Selection Procedures for Reviewing Applications Filed by Employers Seeking Temporary Employment of H-2B Foreign Workers in the United States, 7399-7403 [2019-03809]

Agencies

• Employment and Training Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 84, Number 42 (Monday, March 4, 2019)]
[Notices]
[Pages 7399-7403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03809]


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DEPARTMENT OF LABOR

Employment and Training Administration


Selection Procedures for Reviewing Applications Filed by 
Employers Seeking Temporary Employment of H-2B Foreign Workers in the 
United States

AGENCY: Employment and Training Administration (ETA), Labor.

ACTION: Notice.

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SUMMARY: The Department of Labor's (Department's or DOL's) Office of 
Foreign Labor Certification (OFLC) is making this announcement to 
inform employers and other interested stakeholders of how H-2B 
Applications for Temporary Employment Certification, Form ETA-9142B, 
filed by employers on or after July 3, 2019, will be assigned to staff 
for review. The Department believes these procedural changes will 
provide for fairer and more orderly assignment and review of 
applications. The Department is seeking public comments on these 
procedural changes.

DATES: To be ensured for consideration, comments must be submitted in 
writing on or before April 3, 2019. OFLC will review all of the 
comments received and will make any changes it determines are 
appropriate prior to July 3, 2019. The new procedural changes are 
applicable on July 3, 2019.

ADDRESSES: You may submit comments by one of the following methods:
    Mail and hand delivery/courier: Submit comments to Thomas M. Dowd, 
Deputy Assistant Secretary, Employment and Training Administration, Box 
PPII 12-200, 200 Constitution Avenue NW, Washington, DC 20210. Due to 
security-related concerns, there may be a significant delay in the 
receipt of submissions by United States Mail. You must consider this 
when preparing to meet the deadline for submitting comments.
    Email: Submit comments to H2BReform.Comments@dol.gov.

FOR FURTHER INFORMATION CONTACT: Thomas M. Dowd, Deputy Assistant 
Secretary, Employment and Training Administration, Department of Labor,

[[Page 7400]]

Box #12-200, 200 Constitution Ave. NW, Washington, DC 20210, Telephone: 
(202) 693-2772 (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-
877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION: 

Statutory Background

    The Immigration and Nationality Act (INA), 8 U.S.C. 1101, et seq., 
establishes the H-2B nonimmigrant classification for a nonagricultural 
temporary worker ``having a residence in a foreign country which he has 
no intention of abandoning who is coming temporarily to the United 
States to perform . . . temporary [non-agricultural] service or labor 
if 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). The 
Secretary of the Department of Homeland Security (DHS), in 
administering the H-2B program, may grant an employer's petition for an 
otherwise eligible H-2B nonimmigrant worker ``after consultation with 
appropriate agencies of the Government.'' 8 U.S.C. 1184(c)(1). The 
Secretary of DHS also may delegate to ``any employee of the United 
States, with the consent of the head of the applicable Department or 
other independent establishment, . . . any of the powers, privileges, 
or duties conferred or imposed'' on DHS under the INA. 8 U.S.C. 
1103(a)(6); see also 8 CFR 2.1. DHS regulations provide that an H-2B 
petition for temporary employment in the United States must be 
accompanied by an approved Temporary Labor Certification (TLC) from 
DOL. 8 CFR 214.2(h)(6)(iii)(A), (iv)(A). Pursuant to and in accordance 
with the above authorities, the TLC serves as DHS's consultation with 
DOL to determine the question of whether a qualified U.S. worker is 
available to fill the petitioning H-2B employer's job opportunity and 
whether a foreign worker's employment in the job opportunity will 
adversely affect the wages or working conditions of similarly-employed 
U.S. workers. See 8 CFR 214.2(h)(6)(iii)(A), (D).
    In order to advise DHS on the availability of U.S. workers and the 
potential for adverse effect on the wages and working conditions of 
similarly-employed U.S. workers, OFLC provides consultation to DHS 
through issuance of TLCs, in accordance with 8 U.S.C. 1103(a) and 
1184(c). See 8 CFR 214.2(h)(6)(iii)(A), (D). DOL and DHS have jointly 
issued regulations that govern the standards and procedures applicable 
to OFLC's issuance of TLCs under the H-2B program. See 20 CFR 655 
subpart A. The regulations at 20 CFR 655 subpart A require employers 
seeking H-2B temporary labor certification to, among other things, file 
an Application for Temporary Employment Certification and all 
supporting documentation, hereinafter referred to as the ``H-2B 
application,'' required by this subpart to secure a TLC from the 
Department.
    The INA sets the annual number of aliens who may be issued H-2B 
visas or otherwise provided H-2B nonimmigrant status to perform 
temporary nonagricultural work at 66,000, to be distributed semi-
annually, not to exceed 33,000 in the first half of the Federal 
Government's fiscal year beginning on October 1 of each year and the 
remainder during the second half of the Federal Government's fiscal 
year beginning on April 1 of the subsequent calendar year. See 8 U.S.C. 
1184(g)(1)(B), (g)(10). If insufficient petitions are approved to use 
all 66,000 H-2B slots in a given fiscal year, the unused slots are not 
carried over for petition approvals in the next fiscal year.
    Generally, workers in the United States in H-2B status who extend 
their stay, change employers, or change the terms and conditions of 
employment will not be subject to the cap. Similarly, an H-2B worker 
who has previously been counted against the cap in the same fiscal year 
that the proposed employment begins, will not be subject to the cap if 
the employer names the worker on the petition and indicates that he/she 
has already been counted. A spouse and any children of H-2B workers 
classified as H-4 nonimmigrants are also not counted against this cap. 
Finally, H-2B petitions for two other categories of workers are exempt 
from the H-2B cap: Fish roe processors, fish roe technicians, and 
supervisors of fish roe processing, as well as workers performing labor 
or services in the Commonwealth of the Northern Mariana Islands or Guam 
from November 28, 2009, until December 31, 2019.

