Modernizing Recruitment Requirements for the Temporary Employment of H-2B Foreign Workers in the United States, 62431-62447 [2019-24832]
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62431
Rules and Regulations
Federal Register
Vol. 84, No. 221
Friday, November 15, 2019
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
uses to assess whether qualified U.S.
workers are available by: Rescinding the
requirement that an employer advertise
its job opportunity in a print newspaper
of general circulation in the area of
intended employment, and expanding
and enhancing DOL’s electronic job
registry to disseminate available job
opportunities to the widest audience
possible.
DEPARTMENT OF HOMELAND
SECURITY
DATES:
RIN 1615–AC33
FOR FURTHER INFORMATION CONTACT:
This final rule is effective
December 16, 2019.
DEPARTMENT OF LABOR
Employment and Training
Administration
20 CFR Part 655
Wage and Hour Division
29 CFR Part 503
[DOL Docket No. ETA–2018–0003]
RIN 1205–AB91
Modernizing Recruitment
Requirements for the Temporary
Employment of H–2B Foreign Workers
in the United States
U.S. Citizenship and
Immigration Services, Department of
Homeland Security and Employment
and Training Administration and Wage
and Hour Division, Department of
Labor.
ACTION: Final rule.
AGENCY:
The Department of Homeland
Security (DHS) and the Department of
Labor (DOL) (collectively, the
Departments), are jointly issuing this
final rule to amend the regulations
governing DOL’s certification of
nonagricultural labor or services to be
performed by temporary foreign workers
in H–2B nonimmigrant status (H–2B
workers). Pursuant to Section 214(c)(1)
of the Immigration and Nationality Act
(INA), this certification serves as DHS’s
consultation with DOL regarding
whether a qualified United States (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.
This final rule modernizes and
improves the labor market test that DOL
SUMMARY:
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Regarding the Department of Homeland
Security: Charles L. Nimick, Chief,
Business and Foreign Workers Division,
Office of Policy and Strategy, U.S.
Citizenship and Immigration Services,
Department of Homeland Security, 20
Massachusetts Ave NW, Suite 1100,
Washington, DC 20529–2120, telephone
(202) 272–8377 (not a toll-free call).
Regarding the Department of Labor:
Thomas M. Dowd, Deputy Assistant
Secretary, Employment and Training
Administration, Department of Labor,
Box #12–200, 200 Constitution Ave NW,
Washington, DC 20210, telephone (202)
513–7350 (this is not a toll-free
number). Regarding 29 CFR part 503:
Mary Ziegler, Director, Division of
Regulations, Legislation, and
Interpretation, Wage and Hour Division,
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
numbers above via TTY by calling the
toll-free Federal Information Relay
Service at 1–877–889–5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Statutory and Regulatory Background
The Immigration and Nationality Act
(INA), as amended by the Immigration
Reform and Control Act of 1986 (IRCA),
establishes the H–2B nonimmigrant visa
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
[nonagricultural] service or labor if
unemployed persons capable of
performing such service or labor cannot
be found in this country.’’ INA section
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101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b). Employers must
petition DHS for classification of
prospective temporary workers as H–2B
nonimmigrants. INA section 214(c)(1), 8
U.S.C. 1184(c)(1). DHS must approve
this petition before a beneficiary may be
considered eligible for an H–2B visa.
Finally, the INA requires that ‘‘[t]he
question of importing any alien as [an
H–2B] nonimmigrant . . . in any
specific case or specific cases shall be
determined by [DHS],1 after
consultation with appropriate agencies
of the Government.’’ Id.
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 issued
pursuant to regulations established at 20
CFR part 655. See 8 CFR
214.2(h)(6)(iii)(A), (C)–(E), (h)(6)(iv)(A);
see also INA section 103(a)(6), 8 U.S.C.
1103(a)(6), INA section 214(c)(1), 8
U.S.C. 1184(c)(1). The TLC serves as
DHS’s consultation with DOL regarding
whether: (i) A qualified U.S. worker is
available to fill the petitioning H–2B
employer’s job opportunity, and (ii)
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
INA section 214(c)(1), 8 U.S.C.
1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and
(D).
Through the application process set
forth in these regulations, DOL acquires
the information necessary to make these
factual determinations, including
whether there are sufficient qualified
U.S. workers available to perform the
nonagricultural labor or services for
which an employer seeks H–2B
certification. 20 CFR 655.1. To that end,
the regulations require an employer
seeking H–2B temporary labor
certification to test the labor market by
recruiting U.S. workers for the
position(s) in which it intends to
employ H–2B workers. See, e.g., 20 CFR
655.16, 655.40 through 655.46. The
1 As of March 1, 2003, in accordance with section
1517 of Title XV of the Homeland Security Act of
2002 (HSA), Public Law 107–296, 116 Stat. 2135,
any reference to the Attorney General in a provision
of the Immigration and Nationality Act describing
functions which were transferred from the Attorney
General or other Department of Justice official to the
DHS by the HSA ‘‘shall be deemed to refer to the
Secretary’’ of Homeland Security. See 6 U.S.C. 557
(2003) (codifying HSA, Title XV, sec. 1517); 6
U.S.C. 542 note; 8 U.S.C. 1551 note.
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outcome of this labor market test forms
the basis of DOL’s determination,
through consultation with DHS before
DHS makes the final determination on
an H–2B petition, as to whether there
are sufficient qualified U.S. workers
available to fill the employer’s job
opportunity.
The INA also authorizes DHS to
impose appropriate remedies against an
employer for a substantial failure to
meet the terms and conditions of
employing an H–2B nonimmigrant
worker, or for a willful
misrepresentation of a material fact in a
petition for an H–2B nonimmigrant
worker. INA section 214(c)(14)(A), 8
U.S.C. 1184(c)(14)(A). The INA
expressly authorizes DHS to delegate
certain enforcement authority to DOL.
INA section 214(c)(14)(B), 8 U.S.C.
1184(c)(14)(B); see also INA section
103(a)(6), 8 U.S.C. 1103(a)(6). DHS has
delegated its authority pursuant to INA
section 214(c)(14)(B), 8 U.S.C.
1184(c)(14)(B) and INA section
103(a)(6), 1103(a)(6), to DOL. See DHS,
Delegation of Authority to DOL under
Section 214(c)(14)(A) of the Immigration
and Nationality Act (Jan. 16, 2009); INA
section 103(a)(6), 8 U.S.C. 1103(a)(6); 8
CFR 214.2(h)(6)(ix) (stating that DOL
may investigate employers to enforce
compliance with the conditions of,
among other things, an H–2B petition
and a DOL-approved TLC). Within DOL,
this enforcement authority has been
delegated to the Wage and Hour
Division (WHD), and is governed by
regulations at 29 CFR part 503.
B. Current Recruitment Requirements
Under the regulations currently in
effect, an employer seeking H–2B
workers generally initiates the
temporary labor certification process by
filing the following with DOL: (1) An
Application for Temporary Employment
Certification, Form ETA–9142B (H–2B
application) and (2) a copy of the job
order submitted concurrently to the
State Workforce Agency (SWA) serving
the area of intended employment; and
other documentation supporting the H–
2B application. 20 CFR 655.15(a).
Absent limited exceptions, an employer
must file a completed H–2B application
no more than 90 days, but no fewer than
75 days, before it seeks to employ H–2B
workers. 20 CFR 655.15(b).
An Office of Foreign Labor
Certification (OFLC) Certifying Officer
(CO) will review the H–2B application
and job order for compliance with
program requirements. 20 CFR 655.30.
The SWA concurrently reviews the job
order to confirm that the employer’s job
opportunity complies with applicable
requirements and notifies the CO of any
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deficiencies within 6 business days of
receipt of the job order. 20 CFR
655.16(b). If the H–2B application and
job order meet all applicable
requirements, the CO will issue a Notice
of Acceptance (NOA) within 7 business
days from the date the H–2B application
was received. 20 CFR 655.33. The NOA
authorizes the next step in the
temporary labor certification 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. See 20 CFR
655.33(b).
The NOA directs the SWA to place
the job order into intrastate clearance
and circulate a copy of the job order to
other states listed as anticipated
worksites and designated by the CO for
interstate clearance, where the job
orders must remain active until 21 days
before the date of need as set forth in 20
CFR 655.40(c). Id. Where the occupation
or industry is traditionally or
customarily unionized, the NOA
instructs the SWA to circulate a copy of
the job order to the central office of the
State Federation of Labor and the
office(s) of local union(s) representing
employees in the same or a substantially
equivalent job classification in the
geographic area(s) where work will be
performed. Id. Additionally, the NOA
specifies the recruitment steps that the
employer must conduct, within 14
calendar days from the date the NOA is
issued, to complete the labor market
test, unless the CO instructs otherwise.
Id. Upon receipt of the employer’s
initial recruitment report, the CO will
make a final determination whether to
grant, partially grant, or deny the
employer’s H–2B application, based on
the criteria for certification set forth in
20 CFR 655.50–655.51.
Sections 655.40 through 655.48
outline the recruitment standards and
procedures that the CO may order an
employer to conduct. Under these
regulations, an employer is generally
required to: (1) Place two print
advertisements in a newspaper of
general circulation serving the area of
intended employment, see 20 CFR
655.42; (2) contact U.S. workers the
employer employed in the previous year
to solicit their return, see 20 CFR
655.43; and (3) contact the bargaining
unit, if one exists, to seek referrals of
U.S. workers, or if a bargaining unit
does not exist, post notice of the job
opportunity at the place(s) of
employment for at least 15 consecutive
business days, see 20 CFR 655.45. If
relevant to the occupation and area of
intended employment, the CO may also
direct the employer to provide written
notice of the job opportunity to a
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community-based organization, as
provided in 20 CFR 655.45(c). Both
print newspaper advertisements and the
notice of posting at the place(s) of
employment must meet the minimum
content requirements set forth in 20 CFR
655.41, and an employer must maintain
documentation of all advertising and
recruitment efforts in the event of an
audit or other review, as required by 20
CFR 655.56.
Finally, the CO may direct an
employer to conduct additional
recruitment where the CO determines
there is a likelihood that qualified U.S.
workers will be available to fill the
employer’s job opportunity. 20 CFR
655.46(a). The regulation provides the
CO with flexibility to select the
appropriate methods of recruitment on
a case-by-case basis to ensure an
adequate test of the labor market and
that U.S. workers are apprised of
available job opportunities. 20 CFR
655.46(b) leaves to the CO’s discretion
the precise nature of the additional
recruitment an employer may need to
conduct, and provides a non-exclusive
list of advertising options. The
flexibilities contained in this regulatory
provision permit the CO to keep pace
with labor market trends and changes in
technology that may affect how
information about job opportunities is
disseminated and how many U.S.
workers search for and find jobs.
Equally important, when assessing the
appropriateness of a particular
recruitment method, the CO considers
all options at his or her disposal,
including relying on the SWA’s
experience and expertise with local
labor markets, and where appropriate,
selects the appropriate methods of
recruitment on a case-by-case basis.
C. Summary of Proposed Changes to the
Recruitment Requirements and the
Changes Adopted in This Final Rule
On November 9, 2018, the
Departments issued a notice of proposed
rulemaking (NPRM) announcing their
intent to modernize the recruitment that
an employer must conduct in
conjunction with an H–2B application.
See 83 FR 55977, 55979 (Nov. 9, 2018).
Specifically, the Departments proposed
to eliminate the general requirement
that an employer advertise its job
opportunity in a print newspaper and
replace it with a requirement to post an
electronic advertisement on a qualifying
website. The Departments invited
interested parties to submit written
comments on all aspects of this
proposal, including a variety of issues
related to the electronic advertising
requirement. The Departments
specifically solicited comments as to
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whether there were alternative methods
of recruitment that would more broadly
and effectively disseminate information
about temporary nonagricultural job
opportunities to U.S. workers. The
Departments originally stated that they
would accept comments through
December 10, 2018, but in response to
a request for an extension, they
subsequently extended this period
through December 28, 2018. The public
may review all comments that the
Departments received in response to the
NPRM in the Federal Docket
Management System (FDMS) at https://
www.regulations.gov, docket number
ETA–2018–0003.
Upon careful consideration of the
comments received, the Departments
have decided to adopt their proposal to
transition to electronic advertising with
several changes. Specifically, this final
rule adopts the NPRM’s proposal to
eliminate the existing requirement for
most employers seeking H–2B labor
certification to advertise their job
opportunities in print newspapers of
general circulation in the area of
intended employment. The
Departments’ transition to electronic
advertising will not require an employer
to place an electronic advertisement on
the internet in the manner proposed in
the NPRM. As explained in detail
below, DOL will instead advertise all H–
2B job opportunities by posting them on
SeasonalJobs.dol.gov, the expanded and
improved version of DOL’s existing
electronic job registry.
2015 H–2B IFR to ensure that there can
be no question about the authority for
and validity of the regulations in this
area. 80 FR at 24045; see also 80 FR at
24044–47.2
Specifically, DHS’s participation in
the rulemaking is pursuant to its broad
authority to issue rules in the H–2B
program under 8 U.S.C. 1103(a)(3) and
1184(a), and, as referenced above,
DOL—which has the institutional
expertise on all matters relating to the
domestic labor market and has for
decades issued temporary labor
certifications and legislative rules
governing them in the nonagricultural
foreign worker program—is necessarily
authorized to promulgate rules
governing its issuance of temporary
labor certifications pursuant to 8 U.S.C.
1184(c). See also 8 U.S.C. 1103(a). The
Departments further explained in the
2015 H–2B IFR that by jointly issuing
that rule, ‘‘the Departments affirm that
[it] is fully consistent with the INA and
implementing DHS regulations and is
vital to DHS’s ability to faithfully
implement the statutory labor
protections attendant to the program.’’
80 FR at 24045–46. Litigation on these
and related matters is ongoing.
Accordingly, notwithstanding that DOL
has the authority to independently issue
this Final Rule, DHS is joining DOL in
this rulemaking to ensure that there can
be no question about the authority
underlying this action.
D. Joint Issuance of This Final Rule
In order to effectuate DHS’s
requirement for DOL consultation
pursuant to 8 U.S.C. 1184(c)(1), which
is provided in the form of temporary
labor certifications, DOL must issue
regulations to structure procedures and
standards for its issuance of labor
certifications, as DOL has done for
almost 50 years. On April 29, 2015,
following a court’s vacatur of nearly all
of DOL’s H–2B regulations, the
Departments jointly promulgated an
interim final rule (IFR) governing DOL’s
role in issuing temporary labor
certifications and in enforcing the
statutory and regulatory rights and
obligations applicable to employment
under the H–2B program. See
Temporary Non-Agricultural
Employment of H–2B Aliens in the
United States, 80 FR 24042 (Apr. 29,
2015) (‘‘2015 H–2B IFR’’).
As explained in the 2015 H–2B IFR,
following conflicting legal decisions
about DOL’s authority to independently
issue legislative rules to carry out its
duties for the H–2B program under the
INA, the Departments jointly issued the
E. Severability
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To the extent that any portion of this
final rule is declared invalid by a court,
the Departments intend for all other
parts of the final rule that are capable of
operating in the absence of the specific
portion that has been invalidated to
remain in effect. Thus, even if a court
decision invalidating a portion of this
final rule results in a partial reversion
to the current regulations or to the
statutory language itself, the
Departments intend that the rest of the
final rule continues to operate, if at all
possible, in tandem with the reverted
provisions.
2 The Departments’ authority to jointly regulate
has not been found invalid, and nothing otherwise
precludes joint action in the H–2B program. While
the same district court twice issued an injunction
against DOL’s unilaterally-issued H–2B rules, see
Bayou Lawn & Landscape Servs. v. Solis, 2012 WL
12887385 (N.D. Fla. Apr. 26, 2012) and Bayou Lawn
v. Perez, 81 F. Supp. 3d 1291, 1300 (N.D. Fla. 2014)
(Bayou II), the court has since upheld the joint
rules, Bayou Lawn v. Johnson, 173 F. Supp. 3d
1271, 1277, 1289–91 (N.D. Fla. 2016) (Bayou III),
noting that the primary difference between the
enjoined 2012 rules and the 2015 rules was their
joint promulgation. Id. at 1277 n.2.
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II. Revisions to 20 CFR Part 655,
Subpart A
A. The Departments are Rescinding the
Regulation Generally Requiring
Employers to Place Print Newspaper
Advertisements in the Area of Intended
Employment
1. Background
In the NPRM, the Departments
proposed to revise 20 CFR 655.42 to
replace the requirement for an employer
to place print newspaper advertisements
with a requirement to post an electronic
advertisement on a website that is
widely viewed and appropriate for use
by workers who are likely to apply for
the job opportunity in the area of
intended employment. The Departments
based this proposal on data indicating
that print newspaper circulation
continues to decline and that U.S.
workers are increasingly turning to the
internet in their job searches. The
Departments also relied on DOL’s
experience in administering temporary
and permanent labor certification
programs, as well as anecdotal evidence
received from stakeholders, who
reported that advertisements in print
newspapers were not an effective means
of recruiting prospective U.S. workers
for temporary nonagricultural job
opportunities. In light of this data,
experience, and stakeholder feedback,
the Departments asserted that classified
advertisements in print editions were
becoming a less effective means of
recruiting U.S. workers, and proposed to
replace 20 CFR 655.42’s current
requirement to place a print newspaper
advertisement with a requirement to
post an electronic advertisement on the
internet.
Many of the H–2B employers and
employer associations that submitted
comments in response to the NPRM
applauded the Departments’ efforts to
modernize the recruitment process and
confirmed, based on their experience,
print newspaper advertising is
expensive and ineffective in attracting
U.S. workers who are likely to apply for
temporary nonagricultural job
opportunities in most cases. For
example, one commenter stated that
most of the H–2B petitioner employers
it represents ‘‘almost never . . . receive
U.S. applicants as a result of the print
advertisements,’’ and asserted, based on
its experience, that print newspaper
advertisements are not a meaningful
source for recruiting workers for
temporary nonagricultural job
opportunities. Similarly, a commenter
representing an employer stated it
prefers to advertise electronically, on
social media and online job boards,
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because it never receives applications in
response to print newspaper
advertisements. Another commenter
agreed that print advertising is
ineffective and asserted that advertising
costs are rising due to decreasing
competition in the newspaper industry.
Nevertheless, a number of these
commenters disagreed with the
Departments’ proposal to completely
eliminate print newspaper
advertisements. Some expressed
concern that the proposed rule would
have a significant adverse impact on the
newspaper industry. One of these
commenters acknowledged online
advertising would be more effective but
expressed concern only with the
financial impact of the proposed rule.
One commenter associated with the
newspaper industry asserted that the
Departments’ proposal to eliminate the
print newspaper advertising
requirement overlooked certain factors.
This commenter stated that newspapers
are more effective than the internet in
disseminating information to relevant
viewers. The same commenter also
opined that many local newspapers
reach a larger audience than their
subscribership indicates because a
single newspaper is read by multiple
people, and the content in these
newspapers is often available online.
According to this commenter, the
distribution and readership of a local
newspaper, in all of its formats (print
and electronic), can easily exceed the
number of visits to a third-party job
search website. Finally, this commenter
maintained that newspapers play an
essential role in placing electronic
advertisements and noted that some
newspapers use services that will not
only post an employer’s advertisement
to large internet job boards, but also
distribute the advertisements to other
job search websites.
A number of commenters urged that
the Departments provide an individual
employer with the option to choose
whether to post two print newspaper
advertisements in accordance with the
requirement in the existing rule or to
post an electronic advertisement in
accordance with the requirement in the
proposed rule. These commenters
provided varied reasons to justify their
request. For instance, some were
concerned about internet accessibility
issues for employers. Others were
concerned that mandating electronic
advertisements would unfairly exclude
U.S. workers who are uncomfortable
with certain technology or live in areas
without ready access to the internet.
Some pointed to the studies cited in the
NPRM as evidence that the Departments
did not adequately consider whether
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online advertisements would be
effective in reaching the types of U.S.
workers who typically work in jobs
filled by H–2B workers. One commenter
asserted that the Departments’ proposal
would violate the Equal Protection
Clause of the Fourteenth Amendment of
the United States Constitution because
the Government would ‘‘restrict access
to potential jobs’’ to people who have
internet access.
