer’s obligations are
enforced by the WHD, including
whether employment was offered to
U.S. workers as required under 20 CFR
part 655, Subpart A, or whether U.S.
workers were laid off or displaced in
violation of program requirements. The
WHD has the responsibility to carry out
investigations, inspections, and law
enforcement functions and in
appropriate instances to impose
penalties, to debar from future
certifications, to recommend revocation
of existing certifications, and to seek
remedies for violations, including
recovery of unpaid wages and
reinstatement of improperly laid off or
displaced U.S. workers.
(d) Effect of regulations. The
enforcement functions carried out by
the WHD under 8 U.S.C. 1184(c), 20
CFR part 655, Subpart A, and the
regulations in this part apply to the
employment of any H–2B worker and
any worker in corresponding
employment as the result of an
Application for Temporary Employment
Certification filed with the Department
on or after April 23, 2012.
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regarding noncompliance with H–2B
statutory or regulatory labor standards
will be immediately forwarded to the
appropriate WHD office for suitable
action under the regulations in this part.
(b) Information received in the course
of processing registrations and
applications, program integrity
measures, or enforcement actions may
be shared between OFLC and WHD or,
where applicable to employer
enforcement under the H–2B program,
may be forwarded to other agencies as
appropriate, including the Department
of State (DOS) and DHS.
(c) A specific violation for which
debarment is sought will be cited in a
single debarment proceeding. OFLC and
the WHD will coordinate their activities
to achieve this result. Copies of final
debarment decisions will be forwarded
to DHS promptly.
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when those workers are performing
either substantially the same work
included in the job order or
substantially the same work performed
by the H–2B workers, except that
workers in the following two categories
are not included in corresponding
employment:
(i) Incumbent employees
continuously employed by the H–2B
employer to perform substantially the
same work included in the job order or
substantially the same work performed
by the H–2B workers during the 52
weeks prior to the period of
employment certified on the
Application for Temporary Employment
Certification and who have worked or
been paid for at least 35 hours in at least
48 of the prior 52 workweeks, and who
have worked or been paid for an average
of at least 35 hours per week over the
prior 52 weeks, as demonstrated on the
employer’s payroll records, provided
that the terms and working conditions
of their employment are not
substantially reduced during the period
of employment covered by the job order.
In determining whether this standard
was met, the employer may take credit
for any hours that were reduced by the
employee voluntarily choosing not to
work due to personal reasons such as
illness or vacation; or
(ii) Incumbent employees covered by
a collective bargaining agreement or an
individual employment contract that
guarantees both an offer of at least
35 hours of work each workweek and
continued employment with the H–2B
employer at least through the period of
employment covered by the job order,
except that the employee may be
dismissed for cause.
(2) To qualify as corresponding
employment, the work must be
performed during the period of the job
order, including any approved
extension thereof.
Date of need means the first date the
employer requires services of the H–2B
workers as listed on the application.
Department of Homeland Security
(DHS) means the Federal Department
having jurisdiction over certain
immigration-related functions, acting
through its agencies, including USCIS.
Employee means a person who is
engaged to perform work for an
employer, as defined under the general
common law. Some of the factors
relevant to the determination of
employee status include: The hiring
party’s right to control the manner and
means by which the work is
accomplished; the skill required to
perform the work; the source of the
instrumentalities and tools for
accomplishing the work; the location of
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the work; the hiring party’s discretion
over when and how long to work; and
whether the work is part of the regular
business of the hiring party. Other
applicable factors may be considered
and no one factor is dispositive. The
terms ‘‘employee’’ and ‘‘worker’’ are
used interchangeably in this part.
Employer means a person (including
any individual, partnership, association,
corporation, cooperative, firm, joint
stock company, trust, or other
organization with legal rights and
duties) that:
(1) Has a place of business (physical
location) in the U.S. and a means by
which it may be contacted for
employment;
(2) Has an employer relationship
(such as the ability to hire, pay, fire,
supervise or otherwise control the work
of employees) with respect to an H–2B
worker or a worker in corresponding
employment; and
(3) Possesses, for purposes of filing an
Application for Temporary Employment
Certification, a valid Federal Employer
Identification Number (FEIN).
Employment and Training
Administration (ETA) means the agency
within the Department which includes
OFLC and has been delegated authority
by the Secretary to fulfill the Secretary’s
mandate under the DHS regulations for
the administration and adjudication of
an Application for Temporary
Employment Certification and related
functions.
Federal holiday means a legal public
holiday as defined at 5 U.S.C. 6103.
Full-time means 35 or more hours of
work per week.
H–2B Petition means the DHS Petition
for a Nonimmigrant Worker form, or
successor form, and accompanying
documentation required by DHS for
employers seeking to employ foreign
persons as H–2B nonimmigrant workers.