H-2B Temporary Labor Certification Process

    The standards and procedures governing the submission and 
processing of H-2B labor certification applications are set forth in 
Sec.  655.15 and Sec. Sec.  655.30-655.35. These regulations generally 
require, among other things, that a registered employer with a non-
emergency situation seeking an H-2B TLC file a completed H-2B 
application with the National Processing Center (NPC) designated by the 
OFLC Administrator. See 20 CFR 655.15. Except for employers that 
qualify for emergency procedures at Sec.  655.17, employers that fail 
to register under the procedures in Sec.  655.11 and/or that fail to 
submit a Prevailing Wage Determination (PWD) obtained under Sec.  
655.10 will not be eligible to file and their H-2B applications will be 
returned without review.
    The Department's regulations require the employer, at the time of 
filing, to include a signed and dated appendix attesting to compliance 
with all regulatory assurances and obligations; a valid PWD; a copy of 
the job order submitted concurrently to the State Workforce Agency 
serving the area of intended employment; a copy of all contracts and 
agreements with foreign labor recruiters executed in connection with 
the job opportunities; and all other applicable documentation 
supporting the H-2B application. See 20 CFR 655.15(a). A completed H-2B 
application must be filed no more than 90 calendar days and no fewer 
than 75 calendar days before the employer's date of need (start date 
for the work). See 20 CFR 655.15(b).
    The Department's regulations provide that H-2B applications and job 
orders filed with the NPC are reviewed by the Certifying Officer (CO) 
for compliance with all applicable program requirements. See 20 CFR 
655.30(a). Employers have the option of filing H-2B applications 
electronically or by mail, and, according to procedures announced on 
June 1, 2018, the NPC sequentially assigns H-2B applications to NPC 
analysts based on the calendar receipt date and time measured to the 
millisecond and on Eastern Time, e.g., 12:00:00.000 a.m. Once each H-2B 
application is assigned, NPC analysts initiate review of each 
application in the order of receipt date and time, and in accordance 
with all regulatory requirements.
    Based on the NPC analyst's review, the CO authorizes issuance of 
either a Notice of Acceptance (NOA) under Sec.  655.33 or a Notice of 
Deficiency (NOD) under Sec.  655.31. Where there are deficiencies in 
the H-2B application or job order, the NOD provides the employer with 
10 business days to correct the deficiencies or file an appeal with the 
Department's Office of Administrative Law Judges. Where necessary, the 
CO may authorize the issuance of a second NOD of the employer's H-2B 
application or job order in order to obtain regulatory compliance. NPC 
analysts process employer responses to NODs as