Other commenters suggested that the
Departments require employers to post
advertisements both in print and
electronic formats. Most of these
commenters expressed general support
for electronic advertising, but also noted
that the Departments provided
insufficient or incomplete evidence to
demonstrate that electronic advertising
would be any more effective in
recruiting U.S. workers most likely to
apply for temporary nonagricultural job
opportunities. Some of these
commenters expressed concerns that the
Departments relied on information and
data trends focusing on U.S. job seekers
generally, and failed to consider more
specific information regarding how job
seekers located in rural communities
and, more specifically, temporary
nonagricultural workers obtain
employment, as well as how employers
recruit for temporary nonagricultural
workers. These commenters cited data
suggesting that many U.S. workers who
might be interested in filling temporary
nonagricultural job opportunities may
not have reliable high speed internet
access, which would impede U.S.
workers from viewing and responding to
advertisements for H–2B job
opportunities.
Some commenters cited Pew Research
Center data suggesting that the internet
was used in job searches much less
frequently by job seekers possessing less
than a high school education, earning
less than $30,000 per year, and residing
in rural community areas,
characteristics they asserted are often
shared by workers in temporary
nonagricultural employment.3 A
commenter representing a newspaper
industry association cited a recent study
conducted by the Federal
Communications Commission (FCC)
indicating that nearly 40 percent of
Americans, or approximately 24 million
people, living in rural areas lack access
to fixed broadband internet service, 30
percent of rural Americans lack access
to mobile LTE broadband, and cellular
reception is generally poorer in these
3 Aaron Smith, Searching for Work in the Digital
Era, Pew Research Center, Nov. 19, 2015, https://
www.pewinternet.org/2015/11/19/searching-forwork-in-the-digital-era.
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areas. Some of these commenters urged
the Departments to engage in additional
consultation with the stakeholder
community and State Workforce
Agencies, and conduct a more formal
assessment of internet access and usage
by U.S. workers most likely to apply for
temporary nonagricultural jobs.
At times citing reasons similar to
those who advocated for giving
employers the option to use either
method (for example, pointing to data
suggesting that some workers still use
print sources to search for jobs and may
have limited access to the internet),
some commenters generally questioned
whether electronic advertisements alone
would be effective in reaching U.S.
workers interested in temporary
nonagricultural employment. They
suggested the dual requirement would
ensure the broadest possible exposure to
U.S. applicants. One commenter
recommended leaving the print
requirement in place until the new DOL
platform discussed in the NPRM was
fully operational, opining that the
online advertising the NRPM described
was unlikely to have sufficient oversight
or consistency.
Finally, a commenter representing a
newspaper industry association stated
that electronic advertising would be less
effective in recruiting temporary
nonagricultural workers than the
currently required newspaper
advertisements. Citing the FCC report
and the Pew Research Center report
noted above, this commenter asserted
that the proposed rule would make it
more difficult for U.S. workers to apply
for H–2B job opportunities because such
jobs attract job seekers less likely to
search for employment online,
including those with a low income, low
level of educational attainment,
minorities, and job seekers residing in
rural areas. The commenter stated that
the Pew Research Center data showed
rural Americans are less likely to use
the internet to search for work than
suburban or urban Americans. Despite
these concerns, this commenter
supported placement of advertisements
on online job boards operated by
newspapers or websites that partner
with newspapers, such as
Careerbuilder.com and Monster.com,
but urged the Department to require
both print and online advertising.
2. Discussion
After carefully considering the
comments received, the Departments
have decided to rescind 20 CFR 655.42.
The regulations will no longer generally
require a prospective H–2B employer to
advertise its job opportunity in a
newspaper serving the area of intended
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employment. This decision is grounded
in the Departments’ determination that
the newspaper advertisements required
under this section do not generally
contribute in a significant way to the
labor market test that DOL administers
to assess the availability of qualified
U.S. workers, as compared to the
electronic advertising as described in
this rule.
This determination is supported by
the lack of data indicating newspaper
advertisements are an effective means of
recruiting U.S. workers for temporary
nonagricultural positions. Specifically,
as noted in the NPRM, available data
indicates that U.S. workers are now
much more likely to turn to the internet
to search for work, and classified
advertisements in print newspaper
editions are becoming a less effective
means of notifying potential applicants
about available job opportunities. See 83
FR 55877, 55979. The data available to
the Departments and the supportive
comments reviewed in preparation of
this final rule lead DOL to conclude that
electronic advertising is a more effective
means of reaching U.S. workers seeking
temporary nonagricultural job
opportunities, and of achieving the
goals of the H–2B labor certification
program.4 In addition, the Departments
considered anecdotal accounts in
comments from employers and
employer associations, who reported
that the newspaper advertisements they
have placed in connection with this
requirement have yielded very few, if
any, applications from qualified U.S.
workers.
In arriving at this determination, the
Departments carefully considered the
arguments that some commenters raised
in support of retaining the requirement
to place print newspaper
advertisements. As explained below,
however, none of these arguments
contradict the findings discussed above
that newspaper advertisements as a
general requirement of prospective H–
2B employers are a less effective means
of recruiting U.S. workers for temporary
nonagricultural positions. Accordingly,
these arguments have not persuaded the
4 See Aaron Smith, Searching for Work in the
Digital Era, Pew Research Center, Nov. 19, 2015,
https://www.pewinternet.org/2015/11/19/searchingforwork-in-the-digital-era (only 32 percent of
Americans use ‘‘ads in print publications’’ when
searching for employment and only four percent
found ads in print publications to be the most
useful tool in obtaining their recent employment);
Elaine C. Kamarck and Ashley Gabriele, The News
Today: Trends in Old and New Media, The
Brookings Institution (Nov. 10, 2015)(Stating there
are now only 400 newspapers for every 100 million
Americans, and that only 15 percent of Americans
receive a daily newspaper). https://
www.brookings.edu/research/the-news-today-7trends-in-old-and-new-media.
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Departments that the regulations must
require every employer seeking H–2B
workers to place print advertisements in
order to effectively test the labor market
for able, willing, qualified, and available
U.S. workers. As is currently the case,
to the extent DOL determines that an
advertisement in a particular print
publication is likely to reach qualified
and available U.S. workers in specific
areas or across certain populations, the
CO retains the discretion to direct an
employer to place such an
advertisement on a case-by-case basis,
under his or her authority to order
additional positive recruitment. See 20
CFR 655.46.
Significantly, the commenters who
urged the Departments to retain a
general print newspaper-advertising
requirement did not point to data that
showed such advertisements are
effective in recruiting U.S. workers for
temporary nonagricultural positions.
Rather, these commenters asserted
advantages of newspaper
advertisements in general terms or
pointed to their importance in certain
communities, compared to the
advantage of electronic advertisements
proposed in the NPRM, without
specifically addressing the efficacy of
requiring all prospective H–2B
employers to post newspaper
advertisements when recruiting U.S.
workers for temporary or seasonal
nonagricultural job opportunities. For
instance, some commenters cited data
indicating certain populations and
demographics are less likely to use the
internet when searching for jobs and
one commenter asserted that Americans
in some communities are more likely to
turn to community newspapers than the
internet to obtain local news and
information. However, the referenced
non-public data only purports to show
newspaper readership; it does not
address individual job search habits, so
the conclusion drawn is not supported
by the data on which it is based and the
Departments are unable to determine
whether it offers any useful information
with respect to this rulemaking. The
arguments that commenters raised
regarding the circulation and
distribution of newspapers similarly do
not refute the Departments’ observation
in the NPRM that job seekers rarely
learn about job opportunities using print
newspaper advertisements, nor do the
assertions and anecdotes received in
response to the NPRM. Similarly, the
fact that DOL can easily verify whether
an employer has placed a newspaper
advertisement is irrelevant to whether
the placement of such advertisements is
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62435
an effective means of testing the labor
market.
The Departments acknowledge that
the rates of internet access and use of
the internet to search for job
opportunities vary among cross-sections
of the population based on factors like
age, location of residence, income,
education level, and ethnicity. However,
as noted in the NPRM, data indicates
that the internet is an increasingly
popular method that job seekers among
all demographics use most often and
find most reliable. For example, the Pew
Research Center report cited in the
NPRM and by the newspaper industry
commenter concluded that the internet
‘‘is a near-universal resource among
those who have looked for work
recently.’’ 5 The report noted that the
data was ‘‘based on the entire public—
many of whom are retired, not in the job
market, or have simply not had a reason
to look for a job recently’’ and while it
is not possible to parse the data to
determine precise rates of online job
searching among all populations, it is
clear that the internet is, by an
increasing margin, the most widely used
job search tool among job seekers across
demographics. The Pew Research Center
report ultimately found that when
‘‘[n]arrowing the focus to the 34% of
Americans who have actually looked for
a new job in the last two years, fully
90% of these recent job seekers have
ever used the internet to research jobs,
and 84% have applied to a job online.’’ 6
Importantly, while the Pew Research
Center data indicates rural Americans
are less likely to use the internet to
search for job opportunities than urban
or suburban Americans, the data does
not support the conclusion that rural
Americans are more likely to use print
newspapers than the internet when
searching for job opportunities.
Similarly, while the Departments also
acknowledge that some job seekers may
lack reliable access to advertisements on
the internet, such access limitations are
true of advertisements in any form, and
the Departments believe the data
supports the conclusion that electronic
advertisements are currently, and will
be increasingly, accessible to an
overwhelming majority of job seekers
across a much broader geographic area
than print advertisements. The
Departments understand the concerns of
some commenters that job seekers,
5 Aaron Smith, Searching for Work in the Digital
Era, Pew Research Center, Nov. 19, 2015, https://
www.pewinternet.org/2015/11/19/1-the-internetand-job-seeking/.
6 Aaron Smith, Searching for Work in the Digital
Era, Pew Research Center, Nov. 19, 2015, https://
www.pewinternet.org/2015/11/19/searching-forwork-in-the-digital-era/.
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particularly in rural areas, are less likely
to have access to reliable internet
service. However, as noted in the FCC
report cited by the newspaper industry
association commenter, the number of
Americans that lack access is declining,
including Americans living in rural
areas.7 Importantly, while the FCC
report indicated a number of rural areas
still lag behind the rest of the country
in access to fixed-site, terrestrial
broadband internet, the report also
noted that the number of Americans
with access to broadband internet is
much higher when additionally
considering sources like satellite
internet service providers and mobile
LTE.8 In contrast to increasing access to
internet, the data cited in the NPRM
shows that access to print newspapers
continues to decline, there are now only
400 newspapers for every 100 million
Americans, and only 15 percent of
Americans receive a daily newspaper.9
In addition, print newspaper
advertisements are often accessible only
to persons in the areas where that
newspaper is circulated, while
electronic advertisements can reach job
seekers in a much larger geographic
area.
The Departments agree that no single
recruitment method will reach all job
seekers and do not disagree with
comments asserting that other forms of
advertising, such as print newspaper
advertisements, may be effective in
some limited circumstances. The move
to electronic advertisements—and to
SeasonalJobs.dol.gov in particular—is
simply one important step in the
Departments’ broader effort to
modernize the H–2B program, which
has for many years been hampered by
the tools of another era. As explained
7 Inquiry Concerning Deployment of Advanced
Telecommunications Capability to All Americans in
a Reasonable and Timely Fashion, GN Docket No.
17–199, FCC 18–10 (Feb. 2, 2018), https://
docs.fcc.gov/public/attachments/FCC-18-10A1.pdf
(‘‘2018 Broadband Deployment Report’’) (noting
that between 2012 and 2016, mobile and fixed
terrestrial broadband access was deployed to 43.4
million Americans and the number of Americans
without mobile or fixed terrestrial broadband access
fell from 72.1 million to 20.6 million. When taking
into account fixed terrestrial, satellite, and mobile
internet access, the report also notes that
‘‘approximately 99.9 percent of Americans have
access to one of these services, including 99.3
percent in rural areas and nearly all Americans in
urban areas.’’)
8 2018 Broadband Deployment Report at 26, 87
(stating 99.9 percent of all Americans and 99.3
percent of those in rural areas have access to either
fixed broadband or mobile LTE, indicating 99
percent have access to mobile LTE and 95.6 percent
have access to broadband at speeds of 25/3 Mbps).
9 See Elaine C. Kamarck and Ashley Gabriele, The
News Today: 7 Trends in Old and New Media, The
Brookings Institution, Nov. 10, 2015, https://
www.brookings.edu/research/the-news-today-7trends-in-old-and-new-media.
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further below, COs will retain their
discretion under 20 CFR 655.46(a) to
evaluate, on a case-by-case basis,
whether additional recruitment is
necessary to ensure an adequate test of
the labor market for the employer’s job
opportunity. And, in some limited
circumstances where newspaper print
advertisements would be effective, the
CO has the authority to direct such
advertising.
Moreover, as discussed in detail
below, the Departments have decided
not to adopt the proposal to replace the
requirement to place newspaper
advertisements with a requirement for
an employer to post an electronic
advertisement on the internet. Instead,
DOL will post an electronic
advertisement on an employer’s behalf
on SeasonalJobs.dol.gov, an improved
and expanded version of the electronic
job registry that DOL is required to
maintain under its existing regulations.
See 20 CFR 655.34. This addresses
concerns that some commenters
expressed regarding the effect of the
proposed rule on those employers who
have limited or no access to the internet,
because such employers will not need to
access the internet in order to
participate in the H–2B program.
Accordingly, employers who lack access
to the internet will not need to acquire
access to the internet in order for
SeasonalJobs.dol.gov to advertise their
job opportunities or for them to respond
to any applications received from U.S.
workers in response to these
advertisements. Likewise, employers
will not need to determine whether a
particular website meets applicable
regulatory criteria or retain evidence of
this posting. Rather, DOL will use
information that an employer provides
on its job order and H–2B application to
generate the advertisement that DOL
posts on the employer’s behalf on
SeasonalJobs.dol.gov, and U.S. workers
interested in a particular job
opportunity can apply to the employer
directly using the contact information
that the employer provided to DOL.
While the Departments are aware that
the final rule may have an impact on
members of the newspaper industry, the
Departments are also obligated to carry
out the statutory mandate in a manner
that ensures the methods and locations
in which employers conduct positive
recruitment are effective. As a general
requirement for all employers, the
Departments have determined that
newspaper advertisements do not
generally contribute in a significant way
to the labor market test, which must be
carried out by prospective employers to
determine the availability of able,
willing, and qualified U.S. workers.
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Therefore, the impact the newspaper
industry experiences as a result of this
final rule, to the extent that it is relevant
at all, is outweighed by the
Departments’ needs to more effectively
carry out the statutory mandate to
ensure an adequate test of the U.S. labor
market.
The relevant question is whether this
requirement is an effective component
of the labor market test that DOL
conducts in connection with an H–2B
application. Given the absence of
evidence suggesting print newspaper
advertisements are comparably effective
in recruiting U.S. workers for temporary
or seasonal nonagricultural job
opportunities, the Departments have
decided not to continue requiring most
employers seeking an H–2B labor
certification to place print newspaper
advertisements. Accordingly, DOL is
rescinding 20 CFR 655.42, the
regulation that generally requires
employers to place such advertisements.
B. Instead of Requiring a Prospective H–
2B Employer To Post Its Own Electronic
Advertisement, as Originally Proposed,
DOL Will Advertise the Employer’s Job
Opportunity on SeasonalJobs.dol.gov,
an Improved and Expanded Version of
the DOL’s Electronic Job Registry
1. Background
In the NPRM, the Departments
proposed to amend 20 CFR 655.42 to
require that an employer post an
advertisement on a website meeting
certain criteria, namely a website that is
widely viewed and appropriate for use
by workers who are likely to apply for
the job opportunity in the area of
intended employment. The Departments
suggested that such job search websites
might include those that specialize in
advertising job opportunities for the
specific industry or occupation, and
other classified advertisement websites
with sections focused on local jobs. The
Departments requested comments on
whether they should establish
additional qualifying criteria (e.g.,
minimum number of unique visitors per
month) or more specifically define the
types of websites that an employer may
use.
Under the Departments’ proposed
revision to 20 CFR 655.42, an
employer’s advertisement would need
to be clearly visible on the website’s
homepage or easily retrievable using the
search tools on the website, posted for
a period of no less than 14 consecutive
calendar days, and publicly accessible
to U.S. workers at no cost using the
latest browser technologies and mobile
devices. The proposed rule also
required employers to use commonly-
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understood terms and keywords to
describe their job opportunities, so that
U.S. workers likely to apply could easily
retrieve advertisements using the
website’s search function. Moreover, in
an attempt to ensure the advertisement
would be readily available to U.S.
workers at no cost, the proposed rule
prohibited employers from placing it on
a website that required U.S. workers to
establish personal accounts or make
payments of any kind to view the
advertisement. For the same reason, the
proposed rule also required the website
to be functionally compatible with the
latest commercial web browser
platforms and easily viewable on mobile
smartphones and similar portable
devices. To ensure employers retained
the documentation necessary to
demonstrate their compliance with
these requirements, the proposed rule
required employers to print and retain
screen shots of the web pages on which
their advertisements appeared, as well
as screen shots of the web pages
establishing the path used to access
their advertisements.
Separately, in the NPRM, the
Departments provided notice that DOL
was evaluating the development of a
centralized online platform to automate
the advertising of H–2B job
opportunities in order to assist
employers in complying with the
proposed electronic advertising
requirement. Specifically, DOL
envisioned that this electronic
advertising platform would maintain a
standard set of data on each job
opportunity for integration with a wide
array of job search website technologies.
As envisioned in the NPRM, employers
who elected to use this electronic
advertising platform would consent to
have DOL transmit information about
their H–2B job opportunities to
companies offering to provide
advertising services. These companies
would, in turn, advertise the employers’
job opportunities on their respective job
search websites.
2. Discussion
The Departments received comments
both in support and in opposition to the
proposal to replace the print newspaperadvertising requirement in 20 CFR
655.42 with a requirement to post an
electronic advertisement on the internet.
Some commenters fully supported the
Departments’ proposed transition to
electronic advertising, agreed it was a
necessary modernization of the H–2B
program, and expressed a belief that
online advertisements would permit
employers to recruit labor more quickly
and reliably than print newspaper
advertisements.
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However, the Departments also
received a number of comments that
raised significant concerns with various
aspects of the proposal. For instance,
some commenters cited data indicating
people in rural communities are less
likely to have reliable high-speed
internet access than those in urban
areas, which could impede employers’
ability to post—and U.S. workers’
ability to view—electronic
advertisements. These commenters
raised concerns that workers in
particular demographic groups, such as
lower income workers or workers with
low levels of education, are less likely
to use the internet to search for job
opportunities. Other commenters raised
significant issues with the proposed
criteria for websites, the minimum
required duration of the posting, and the
documentation that employers would be
required to retain to establish
compliance.
After considering these comments, the
Departments continue to believe that
electronic advertising is an effective
medium through which to reach U.S.
workers. However, upon further
consideration of how an electronic
posting requirement can be effective in
testing the U.S. labor market, how it can
be effectively administered and
enforced, and by whom, the
Departments have decided to rescind,
rather than revise, the advertising
requirement in 20 CFR 655.42. Instead,
the Departments have decided that DOL
will carry out the electronic advertising
itself by posting H–2B job opportunities
on SeasonalJobs.dol.gov, an improved
and expanded version of the electronic
job registry that DOL is required to
maintain under its existing regulations.
See 20 CFR 655.34. To accomplish this,
in addition to placing copies of all
approved H–2B job orders on its
publicly accessible electronic job
registry, 20 CFR 655.34, DOL will
continue to enhance the functional
capabilities of the registry so that it also
serves as a job search website that
broadly advertises and disseminates H–
2B job opportunities to U.S. workers. As
discussed in detail below, the
Departments believe this approach
strikes an appropriate balance between
addressing the concerns that
stakeholders have raised with the
proposed electronic advertising
requirement and realizing the
Departments’ goal of modernizing and
improving the labor market test
conducted in connection with an H–2B
application.