The H–2B Petition includes the
approved Application for Temporary
Employment Certification and the Final
Determination letter.
H–2B Registration means the OMBapproved ETA Form 9155, submitted by
an employer to register its intent to hire
H–2B workers and to file an Application
for Temporary Employment
Certification.
H–2B worker means any temporary
foreign worker who is lawfully present
in the U.S. and authorized by DHS to
perform nonagricultural labor or
services of a temporary or seasonal
nature under 8 U.S.C.
1101(a)(15)(H)(ii)(b).
Job contractor means a person,
association, firm, or a corporation that
meets the definition of an employer and
that contracts services or labor on a
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10171
temporary basis to one or more
employers, which is not an affiliate,
branch or subsidiary of the job
contractor and where the job contractor
will not exercise substantial, direct dayto-day supervision and control in the
performance of the services or labor to
be performed other than hiring, paying
and firing the workers.
Job offer means the offer made by an
employer or potential employer of H–2B
workers to both U.S. and H–2B workers
describing all the material terms and
conditions of employment, including
those relating to wages, working
conditions, and other benefits.
Job opportunity means one or more
openings for full-time employment with
the petitioning employer within a
specified area(s) of intended
employment for which the petitioning
employer is seeking workers.
Job order means the document
containing the material terms and
conditions of employment relating to
wages, hours, working conditions,
worksite and other benefits, including
obligations and assurances under
29 CFR part 655, Subpart A and this
subpart that is posted between and
among the SWAs on their job clearance
systems.
Joint employment means that where
two or more employers each have
sufficient definitional indicia of being
an employer to be considered the
employer of a worker, those employers
will be considered to jointly employ
that worker. Each employer in a joint
employment relationship to a worker is
considered a joint employer of that
worker.
Layoff means any involuntary
separation of one or more U.S.
employees without cause.
Metropolitan Statistical Area (MSA)
means a geographic entity defined by
OMB for use by Federal statistical
agencies in collecting, tabulating, and
publishing Federal statistics. A metro
area contains a core urban area of 50,000
or more population, and a micro area
contains an urban core of at least 10,000
(but fewer than 50,000) population.
Each metro or micro area consists of one
or more counties and includes the
counties containing the core urban area,
as well as any adjacent counties that
have a high degree of social and
economic integration (as measured by
commuting to work) with the urban
core.
National Processing Center (NPC)
means the office within OFLC which is
charged with the adjudication of an
Application for Temporary Employment
Certification or other applications.
Non-agricultural labor and services
means any labor or services not
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considered to be agricultural labor or
services as defined in 20 CFR part 655,
Subpart B. It does not include the
provision of services as members of the
medical profession by graduates of
medical schools.
Offered wage means the wage offered
by an employer in an H–2B job order.
The offered wage must equal or exceed
the highest of the prevailing wage or
Federal, State or local minimum wage.
Office of Foreign Labor Certification
(OFLC) means the organizational
component of the ETA that provides
national leadership and policy guidance
and develops regulations to carry out
the Secretary’s responsibilities for the
admission of foreign workers to the U.S.
to perform work described in 8 U.S.C.
1101(a)(15)(H)(ii)(b).
Prevailing wage determination (PWD)
means the prevailing wage for the
position, as described in 20 CFR 655.12,
which is the subject of the Application
for Temporary Employment
Certification.
Secretary means the Secretary of
Labor, the chief official of the U.S.
Department of Labor, or the Secretary’s
designee.
Secretary of Homeland Security
means the chief official of the U.S. DHS
or the Secretary of DHS’s designee.
State Workforce Agency (SWA) means
a State government agency that receives
funds under the Wagner-Peyser Act (29
U.S.C. 49 et seq.) to administer the
State’s public labor exchange activities.
Strike means a concerted stoppage of
work by employees as a result of a labor
dispute, or any concerted slowdown or
other concerted interruption of
operation (including stoppage by reason
of the expiration of a collective
bargaining agreement).
Successor in interest. (1) Successor in
interest means where an employer has
violated 20 CFR part 655, Subpart A or
this part, and has ceased doing business
or cannot be located for purposes of
enforcement, a successor in interest to
that employer may be held liable for the
duties and obligations of the violating
employer in certain circumstances. The
following factors, as used under Title
VII of the Civil Rights Act and the
Vietnam Era Veterans’ Readjustment
Assistance Act, may be considered in
determining whether an employer is a
successor in interest; no one factor is
dispositive, but all of the circumstances
will be considered as a whole:
(i) Substantial continuity of the same
business operations;
(ii) Use of the same facilities;
(iii) Continuity of the work force;
(iv) Similarity of jobs and working
conditions;
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(v) Similarity of supervisory
personnel;
(vi) Whether the former management
or owner retains a direct or indirect
interest in the new enterprise;
(vii) Similarity in machinery,
equipment, and production methods;
(viii) Similarity of products and
services; and
(ix) The ability of the predecessor to
provide relief.