[[Page 7401]]

expeditiously as possible based upon the date responses are received 
and, if deemed compliant, the CO authorizes the issuance of a NOA. The 
NOA authorizes the next step in the process--the recruitment of U.S. 
workers--and specifies a date on which the employer must provide an 
initial written report of its recruitment efforts. The Department's 
regulations establish minimum recruitment activities that employers 
must conduct within 14 calendar days from the date the NOA was issued, 
unless otherwise instructed by OFLC. See 20 CFR 655.40-46. Employer-
conducted recruitment typically occurs between 40 and 60 calendar days 
before the date of need and must be completed before the employer 
submits the recruitment report to the NPC for review meeting the 
content requirements under Sec.  655.48.
    Recruitment reports are reviewed and processed by NPC analysts 
based on the day they are received, irrespective of the date and time 
the employer's H-2B application was originally received. Upon review of 
the recruitment report, the CO may authorize the issuance of a full or 
partial TLC or deny the employer's H-2B application. OFLC grants a TLC 
only after the employer's H-2B application has met all the requirements 
for approving labor certification under Sec.  655.50 and its subpart. 
In accordance with regulatory requirements, the NPC sends all certified 
H-2B applications to the employer, or the employer's authorized 
attorney or agent, by means normally assuring next-day delivery. To 
ensure a fair consideration of all employer applications, the NPC does 
not provide ``expedited processing'' services on employer requests for 
a TLC.
    Although not required by the INA or regulation, OFLC strives to 
issue final determinations no later than 30 calendar days before the 
employer's start date for the work--a standard that is similar in 
nature to the H-2A program. Once OFLC grants a TLC, the employer is 
eligible to file a petition (Form I-129, Petition for Nonimmigrant 
Worker) with the appropriate United States Citizenship and Immigration 
Services (USCIS) service center for adjudication. See 8 CFR 
214.2(h)(2)(i)(A).