Having DOL facilitate the electronic
advertising of H–2B job opportunities
will have several salutary effects. First,
it addresses concerns raised in public
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62437
comments regarding the effect that this
rule will have on employers who lack
internet access and/or who have
religious objections to using the
internet. The employer will not need
internet access to advertise job
opportunities because DOL will be
placing advertisements on
SeasonalJobs.dol.gov on behalf of all
employers using the information that
employers provide to DOL in their H–
2B applications. U.S. workers interested
in a particular job opportunity can
apply by directly contacting the
employer, using the contact
information—regardless of whether that
is an email or physical address—that the
employer provided to DOL. Second, it
eliminates the need to establish
regulatory criteria for the websites on
which employers may place
advertisements or the documentation
employers must retain to establish
compliance with those criteria. It also
reduces burden on prospective H–2B
employers—who historically have been
the parties tasked with placing
advertisements—by effectively
transferring the responsibility (and cost)
for this activity from prospective H–2B
employers to DOL. Finally, and most
importantly, it strengthens the integrity
and efficiency of the labor market test
that is conducted in connection with an
H–2B application by leveraging the
latest job search technologies to more
broadly disseminate information about
H–2B job opportunities through a
centralized website. The enhancements
that DOL is making to its electronic H–
2B job registry, as well as each of these
salutary effects, are discussed in further
detail below.
(a) DOL Will Improve and Expand Its
Electronic H–2B Job Registry Instead of
Creating a Separate DOL-Assisted
Advertising Platform
As previously mentioned, after
considering the comments received in
response to the NPRM, the Departments
have decided that the best approach is
for DOL to assume the responsibility for
posting an electronic advertisement
through its own website. Accordingly,
this final rule provides notice that DOL
intends to continue to improve and
enhance the electronic job registry that
it maintains under its existing
regulations. See 20 CFR 655.34
(generally requiring the CO to place a
copy of an employer’s job order on an
electronic job registry once the
employer’s H–2B application has been
accepted for processing, and generally
requiring that this job order remain
posted on the electronic job registry
until 21 calendar days before the
certified start date of work).
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DOL initially implemented the job
registry to accommodate the posting of
H–2A job orders for two reasons. See 75
FR 6884, 6927 (Feb. 12, 2010) (2010 H–
2A Final Rule). One was to promote
public disclosure and transparency and
the other was to have an additional tool
through which U.S. workers and other
intermediaries providing services to
agricultural employers could more
easily identify available job
opportunities. DOL later expanded use
of the job registry to include H–2B job
orders to disseminate temporary
nonagricultural job opportunities to the
widest audience possible. See 80 FR at
24074. DOL has used the same
technology platform to host its
electronic job registry—the iCERT Visa
Portal System (iCERT System)—since
July 2010, shortly after § 655.144 as
promulgated in its 2010 H–2A Final
Rule went into effect.
Under the current H–2B program,
once an employer’s application has been
accepted for processing, the CO will
redact any confidential information on
the employer’s job order and upload a
redacted image of the job order onto the
iCERT System, where it will generally
remain posted until 21 calendar days
before the certified start date of work.
See 20 CFR 655.40(c). At the conclusion
of this period, the CO will change the
job order to inactive status, so that the
information on the job order will still be
available for public research and access.
The iCERT System currently allows the
public to search and retrieve H–2B job
orders using several common data
points—including the H–2B application
number, employer name, area of
intended employment, work contract
period, and job title. Stakeholder
feedback suggests that many
stakeholders value the transparency of a
publicly available job registry and
consistently use the current job registry
to locate H–2B job orders.
Currently, however, the technology
supporting the job registry is more than
10 years old, lacks compatibility with
the latest mobile devices, and provides
limited search options for the public to
retrieve H–2B job orders. It also serves
as a static repository of H–2B job orders
and lacks functionality that can
facilitate the dissemination of these job
opportunities to the widest audience.
Finally, the manual process of scanning,
redacting, and uploading scanned
images of job orders increases the risk
of error, incomplete information, and
delays in posting, especially during the
winter months when employers are
filing large numbers of applications for
the upcoming spring and summer
seasons.
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To address these limitations and
expand U.S. worker awareness and
access to temporary and seasonal job
opportunities, DOL is in the process of
transitioning its electronic job registry to
a new platform, SeasonalJobs.dol.gov,
and it plans to decommission the public
job registry on the iCERT System in the
fall of 2019.10 SeasonalJobs.dol.gov is a
mobile-friendly website that leverages
the latest technologies to automate the
electronic advertising of H–2B job
opportunities and ensures copies of H–
2B job orders are promptly available for
public examination.
SeasonalJobs.dol.gov is currently
operational. Once a CO has accepted an
employer’s H–2B application for further
processing, DOL posts a brief
description of the employer’s job
opportunity on SeasonalJobs.dol.gov
that includes a link to a full copy of the
employer’s job order. The employer’s
job opportunity appears on the website
in a concise and easy-to-read format,
using information that the employer
reports to DOL on its H–2B application
and job order. While currently
functional, DOL continues to enhance
the functionality of
SeasonalJobs.dol.gov to make
information about H–2B job
opportunities more accessible to U.S.
workers. For instance, the search
options available in the iCERT System
are limited to job title, employer name,
job order posting date, and the state
where work will be performed. Users
will be able to create and save
customizable job search profiles and
request email notifications informing
them when DOL posts positions that
match their search criteria. In addition,
a geolocation Application Programming
Interface will connect a user’s current
geographic location (when available) to
the website’s automated search tool, so
that search results favor job
opportunities near the user’s current
location. Location history will also help
DOL identify how many users are
searching for work in certain areas of
the country and more effectively steer
H–2B job opportunities to groups of job
seekers located in certain regional areas
and/or seeking different types of
temporary nonagricultural work.
In addition, SeasonalJobs.dol.gov will
make information about H–2B job
opportunities more accessible to U.S.
workers with limited English
proficiency by posting the jobs in a
format that allows language translation
services to access and translate both the
10 DOL first announced that it would be
launching SeasonalJobs.dol.gov on December 21,
2018. See https://www.dol.gov/newsroom/releases/
eta/eta20181221.
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general web content on
SeasonalJobs.dol.gov and specific terms
and conditions of the job opportunities
presented on job orders through the site.
It will also facilitate broader
dissemination of available job
opportunities by making a standard set
of job data available to third-party job
search websites, which will allow job
search websites to execute web-scraping
protocols that extract new H–2B job
opportunities from SeasonalJobs.dol.gov
and index them for advertising to U.S.
workers. In fact, Jobs on Google and
LinkedIn job search features index the
H–2B job opportunities currently
advertised on SeasonalJobs.dol.gov, and
DOL is evaluating additional
integrations with other commonly used
job search and social media websites to
cast as wide a net as possible to help
Americans find jobs. Finally, DOL will
be further enhancing the RSS feed
capability to allow interested U.S.
workers and stakeholders to tailor
notifications of relevant job
opportunities.
The Departments believe that the
enhancements DOL has and will
continue to make to the electronic job
registry will improve the existing labor
market test and resolve many of the
concerns that commenters raised in
response to the NPRM.
This approach is also consistent with
suggestions that the Departments
received from commenters who urged
DOL to either allow postings on its
electronic job registry to fulfill the
proposed electronic advertisement
requirement or to implement a DOLassisted electronic advertising platform.
In fact, most of these comments
expressed support for a DOLadministered-advertising platform,
noting it would reduce regulatory
burdens on employers, assist employers
in complying with advertising
requirements, and enhance U.S. worker
access to employers’ job opportunities
in a centralized location and
standardized format. A labor union
commenting on the proposal urged DOL
to ensure that the platform would be
compatible with smart phone
technology, and that the platform
provide notice of job opportunities to
unions and worker advocacy
organizations. It also urged the
Departments to permit those
organizations time to review the
advertisements and provide input to
DOL regarding the appropriateness of
the occupational classification and
designated prevailing wage. In contrast,
one commenter believed it would be
unnecessary for DOL to create a new or
updated platform because it could use
commercial applicant tracking systems
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that post advertisements to all of the
major online job boards and permit
applicants to complete applications at
any time from any device.
The Departments have considered
these comments, and while the
Departments have decided not to go
forward with the DOL-assisted
advertising platform that was proposed
in the NPRM, they anticipate that
stakeholders will be pleased with the
improvements DOL has—and
continues—to make to the electronic job
registry. DOL has administered this
electronic job registry in some form for
nearly a decade. Accordingly,
employers have been and continue to be
on notice that, as a condition of
participating in the H–2B program, the
CO will place a copy of their approved
H–2B job order on an electronic job
registry. As explained above, DOL
created this job registry to promote
greater public awareness of and access
to H–2A and H–2B job opportunities.
The enhancements DOL has made and
continues to make to
SeasonalJobs.dol.gov, including the
capability for third-party websites to
extract H–2B job opportunities for
broader advertising, are designed to
further this goal and increase the
likelihood that U.S. workers interested
in temporary nonagricultural
opportunities, as well as intermediaries
providing services to those workers,
receive timely notice of H–2B job
opportunities.
Because the Departments are not
implementing a separate DOL-assisted
advertising platform, but rather
enhancing the electronic job registry
that DOL is currently required to
maintain, the Departments have decided
that U.S. workers will be best served if
DOL implements these enhancements as
soon as practicable. Nevertheless, the
Departments value all suggestions and
ideas to improve the functionality of
SeasonalJobs.dol.gov and invites public
input on changes that DOL can make to
attract U.S. workers who are likely to
apply for seasonal or temporary
nonagricultural jobs. To facilitate public
input, DOL has made the site easily
accessible and included a specific
function to collect stakeholder feedback
and questions. DOL will also continue—
as is its practice—to solicit and
incorporate informal feedback from
program users and other stakeholders in
the course of outreach and technical
assistance activities (including DOLhosted stakeholder meetings and
webinars) and at conferences, forums,
and events hosted by interested
stakeholders.
The Departments have also
considered issues that several
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commenters raised regarding technical
difficulties with DOL’s existing job
registry and the iCERT System, and
agree that it is critical for
SeasonalJobs.dol.gov to function
effectively and reliably. Although this is
a goal of the Departments independent
of public comments in response to the
NPRM, the above-referenced steps that
DOL is taking to meet this goal should
address and allay the concerns of the
stakeholder community.
(b) Posting H–2B Job Opportunities on
SeasonalJobs.dol.gov Will Reduce
Regulatory Burden and Address
Concerns About the Proposed Criteria
for Employer-Posted Electronic
Advertisements
The Departments received numerous
comments addressing electronic
advertisements, the criteria that would
apply to these advertisements, and the
documentation that an employer would
be required to maintain. Many
commenters generally agreed with the
Departments’ proposal to transition to
electronic advertising, but a number of
commenters urged the Departments to
modify the proposal in various ways.
For example, several commenters
expressed concern that the proposed
rule did not accommodate employers
who had limited or no access to the
internet, and they urged the
Departments to provide employers the
option of posting an electronic
advertisement or print newspaper
advertisements.
The Departments also received many
comments suggesting that the standard
they proposed to define the websites on
which an employer could place an
electronic advertisement required
clarification. A number of commenters
felt the proposed standard was
ambiguous and did not sufficiently
identify the websites—or types of
websites—that would be permissible
under the proposed rule. One
commenter explained that the approach
announced in the NPRM was
‘‘unworkable and unpredictable,’’ given
the sheer number of websites that would
qualify under the proposed standard.
These commenters expressed varying
opinions about the types of websites
they believed should qualify and, for
differing reasons, urged the Departments
to further clarify, define, or list the
websites where it would be appropriate
for an employer to advertise an H–2B
job opportunity. For example, several
commenters suggested the Departments
should require advertising on specific
websites, including social media
websites, state and county employment
websites, and the National Labor
Exchange, an online advertising
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62439
platform operated by SWAs in
partnership with operators of private
online job boards.
Other commenters, by contrast,
opposed the adoption of more specific
qualifying criteria, which they argued
would be cumbersome and make the
regulation difficult to adapt to future
changes in practices and technologies.
Indeed, at least one commenter
expressed concern that the proposed
standard would require employers to
monitor website platforms and
technologies to ensure that they remain
compliant with regulatory criteria.
The Departments also received
comments from stakeholders on
whether the final rule should exclude
advertisements placed on websites
operated by employers or the employerclient of a job contractor. An association
of attorneys and legal professionals, as
well as several labor unions, asserted
that placement of advertisements on
websites operated by employers is
insufficient to satisfy an employer’s
recruitment obligations. One commenter
expressed concern that such advertising
would require potential applicants to
know that a specific employer is seeking
to hire H–2B workers and permit
unscrupulous employers to ‘‘hide’’
advertisements. A few of these
commenters believed that employers
should be required to post job
advertisements on their websites as a
supplement to advertisements on other
websites, but did not believe advertising
on these websites alone would be
effective. In contrast, a commenter
representing an employer association
believed advertising on employer
websites would be effective because
these websites would be appropriate to
both the industry and location of the job
opportunity.
In addition, some commenters sought
clarification on the documentation that
an employer would be required to retain
under the proposed recordkeeping
requirements. For example, one
commenter expressed concern that the
proposed rule did not clearly articulate
what documentation an employer must
retain. Another commenter suggested it
would be overly burdensome to print
and retain screen shots documenting
compliance with this rule and suggested
an employer’s attestation should be
sufficient to verify compliance. A labor
union urged the Departments to require
employers to include in their
recruitment reports both the
advertisements and the documentation
of advertising. Another commenter
believed the proposed screenshot
documentation method was outdated,
but did not suggest an alternative.
Finally, commenters associated with the
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newspaper industry additionally alleged
that newspapers are a more reliable
means of documenting compliance,
because they are archived and available
if an employer loses its copy of the tear
sheet, whereas screen shots of websites
can be easily lost, altered, or fabricated.
The issues that these commenters
raised have persuaded the Departments
that it would be unduly difficult at this
time to develop, interpret, and
implement qualifying criteria to govern
the types of websites on which
employers should place an electronic
advertisement, as well as the
documentation that an employer should
retain to demonstrate compliance with
this requirement. In addition, it is
unnecessary to impose such
requirements upon employers, when
DOL has the capacity to produce similar
benefits through its own website.
Accordingly, as explained above, the
Departments have decided not to adopt
their proposal to require that an
employer post an electronic
advertisement. Instead, DOL will
advertise on an employer’s behalf by
posting its job opportunity on
SeasonalJobs.dol.gov.
Assuming control over the posting of
the electronic advertisement and
placing it on a centralized, DOLadministered platform addresses many,
if not all, of the above-referenced
concerns. As a preliminary matter, the
Departments will no longer need to
establish—and employers will no longer
need to comply with—regulatory
criteria limiting the types of websites on
which employers must place an
electronic advertisement or the
documentation necessary to
demonstrate compliance with this
requirement. Moreover, the
advertisement that DOL posts on
SeasonalJobs.dol.gov will not create any
additional regulatory burden for an
employer because the employer will
have already provided DOL with
information about its job opportunity on
its job order and H–2B application,
which DOL will use to generate the
advertisement it posts on
SeasonalJobs.dol.gov. U.S. workers
interested in a particular job
opportunity can apply by directly
contacting the employer, using the
contact information that the employer
provided on its job order and H–2B
application. As noted above, employers
who lack access to the internet will not
need to acquire access to the internet to
post advertisements on
SeasonalJobs.dol.gov or respond to any
applications that they receive from U.S.
workers in response to these
advertisements, and employers will not
need to determine whether a particular
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website meets applicable regulatory
criteria or retain evidence of this
posting.
Finally, the Departments believe this
approach leaves unscrupulous
employers no leeway to ‘‘hide’’ their job
opportunities on websites that they
suspect are unlikely to attract qualified
and available U.S. workers.
SeasonalJobs.dol.gov will offer U.S.
workers a free, publicly accessible, and
easy-to-use job search platform that
identifies all job opportunities for which
employers are seeking to hire H–2B
workers.
Thus, the Departments’ revisions to
the labor market test in this final rule
seeks to reduce the burden of applying
for an H–2B labor certification, while
simultaneously broadening the
dissemination of all H–2B job
opportunities in a more uniform format
through a modernized technology
platform.
(c) The Advertisements That DOL Places
on SeasonalJobs.dol.gov Will Improve
the Information That U.S. workers
Receive About H–2B Job Opportunities
The Departments also received several
comments questioning whether U.S.
workers would be able—or likely—to
access the electronic advertisements
required under the proposed rule. In
addition to concerns over issues of
internet accessibility, explained
elsewhere, commenters expressed
concerns that U.S. workers would
encounter difficulty determining where
to look for information about potential
job opportunities. A labor union, for
example, stated that it would be
difficult for job seekers to know where
to look for advertisements because a
vast number of websites might be
appropriate under the criteria proposed
in the NPRM. As explained below, the
Departments’ decision for DOL to
assume control over the posting of the
electronic advertisement not only
reduces the burden of applying for an
H–2B labor certification, but also
improves worker access to information
about H–2B job opportunities.
First, it ensures that all H–2B job
opportunities are advertised in a
centralized location and in a uniform
manner. This eliminates the concern
raised by some commenters that U.S.
workers would not know where to go to
look for information about available H–
2B job opportunities if employers were
not posting advertisements in consistent
locations or that unscrupulous
employers could intentionally post
advertisements on websites that are
unlikely to yield applications from able,
willing, and qualified U.S. workers.
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Second, DOL can assure broader
dissemination of H–2B job opportunities
without requiring an employer to ensure
that the website on which it places its
advertisement is functionally
compatible with the latest commercial
web browser platforms and easily
viewable on mobile smartphones and
similar portable devices. Under the
Departments’ approach, it is DOL (and
not the employer) who will ensure
compliance with these requirements.
DOL will stay abreast of broader
changes in technologies and implement
appropriate upgrades to the usability
and security of the
SeasonalJobs.dol.gov. For example,
unlike the iCERT System,
SeasonalJobs.dol.gov uses Responsive
Web Design (RWD), which allows DOL
to optimize the design and content
structure of the website to fit on the
screen of the user’s computer,
smartphone, or other similar portable
device, regardless of size. The RWD
approach allows DOL to create a single
website design that can reach users
across a wide array of computing
devices. DOL continuously tests the
site’s mobile device compatibility using
a series of emulation tools and a wide
array of actual mobile devices.
Third, DOL will be able to improve
the presentation of H–2B job
opportunities to U.S. workers. While the
Departments continue to believe that
U.S. workers should have access to all
of the information that is currently
required by 20 CFR 655.41, they also
understand that, in some situations, a
concise summary of the job opportunity
may be more attractive to U.S. workers,
at least as a starting point. Accordingly,
the advertisements that DOL places on
SeasonalJobs.dol.gov provide a concise
summary of the job opportunity,
highlighting select information about an
employer’s job opportunity and
including a link to the job order, so that
U.S. workers can quickly review listings
to assess whether they are interested in
a particular job and, if interested, review
the job order to access all of the terms
and conditions of employment.
Additionally, DOL intends to upgrade
SeasonalJobs.dol.gov to allow users to
create and manage customizable
notifications for the H–2B job
opportunities. Specifically, as noted
above, DOL plans to enhance the site’s
current RSS feed capability, which
includes a basic function that alerts
users when DOL updates web-based
content, with more sophisticated
options that will allow users to
personalize these alerts so that they only
receive notifications of new postings for
specific types of temporary or seasonal
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work and/or in predetermined
frequencies (e.g., immediately, daily,
weekly, monthly) tailored to their
individual preferences. Users will be
able to manage these notifications and
turn them off when they are no longer
needed or relevant.