(2) For purposes of debarment only,
the primary consideration will be the
personal involvement of the firm’s
ownership, management, supervisors,
and others associated with the firm in
the violation(s) at issue.
United States (U.S.) means the
continental U.S., Alaska, Hawaii, the
Commonwealth of Puerto Rico, and the
territories of Guam, the U.S. Virgin
Islands, and the Commonwealth of the
Northern Mariana Islands (CNMI).
United States Citizenship and
Immigration Services (USCIS) means the
Federal agency within DHS that makes
the determination under the INA
whether to grant petitions filed by
employers seeking H–2B workers to
perform temporary nonagricultural work
in the U.S.
United States worker (U.S. worker)
means a worker who is:
(1) A citizen or national of the U.S.;
(2) An alien who is lawfully admitted
for permanent residence in the U.S., is
admitted as a refugee under 8 U.S.C.
1157, is granted asylum under 8 U.S.C.
1158, or is an immigrant otherwise
authorized (by the INA or by DHS) to be
employed in the U.S.; or
(3) An individual who is not an
unauthorized alien (as defined in 8
U.S.C. 1324a(h)(3)) with respect to the
employment in which the worker is
engaging.
Wage and Hour Division (WHD)
means the agency within the
Department with investigatory and law
enforcement authority, as delegated
from DHS, to carry out the provisions
under 8 U.S.C. 1184(c).
Wages mean all forms of cash
remuneration to a worker by an
employer in payment for personal
services.
§ 503.5
Temporary need.
(a) An employer seeking certification
under 20 CFR part 655, Subpart A must
establish that its need for nonagricultural services or labor is
temporary, regardless of whether the
underlying job is permanent or
temporary. 8 CFR 214.2(h)(6)(ii)(A).
(b) The employer’s need is considered
temporary if justified to the CO as one
of the following: a one-time occurrence;
a seasonal need; a peakload need; or an
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intermittent need, as defined by DHS. 8
CFR 214.2(h)(6)(ii)(B).
§ 503.6
Waiver of rights prohibited.
A person may not seek to have an
H–2B worker, a worker in
corresponding employment, or any
other person, including but not limited
to a U.S. worker improperly rejected for
employment or improperly laid off or
displaced, waive or modify any rights
conferred under 8 U.S.C. 1184(c),
20 CFR part 655, Subpart A, or the
regulations in this part. Any agreement
by an employee purporting to waive or
modify any rights given to said person
under these provisions will be void as
contrary to public policy except as
follows:
(a) Waivers or modifications of rights
or obligations hereunder in favor of the
Secretary will be valid for purposes of
enforcement; and
(b) Agreements in settlement of
private litigation are permitted.
§ 503.7 Investigation authority of
Secretary.
(a) Authority of the Administrator,
WHD. The Secretary of Homeland
Security has delegated to the Secretary,
under 8 U.S.C. 1184(c)(14)(B), authority
to perform investigative and
enforcement functions. The
Administrator, WHD will perform all
such functions.
(b) Conduct of investigations. The
Secretary, through the WHD, may
investigate to determine compliance
with obligations under 8 U.S.C. 1184(c),
20 CFR part 655, Subpart A, or the
regulations in this part, either under a
complaint or otherwise, as may be
appropriate. In connection with such an
investigation, WHD may enter and
inspect any premises, land, property,
worksite, vehicles, structure, facility,
place and records (and make
transcriptions, photographs, scans,
videos, photocopies, or use any other
means to record the content of the
records or preserve images of places or
objects), question any person, or gather
any information, in whatever form, as
may be appropriate.
(c) Confidential investigation. The
WHD will conduct investigations in a
manner that protects the confidentiality
of any complainant or other person who
provides information to the Secretary in
good faith.
(d) Report of violations. Any person
may report a violation of the obligations
imposed by 8 U.S.C. 1184(c), 20 CFR
part 655, Subpart A, or the regulations
in this part to the Secretary by advising
any local office of the SWA, ETA, WHD
or any other authorized representative
of the Secretary. The office or person
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receiving such a report will refer it to
the appropriate office of WHD for the
geographic area in which the reported
violation is alleged to have occurred.
§ 503.8 Accuracy of information,
statements, data.
Information, statements, and data
submitted in compliance with 8 U.S.C.