History of Changes to H-2B Processing and Reasons for Updating Current 
Approach

    Because of the intense competition for H-2B visas in recent years, 
the semi-annual visa allotment, and the regulatory requirement that 
employers apply with OFLC for temporary labor certification 75 to 90 
calendar days before the date of need, employers who wish to obtain 
visas under the semi-annual allotment for periods of need beginning 
April 1 must promptly apply for a TLC and file a petition with USCIS 
before the 66,000 annual visa cap is reached. As a result, OFLC 
typically experiences significant ``spikes'' in H-2B applications for 
temporary or seasonal jobs that are expected to start during the United 
States' spring and summer months.
    Prior to 2018, OFLC processed applications irrespective of the time 
of day the application was filed and processed applications based on 
the day they were filed. On January 1, 2018, OFLC received 
approximately 4,498 applications covering 81,008 worker positions for 
April 1 start dates of work, exceeding the semi-annual visa allotment 
by nearly 250 percent. This was the first time in recent years that 
applications received within the first day of the filing period 
exceeded the semi-annual visa allocation. In order to promote fairness 
in response to the unprecedented volume of applications, OFLC 
determined it was necessary to adjust its application processing 
procedures to better reflect the sequential order in which applications 
were filed. Thus, on January 17, 2018, OFLC announced that it would 
begin to release certified applications on February 20, 2018, in 
sequential order based on the day and time the applications were filed 
(January 17 procedures).
    As participation in the H-2B program has grown significantly over 
the years, OFLC anticipated that it would continue to receive a 
significant surge of applications within a short timeframe during its 
next application cycle. In order to provide an equitable solution to 
this problem, on June 1, 2018, OFLC announced that it would 
sequentially assign H-2B applications to analysts based on the calendar 
date and time on which the applications were received, based on Eastern 
Time, and measured to the millisecond (e.g., 12:00:00.000 a.m.) (June 1 
procedures). Based on the June 1 procedures, once these applications 
were assigned to the analysts, the analysts would initiate review of 
applications in the order of receipt date and time, issue first actions 
on a rolling basis, and issue certifications as all regulatory 
requirements were met.
    OFLC implemented the June 1 procedures after considering all 
available data as well as OFLC's experience in processing H-2B 
applications to date. However, as a result of stakeholder comments and 
the most recent filing period, OFLC has determined it is necessary to 
reassess those procedures. The June 1 procedures were in effect in 
January 2019, when OFLC received approximately 5,276 applications 
covering more than 96,400 worker positions for start dates of work on 
April 1, exceeding the semi-annual visa allotment by nearly 300 
percent. Within the first five minutes of opening the semi-annual H-2B 
certification process on January 1, 2019, the Department's network 
infrastructure supporting OFLC's electronic filing system experienced 
more than 22,900 server login attempts, in contrast with only 721 
attempts in approximately the same time period for the 2018 filing 
season. This unprecedented volume of simultaneous system users--30 
times the number of users in the previous year--ultimately caused the 
electronic filing system to become unresponsive and prevented almost 
all employers from filing H-2B applications. Although the Department 
was able to restore OFLC's electronic filing system by January 7, 2019, 
some employers continued to report technical difficulties with 
accessing the electronic filing system.
    OFLC previously concluded that the assignment of applications to 
NPC analysts based on date and time of receipt was the most equitable 
method of addressing the significant volume of H-2B applications 
received. However, it did not anticipate the burdens this approach 
would create on its electronic filing system, network infrastructure, 
and staff resources on January 1, 2019. Given the growing demand for H-
2B visas, and related demand for TLCs, OFLC expects that the demands on 
OFLC's information technology infrastructure will continue to increase. 
In addition, OFLC has determined that the current approach does not 
account for technological issues that an individual user may experience 
on his/her end that could impact his/her ability to participate in the 
program. In addition, because the first filing date for each semi-
annual cap period occurs on or near a Federal holiday when many 
businesses may be closed, OFLC is amending its procedures to provide 
increased flexibility to allow those employers an opportunity to 
participate in the program. For these reasons, OFLC has concluded that 
changes to the procedures under which H-2B applications are assigned to 
NPC analysts are necessary to promote a more orderly and fair process 
for all employers seeking access to the H-2B visa program. OFLC 
believes that the process described below balances employers' interest 
in utilizing the H-2B program with OFLC's interest in

[[Page 7402]]

ensuring that access to its filing system is equitable and occurs with 
no user disruption.

Random Selection Process for Assigning H-2B Applications

    For employers seeking a TLC to employ H-2B workers beginning on or 
after October 1, 2019, OFLC plans to randomly establish the order in 
which all H-2B applications will be assigned to NPC analysts for review 
and processing in accordance with Sec.  655.30. Based on its experience 
and feedback from stakeholders, the Department has determined that this 
process will be most effective in promoting a fair and orderly 
assignment of applications for OFLC review.
    This assignment process will be dependent on when employers submit 
their applications and the start dates they request. OFLC will first 
process applications from employers seeking TLCs to employ H-2B workers 
beginning on the earliest start date of work permitted under the semi-
annual allotments set forth at sections 214(g)(1)(B) and 214(g)(10) of 
the INA where those employers submitted applications during the initial 
three calendar days of the time period for filing for the relevant 
semi-annual visa allotment.
    Once those applications have all received a NOA or NOD, OFLC will 
then begin to process applications from all other employers, including: 
(1) Employers seeking TLCs to employ H-2B workers beginning on dates 
later than the earliest start date of work permitted under the semi-
annual allotments during the initial three-day filing window, and (2) 
employers seeking TLCs to employ H-2B workers beginning on the earliest 
start date of work permitted under the semi-annual visa allotments if 
their applications are filed outside of the initial three-day filing 
window.