Fourth, DOL will be able to improve
the accessibility of electronic
advertisements to U.S. workers,
especially those workers with limited
English proficiency. The internet offers
an abundance of content presented in
languages other than English, and the
Departments recognize there are already
a number of free browser applications
and extension technologies (e.g., Google
Translate, Chrome Duolingo, Firefox’s
Flagfox) that provide users with
translations, definitions, and other
language assistance. To assist U.S.
workers who search for jobs online but
who have limited proficiency in
English, jobs available on
SeasonalJobs.dol.gov will be posted in a
format that allows language translation
services to access and translate both the
general web content and specific terms
and conditions of the job opportunities
presented on job orders. DOL is further
evaluating whether existing
technologies and services can provide
effective language translation services,
and can be implemented through the
site, to both general web content on
SeasonalJobs.dol.gov and specific
information about H–2B job
opportunities presented on the site. The
Departments understand the challenges
(e.g., numerous language dialects,
accurately applying grammatical rules)
associated with language translation
tools and services, but believe that it is
important for the information on
SeasonalJobs.dol.gov to be accessible
and understandable to the widest
possible audience of U.S. workers who
are looking for employment. DOL will
therefore work as expeditiously as
possible within existing budgetary
constraints to implement additional
built-in language translation services for
all job opportunities advertised on
SeasonalJobs.dol.gov.
Finally, the Departments acknowledge
that some U.S. workers may lack
reliable access to the internet and agree
that no single recruitment method will
reach all job seekers. The Departments
likewise do not dispute that other
methods of recruitment may be effective
in limited circumstances. Nevertheless,
the Departments’ move to electronic
advertising—and to
SeasonalJobs.dol.gov in particular—is
only one aspect of the labor market test
conducted in connection with an H–2B
application. The existing labor market
test additionally includes the intrastate
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and interstate clearance process
administered by the SWA, see 20 CFR
655.16(c), the requirement for an
employer to contact former U.S.
employees, see 20 CFR 655.43, the
requirement to post notice of the job
opportunity at the worksite, and, in
certain circumstances, provide written
notice of the job opportunity to a
community-based organization, see 20
CFR 655.45.
The Departments believe that the
enhancements DOL has and continues
to make to the electronic job registry
will improve the existing labor market
test by increasing awareness of H–2B job
opportunities, which interested parties
may then share with U.S. workers who
do not have access to the internet or
who may not use the internet to search
for job opportunities. Moreover, as
discussed in detail below, this final rule
retains the option for DOL to require
additional recruitment where the CO
has determined that there is a likelihood
there are qualified U.S. workers who
will be available for the work, including
where the job opportunity is located in
an Area of Substantial Unemployment.
See 20 CFR 655.46. Accordingly, even if
certain U.S. workers interested in
temporary nonagricultural jobs are
unlikely to view an advertisement on
SeasonalJobs.dol.gov (e.g., workers who
do not have internet access or who are
otherwise unlikely to turn to the
internet to search for available job
opportunities), they may be identified
through other steps in this labor market
test.
C. The Departments Are Retaining the
Options To Require Additional
Employer-Conducted Recruitment
Under § 655.46.
In developing this final rule, the
Departments have given careful
consideration to the responses they
received in response to their request for
comments regarding whether there are
alternative methods of recruitment that
would more broadly and effectively
disseminate information about available
job opportunities to U.S. workers. A
number of commenters suggested other
methods of recruitment, such as placing
advertisements on radio stations,
making use of 24/7 job hotlines, and
placing advertisements in communitybased or other publications that target
populations who may be interested in
temporary or seasonal work.
Two commenters representing worker
advocacy organizations also urged the
Departments to require more
dissemination of H–2B job opportunities
to unemployed U.S. workers through
DOL-funded grantees under the
Workforce Innovation and Opportunity
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62441
Act and expand union notification
requirements to those unions
representing workers in the job
opportunity on a nationwide scale.
These commenters also recommended
that the Departments expand the
recruitment activities of the SWAs to
ensure job seekers, particularly those
who lack adequate access to the
internet, are made aware of H–2B job
opportunities. Specifically, one of these
commenters suggested the Departments
require the SWAs to consult with
worker advocacy organizations to
develop annual plans for recruiting U.S.
workers on a nationwide scale targeting
specific groups of unemployed U.S.
workers using a variety of advertising
methods.
Some commenters were not opposed
to the idea of internet advertising, but
suggested strengthening the
requirements in the rule, maintaining
that a single advertisement would not
account for the broad range of positions
and geographic areas where H–2B
workers are employed. They urged the
Departments to require employers to
further tailor their recruitment. One
commenter asserted that modern-day
recruitment of hourly workers
demanded a targeted marketing strategy
such as a 24/7 job hotline and applicant
tracking system. Another argued for
leaving the specific methods of
recruitment to the SWAs, who could
develop recruitment plans suited to the
needs of each locality. Another thought
it ‘‘critically important’’ that the CO
maintain flexibility to require additional
advertising in certain circumstances.
This commenter also recommended
that, in addition to any electronic means
for applying to jobs, there should also be
a variety of non-electronic means, to
account for the possibility that a U.S.
worker will have limited or only shortterm access to the internet.
The Departments appreciate the ideas
and suggestions that they received on
alternative forms of recruitment. DOL
has considered each of these suggestions
but notes that many of these proposals—
including advertising on local radio
stations or in community-based and
ethnic publications or using commercial
recruitment services—are challenging to
regulate and monitor. Because the
Departments do not currently have
sufficient information regarding the
efficacy of these proposals in recruiting
U.S. workers for temporary
nonagricultural employment, the
Departments have decided that a
generally applicable requirement for
every employer to use these methods is
unwarranted at this time. However, to
the extent that DOL receives
information indicating that one or more
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of these methods are effective in a
particular area or among specific groups
of U.S. workers, the CO retains the
authority under 20 CFR 655.46 to order
an employer to use that method to
recruit U.S. workers.
The Departments continue to believe
that this provision provides sufficient
flexibility to design recruitment
procedures—and the appropriate means
of recruitment in those areas—on a caseby-case basis taking into account the
occupation and current labor market
conditions. This provision provides the
CO with flexibility to keep pace with
the ever-changing labor market trends
and technologies and select the most
appropriate method(s) of recruitment for
a particular job opportunity. The
Departments’ intention in requiring
additional recruitment under this
provision, including in areas of
substantial unemployment (ASU), is
predicated on the belief that more
recruitment will result in more
opportunities for U.S. workers. ASUs by
their nature have a higher likelihood of
worker availability; DOL’s recognition
of worker availability in these areas is
a strong indicator that these open job
opportunities may have more receptive
potential populations.
Under 20 CFR 655.46 the CO has
discretion to evaluate, on a case-by-case
basis, the appropriate locations and
methods of recruiting where there may
be qualified U.S. workers available for
job opportunities. The types of
additional recruitment the CO may
require the employer to conduct include
print advertising, advertising on the
employer’s or another website, and
contacting community and faith-based
organizations. Title 20 CFR 655.46 does
not afford the CO unlimited discretion;
rather, it authorizes the CO to order only
the recruitment necessary to ensure an
adequate test of the labor market for the
employer’s job opportunity.
In determining whether and what
additional recruitment is required for a
position, the CO will continue to
consider, among other information,
information that DOL obtains from
SWAs who are familiar with current
labor market conditions and positioned
to provide advice about the effective
methods of recruiting U.S. workers for
the job opportunity. The Departments
acknowledge the comments they
received suggested a wide array of
alternative methods of advertising that,
depending on the information provided
to the CO, may effectively disseminate
information about available job
opportunities to U.S. workers. For
example, based on the information DOL
receives from SWAs, the CO may
determine that a particular method of
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advertising (e.g., a community-based
newspaper) covering a regional area
may be effective in recruiting U.S.
workers for a particular position, in a
specific location, during certain periods
of the year, or in response to local or
regional events like natural disasters,
layoffs, and plant closures. In requiring
the use of a particular method of
advertising, the CO will take into
consideration all available information
about whether that method has been, or
is likely to be, effective in generating
referrals of qualified U.S. workers.
D. Other Technical Amendments
Related to the Final Rule
This final rule also makes technical
amendments to several regulatory
provisions to ensure they conform with
the substantive changes to the
recruitment process discussed above.
First, the rule amends 20 CFR
655.19(e)(1), 655.40(b), and 655.41(a) by
replacing references to 20 CFR 655.42
with references to 20 CFR 655.43 to
reflect the Departments’ decision to
eliminate the requirement for all
employers to place print newspaper
advertisements. For the same purpose,
the final rule amends 20 CFR 655.56 by
eliminating paragraph (c)(2)(ii), which
references 20 CFR 655.42, and
redesignating paragraphs (c)(2)(iii), (iv),
and (v) as paragraphs (c)(2)(ii), (iii), and
(iv), respectively. The final rule also
amends 20 CFR 655.71 by removing the
reference to ‘‘newspapers and other
publications’’ to clarify that the CO has
the discretion to order advertising in
sources like newspapers and other
publications, but 20 CFR 655.71(c) does
not require the CO to order advertising
in these sources.
Finally, the final rule also makes a
minor technical revision to WHD
regulations at 29 CFR part 503 to ensure
they conform with the substantive
changes to the recruitment process
discussed above. Specifically, the final
rule eliminates 29 CFR 503.17(c)(2)(ii),
which includes reference to 20 CFR
655.41 and 655.42, and redesignates
paragraphs (c)(2)(iii), (iv), and (v) as
(c)(2)(ii), (iii), and (iv), respectively.
E. Out of Scope Comments on the
Proposed Rule
The Departments received comments
on several issues that were unrelated to
their proposal to modernize the
recruitment that an employer must
conduct under the regulations by
replacing print newspaper
advertisements with electronic
advertisements posted on the internet.
The Departments recognize and
appreciate the value of these comments
and suggestions. However, they are
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outside the scope of this rulemaking and
the Departments cannot adopt them
without additional regulatory—and in
some cases Congressional—action.
II. Administrative Information
A. Executive Orders 12866 (Regulatory
Planning and Review), 13563
(Improving Regulation and Regulatory
Review), and 13771 (Reducing
Regulation and Controlling Regulatory
Costs)
Under Executive Order (E.O.) 12866,
the Office of Management and Budget
(OMB)’s Office of Information and
Regulatory Affairs determines whether a
regulatory action is significant and,
therefore, subject to the requirements of
the E.O. and review by OMB. See 58 FR
51735 (Oct. 4, 1993). Section 3(f) of E.O.
12866 defines a ‘‘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 affects in a
material way 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. Id.
OMB has determined that this final rule
is a significant, but not economically
significant, regulatory action under Sec.
3(f) of E.O. 12866. Consequently, OMB
has reviewed this rule.
E.O. 13563 directs agencies to propose
or adopt a regulation only upon a
reasoned determination that its benefits
justify its costs; the regulation is tailored
to impose the least burden on society,
consistent with achieving the regulatory
objectives; and in choosing among
alternative regulatory approaches, the
agency has selected those approaches
that maximize net benefits. E.O. 13563
recognizes that some benefits are
difficult to quantify and provides that,
where appropriate and permitted by
law, agencies may consider and discuss
qualitatively values that are difficult or
impossible to quantify, including
equity, human dignity, fairness, and
distributive impacts.
This final rule is an E.O. 13771
deregulatory action because the cost
savings to H–2B employers associated
with the rule are larger than the costs.
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The estimated cost savings associated
with this regulatory action are derived
from the rescission of § 655.42 to
remove the newspaper advertising
requirement, and the revision of
§ 655.56 to eliminate document
retention requirements associated with
print newspaper advertisements.
1. Discussion of Comments
In response to the NPRM, which
instituted an online advertising
requirement in place of the current print
advertising requirement, some
commenters took issue with the
Departments’ assumption that the cost
savings of the proposed rule outweighed
its costs. One commenter stated that the
analysis did not attempt to estimate
what burdens the proposed rule or any
alternative rules considered would
impose on U.S. workers, relative to the
current rule, in terms of their ability to
search for and locate available jobs.
Another commenter suggested that the
Departments’ estimates for the costs of
online advertisements underestimated
actual fees, stating that prices for
advertising online are in some instances
the same as, if not greater than, the cost
of a single newspaper advertisement.
The same commenter believed the
proposed rule’s use of advertising rates
for the largest newspapers in the five
states with the most H–2B temporary
labor certifications inflated the NPRM’s
estimated costs. The commenter stated
that the proposed rule’s analysis did not
specify the criteria used for developing
the cost estimates and was not
representative of the smaller
newspapers employers may use to meet
print advertising requirements, noting
that print advertising costs vary based
on a number of factors (e.g.,
advertisement size, number of lines, and
geographic location). Additionally, the
commenter asserted that the analysis
inflated cost estimates because it failed
to account for the fact that the
advertising fee charged by many
newspapers includes both digital and
print advertising. Finally, the
commenter asserted the analysis failed
to account for the costs of compliance
with the proposed rule for employers
and the costs associated with DOL
enforcement of the rule.
The proposed rule based the cost
estimates for two newspaper
advertisements on advertising costs
from newspapers with the widest
circulation in the five states where H–
2B certifications are most prevalent, as
well as the advertising costs from the
most widely circulating newspapers in
the top feeder states that are adjacent to
the primary H–2B prevalent states. The
estimate of $1,606.16 represents, on
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average, a reasonable estimate of cost
savings of removing print newspaper
requirements. As for the costs associated
with online job posting, the
Departments agree with the
commenter’s concern that DOL may
have underestimated the cost of online
advertising. As explained elsewhere in
this preamble, the Departments have
concluded that, to reduce this cost and
burden, expand the reach of each ad,
and leverage DOL’s existing technology
and infrastructure, it is appropriate for
DOL rather than employers to place H–
2B electronic advertisements. The final
rule replaces the print newspaperadvertising requirement with
employers’ job opportunities posted on
a DOL-maintained website,
SeasonalJobs.dol.gov, thus eliminating
the cost to employers. Additionally, the
enhancements DOL has and continues
to make to SeasonalJobs.dol.gov are
designed to further the Departments’
goal to promote greater public
awareness of and access to H–2B job
opportunities in order to increase the
likelihood that U.S. workers interested
in nonagricultural opportunities, as well
as intermediaries providing services to
those workers, receive timely notice of
H–2B job opportunities. Any costs or
burden that an employer incurs
reviewing increased applications from
U.S. workers is a fundamental
obligation for choosing to participate in
the H–2B program and outweighed by
the Departments’ statutory obligation to
ensure that able, willing, and qualified
U.S. workers are not available. As
explained above, DOL has also
estimated the cost savings from
eliminating the document retention
requirement. In terms of cost impacts on
job seekers, the costs of searching and
applying for a job electronically are less
than the cost associated with searching
and applying for a job through a
newspaper recruitment advertisement.11
Four commenters asserted that the
analysis did not consider the effect the
rule would have on the newspaper
industry, though three of these
commenters acknowledged that the
proposed rule estimated that lost
revenue would equal $9.45 million.
While this rule may have an effect on
the newspaper industry, the advertising
revenue lost from employers who are no
longer required to post job openings in
print is expected to represent an
11 The Departments acknowledge that some job
seekers may not have access to the internet. For this
group of job seekers, it may not necessarily be less
costly to search and apply for a job online.
However, the Departments believe that the number
of job seekers without internet access is a small
portion of the population.
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insignificant portion of the industry’s
overall advertisement revenue.12
2. Subject-by-Subject Analysis
The Departments’ analysis below
considers the expected impacts of the
following aspects of the final rule
against the baseline (i.e., the 2015
Interim Final Rule (80 FR 24042 (Apr.
29, 2015)): (a) Rescission of the
requirement that an employer advertise
its job opportunity in a print newspaper
of general circulation in the area of
intended employment; (b) elimination
of the document retention requirement
associated with print newspaper
advertisements; and (c) the time it takes
the regulated community to read and
review the rule.
(a) Eliminating the Use of Print
Newspaper Advertisements
This final rule modernizes H–2B
recruitment by rescinding the regulation
at 20 CFR 655.42 imposing the
requirement for print newspaper
advertisements, and amending the
regulation at 20 CFR 655.41(a) to delete
reference to the content of print
advertisements. In conjunction with this
rule, DOL will assume responsibility for
these recruitment activities by
advertising each employer’s job
opportunity on a DOL website designed
to make the job opportunity more
broadly available to U.S. workers.
To estimate the cost savings to
employers that would result from this
final rule, the Departments multiplied
the average number of H–2B labor
certifications issued each fiscal year by
the average cost to an employer of
placing a print advertisement. First, the
Departments used program data for FYs
2015–2017 to estimate that DOL
approves, on average, 5,879 H–2B labor
certifications each fiscal year.13 To
estimate the average cost of a print ad,
the Departments identified the top five
states where prospective H–2B
employers received temporary labor
certifications,14 and researched the cost
of placing a newspaper advertisement in
the most populous city in each of these
states (for several newspapers, including
large and local papers), for
advertisements satisfying the content
requirements set forth in § 655.41. Based
12 The total estimated advertising revenue for the
newspaper industry in 2018 was $14.3 billion
(https://www.journalism.org/fact-sheet/
newspapers/).
13 The average is based on 5,106 H–2B
certifications in FY 2015; 5,933 certifications in FY
2016; and 6,599 certifications in FY 2017. See
https://www.foreignlaborcert.doleta.gov/
performancedata.cfm.
14 The top five states where employers seek to
place H–2B workers are Colorado, Florida,
Louisiana, Texas, and Virginia.
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on this data, the Departments estimated
that, on average, it costs an employer
$803.08 to place a single advertisement
(one day) complying with § 655.41’s
content requirements.
Thus, placing the advertisement on
two separate days, as required by
§ 655.42, costs an employer, on average,
twice as much, or $1,606 ($803 for each
advertisement).
As mentioned above, employers can
advertise using the DOL-maintained
website free of charge, so removing the
requirement to advertise in a print
newspaper would result in a cost
savings equal to the cost of complying
with the current regulation. Although
§ 655.42 currently requires that one of
the advertising days be a Sunday, the
Departments did not identify a
significant difference in cost between
advertisements placed on Sundays and
weekdays. Therefore, the Departments
did not distinguish between these two
costs when calculating total advertising
cost savings.
To estimate the annual newspaper
advertising costs that employers will
avoid under the final rule, the
Departments multiplied the estimated
annual number of H–2B temporary labor
certifications (5,879) by the average
newspaper advertising cost of $1,606.
This yielded annual cost savings of
$9.44 million. The annualized cost
savings over the 10-year period is $9.44
at both discount rates of 3 and 7
percent. The Departments believe that
the cost to DOL of upgrading its
database and posting an employer’s job
opportunity on its website would be de
minimis on an annual basis.
(b) Eliminating Document Retention
Requirements
The final rule amends § 655.56 to
eliminate the document retention
requirement at § 655.56(c)(2)(ii)
associated with print newspaper
advertisements. To estimate the cost
savings from this revision, the
Departments calculated the average cost
for each employer to retain print
advertisements records for each H–2B
certification. To do so, the Departments
multiplied each employer’s percertification staff time by its percertification staff cost. The Departments
estimate that it takes a human resources
(HR) specialist, on average, two minutes
to store (print and file) proof of print
advertisement. The Departments used
the median hourly wage rate of an HR
specialist at a nonagricultural business
($31.84) 15 then adjusted the base wage
15 Wage derived from Bureau of Labor Statistics
median hourly wage for HR Specialists
(occupational code 13–1071), May 2017.
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15:51 Nov 14, 2019
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rate using a loaded wage factor (1.63) 16
to account for fringe benefits and
overhead. The Departments then
multiplied the resulting wage rate by the
staff time (two minutes), which yielded
a cost of $1.73 per certification. As
explained above, the Departments
estimate that DOL issues, on average,
5,879 H–2B labor certifications each
fiscal year. By multiplying the estimated
annual number of certifications by the
cost per certification ($1.73), the
Departments estimated an annual cost
savings of $10,171. The annualized cost
savings over the 10-year period is
$10,171 at both discounts rates of 3
percent and 7 percent.
(c) Time To Review and Understand the
Rule
During the first year after this rule
takes effect, employers seeking H–2B
workers will need time to learn about
the new requirements. The Departments
assume that many employers
participating in the H–2B program will
learn about the requirements of the new
rule from an industry newsletter or
bulletin. The Departments estimate that
an employer will require approximately
10 minutes to understand the rule
change, as this final rule addresses only
the job-advertising and document
retention requirements for employers
seeking H–2B workers, and eliminates
those requirements without replacing
them with new ones.