1184(c) or the regulations in this part
are subject to 18 U.S.C. 1001, which
provides, with regard to statements or
entries generally, that whoever, in any
matter within the jurisdiction of any
department or agency of the U.S.,
knowingly and willfully falsifies,
conceals, or covers up a material fact by
any trick, scheme, or device, or makes
any false, fictitious, or fraudulent
statements or representations, or makes
or uses any false writing or document
knowing the same to contain any false,
fictitious, or fraudulent statement or
entry, will be fined not more than
$250,000 or imprisoned not more than
5 years, or both.
Subpart B—Enforcement
§ 503.15
Enforcement.
The investigation, inspection, and law
enforcement functions that carry out the
provisions of 8 U.S.C. 1184(c), 20 CFR
part 655, Subpart A, or the regulations
in this part pertain to the employment
of any H–2B worker, any worker in
corresponding employment, or any U.S.
worker improperly rejected for
employment or improperly laid off or
displaced.
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§ 503.16 Assurances and obligations of
H–2B employers.
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
following conditions with respect to its
H–2B workers and any workers in
corresponding employment:
(a) Rate of pay. (1) The offered wage
in the job order equals or exceeds the
highest of the prevailing wage or
Federal minimum wage, State minimum
wage, or local minimum wage. The
employer must pay at least the offered
wage, free and clear, during the entire
period of the Application for Temporary
Employment Certification granted by
OFLC.
(2) The offered wage is not based on
commissions, bonuses, or other
incentives, including paying on a piecerate basis, unless the employer
guarantees a wage earned every
workweek that equals or exceeds the
offered wage.
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(3) If the employer requires one or
more minimum productivity standards
of workers as a condition of job
retention, the standards must be
specified in the job order and the
employer must demonstrate that they
are normal and usual for non-H–2B
employers for the same occupation in
the area of intended employment.
(4) An employer that pays on a piecerate basis must demonstrate that the
piece rate is no less than the normal rate
paid by non-H–2B employers to workers
performing the same activity in the area
of intended employment. The average
hourly piece rate earnings must result in
an amount at least equal to the offered
wage. If the worker is paid on a piece
rate basis and at the end of the
workweek the piece rate does not result
in average hourly piece rate earnings
during the workweek at least equal to
the amount the worker would have
earned had the worker been paid at the
offered hourly wage, then the employer
must supplement the worker’s pay at
that time so that the worker’s earnings
are at least as much as the worker would
have earned during the workweek if the
worker had instead been paid at the
offered hourly wage for each hour
worked.
(b) Wages free and clear. The payment
requirements for wages in this section
will be satisfied by the timely payment
of such wages to the worker either in
cash or negotiable instrument payable at
par. The payment must be made finally
and unconditionally and ‘‘free and
clear.’’ The principles applied in
determining whether deductions are
reasonable and payments are received
free and clear and the permissibility of
deductions for payments to third
persons are explained in more detail in
29 CFR part 531.
(c) Deductions. The employer must
make all deductions from the worker’s
paycheck required by law. The job order
must specify all deductions not required
by law which the employer will make
from the worker’s pay; any such
deductions not disclosed in the job
order are prohibited. The wage payment
requirements of paragraph (b) of this
section are not met where unauthorized
deductions, rebates, or refunds reduce
the wage payment made to the worker
below the minimum amounts required
by the offered wage or where the worker
fails to receive such amounts free and
clear because the worker ‘‘kicks back’’
directly or indirectly to the employer or
to another person for the employer’s
benefit the whole or part of the wages
delivered to the worker. Authorized
deductions are limited to: Those
required by law, such as taxes payable
by workers that are required to be
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10173
withheld by the employer and amounts
due workers which the employer is
required by court order to pay to
another; deductions for the reasonable
cost or fair value of board, lodging, and
facilities furnished; and deductions of
amounts which are authorized to be
paid to third persons for the worker’s
account and benefit through his or her
voluntary assignment or order or which
are authorized by a collective bargaining
agreement with bona fide
representatives of workers which covers
the employer. Deductions for amounts
paid to third persons for the worker’s
account and benefit which are not so
authorized or are contrary to law or
from which the employer, agent or
recruiter, including any agents or
workers, or any affiliated person derives
any payment, rebate, commission,
profit, or benefit directly or indirectly,
may not be made if they reduce the
actual wage paid to the worker below
the offered wage indicated on the
Application for Temporary Employment
Certification.
(d) Job opportunity is full-time. The
job opportunity is a full-time temporary
position, consistent with § 503.4, and
the employer must use a single
workweek as its standard for computing
wages due. An employee’s workweek
must be a fixed and regularly recurring
period of 168 hours—seven consecutive
24-hour periods. It need not coincide
with the calendar wee