Random Selection Process for Assigning H-2B Applications Received 
During the Initial Three Days of the Filing Period for the Earliest 
Start Date of Work

    OFLC will randomly order for processing all of the completed H-2B 
applications requesting the earliest permissible start date of work and 
filed during the initial three calendar days of the time period for 
filing for the relevant semi-annual visa allotment. The rationale for 
using a three-day filing window is explained below. As an example, for 
employers seeking a TLC to employ H-2B nonimmigrant workers on April 1, 
2020--which is the earliest start date of work permitted under the 
second semi-annual allotment of H-2B visas for Fiscal Year (FY) 2020--
OFLC will randomly order for processing all of the completed H-2B 
applications that are received on January 2 through January 4 (the 
first three calendar days to file H-2B applications under Sec.  
655.15(b) in the second half of FY 2020 because 2020 is a leap year 
containing an additional day in February).
    More specifically, on the next business day following this three-
day filing window, using a standard computer-generated process for 
randomizing values in a data set, OFLC will generate and assign a 
unique random number to each completed H-2B application filed within 
the three-day filing window with the earliest start date of work. The 
applications will be sorted in ascending order based on the unique 
random number assigned to each application. Based on that randomly-
generated order, OFLC will select the number of H-2B applications that, 
combined, contain a sufficient number of worker positions to reach the 
semiannual visa allotment under the INA (i.e., 33,000). These 
applications will be placed in an H-2B ``Assignment Group'' (i.e., 
Group A) and assigned to NPC analysts for processing in a manner 
consistent with Sec. Sec.  655.30-33. The initial H-2B Assignment Group 
(i.e., Group A) will always include the number of H-2B applications 
containing a sufficient amount of worker positions to reach the 
applicable numerical visa cap, even if the numerical limits of the INA 
are subsequently changed.
    OFLC will then assign to additional Assignment Groups, in ascending 
sequential order, all remaining H-2B applications that were filed 
during the initial three-day filing window that requested the earliest 
start date of work permitted. Each H-2B Assignment Group after Group A 
(e.g., Group B, Group C, etc.) will total no more than 20,000 worker 
positions, or roughly 1,000 applications per group.
    OFLC will assign to NPC analysts all of the H-2B applications 
placed in Group A for issuance of NODs or NOAs. Once all applications 
in Group A are issued a NOD or NOA, OFLC will assign to NPC analysts 
all H-2B applications placed in Group B for issuance of NODs or NOAs. 
This process will be repeated until each group of H-2B applications is 
assigned to NPC analysts for processing and NODs or NOAs are issued.
    That the number of applications in the initial Assignment Group 
(i.e., Group A) is tied to the numerical cap is not meant to be 
determinative of which employers will ultimately receive H-2B visas, 
nor does it preclude employers whose applications are in subsequent 
groups from ultimately receiving H-2B visas. OFLC has simply determined 
that the statutory cap is a reasonable benchmark for this initial 
assignment and believes this--in addition to the notice provided, as 
explained below--will provide the public and interested stakeholders a 
more transparent view of the process.
    If the H-2B applications received during the initial three-day 
period collectively request certification for fewer worker positions 
than the statutory numerical limitation, all H-2B applications filed 
within that time period and requesting workers for the earliest 
possible start date of work will randomly be given a unique number and 
placed into the same group for assignment to and processing by NPC 
analysts.
    OFLC has chosen to utilize a three-day filing window at the outset 
of each application cycle for several reasons. First, the three-day 
filing window will alleviate the strain placed on OFLC's electronic 
filing system and network infrastructure that results from a surge of 
applications submitted at the same time. Second, the window will 
provide employers that file on the earliest possible date, which in 
most instances falls on a Federal holiday or the day before a Federal 
holiday, with a reasonable period of time to submit their H-2B 
applications or resolve any technological issues they might face during 
filing. Third, under the previous procedures, mailed applications were 
put at a distinct disadvantage. A three-day filing window allows 
applications filed by mail to be included in the random selection 
process, thus placing them on equal footing with employers who file 
electronically. Fourth, and as explained below, because applicants will 
be able to see which processing group they have been placed in, and the 
general number of applications in that processing group, these 
procedural changes may reduce some associated costs for employers who 
spend time and resources related to preparing applications, responding 
to NODs, and conducting advertising and recruitment for qualified U.S. 
workers without knowing whether their H-2B petitions will be accepted 
by USCIS due to the statutory semi-annual visa allotments.