The requirement to review and
understand the rule represents a cost to
employers participating in the H–2B
program only in the first year of the
rule. The Departments estimate this cost
for each employer by multiplying the
staff time required to read and review
the new rule by the estimated staff cost.
As above, the Departments estimated a
wage rate by multiplying the median
hourly wage of an HR specialist at a
nonagricultural business ($31.84) by the
loaded wage rate (1.63) to account for
fringe benefits and overhead. The
Departments then multiplied the
resulting wage rate by the required staff
time (10 minutes), which yielded a cost
of $8.65 per employer. The Departments
estimated the total cost of reading and
reviewing the rule by multiplying $8.64
by the average annual number of
employers participating in the H–2B
program over FY 2015–2017 (5,326).17
16 The loaded wage factor is calculated using a
fringe benefit rate of 46 percent, which is based on
the Bureau of Labor Statistics Employer Cost for
Employee Compensation data. This fringe benefit
rate was added to an overhead rate of 17 percent,
which is based on DOL practices.
17 The average is based on 4,764 unique H–2B
employer applicants in FY 2015; 5,296 employers
in FY 2016; and 5,917 employers in FY 2017.
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This calculation results in a cost of
$46,069 in the first year the rule is in
effect. The annualized cost over the 10year period is $5,243 and $6,130 at the
discount rates of 3 percent and 7
percent, respectively.
3. Summary of Impacts
The Departments estimate the total
first-year cost of the final rule to be
$46,069. This cost results from the time
required to read and review the final
rule for the average annual number of
unique H–2B employer applicants
(based on FY 2015–2017 data). The
Departments estimate total first-year
cost savings of $9.45 million. This cost
savings results from eliminating the
requirement that employers place print
newspaper advertisements and retain
ad-related documents. Net first-year cost
savings, therefore, amount to $9.41
million.
Generally, annual cost savings are
expected to be $9.45 million in every
year following the first. The 10-year
discounted net cost savings of the rule
range from $80.59 million to $66.35
million (with 3 percent and 7 percent
discount rates, respectively). The
annualized net cost savings of the final
rule is $9.45 at both the 3 percent and
7 percent discount rates. When the
Departments use a perpetual time
horizon to allow for cost comparisons
under E.O. 13771, the annualized cost
savings of this final rule are $7.57
million at a discount rate of 7 percent.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
(RFA), 5 U.S.C. 601 et seq., as amended
by the Small Business Regulatory
Enforcement Fairness Act of 1996,
Public Law 104–121 (March 29, 1996),
requires federal agencies engaged in
rulemaking to consider the impact of
their proposals on small entities,
consider alternatives to minimize that
impact, and solicit public comment on
their analyses. The RFA requires the
assessment of the direct effects 18 of a
regulation on a wide range of small
entities, including small businesses,
not-for-profit organizations, and small
governmental jurisdictions. Agencies
must perform a review to determine
whether a proposed or final rule would
have a significant economic impact on
a substantial number of small entities. 5
U.S.C. 603 and 604.
This final rule may impact small
businesses that request H–2B temporary
labor certification. The Departments
18 Because this rule does not directly regulate
newspapers, the rule’s potential effects on
newspaper revenue are outside the scope of this
specific analysis. The Departments note, however,
that these effects are discussed above.
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assume that the average number of H–
2B certifications requested by any small
business per year would be one. The
Departments estimate that small
businesses would incur a one-time cost
of $8.65 to familiarize themselves with
the rule and would incur annual cost
savings of $1,606 associated with
advertising online rather than in print
newspapers. In addition, the
Departments estimate that a small
business would incur annual cost
savings of $1.63 related to the
elimination of the document retention
requirement. Over a 10-year analysis
period, the net annualized cost savings
for a small business would be $1,719 at
a 7-percent discount rate.
The Departments reviewed the
impacts of the proposed rule for two
North American Industry Classification
System (NAICS) Codes that frequently
request H–2B certification: NAICS
561730: Landscaping Services, and
NAICS 721110: Hotels (except Casino
Hotels) and Motels. The Small Business
Administration estimates that revenue
for a small business with NAICS Code
561730 is $7.5 million and for NAICS
Code 721110 is $32.5 million.19 The
impact of the final rule would be less
than 1 percent of annual revenue for the
smallest businesses in these industries
with an employment size fewer than
five ($197,491 for NAICS 561730 and
$321,239 for NAICS 721110).20 Based
on this determination, the Departments
certify that this final rule will not have
a significant economic impact on a
substantial number of small entities.
C. Paperwork Reduction Act
The Paperwork Reduction Act (PRA),
44 U.S.C. 3501 et seq., provides that a
Federal agency generally cannot
conduct or sponsor a collection of
information, and the public is generally
not required to respond to an
information collection, unless it is
approved by OMB under the PRA and
displays a currently valid OMB Control
Number. In addition, notwithstanding
any other provisions of law, no person
shall generally be subject to penalty for
failing to comply with a collection of
information that does not display a
valid Control Number. See 5 CFR
1320.5(a) and 1320.6. DOL has
submitted the Information Collection
Request (ICR) contained in this final
19 U.S.
Small Business Administration (2017),
Table of Small Business Size Standards Matched to
North American Industry Classification System
Codes, retried from: https://www.naics.com/wpcontent/uploads/2017/10/SBA_Size_Standards_
Table.pdf.
20 U.S. Census, 2012 SUSB Annual Data Tables
by Establishment Industry, https://www.census.gov/
data/tables/2012/econ/susb/2012-susbannual.html.
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rule to OMB and obtained approval
using emergency clearance procedures
outlined at 5 CFR 1320.13.
This final rule modernizes and
improves the labor market test that DOL
uses to assess whether qualified U.S.
workers are available by: (1) Rescinding
the requirement that an employer
advertise its job opportunity in a print
newspaper of general circulation in the
area of intended employment; and (2)
expanding and enhancing the
Department’s electronic job registry.
More specifically, this final rule
eliminates the general requirement for a
prospective H–2B employer to advertise
its job opportunity in a print newspaper
of general circulation in the area of
intended employment. However, in
contrast to the NPRM, this final rule
does not require the employer to place
an electronic advertisement on a
website that is widely viewed and
appropriate for use by workers who are
likely to apply for the job opportunity
in the area of intended employment.
Rather, as explained in detail in this
final rule, DOL will advertise the
employer’s job opportunity on the
employer’s behalf on
SeasonalJobs.dol.gov, an expanded and
improved version of DOL’s existing H–
2B job registry website.
During the NPRM stage of this rule,
DOL requested the creation of a new
OMB Control Number 1205–0534 to
account for the time burden and cost
associated with the online recruitment
process. However, upon further
consideration and in light of the revised
requirements in the final rule, it is
appropriate, instead, to revise the
existing OMB Control Number 1205–
0509 to account for the burden and costs
associated with requiring online ads
only, and for the transfer of this burden
from employers to DOL. DOL is seeking
OMB’s approval under PRA emergency
procedures to revise 1205–0509 to
accommodate this change.
The information collection
requirements associated with OMB
Control Number 1205–0509, are revised
under this final rule as follows. This
burden breakdown only reflects the
updated burden with regard to the
advertisement requirement:
Agency: DOL–ETA.
Type of Information Collection:
Currently approved.
Title of the Collection: Advertising
Requirements for Employers Seeking to
Employ H–2B Nonimmigrant Workers.
Agency Form Number: ETA 9142B,
instructions and accompanying
appendixes.
Affected Public: Private Sector—
businesses or other for-profits.
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62445
Total Estimated Number of
Respondents: 5,879.
Average Responses per Year per
Respondent: 2.
Total Estimated Number of
Responses: 11,758.
Average Time per Response: 7
minutes per application.
Total Estimated Annual Time Burden:
0 hours. (Employers will not be
burdened with the advertisement
requirements.)
Total Estimated Other Costs Burden:
$0
D. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995 (UMRA) is intended, among
other things, to curb the practice of
imposing unfunded Federal mandates
on State, local, and tribal governments.
Title II of the Act requires each Federal
agency to prepare a written statement
assessing the effects of any Federal
mandate in a proposed or final agency
rule that may result in $100 million or
more expenditure (adjusted annually for
inflation) in any one year by State, local,
and tribal governments, in the aggregate,
or by the private sector.
This final rule does not exceed the
$100 million expenditure in any 1 year
when adjusted for inflation, and this
rulemaking does not contain such a
mandate. The requirements of Title II of
the Act, therefore, do not apply, and the
Departments have not prepared a
statement under the Act.
E. Small Business Regulatory
Enforcement Fairness Act of 1996
This final rule would not be a major
rule as defined by section 804 of the
Small Business Regulatory Enforcement
Act of 1996, Public Law 104–121, 804,
110 Stat. 847, 872 (1996), 5 U.S.C.
804(2). The Office of Information and
Regulatory Affairs has found that this
final rule is not likely to result in an
annual effect on the economy of $100
million or more; a major increase in
costs or prices; or significant adverse
effects on competition, employment,
investment, productivity, innovation, or
on the ability of United States-based
companies to compete with foreignbased companies in domestic or export
markets.
F. Executive Order 13132: Federalism
This final rule does not have
federalism implications because it
would not have substantial direct effects
on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.
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Accordingly, Executive Order 13132,
Federalism, requires no further agency
action or analysis.
G. Executive Order 13175, Indian Tribal
Governments
This final rule does not have ‘‘tribal
implications’’ because it would 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.
Accordingly, Executive Order 13175,
Consultation and Coordination with
Indian Tribal Governments, requires no
further agency action or analysis.
Governmental Actions and Interference
with Constitutionally Protected Property
Rights, requires no further agency action
or analysis.
M. Executive Order 12988, Civil Justice
Reform Analysis
This final rule was drafted and
reviewed in accordance with Executive
Order 12988, Civil Justice Reform. It
was written to provide a clear legal
standard for affected conduct and was
carefully reviewed to eliminate drafting
errors and ambiguities, so as to
minimize litigation and undue burden
on the Federal court system. It meets the
applicable standards provided in
section 3 of Executive Order 12988.
List of Subjects
H. The Treasury and General
Government Appropriations Act of
1999: Assessment of Federal
Regulations and Policies on Families
This final rule would have no effect
on family well-being or stability, marital
commitment, parental rights or
authority, or income or poverty of
families and children. Accordingly,
section 654 of the Treasury and General
Government Appropriations Act of 1999
(5 U.S.C. 601 note) requires no further
agency action, analysis, or assessment.
I. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
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.
This final rule would have no adverse
impact on children. Accordingly,
Executive Order 13045, Protection of
Children from Environmental Health
Risks and Safety Risks, as amended by
Executive Orders 13229 and 13296,
requires no further agency action or
analysis.
29 CFR Part 503
Administrative practice and
procedure, Employment, Foreign
Workers, Housing, Housing standards,
Immigration, Labor, Nonimmigrant
workers, Penalties, Transportation,
Wages.
Accordingly, part 655 of title 20 and
part 503 of title 29 of the Code of
Federal Regulations are amended as
follows:
J. Environmental Impact Assessment
Title 20—Employees’ Benefits
This final rule is one of a category of
actions that do not individually or
cumulatively have a significant effect on
the human environment. This final rule
is therefore categorically excluded from
further review under the National
Environmental Policy Act of 1969
(NEPA), 42 U.S.C. 4321–4375.
K. Executive Order 13211, Energy
Supply
This final rule has not been identified
to have impacts on energy supply.
Accordingly, Executive Order 13211
requires no further agency action or
analysis.
L. Executive Order 12630,
Constitutionally Protected Property
Rights
This final rule will not implement a
policy with takings implications.
Accordingly, Executive Order 12630,
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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), 8 U.S.C. 1103(a)(6), 1182(m), (n), and
(t), 1184(c), (g), and (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); 29 U.S.C. 49k; Pub. L. 107–296, 116
Stat. 2135, as amended; Pub. L. 109–423, 120
Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR
214.2(h)(6)(iii); and sec. 6, Pub. L. 115–218,
132 Stat. 1547 (48 U.S.C. 1806).
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Subpart A 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).
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C.
1288(c) and (d); sec. 323(c), Pub. L. 103–206,
107 Stat. 2428; and 28 U.S.C. 2461 note, Pub.
L. 114–74 at section 701.
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; 8 CFR 214.2(h); and 28 U.S.C. 2461
note, Pub. L. 114–74 at section 701.
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. Amend § 655.19 by revising
paragraph (e)(1) to read as follows:
■
§ 655.19 Job contractor filing
requirements.
*
*
*
*
*
(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 655.43
through 655.46. 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
9142B.
*
*
*
*
*
■ 3. Amend § 655.40 by revising
paragraph (b) to read as follows:
§ 655.40
Employer-conducted recruitment.
*
*
*
*
*
(b) Employer-conducted recruitment
period. Unless otherwise instructed by
the CO, the employer must conduct the
recruitment described in §§ 655.43
through 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.
*
*
*
*
*
■ 4. Amend § 655.41 by revising
paragraph (a) to read as follows:
§ 655.41
Advertising requirements.
(a) All recruitment conducted under
§§ 655.43 through 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).
*
*
*
*
*
E:\FR\FM\15NOR1.SGM
15NOR1
Federal Register / Vol. 84, No. 221 / Friday, November 15, 2019 / Rules and Regulations
§ 655.42
■
[Removed and Reserved]
5. Remove and reserve § 655.42.
§ 655.56
[Amended]
6. Amend § 655.56 by removing
paragraph (c)(2)(ii) and redesignating
paragraphs (c)(2)(iii), (iv), and (v) as
paragraphs (c)(2)(ii), (iii), and (iv),
respectively.
■ 7. Amend § 655.71 by revising
paragraph (c)(2) to read as follows:
■
§ 655.71
CO-ordered assisted recruitment.
*
*
*
*
*
(c) * * *
(2) Designating the sources where the
employer must recruit for U.S. workers
and directing the employer to place the
advertisement(s) in such sources;
*
*
*
*
*
Title 29—Labor
PART 503—ENFORCEMENT OF
OBLIGATIONS FOR TEMPORARY
NONIMMIGRANT NON–
AGRICULTURAL WORKERS
DESCRIBED IN THE IMMIGRATION
AND NATIONALITY ACT
8. The authority citation for part 503
continues to read as follows:
■
Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(b); 8
U.S.C. 1184; 8 CFR 214.2(h); 28 U.S.C. 2461
note (Federal Civil Penalties Inflation
Adjustment Act of 1990); Pub. L. 114–74 at
§ 701.2.
§ 503.17
[Amended]
9. Amend § 503.17 by removing
paragraph (c)(2)(ii) and redesignating
paragraphs (c)(2)(iii), (iv), and (v) as
paragraphs (c)(2)(ii), (iii), and (iv),
respectively.
■
Kevin K. McAleenan,
Acting Secretary of Homeland Security.
Eugene Scalia,
Secretary of Labor.
[FR Doc. 2019–24832 Filed 11–13–19; 4:15 pm]
BILLING CODE P
SMALL BUSINESS ADMINISTRATION
13 CFR Part 126
RIN 3245–AH06
HUBZone Program Provisions for
Governor-Designated Covered Areas
U.S. Small Business
Administration.
ACTION: Direct final rule; request for
comments.
AGENCY:
This direct final rule contains
amendments to the regulations
governing the HUBZone Program. The
SUMMARY:
VerDate Sep<11>2014
16:57 Nov 14, 2019
Jkt 250001
U.S. Small Business Administration
(SBA) is making changes to its
regulations to implement provisions of
the National Defense Authorization Act
for Fiscal Year 2018 which authorized
the inclusion of ‘‘Governor-designated
covered areas’’ under the HUBZone
program. This direct final rule would
merely replicate these statutory changes
into SBA’s regulations.
DATES: This rule is effective on January
1, 2020, without further action, unless
significant adverse comment is received
by December 16, 2019. If significant
adverse comment is received, SBA will
publish a timely withdrawal of the rule
in the Federal Register.
ADDRESSES: You may submit comments,
identified by RIN 3245–AH06, by any of
the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• For Mail, Paper, Disk, or CD–ROM
Submissions: Bruce Purdy, U.S. Small
Business Administration, Office of the
HUBZone Program, 409 Third Street
SW, 8th Floor, Washington, DC 20416.
• Hand Delivery/Courier: Bruce
Purdy, U.S. Small Business
Administration, Office of the HUBZone
Program, 409 Third Street SW, 8th
Floor, Washington, DC 20416.
SBA will post all comments on
www.regulations.gov. If you wish to
submit confidential business
information (CBI) as defined in the User
Notice at www.regulations.gov, please
submit the information to Bruce Purdy,
U.S. Small Business Administration,
Office of the HUBZone Program, 409
Third Street SW, 8th Floor, Washington,
DC 20416, or send an email to
hubzone@sba.gov. Highlight the
information that you consider to be CBI
and explain why you believe SBA
should hold this information as
confidential. SBA will review the
information and make the final
determination on whether it will
publish the information.
FOR FURTHER INFORMATION CONTACT:
Bruce Purdy, Deputy Director, Office of
the HUBZone Program, 409 Third Street
SW, Washington, DC 20416, 202–205–
7554, hubzone@sba.gov.
SUPPLEMENTARY INFORMATION: This
direct final rule implements a
conforming amendment to SBA’s
regulations from the National Defense
Authorization Act for Fiscal Year 2018,
Public Law 115–91 (2018 NDAA). The
2018 NDAA became effective on
December 12, 2017. Section 1701(e) of
the 2018 NDAA authorized the
inclusion of ‘‘Governor-designated
covered areas’’ under the HUBZone
program. Section 1701(j) of the 2018
PO 00000
Frm 00017
Fmt 4700
Sfmt 4700
62447
NDAA provides that section 1701(e)
shall be effective January 1, 2020.
SBA seeks to amend its HUBZone
rules to mirror the changes made to the
Small Business Act, to avoid public
confusion and possible
misinterpretations of SBA’s HUBZone
program. Since these are conforming
amendments, with no extraneous
interpretation or other expanded
materials, SBA expects no significant
adverse comments. Therefore, SBA has
decided to proceed with a direct final
rule. If SBA receives a significant
adverse comment during the comment
period, SBA will withdraw the rule, and
proceed with a new proposed rule.
In order to implement the changes
made by section 1701(e) of the 2018
NDAA, SBA is amending § 126.103 of
its regulations by adding a new
definition for the term ‘‘Governordesignated covered area’’, revising the
definition of the term ‘‘HUBZone’’ to
include Governor-designated covered
areas, and adding a new § 126.104 to
implement the statutory process by
which a Governor can petition and the
SBA Administrator may designate a
specific covered area to be a qualified
HUBZone area. The statute provides the
guidelines under which a petition will
be considered. Specifically, the
Administrator will consider the
following: The potential for job creation
and investment in the covered area; the
demonstrated interest of small business
concerns in the covered area to be
designated as a Governor-designated
covered area; how State and local
government officials have incorporated
the covered area into an economic
development strategy; and if the covered
area was a HUBZone before becoming
the subject of the petition, the impact on
the covered area if the Administrator
did not approve the petition. SBA
anticipates that included within the
covered areas that a Governor may seek
to be designated as a qualified HUBZone
area are Opportunity Zones, authorized
by Section 13823 of the Tax Cuts and
Jobs Act of 2017, Public Law 115–97,
that do not otherwise qualify as
HUBZones.
Compliance With Executive Orders
12866, 13771, 13563, 12988, 13132,
13175, the Paperwork Reduction Act
(44 U.S.C. Ch. 35), the Regulatory
Flexibility Act (5 U.S.C. 601–612), and
the Administrative Procedure Act
Executive Order 12866
The Office of Management and Budget
(OMB) has determined that this direct
final rule does not constitute a
significant regulatory action under
Executive Order 12866. This rule is also
E:\FR\FM\15NOR1.SGM
15NOR1
Agencies
[Federal Register Volume 84, Number 221 (Friday, November 15, 2019)]
[Rules and Regulations]
[Pages 62431-62447]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24832]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 84, No. 221 / Friday, November 15, 2019 /
Rules and Regulations
[[Page 62431]]
DEPARTMENT OF HOMELAND SECURITY
RIN 1615-AC33
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
Wage and Hour Division
29 CFR Part 503
[DOL Docket No. ETA-2018-0003]
RIN 1205-AB91
Modernizing Recruitment Requirements for the Temporary Employment
of H-2B Foreign Workers in the United States
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security and Employment and Training Administration and Wage
and Hour Division, Department of Labor.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security (DHS) and the Department
of Labor (DOL) (collectively, the Departments), are jointly issuing
this final rule to amend the regulations governing DOL's certification
of nonagricultural labor or services to be performed by temporary
foreign workers in H-2B nonimmigrant status (H-2B workers). Pursuant to
Section 214(c)(1) of the Immigration and Nationality Act (INA), this
certification serves as DHS's consultation with DOL regarding whether a
qualified United States (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. This
final rule modernizes and improves the labor market test that DOL uses
to assess whether qualified U.S. workers are available by: Rescinding
the requirement that an employer advertise its job opportunity in a
print newspaper of general circulation in the area of intended
employment, and expanding and enhancing DOL's electronic job registry
to disseminate available job opportunities to the widest audience
possible.
DATES: This final rule is effective December 16, 2019.
FOR FURTHER INFORMATION CONTACT: Regarding the Department of Homeland
Security: Charles L. Nimick, Chief, Business and Foreign Workers
Division, Office of Policy and Strategy, U.S. Citizenship and
Immigration Services, Department of Homeland Security, 20 Massachusetts
Ave NW, Suite 1100, Washington, DC 20529-2120, telephone (202) 272-8377
(not a toll-free call). Regarding the Department of Labor: Thomas M.
Dowd, Deputy Assistant Secretary, Employment and Training
Administration, Department of Labor, Box #12-200, 200 Constitution Ave
NW, Washington, DC 20210, telephone (202) 513-7350 (this is not a toll-
free number). Regarding 29 CFR part 503: Mary Ziegler, Director,
Division of Regulations, Legislation, and Interpretation, Wage and Hour
Division, 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 numbers above via TTY by calling the toll-free Federal
Information Relay Service at 1-877-889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Statutory and Regulatory Background
The Immigration and Nationality Act (INA), as amended by the
Immigration Reform and Control Act of 1986 (IRCA), establishes the H-2B
nonimmigrant visa 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 [nonagricultural] service or labor if unemployed persons
capable of performing such service or labor cannot be found in this
country.'' INA section 101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b). Employers must petition DHS for classification
of prospective temporary workers as H-2B nonimmigrants. INA section
214(c)(1), 8 U.S.C. 1184(c)(1). DHS must approve this petition before a
beneficiary may be considered eligible for an H-2B visa. Finally, the
INA requires that ``[t]he question of importing any alien as [an H-2B]
nonimmigrant . . . in any specific case or specific cases shall be
determined by [DHS],\1\ after consultation with appropriate agencies of
the Government.'' Id.
---------------------------------------------------------------------------
\1\ As of March 1, 2003, in accordance with section 1517 of
Title XV of the Homeland Security Act of 2002 (HSA), Public Law 107-
296, 116 Stat. 2135, any reference to the Attorney General in a
provision of the Immigration and Nationality Act describing
functions which were transferred from the Attorney General or other
Department of Justice official to the DHS by the HSA ``shall be
deemed to refer to the Secretary'' of Homeland Security. See 6
U.S.C. 557 (2003) (codifying HSA, Title XV, sec. 1517); 6 U.S.C. 542
note; 8 U.S.C. 1551 note.
---------------------------------------------------------------------------
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 issued pursuant to
regulations established at 20 CFR part 655. See 8 CFR
214.2(h)(6)(iii)(A), (C)-(E), (h)(6)(iv)(A); see also INA section
103(a)(6), 8 U.S.C. 1103(a)(6), INA section 214(c)(1), 8 U.S.C.
1184(c)(1). The TLC serves as DHS's consultation with DOL regarding
whether: (i) A qualified U.S. worker is available to fill the
petitioning H-2B employer's job opportunity, and (ii) 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 INA
section 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and
(D).
Through the application process set forth in these regulations, DOL
acquires the information necessary to make these factual
determinations, including whether there are sufficient qualified U.S.
workers available to perform the nonagricultural labor or services for
which an employer seeks H-2B certification. 20 CFR 655.1. To that end,
the regulations require an employer seeking H-2B temporary labor
certification to test the labor market by recruiting U.S. workers for
the position(s) in which it intends to employ H-2B workers. See, e.g.,
20 CFR 655.16, 655.40 through 655.46. The
[[Page 62432]]
outcome of this labor market test forms the basis of DOL's
determination, through consultation with DHS before DHS makes the final
determination on an H-2B petition, as to whether there are sufficient
qualified U.S. workers available to fill the employer's job
opportunity.
The INA also authorizes DHS to impose appropriate remedies against
an employer for a substantial failure to meet the terms and conditions
of employing an H-2B nonimmigrant worker, or for a willful
misrepresentation of a material fact in a petition for an H-2B
nonimmigrant worker. INA section 214(c)(14)(A), 8 U.S.C.
1184(c)(14)(A). The INA expressly authorizes DHS to delegate certain
enforcement authority to DOL. INA section 214(c)(14)(B), 8 U.S.C.
1184(c)(14)(B); see also INA section 103(a)(6), 8 U.S.C. 1103(a)(6).
DHS has delegated its authority pursuant to INA section 214(c)(14)(B),
8 U.S.C. 1184(c)(14)(B) and INA section 103(a)(6), 1103(a)(6), to DOL.
See DHS, Delegation of Authority to DOL under Section 214(c)(14)(A) of
the Immigration and Nationality Act (Jan. 16, 2009); INA section
103(a)(6), 8 U.S.C. 1103(a)(6); 8 CFR 214.2(h)(6)(ix) (stating that DOL
may investigate employers to enforce compliance with the conditions of,
among other things, an H-2B petition and a DOL-approved TLC). Within
DOL, this enforcement authority has been delegated to the Wage and Hour
Division (WHD), and is governed by regulations at 29 CFR part 503.
B. Current Recruitment Requirements
Under the regulations currently in effect, an employer seeking H-2B
workers generally initiates the temporary labor certification process
by filing the following with DOL: (1) An Application for Temporary
Employment Certification, Form ETA-9142B (H-2B application) and (2) a
copy of the job order submitted concurrently to the State Workforce
Agency (SWA) serving the area of intended employment; and other
documentation supporting the H-2B application. 20 CFR 655.15(a). Absent
limited exceptions, an employer must file a completed H-2B application
no more than 90 days, but no fewer than 75 days, before it seeks to
employ H-2B workers. 20 CFR 655.15(b).
An Office of Foreign Labor Certification (OFLC) Certifying Officer
(CO) will review the H-2B application and job order for compliance with
program requirements. 20 CFR 655.30. The SWA concurrently reviews the
job order to confirm that the employer's job opportunity complies with
applicable requirements and notifies the CO of any deficiencies within
6 business days of receipt of the job order. 20 CFR 655.16(b). If the
H-2B application and job order meet all applicable requirements, the CO
will issue a Notice of Acceptance (NOA) within 7 business days from the
date the H-2B application was received. 20 CFR 655.33. The NOA
authorizes the next step in the temporary labor certification 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. See 20 CFR 655.33(b).
The NOA directs the SWA to place the job order into intrastate
clearance and circulate a copy of the job order to other states listed
as anticipated worksites and designated by the CO for interstate
clearance, where the job orders must remain active until 21 days before
the date of need as set forth in 20 CFR 655.40(c). Id. Where the
occupation or industry is traditionally or customarily unionized, the
NOA instructs the SWA to circulate a copy of the job order to the
central office of the State Federation of Labor and the office(s) of
local union(s) representing employees in the same or a substantially
equivalent job classification in the geographic area(s) where work will
be performed. Id. Additionally, the NOA specifies the recruitment steps
that the employer must conduct, within 14 calendar days from the date
the NOA is issued, to complete the labor market test, unless the CO
instructs otherwise. Id. Upon receipt of the employer's initial
recruitment report, the CO will make a final determination whether to
grant, partially grant, or deny the employer's H-2B application, based
on the criteria for certification set forth in 20 CFR 655.50-655.51.
Sections 655.40 through 655.48 outline the recruitment standards
and procedures that the CO may order an employer to conduct. Under
these regulations, an employer is generally required to: (1) Place two
print advertisements in a newspaper of general circulation serving the
area of intended employment, see 20 CFR 655.42; (2) contact U.S.
workers the employer employed in the previous year to solicit their
return, see 20 CFR 655.43; and (3) contact the bargaining unit, if one
exists, to seek referrals of U.S. workers, or if a bargaining unit does
not exist, post notice of the job opportunity at the place(s) of
employment for at least 15 consecutive business days, see 20 CFR
655.45. If relevant to the occupation and area of intended employment,
the CO may also direct the employer to provide written notice of the
job opportunity to a community-based organization, as provided in 20
CFR 655.45(c). Both print newspaper advertisements and the notice of
posting at the place(s) of employment must meet the minimum content
requirements set forth in 20 CFR 655.41, and an employer must maintain
documentation of all advertising and recruitment efforts in the event
of an audit or other review, as required by 20 CFR 655.56.
Finally, the CO may direct an employer to conduct additional
recruitment where the CO determines there is a likelihood that
qualified U.S. workers will be available to fill the employer's job
opportunity. 20 CFR 655.46(a). The regulation provides the CO with
flexibility to select the appropriate methods of recruitment on a case-
by-case basis to ensure an adequate test of the labor market and that
U.S. workers are apprised of available job opportunities. 20 CFR
655.46(b) leaves to the CO's discretion the precise nature of the
additional recruitment an employer may need to conduct, and provides a
non-exclusive list of advertising options. The flexibilities contained
in this regulatory provision permit the CO to keep pace with labor
market trends and changes in technology that may affect how information
about job opportunities is disseminated and how many U.S. workers
search for and find jobs. Equally important, when assessing the
appropriateness of a particular recruitment method, the CO considers
all options at his or her disposal, including relying on the SWA's
experience and expertise with local labor markets, and where
appropriate, selects the appropriate methods of recruitment on a case-
by-case basis.
C. Summary of Proposed Changes to the Recruitment Requirements and the
Changes Adopted in This Final Rule
On November 9, 2018, the Departments issued a notice of proposed
rulemaking (NPRM) announcing their intent to modernize the recruitment
that an employer must conduct in conjunction with an H-2B application.
See 83 FR 55977, 55979 (Nov. 9, 2018). Specifically, the Departments
proposed to eliminate the general requirement that an employer
advertise its job opportunity in a print newspaper and replace it with
a requirement to post an electronic advertisement on a qualifying
website. The Departments invited interested parties to submit written
comments on all aspects of this proposal, including a variety of issues
related to the electronic advertising requirement. The Departments
specifically solicited comments as to
[[Page 62433]]
whether there were alternative methods of recruitment that would more
broadly and effectively disseminate information about temporary
nonagricultural job opportunities to U.S. workers. The Departments
originally stated that they would accept comments through December 10,
2018, but in response to a request for an extension, they subsequently
extended this period through December 28, 2018. The public may review
all comments that the Departments received in response to the NPRM in
the Federal Docket Management System (FDMS) at https://www.regulations.gov, docket number ETA-2018-0003.
Upon careful consideration of the comments received, the
Departments have decided to adopt their proposal to transition to
electronic advertising with several changes. Specifically, this final
rule adopts the NPRM's proposal to eliminate the existing requirement
for most employers seeking H-2B labor certification to advertise their
job opportunities in print newspapers of general circulation in the
area of intended employment. The Departments' transition to electronic
advertising will not require an employer to place an electronic
advertisement on the internet in the manner proposed in the NPRM. As
explained in detail below, DOL will instead advertise all H-2B job
opportunities by posting them on SeasonalJobs.dol.gov, the expanded and
improved version of DOL's existing electronic job registry.
D. Joint Issuance of This Final Rule
In order to effectuate DHS's requirement for DOL consultation
pursuant to 8 U.S.C. 1184(c)(1), which is provided in the form of
temporary labor certifications, DOL must issue regulations to structure
procedures and standards for its issuance of labor certifications, as
DOL has done for almost 50 years. On April 29, 2015, following a
court's vacatur of nearly all of DOL's H-2B regulations, the
Departments jointly promulgated an interim final rule (IFR) governing
DOL's role in issuing temporary labor certifications and in enforcing
the statutory and regulatory rights and obligations applicable to
employment under the H-2B program. See Temporary Non-Agricultural
Employment of H-2B Aliens in the United States, 80 FR 24042 (Apr. 29,
2015) (``2015 H-2B IFR'').
As explained in the 2015 H-2B IFR, following conflicting legal
decisions about DOL's authority to independently issue legislative
rules to carry out its duties for the H-2B program under the INA, the
Departments jointly issued the 2015 H-2B IFR to ensure that there can
be no question about the authority for and validity of the regulations
in this area. 80 FR at 24045; see also 80 FR at 24044-47.\2\
---------------------------------------------------------------------------
\2\ The Departments' authority to jointly regulate has not been
found invalid, and nothing otherwise precludes joint action in the
H-2B program. While the same district court twice issued an
injunction against DOL's unilaterally-issued H-2B rules, see Bayou
Lawn & Landscape Servs. v. Solis, 2012 WL 12887385 (N.D. Fla. Apr.
26, 2012) and Bayou Lawn v. Perez, 81 F. Supp. 3d 1291, 1300 (N.D.
Fla. 2014) (Bayou II), the court has since upheld the joint rules,
Bayou Lawn v. Johnson, 173 F. Supp. 3d 1271, 1277, 1289-91 (N.D.
Fla. 2016) (Bayou III), noting that the primary difference between
the enjoined 2012 rules and the 2015 rules was their joint
promulgation. Id. at 1277 n.2.
---------------------------------------------------------------------------
Specifically, DHS's participation in the rulemaking is pursuant to
its broad authority to issue rules in the H-2B program under 8 U.S.C.
1103(a)(3) and 1184(a), and, as referenced above, DOL--which has the
institutional expertise on all matters relating to the domestic labor
market and has for decades issued temporary labor certifications and
legislative rules governing them in the nonagricultural foreign worker
program--is necessarily authorized to promulgate rules governing its
issuance of temporary labor certifications pursuant to 8 U.S.C.
1184(c). See also 8 U.S.C. 1103(a). The Departments further explained
in the 2015 H-2B IFR that by jointly issuing that rule, ``the
Departments affirm that [it] is fully consistent with the INA and
implementing DHS regulations and is vital to DHS's ability to
faithfully implement the statutory labor protections attendant to the
program.'' 80 FR at 24045-46. Litigation on these and related matters
is ongoing. Accordingly, notwithstanding that DOL has the authority to
independently issue this Final Rule, DHS is joining DOL in this
rulemaking to ensure that there can be no question about the authority
underlying this action.
E. Severability
To the extent that any portion of this final rule is declared
invalid by a court, the Departments intend for all other parts of the
final rule that are capable of operating in the absence of the specific
portion that has been invalidated to remain in effect. Thus, even if a
court decision invalidating a portion of this final rule results in a
partial reversion to the current regulations or to the statutory
language itself, the Departments intend that the rest of the final rule
continues to operate, if at all possible, in tandem with the reverted
provisions.
II. Revisions to 20 CFR Part 655, Subpart A
A. The Departments are Rescinding the Regulation Generally Requiring
Employers to Place Print Newspaper Advertisements in the Area of
Intended Employment
1. Background
In the NPRM, the Departments proposed to revise 20 CFR 655.42 to
replace the requirement for an employer to place print newspaper
advertisements with a requirement to post an electronic advertisement
on a website that is widely viewed and appropriate for use by workers
who are likely to apply for the job opportunity in the area of intended
employment. The Departments based this proposal on data indicating that
print newspaper circulation continues to decline and that U.S. workers
are increasingly turning to the internet in their job searches. The
Departments also relied on DOL's experience in administering temporary
and permanent labor certification programs, as well as anecdotal
evidence received from stakeholders, who reported that advertisements
in print newspapers were not an effective means of recruiting
prospective U.S. workers for temporary nonagricultural job
opportunities. In light of this data, experience, and stakeholder
feedback, the Departments asserted that classified advertisements in
print editions were becoming a less effective means of recruiting U.S.
workers, and proposed to replace 20 CFR 655.42's current requirement to
place a print newspaper advertisement with a requirement to post an
electronic advertisement on the internet.
Many of the H-2B employers and employer associations that submitted
comments in response to the NPRM applauded the Departments' efforts to
modernize the recruitment process and confirmed, based on their
experience, print newspaper advertising is expensive and ineffective in
attracting U.S. workers who are likely to apply for temporary
nonagricultural job opportunities in most cases. For example, one
commenter stated that most of the H-2B petitioner employers it
represents ``almost never . . . receive U.S. applicants as a result of
the print advertisements,'' and asserted, based on its experience, that
print newspaper advertisements are not a meaningful source for
recruiting workers for temporary nonagricultural job opportunities.
Similarly, a commenter representing an employer stated it prefers to
advertise electronically, on social media and online job boards,
[[Page 62434]]
because it never receives applications in response to print newspaper
advertisements. Another commenter agreed that print advertising is
ineffective and asserted that advertising costs are rising due to
decreasing competition in the newspaper industry.
Nevertheless, a number of these commenters disagreed with the
Departments' proposal to completely eliminate print newspaper
advertisements. Some expressed concern that the proposed rule would
have a significant adverse impact on the newspaper industry. One of
these commenters acknowledged online advertising would be more
effective but expressed concern only with the financial impact of the
proposed rule.
One commenter associated with the newspaper industry asserted that
the Departments' proposal to eliminate the print newspaper advertising
requirement overlooked certain factors. This commenter stated that
newspapers are more effective than the internet in disseminating
information to relevant viewers. The same commenter also opined that
many local newspapers reach a larger audience than their subscribership
indicates because a single newspaper is read by multiple people, and
the content in these newspapers is often available online. According to
this commenter, the distribution and readership of a local newspaper,
in all of its formats (print and electronic), can easily exceed the
number of visits to a third-party job search website. Finally, this
commenter maintained that newspapers play an essential role in placing
electronic advertisements and noted that some newspapers use services
that will not only post an employer's advertisement to large internet
job boards, but also distribute the advertisements to other job search
websites.
A number of commenters urged that the Departments provide an
individual employer with the option to choose whether to post two print
newspaper advertisements in accordance with the requirement in the
existing rule or to post an electronic advertisement in accordance with
the requirement in the proposed rule. These commenters provided varied
reasons to justify their request. For instance, some were concerned
about internet accessibility issues for employers. Others were
concerned that mandating electronic advertisements would unfairly
exclude U.S. workers who are uncomfortable with certain technology or
live in areas without ready access to the internet. Some pointed to the
studies cited in the NPRM as evidence that the Departments did not
adequately consider whether online advertisements would be effective in
reaching the types of U.S. workers who typically work in jobs filled by
H-2B workers. One commenter asserted that the Departments' proposal
would violate the Equal Protection Clause of the Fourteenth Amendment
of the United States Constitution because the Government would
``restrict access to potential jobs'' to people who have internet
access.
Other commenters suggested that the Departments require employers
to post advertisements both in print and electronic formats. Most of
these commenters expressed general support for electronic advertising,
but also noted that the Departments provided insufficient or incomplete
evidence to demonstrate that electronic advertising would be any more
effective in recruiting U.S. workers most likely to apply for temporary
nonagricultural job opportunities. Some of these commenters expressed
concerns that the Departments relied on information and data trends
focusing on U.S. job seekers generally, and failed to consider more
specific information regarding how job seekers located in rural
communities and, more specifically, temporary nonagricultural workers
obtain employment, as well as how employers recruit for temporary
nonagricultural workers. These commenters cited data suggesting that
many U.S. workers who might be interested in filling temporary
nonagricultural job opportunities may not have reliable high speed
internet access, which would impede U.S. workers from viewing and
responding to advertisements for H-2B job opportunities.