Random Selection Process for Assigning All Other H-2B Applications

    As noted above, for all other employers seeking a TLC to employ H-
2B workers--including employers who are seeking a TLC to employ H-2B 
workers beginning on a date that is later than the earliest start date 
of work permitted under the semi-annual

[[Page 7403]]

allotments and employers seeking a TLC to employ H-2B workers beginning 
on the earliest start date of work permitted if their application is 
filed outside of the initial three-day filing window--OFLC will 
randomly assign for processing all of the completed H-2B applications 
filed on a single calendar day after it finishes processing NOAs and 
NODs for applications filed during the initial three-day filing window 
(as discussed above). As an example, for employers seeking a TLC to 
employ H-2B nonimmigrant workers on April 2, 2020--which is the next 
start date of work permitted under the second semi-annual allotment of 
H-2B visas for FY 2020-- OFLC will randomly assign to NPC analysts for 
processing all of the completed H-2B applications that are filed on 
January 3 with an April 2, 2020 start date of work, after OFLC finishes 
processing NOAs and NODs for the applications filed during the initial 
three-day filing window for the earliest start day of work.

Application Processing After Random Selection and Assignment Occur

    Once the random assignment process is completed, NPC analysts will 
review each H-2B application in accordance with Sec.  655.30 and 
current standard operating procedures. Following issuance of NOAs and/
or NODs in accordance with procedures outlined above, H-2B applications 
will be processed as each successive stage in the process is completed. 
Employers receiving NOAs may proceed to meet the additional regulatory 
requirements, including recruitment of U.S. workers and submission of 
recruitment reports. Employers receiving NODs must correct any 
deficiencies and receive NOAs before proceeding to meet the additional 
regulatory requirements.
    Recruitment reports will be reviewed and processed based on the day 
they are received, and the CO will authorize the release of certified 
H-2B applications in accordance with standard operating procedures and 
where all the requirements for granting a TLC under the subpart are met 
as of that day. The CO will continue to process and authorize the 
issuance of final determinations on all H-2B applications that are 
received, irrespective of whether the employer is seeking to employ H-
2B nonimmigrant workers in cap-exempt positions. Additionally, the CO 
will process and authorize the issuance of rejections, request for 
withdrawals, and denials of labor certification applications in 
accordance with standard operating procedures.

Public Notifications

    OFLC intends to issue several public announcements as applications 
are received and processed under the procedures described above. Once 
the random assignment process is completed, as described above, OFLC 
will provide written notification to employers and, if applicable, 
employers' authorized representatives of their H-2B Assignment Group. 
Within five business days after the random assignment process is 
completed, OFLC will place on its website a listing of the H-2B 
applications assigned to each H-2B Assignment Group. Second, OFLC will 
provide the public with updates on its website related to the number 
and percentage of H-2B applications issued a first action within each 
H-2B Assignment Group. Finally, OFLC will provide regular updates on 
its website related to the number of H-2B applications certified with 
the same date of filing, including the number of worker positions, so 
the public is aware of the general timeframes in which the semi-annual 
visa allotment may be reached.
    Because of the public's wide use of OFLC's website, the posting of 
information on the OFLC website provides a timelier and more efficient 
method of disseminating such information to the public than publication 
of the information in the Federal Register. The public frequently turns 
to OFLC's website for general information on labor certification 
requirements, regulations and forms, specific case status information, 
and processing times for H-2B applications. Therefore, all 
notifications regularly updating the public on implementing these 
procedures will be made available on or through the OFLC website at 
www.foreignlaborcert.doleta.gov.

Request for Comments and Effective Date

    These new procedures will take effect on July 3, 2019. OFLC seeks 
comments on the above procedures. Comments may be sent to 
H2BReform.Comments@dol.gov or mailed to Thomas M. Dowd, Deputy 
Assistant Secretary, Employment and Training Administration, U.S. 
Department of Labor, Box PPII 12-200, 200 Constitution Avenue NW, 
Washington, DC 20210 until 30 days after issuance of this notice in the 
Federal Register. OFLC will review all of the comments received and 
will make any changes it determines are appropriate prior to July 3, 
2019.

Molly E. Conway,
Acting Assistant Secretary for the Employment and Training, Labor.
[FR Doc. 2019-03809 Filed 3-1-19; 8:45 am]
 BILLING CODE 4510-FP-P