Some commenters cited Pew Research Center data suggesting that the
internet was used in job searches much less frequently by job seekers
possessing less than a high school education, earning less than $30,000
per year, and residing in rural community areas, characteristics they
asserted are often shared by workers in temporary nonagricultural
employment.\3\ A commenter representing a newspaper industry
association cited a recent study conducted by the Federal
Communications Commission (FCC) indicating that nearly 40 percent of
Americans, or approximately 24 million people, living in rural areas
lack access to fixed broadband internet service, 30 percent of rural
Americans lack access to mobile LTE broadband, and cellular reception
is generally poorer in these areas. Some of these commenters urged the
Departments to engage in additional consultation with the stakeholder
community and State Workforce Agencies, and conduct a more formal
assessment of internet access and usage by U.S. workers most likely to
apply for temporary nonagricultural jobs.
---------------------------------------------------------------------------
\3\ Aaron Smith, Searching for Work in the Digital Era, Pew
Research Center, Nov. 19, 2015, https://www.pewinternet.org/2015/11/19/searching-for-work-in-the-digital-era.
---------------------------------------------------------------------------
At times citing reasons similar to those who advocated for giving
employers the option to use either method (for example, pointing to
data suggesting that some workers still use print sources to search for
jobs and may have limited access to the internet), some commenters
generally questioned whether electronic advertisements alone would be
effective in reaching U.S. workers interested in temporary
nonagricultural employment. They suggested the dual requirement would
ensure the broadest possible exposure to U.S. applicants. One commenter
recommended leaving the print requirement in place until the new DOL
platform discussed in the NPRM was fully operational, opining that the
online advertising the NRPM described was unlikely to have sufficient
oversight or consistency.
Finally, a commenter representing a newspaper industry association
stated that electronic advertising would be less effective in
recruiting temporary nonagricultural workers than the currently
required newspaper advertisements. Citing the FCC report and the Pew
Research Center report noted above, this commenter asserted that the
proposed rule would make it more difficult for U.S. workers to apply
for H-2B job opportunities because such jobs attract job seekers less
likely to search for employment online, including those with a low
income, low level of educational attainment, minorities, and job
seekers residing in rural areas. The commenter stated that the Pew
Research Center data showed rural Americans are less likely to use the
internet to search for work than suburban or urban Americans. Despite
these concerns, this commenter supported placement of advertisements on
online job boards operated by newspapers or websites that partner with
newspapers, such as Careerbuilder.com and Monster.com, but urged the
Department to require both print and online advertising.
2. Discussion
After carefully considering the comments received, the Departments
have decided to rescind 20 CFR 655.42. The regulations will no longer
generally require a prospective H-2B employer to advertise its job
opportunity in a newspaper serving the area of intended
[[Page 62435]]
employment. This decision is grounded in the Departments' determination
that the newspaper advertisements required under this section do not
generally contribute in a significant way to the labor market test that
DOL administers to assess the availability of qualified U.S. workers,
as compared to the electronic advertising as described in this rule.
This determination is supported by the lack of data indicating
newspaper advertisements are an effective means of recruiting U.S.
workers for temporary nonagricultural positions. Specifically, as noted
in the NPRM, available data indicates that U.S. workers are now much
more likely to turn to the internet to search for work, and classified
advertisements in print newspaper editions are becoming a less
effective means of notifying potential applicants about available job
opportunities. See 83 FR 55877, 55979. The data available to the
Departments and the supportive comments reviewed in preparation of this
final rule lead DOL to conclude that electronic advertising is a more
effective means of reaching U.S. workers seeking temporary
nonagricultural job opportunities, and of achieving the goals of the H-
2B labor certification program.\4\ In addition, the Departments
considered anecdotal accounts in comments from employers and employer
associations, who reported that the newspaper advertisements they have
placed in connection with this requirement have yielded very few, if
any, applications from qualified U.S. workers.
---------------------------------------------------------------------------
\4\ See Aaron Smith, Searching for Work in the Digital Era, Pew
Research Center, Nov. 19, 2015, https://www.pewinternet.org/2015/11/19/searching-forwork-in-the-digital-era (only 32 percent of
Americans use ``ads in print publications'' when searching for
employment and only four percent found ads in print publications to
be the most useful tool in obtaining their recent employment);
Elaine C. Kamarck and Ashley Gabriele, The News Today: Trends in Old
and New Media, The Brookings Institution (Nov. 10, 2015)(Stating
there are now only 400 newspapers for every 100 million Americans,
and that only 15 percent of Americans receive a daily newspaper).
https://www.brookings.edu/research/the-news-today-7-trends-in-old-and-new-media.
---------------------------------------------------------------------------
In arriving at this determination, the Departments carefully
considered the arguments that some commenters raised in support of
retaining the requirement to place print newspaper advertisements. As
explained below, however, none of these arguments contradict the
findings discussed above that newspaper advertisements as a general
requirement of prospective H-2B employers are a less effective means of
recruiting U.S. workers for temporary nonagricultural positions.
Accordingly, these arguments have not persuaded the Departments that
the regulations must require every employer seeking H-2B workers to
place print advertisements in order to effectively test the labor
market for able, willing, qualified, and available U.S. workers. As is
currently the case, to the extent DOL determines that an advertisement
in a particular print publication is likely to reach qualified and
available U.S. workers in specific areas or across certain populations,
the CO retains the discretion to direct an employer to place such an
advertisement on a case-by-case basis, under his or her authority to
order additional positive recruitment. See 20 CFR 655.46.
Significantly, the commenters who urged the Departments to retain a
general print newspaper-advertising requirement did not point to data
that showed such advertisements are effective in recruiting U.S.
workers for temporary nonagricultural positions. Rather, these
commenters asserted advantages of newspaper advertisements in general
terms or pointed to their importance in certain communities, compared
to the advantage of electronic advertisements proposed in the NPRM,
without specifically addressing the efficacy of requiring all
prospective H-2B employers to post newspaper advertisements when
recruiting U.S. workers for temporary or seasonal nonagricultural job
opportunities. For instance, some commenters cited data indicating
certain populations and demographics are less likely to use the
internet when searching for jobs and one commenter asserted that
Americans in some communities are more likely to turn to community
newspapers than the internet to obtain local news and information.
However, the referenced non-public data only purports to show newspaper
readership; it does not address individual job search habits, so the
conclusion drawn is not supported by the data on which it is based and
the Departments are unable to determine whether it offers any useful
information with respect to this rulemaking. The arguments that
commenters raised regarding the circulation and distribution of
newspapers similarly do not refute the Departments' observation in the
NPRM that job seekers rarely learn about job opportunities using print
newspaper advertisements, nor do the assertions and anecdotes received
in response to the NPRM. Similarly, the fact that DOL can easily verify
whether an employer has placed a newspaper advertisement is irrelevant
to whether the placement of such advertisements is an effective means
of testing the labor market.
The Departments acknowledge that the rates of internet access and
use of the internet to search for job opportunities vary among cross-
sections of the population based on factors like age, location of
residence, income, education level, and ethnicity. However, as noted in
the NPRM, data indicates that the internet is an increasingly popular
method that job seekers among all demographics use most often and find
most reliable. For example, the Pew Research Center report cited in the
NPRM and by the newspaper industry commenter concluded that the
internet ``is a near-universal resource among those who have looked for
work recently.'' \5\ The report noted that the data was ``based on the
entire public--many of whom are retired, not in the job market, or have
simply not had a reason to look for a job recently'' and while it is
not possible to parse the data to determine precise rates of online job
searching among all populations, it is clear that the internet is, by
an increasing margin, the most widely used job search tool among job
seekers across demographics. The Pew Research Center report ultimately
found that when ``[n]arrowing the focus to the 34% of Americans who
have actually looked for a new job in the last two years, fully 90% of
these recent job seekers have ever used the internet to research jobs,
and 84% have applied to a job online.'' \6\ Importantly, while the Pew
Research Center data indicates rural Americans are less likely to use
the internet to search for job opportunities than urban or suburban
Americans, the data does not support the conclusion that rural
Americans are more likely to use print newspapers than the internet
when searching for job opportunities.
---------------------------------------------------------------------------
\5\ Aaron Smith, Searching for Work in the Digital Era, Pew
Research Center, Nov. 19, 2015, https://www.pewinternet.org/2015/11/19/1-the-internet-and-job-seeking/.
\6\ Aaron Smith, Searching for Work in the Digital Era, Pew
Research Center, Nov. 19, 2015, https://www.pewinternet.org/2015/11/19/searching-for-work-in-the-digital-era/.
---------------------------------------------------------------------------
Similarly, while the Departments also acknowledge that some job
seekers may lack reliable access to advertisements on the internet,
such access limitations are true of advertisements in any form, and the
Departments believe the data supports the conclusion that electronic
advertisements are currently, and will be increasingly, accessible to
an overwhelming majority of job seekers across a much broader
geographic area than print advertisements. The Departments understand
the concerns of some commenters that job seekers,
[[Page 62436]]
particularly in rural areas, are less likely to have access to reliable
internet service. However, as noted in the FCC report cited by the
newspaper industry association commenter, the number of Americans that
lack access is declining, including Americans living in rural areas.\7\
Importantly, while the FCC report indicated a number of rural areas
still lag behind the rest of the country in access to fixed-site,
terrestrial broadband internet, the report also noted that the number
of Americans with access to broadband internet is much higher when
additionally considering sources like satellite internet service
providers and mobile LTE.\8\ In contrast to increasing access to
internet, the data cited in the NPRM shows that access to print
newspapers continues to decline, there are now only 400 newspapers for
every 100 million Americans, and only 15 percent of Americans receive a
daily newspaper.\9\ In addition, print newspaper advertisements are
often accessible only to persons in the areas where that newspaper is
circulated, while electronic advertisements can reach job seekers in a
much larger geographic area.
---------------------------------------------------------------------------
\7\ Inquiry Concerning Deployment of Advanced Telecommunications
Capability to All Americans in a Reasonable and Timely Fashion, GN
Docket No. 17-199, FCC 18-10 (Feb. 2, 2018), https://docs.fcc.gov/public/attachments/FCC-18-10A1.pdf (``2018 Broadband Deployment
Report'') (noting that between 2012 and 2016, mobile and fixed
terrestrial broadband access was deployed to 43.4 million Americans
and the number of Americans without mobile or fixed terrestrial
broadband access fell from 72.1 million to 20.6 million. When taking
into account fixed terrestrial, satellite, and mobile internet
access, the report also notes that ``approximately 99.9 percent of
Americans have access to one of these services, including 99.3
percent in rural areas and nearly all Americans in urban areas.'')
\8\ 2018 Broadband Deployment Report at 26, 87 (stating 99.9
percent of all Americans and 99.3 percent of those in rural areas
have access to either fixed broadband or mobile LTE, indicating 99
percent have access to mobile LTE and 95.6 percent have access to
broadband at speeds of 25/3 Mbps).
\9\ See Elaine C. Kamarck and Ashley Gabriele, The News Today: 7
Trends in Old and New Media, The Brookings Institution, Nov. 10,
2015, https://www.brookings.edu/research/the-news-today-7-trends-in-old-and-new-media.
_____________________________________-
The Departments agree that no single recruitment method will reach
all job seekers and do not disagree with comments asserting that other
forms of advertising, such as print newspaper advertisements, may be
effective in some limited circumstances. The move to electronic
advertisements_and to SeasonalJobs.dol.gov in particular--is simply
one important step in the Departments' broader effort to modernize the
H-2B program, which has for many years been hampered by the tools of
another era. As explained further below, COs will retain their
discretion under 20 CFR 655.46(a) to evaluate, on a case-by-case basis,
whether additional recruitment is necessary to ensure an adequate test
of the labor market for the employer's job opportunity. And, in some
limited circumstances where newspaper print advertisements would be
effective, the CO has the authority to direct such advertising.
Moreover, as discussed in detail below, the Departments have
decided not to adopt the proposal to replace the requirement to place
newspaper advertisements with a requirement for an employer to post an
electronic advertisement on the internet. Instead, DOL will post an
electronic advertisement on an employer's behalf on
SeasonalJobs.dol.gov, an improved and expanded version of the
electronic job registry that DOL is required to maintain under its
existing regulations. See 20 CFR 655.34. This addresses concerns that
some commenters expressed regarding the effect of the proposed rule on
those employers who have limited or no access to the internet, because
such employers will not need to access the internet in order to
participate in the H-2B program. Accordingly, employers who lack access
to the internet will not need to acquire access to the internet in
order for SeasonalJobs.dol.gov to advertise their job opportunities or
for them to respond to any applications received from U.S. workers in
response to these advertisements. Likewise, employers will not need to
determine whether a particular website meets applicable regulatory
criteria or retain evidence of this posting. Rather, DOL will use
information that an employer provides on its job order and H-2B
application to generate the advertisement that DOL posts on the
employer's behalf on SeasonalJobs.dol.gov, and U.S. workers interested
in a particular job opportunity can apply to the employer directly
using the contact information that the employer provided to DOL.
While the Departments are aware that the final rule may have an
impact on members of the newspaper industry, the Departments are also
obligated to carry out the statutory mandate in a manner that ensures
the methods and locations in which employers conduct positive
recruitment are effective. As a general requirement for all employers,
the Departments have determined that newspaper advertisements do not
generally contribute in a significant way to the labor market test,
which must be carried out by prospective employers to determine the
availability of able, willing, and qualified U.S. workers. Therefore,
the impact the newspaper industry experiences as a result of this final
rule, to the extent that it is relevant at all, is outweighed by the
Departments' needs to more effectively carry out the statutory mandate
to ensure an adequate test of the U.S. labor market.
The relevant question is whether this requirement is an effective
component of the labor market test that DOL conducts in connection with
an H-2B application. Given the absence of evidence suggesting print
newspaper advertisements are comparably effective in recruiting U.S.
workers for temporary or seasonal nonagricultural job opportunities,
the Departments have decided not to continue requiring most employers
seeking an H-2B labor certification to place print newspaper
advertisements. Accordingly, DOL is rescinding 20 CFR 655.42, the
regulation that generally requires employers to place such
advertisements.
B. Instead of Requiring a Prospective H-2B Employer To Post Its Own
Electronic Advertisement, as Originally Proposed, DOL Will Advertise
the Employer's Job Opportunity on SeasonalJobs.dol.gov, an Improved and
Expanded Version of the DOL's Electronic Job Registry
1. Background
In the NPRM, the Departments proposed to amend 20 CFR 655.42 to
require that an employer post an advertisement on a website meeting
certain criteria, namely a website that is widely viewed and
appropriate for use by workers who are likely to apply for the job
opportunity in the area of intended employment. The Departments
suggested that such job search websites might include those that
specialize in advertising job opportunities for the specific industry
or occupation, and other classified advertisement websites with
sections focused on local jobs. The Departments requested comments on
whether they should establish additional qualifying criteria (e.g.,
minimum number of unique visitors per month) or more specifically
define the types of websites that an employer may use.
Under the Departments' proposed revision to 20 CFR 655.42, an
employer's advertisement would need to be clearly visible on the
website's homepage or easily retrievable using the search tools on the
website, posted for a period of no less than 14 consecutive calendar
days, and publicly accessible to U.S. workers at no cost using the
latest browser technologies and mobile devices. The proposed rule also
required employers to use commonly-
[[Page 62437]]
understood terms and keywords to describe their job opportunities, so
that U.S. workers likely to apply could easily retrieve advertisements
using the website's search function. Moreover, in an attempt to ensure
the advertisement would be readily available to U.S. workers at no
cost, the proposed rule prohibited employers from placing it on a
website that required U.S. workers to establish personal accounts or
make payments of any kind to view the advertisement. For the same
reason, the proposed rule also required the website to be functionally
compatible with the latest commercial web browser platforms and easily
viewable on mobile smartphones and similar portable devices. To ensure
employers retained the documentation necessary to demonstrate their
compliance with these requirements, the proposed rule required
employers to print and retain screen shots of the web pages on which
their advertisements appeared, as well as screen shots of the web pages
establishing the path used to access their advertisements.
Separately, in the NPRM, the Departments provided notice that DOL
was evaluating the development of a centralized online platform to
automate the advertising of H-2B job opportunities in order to assist
employers in complying with the proposed electronic advertising
requirement. Specifically, DOL envisioned that this electronic
advertising platform would maintain a standard set of data on each job
opportunity for integration with a wide array of job search website
technologies. As envisioned in the NPRM, employers who elected to use
this electronic advertising platform would consent to have DOL transmit
information about their H-2B job opportunities to companies offering to
provide advertising services. These companies would, in turn, advertise
the employers' job opportunities on their respective job search
websites.
2. Discussion
The Departments received comments both in support and in opposition
to the proposal to replace the print newspaper-advertising requirement
in 20 CFR 655.42 with a requirement to post an electronic advertisement
on the internet. Some commenters fully supported the Departments'
proposed transition to electronic advertising, agreed it was a
necessary modernization of the H-2B program, and expressed a belief
that online advertisements would permit employers to recruit labor more
quickly and reliably than print newspaper advertisements.
However, the Departments also received a number of comments that
raised significant concerns with various aspects of the proposal. For
instance, some commenters cited data indicating people in rural
communities are less likely to have reliable high-speed internet access
than those in urban areas, which could impede employers' ability to
post--and U.S. workers' ability to view--electronic advertisements.
These commenters raised concerns that workers in particular demographic
groups, such as lower income workers or workers with low levels of
education, are less likely to use the internet to search for job
opportunities. Other commenters raised significant issues with the
proposed criteria for websites, the minimum required duration of the
posting, and the documentation that employers would be required to
retain to establish compliance.
After considering these comments, the Departments continue to
believe that electronic advertising is an effective medium through
which to reach U.S. workers. However, upon further consideration of how
an electronic posting requirement can be effective in testing the U.S.
labor market, how it can be effectively administered and enforced, and
by whom, the Departments have decided to rescind, rather than revise,
the advertising requirement in 20 CFR 655.42. Instead, the Departments
have decided that DOL will carry out the electronic advertising itself
by posting H-2B job opportunities on SeasonalJobs.dol.gov, an improved
and expanded version of the electronic job registry that DOL is
required to maintain under its existing regulations. See 20 CFR 655.34.
To accomplish this, in addition to placing copies of all approved H-2B
job orders on its publicly accessible electronic job registry, 20 CFR
655.34, DOL will continue to enhance the functional capabilities of the
registry so that it also serves as a job search website that broadly
advertises and disseminates H-2B job opportunities to U.S. workers. As
discussed in detail below, the Departments believe this approach
strikes an appropriate balance between addressing the concerns that
stakeholders have raised with the proposed electronic advertising
requirement and realizing the Departments' goal of modernizing and
improving the labor market test conducted in connection with an H-2B
application.
Having DOL facilitate the electronic advertising of H-2B job
opportunities will have several salutary effects. First, it addresses
concerns raised in public comments regarding the effect that this rule
will have on employers who lack internet access and/or who have
religious objections to using the internet. The employer will not need
internet access to advertise job opportunities because DOL will be
placing advertisements on SeasonalJobs.dol.gov on behalf of all
employers using the information that employers provide to DOL in their
H-2B applications. U.S. workers interested in a particular job
opportunity can apply by directly contacting the employer, using the
contact information--regardless of whether that is an email or physical
address--that the employer provided to DOL. Second, it eliminates the
need to establish regulatory criteria for the websites on which
employers may place advertisements or the documentation employers must
retain to establish compliance with those criteria. It also reduces
burden on prospective H-2B employers--who historically have been the
parties tasked with placing advertisements--by effectively transferring
the responsibility (and cost) for this activity from prospective H-2B
employers to DOL. Finally, and most importantly, it strengthens the
integrity and efficiency of the labor market test that is conducted in
connection with an H-2B application by leveraging the latest job search
technologies to more broadly disseminate information about H-2B job
opportunities through a centralized website. The enhancements that DOL
is making to its electronic H-2B job registry, as well as each of these
salutary effects, are discussed in further detail below.
(a) DOL Will Improve and Expand Its Electronic H-2B Job Registry
Instead of Creating a Separate DOL-Assisted Advertising Platform
As previously mentioned, after considering the comments received in
response to the NPRM, the Departments have decided that the best
approach is for DOL to assume the responsibility for posting an
electronic advertisement through its own website. Accordingly, this
final rule provides notice that DOL intends to continue to improve and
enhance the electronic job registry that it maintains under its
existing regulations. See 20 CFR 655.34 (generally requiring the CO to
place a copy of an employer's job order on an electronic job registry
once the employer's H-2B application has been accepted for processing,
and generally requiring that this job order remain posted on the
electronic job registry until 21 calendar days before the certified
start date of work).
[[Page 62438]]
DOL initially implemented the job registry to accommodate the
posting of H-2A job orders for two reasons. See 75 FR 6884, 6927 (Feb.
12, 2010) (2010 H-2A Final Rule). One was to promote public disclosure
and transparency and the other was to have an additional tool through
which U.S. workers and other intermediaries providing services to
agricultural employers could more easily identify available job
opportunities. DOL later expanded use of the job registry to include H-
2B job orders to disseminate temporary nonagricultural job
opportunities to the widest audience possible. See 80 FR at 24074. DOL
has used the same technology platform to host its electronic job
registry--the iCERT Visa Portal System (iCERT System)--since July 2010,
shortly after Sec. 655.144 as promulgated in its 2010 H-2A Final Rule
went into effect.
Under the current H-2B program, once an employer's application has
been accepted for processing, the CO will redact any confidential
information on the employer's job order and upload a redacted image of
the job order onto the iCERT System, where it will generally remain
posted until 21 calendar days before the certified start date of work.
See 20 CFR 655.40(c). At the conclusion of this period, the CO will
change the job order to inactive status, so that the information on the
job order will still be available for public research and access. The
iCERT System currently allows the public to search and retrieve H-2B
job orders using several common data points--including the H-2B
application number, employer name, area of intended employment, work
contract period, and job title. Stakeholder feedback suggests that many
stakeholders value the transparency of a publicly available job
registry and consistently use the current job registry to locate H-2B
job orders.
Currently, however, the technology supporting the job registry is
more than 10 years old, lacks compatibility with the latest mobile
devices, and provides limited search options for the public to retrieve
H-2B job orders. It also serves as a static repository of H-2B job
orders and lacks functionality that can facilitate the dissemination of
these job opportunities to the widest audience. Finally, the manual
process of scanning, redacting, and uploading scanned images of job
orders increases the risk of error, incomplete information, and delays
in posting, especially during the winter months when employers are
filing large numbers of applications for the upcoming spring and summer
seasons.
To address these limitations and expand U.S. worker awareness and
access to temporary and seasonal job opportunities, DOL is in the
process of transitioning its electronic job registry to a new platform,
SeasonalJobs.dol.gov, and it plans to decommission the public job
registry on the iCERT System in the fall of 2019.\10\
SeasonalJobs.dol.gov is a mobile-friendly website that leverages the
latest technologies to automate the electronic advertising of H-2B job
opportunities and ensures copies of H-2B job orders are promptly
available for public examination.
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\10\ DOL first announced that it would be launching
SeasonalJobs.dol.gov on December 21, 2018. See https://www.dol.gov/newsroom/releases/eta/eta20181221.
_____________________________________-
SeasonalJobs.dol.gov is currently operational. Once a CO has
accepted an employer's H-2B application for further processing, DOL
posts a brief description of the employer's job opportunity on
SeasonalJobs.dol.gov that includes a link to a full copy of the
employer's job order. The employer's job opportunity appears on the
website in a concise and easy-to-read format, using information that
the employer reports to DOL on its H-2B application and job order.
While currently functional, DOL continues to enhance the functionality
of SeasonalJobs.dol.gov to make information about H-2B job
opportunities more accessible to U.S. workers. For instance, the search
options available in the iCERT System are limited to job title,
employer name, job order posting date, and the state where work will be
performed. Users will be able to create and save customizable job
search profiles and request email notifications informing them when DOL
posts positions that match their search criteria. In addition, a
geolocation Application Programming Interface will connect a user's
current geographic location (when available) to the website's automated
search tool, so that search results favor job opportunities near the
user's current location. Location history will also help DOL identify
how many users are searching for work in certain areas of the country
and more effectively steer H-2B job opportunities to groups of job
seekers located in certain regional areas and/or seeking different
types of temporary nonagricultural work.
In addition, SeasonalJobs.dol.gov will make information about H-2B
job opportunities more accessible to U.S. workers with limited English
proficiency by posting the jobs in a format that allows language
translation services to access and translate both the general web
content on SeasonalJobs.dol.gov and specific terms and conditions of
the job opportunities presented on job orders through the site. It will
also facilitate broader dissemination of available job opportunities by
making a standard set of job data available to third-party job search
websites, which will allow job search websites to execute web-scraping
protocols that extract new H-2B job opportunities from
SeasonalJobs.dol.gov and index them for advertising to U.S. workers. In
fact, Jobs on Google and LinkedIn job search features index the H-2B
job opportunities currently advertised on SeasonalJobs.dol.gov, and DOL
is evaluating additional integrations with other commonly used job
search and social media websites to cast as wide a net as possible to
help Americans find jobs. Finally, DOL will be further enhancing the
RSS feed capability to allow interested U.S. workers and stakeholders
to tailor notifications of relevant job opportunities.
The Departments believe that the enhancements DOL has and will
continue to make to the electronic job registry will improve the
existing labor market test and resolve many of the concerns that
commenters raised in response to the NPRM.
This approach is also consistent with suggestions that the
Departments received from commenters who urged DOL to either allow
postings on its electronic job registry to fulfill the proposed
electronic advertisement requirement or to implement a DOL-assisted
electronic advertising platform. In fact, most of these comments
expressed support for a DOL-administered-advertising platform, noting
it would reduce regulatory burdens on employers, assist employers in
complying with advertising requirements, and enhance U.S. worker access
to employers' job opportunities in a centralized location and
standardized format. A labor union commenting on the proposal urged DOL
to ensure that the platform would be compatible with smart phone
technology, and that the platform provide notice of job opportunities
to unions and worker advocacy organizations. It also urged the
Departments to permit those organizations time to review the
advertisements and provide input to DOL regarding the appropriateness
of the occupational classification and designated prevailing wage. In
contrast, one commenter believed it would be unnecessary for DOL to
create a new or updated platform because it could use commercial
applicant tracking systems
[[Page 62439]]
that post advertisements to all of the major online job boards and
permit applicants to complete applications at any time from any device.
The Departments have considered these comments, and while the
Departments have decided not to go forward with the DOL-assisted
advertising platform that was proposed in the NPRM, they anticipate
that stakeholders will be pleased with the improvements DOL has--and
continues--to make to the electronic job registry. DOL has administered
this electronic job registry in some form for nearly a decade.
Accordingly, employers have been and continue to be on notice that, as
a condition of participating in the H-2B program, the CO will place a
copy of their approved H-2B job order on an electronic job registry. As
explained above, DOL created this job registry to promote greater
public awareness of and access to H-2A and H-2B job opportunities. The
enhancements DOL has made and continues to make to
SeasonalJobs.dol.gov, including the capability for third-party websites
to extract H-2B job opportunities for broader advertising, are designed
to further this goal and increase the likelihood that U.S. workers
interested in temporary nonagricultural opportunities, as well as
intermediaries providing services to those workers, receive timely
notice of H-2B job opportunities.
Because the Departments are not implementing a separate DOL-
assisted advertising platform, but rather enhancing the electronic job
registry that DOL is currently required to maintain, the Departments
have decided that U.S. workers will be best served if DOL implements
these enhancements as soon as practicable. Nevertheless, the
Departments value all suggestions and ideas to improve the
functionality of SeasonalJobs.dol.gov and invites public input on
changes that DOL can make to attract U.S. workers who are likely to
apply for seasonal or temporary nonagricultural jobs. To facilitate
public input, DOL has made the site easily accessible and included a
specific function to collect stakeholder feedback and questions. DOL
will also continue--as is its practice--to solicit and incorporate
informal feedback from program users and other stakeholders in the
course of outreach and technical assistance activities (including DOL-
hosted stakeholder meetings and webinars) and at conferences, forums,
and events hosted by interested stakeholders.
The Departments have also considered issues that several commenters
raised regarding technical difficulties with DOL's existing job
registry and the iCERT System, and agree that it is critical for
SeasonalJobs.dol.gov to function effectively and reliably. Although
this is a goal of the Departments independent of public comments in
response to the NPRM, the above-referenced steps that DOL is taking to
meet this goal should address and allay the concerns of the stakeholder
community.
(b) Posting H-2B Job Opportunities on SeasonalJobs.dol.gov Will Reduce
Regulatory Burden and Address Concerns About the Proposed Criteria for
Employer-Posted Electronic Advertisements
The Departments received numerous comments addressing electronic
advertisements, the criteria that would apply to these advertisements,
and the documentation that an employer would be required to maintain.
Many commenters generally agreed with the Departments' proposal to
transition to electronic advertising, but a number of commenters urged
the Departments to modify the proposal in various ways. For example,
several commenters expressed concern that the proposed rule did not
accommodate employers who had limited or no access to the internet, and
they urged the Departments to provide employers the option of posting
an electronic advertisement or print newspaper advertisements.
The Departments also received many comments suggesting that the
standard they proposed to define the websites on which an employer
could place an electronic advertisement required clarification. A
number of commenters felt the proposed standard was ambiguous and did
not sufficiently identify the websites--or types of websites--that
would be permissible under the proposed rule. One commenter explained
that the approach announced in the NPRM was ``unworkable and
unpredictable,'' given the sheer number of websites that would qualify
under the proposed standard. These commenters expressed varying
opinions about the types of websites they believed should qualify and,
for differing reasons, urged the Departments to further clarify,
define, or list the websites where it would be appropriate for an
employer to advertise an H-2B job opportunity. For example, several
commenters suggested the Departments should require advertising on
specific websites, including social media websites, state and county
employment websites, and the National Labor Exchange, an online
advertising platform operated by SWAs in partnership with operators of
private online job boards.
Other commenters, by contrast, opposed the adoption of more
specific qualifying criteria, which they argued would be cumbersome and
make the regulation difficult to adapt to future changes in practices
and technologies. Indeed, at least one commenter expressed concern that
the proposed standard would require employers to monitor website
platforms and technologies to ensure that they remain compliant with
regulatory criteria.
The Departments also received comments from stakeholders on whether
the final rule should exclude advertisements placed on websites
operated by employers or the employer-client of a job contractor. An
association of attorneys and legal professionals, as well as several
labor unions, asserted that placement of advertisements on websites
operated by employers is insufficient to satisfy an employer's
recruitment obligations. One commenter expressed concern that such
advertising would require potential applicants to know that a specific
employer is seeking to hire H-2B workers and permit unscrupulous
employers to ``hide'' advertisements. A few of these commenters
believed that employers should be required to post job advertisements
on their websites as a supplement to advertisements on other websites,
but did not believe advertising on these websites alone would be
effective. In contrast, a commenter representing an employer
association believed advertising on employer websites would be
effective because these websites would be appropriate to both the
industry and location of the job opportunity.
In addition, some commenters sought clarification on the
documentation that an employer would be required to retain under the
proposed recordkeeping requirements. For example, one commenter
expressed concern that the proposed rule did not clearly articulate
what documentation an employer must retain. Another commenter suggested
it would be overly burdensome to print and retain screen shots
documenting compliance with this rule and suggested an employer's
attestation should be sufficient to verify compliance. A labor union
urged the Departments to require employers to include in their
recruitment reports both the advertisements and the documentation of
advertising. Another commenter believed the proposed screenshot
documentation method was outdated, but did not suggest an alternative.
Finally, commenters associated with the
[[Page 62440]]
newspaper industry additionally alleged that newspapers are a more
reliable means of documenting compliance, because they are archived and
available if an employer loses its copy of the tear sheet, whereas
screen shots of websites can be easily lost, altered, or fabricated.
The issues that these commenters raised have persuaded the
Departments that it would be unduly difficult at this time to develop,
interpret, and implement qualifying criteria to govern the types of
websites on which employers should place an electronic advertisement,
as well as the documentation that an employer should retain to
demonstrate compliance with this requirement. In addition, it is
unnecessary to impose such requirements upon employers, when DOL has
the capacity to produce similar benefits through its own website.
Accordingly, as explained above, the Departments have decided not to
adopt their proposal to require that an employer post an electronic
advertisement. Instead, DOL will advertise on an employer's behalf by
posting its job opportunity on SeasonalJobs.dol.gov.
Assuming control over the posting of the electronic advertisement
and placing it on a centralized, DOL-administered platform addresses
many, if not all, of the above-referenced concerns. As a preliminary
matter, the Departments will no longer need to establish--and employers
will no longer need to comply with--regulatory criteria limiting the
types of websites on which employers must place an electronic
advertisement or the documentation necessary to demonstrate compliance
with this requirement. Moreover, the advertisement that DOL posts on
SeasonalJobs.dol.gov will not create any additional regulatory burden
for an employer because the employer will have already provided DOL
with information about its job opportunity on its job order and H-2B
application, which DOL will use to generate the advertisement it posts
on SeasonalJobs.dol.gov. U.S. workers interested in a particular job
opportunity can apply by directly contacting the employer, using the
contact information that the employer provided on its job order and H-
2B application. As noted above, employers who lack access to the
internet will not need to acquire access to the internet to post
advertisements on SeasonalJobs.dol.gov or respond to any applications
that they receive from U.S. workers in response to these
advertisements, and employers will not need to determine whether a
particular website meets applicable regulatory criteria or retain
evidence of this posting.
Finally, the Departments believe this approach leaves unscrupulous
employers no leeway to ``hide'' their job opportunities on websites
that they suspect are unlikely to attract qualified and available U.S.
workers. SeasonalJobs.dol.gov will offer U.S. workers a free, publicly
accessible, and easy-to-use job search platform that identifies all job
opportunities for which employers are seeking to hire H-2B workers.
Thus, the Departments' revisions to the labor market test in this
final rule seeks to reduce the burden of applying for an H-2B labor
certification, while simultaneously broadening the dissemination of all
H-2B job opportunities in a more uniform format through a modernized
technology platform.
(c) The Advertisements That DOL Places on SeasonalJobs.dol.gov Will
Improve the Information That U.S. workers Receive About H-2B Job
Opportunities
The Departments also received several comments questioning whether
U.S. workers would be able--or likely--to access the electronic
advertisements required under the proposed rule. In addition to
concerns over issues of internet accessibility, explained elsewhere,
commenters expressed concerns that U.S. workers would encounter
difficulty determining where to look for information about potential
job opportunities. A labor union, for example, stated that it would be
difficult for job seekers to know where to look for advertisements
because a vast number of websites might be appropriate under the
criteria proposed in the NPRM. As explained below, the Departments'
decision for DOL to assume control over the posting of the electronic
advertisement not only reduces the burden of applying for an H-2B labor
certification, but also improves worker access to information about H-
2B job opportunities.
First, it ensures that all H-2B job opportunities are advertised in
a centralized location and in a uniform manner. This eliminates the
concern raised by some commenters that U.S. workers would not know
where to go to look for information about available H-2B job
opportunities if employers were not posting advertisements in
consistent locations or that unscrupulous employers could intentionally
post advertisements on websites that are unlikely to yield applications
from able, willing, and qualified U.S. workers.
Second, DOL can assure broader dissemination of H-2B job
opportunities without requiring an employer to ensure that the website
on which it places its advertisement is functionally compatible with
the latest commercial web browser platforms and easily viewable on
mobile smartphones and similar portable devices. Under the Departments'
approach, it is DOL (and not the employer) who will ensure compliance
with these requirements. DOL will stay abreast of broader changes in
technologies and implement appropriate upgrades to the usability and
security of the SeasonalJobs.dol.gov. For example, unlike the iCERT
System, SeasonalJobs.dol.gov uses Responsive Web Design (RWD), which
allows DOL to optimize the design and content structure of the website
to fit on the screen of the user's computer, smartphone, or other
similar portable device, regardless of size. The RWD approach allows
DOL to create a single website design that can reach users across a
wide array of computing devices. DOL continuously tests the site's
mobile device compatibility using a series of emulation tools and a
wide array of actual mobile devices.
Third, DOL will be able to improve the presentation of H-2B job
opportunities to U.S. workers. While the Departments continue to
believe that U.S. workers should have access to all of the information
that is currently required by 20 CFR 655.41, they also understand that,
in some situations, a concise summary of the job opportunity may be
more attractive to U.S. workers, at least as a starting point.
Accordingly, the advertisements that DOL places on SeasonalJobs.dol.gov
provide a concise summary of the job opportunity, highlighting select
information about an employer's job opportunity and including a link to
the job order, so that U.S. workers can quickly review listings to
assess whether they are interested in a particular job and, if
interested, review the job order to access all of the terms and
conditions of employment. Additionally, DOL intends to upgrade
SeasonalJobs.dol.gov to allow users to create and manage customizable
notifications for the H-2B job opportunities. Specifically, as noted
above, DOL plans to enhance the site's current RSS feed capability,
which includes a basic function that alerts users when DOL updates web-
based content, with more sophisticated options that will allow users to
personalize these alerts so that they only receive notifications of new
postings for specific types of temporary or seasonal
[[Page 62441]]
work and/or in predetermined frequencies (e.g., immediately, daily,
weekly, monthly) tailored to their individual preferences. Users will
be able to manage these notifications and turn them off when they are
no longer needed or relevant.
Fourth, DOL will be able to improve the accessibility of electronic
advertisements to U.S. workers, especially those workers with limited
English proficiency. The internet offers an abundance of content
presented in languages other than English, and the Departments
recognize there are already a number of free browser applications and
extension technologies (e.g., Google Translate, Chrome Duolingo,
Firefox's Flagfox) that provide users with translations, definitions,
and other language assistance. To assist U.S. workers who search for
jobs online but who have limited proficiency in English, jobs available
on SeasonalJobs.dol.gov will be posted in a format that allows language
translation services to access and translate both the general web
content and specific terms and conditions of the job opportunities
presented on job orders. DOL is further evaluating whether existing
technologies and services can provide effective language translation
services, and can be implemented through the site, to both general web
content on SeasonalJobs.dol.gov and specific information about H-2B job
opportunities presented on the site. The Departments understand the
challenges (e.g., numerous language dialects, accurately applying
grammatical rules) associated with language translation tools and
services, but believe that it is important for the information on
SeasonalJobs.dol.gov to be accessible and understandable to the widest
possible audience of U.S. workers who are looking for employment. DOL
will therefore work as expeditiously as possible within existing
budgetary constraints to implement additional built-in language
translation services for all job opportunities advertised on
SeasonalJobs.dol.gov.
Finally, the Departments acknowledge that some U.S. workers may
lack reliable access to the internet and agree that no single
recruitment method will reach all job seekers. The Departments likewise
do not dispute that other methods of recruitment may be effective in
limited circumstances. Nevertheless, the Departments' move to
electronic advertising--and to SeasonalJobs.dol.gov in particular--is
only one aspect of the labor market test conducted in connection with
an H-2B application. The existing labor market test additionally
includes the intrastate and interstate clearance process administered
by the SWA, see 20 CFR 655.16(c), the requirement for an employer to
contact former U.S. employees, see 20 CFR 655.43, the requirement to
post notice of the job opportunity at the worksite, and, in certain
circumstances, provide written notice of the job opportunity to a
community-based organization, see 20 CFR 655.45.
The Departments believe that the enhancements DOL has and continues
to make to the electronic job registry will improve the existing labor
market test by increasing awareness of H-2B job opportunities, which
interested parties may then share with U.S. workers who do not have
access to the internet or who may not use the internet to search for
job opportunities. Moreover, as discussed in detail below, this final
rule retains the option for DOL to require additional recruitment where
the CO has determined that there is a likelihood there are qualified
U.S. workers who will be available for the work, including where the
job opportunity is located in an Area of Substantial Unemployment. See
20 CFR 655.46. Accordingly, even if certain U.S. workers interested in
temporary nonagricultural jobs are unlikely to view an advertisement on
SeasonalJobs.dol.gov (e.g., workers who do not have internet access or
who are otherwise unlikely to turn to the internet to search for
available job opportunities), they may be identified through other
steps in this labor market test.
C. The Departments Are Retaining the Options To Require Additional
Employer-Conducted Recruitment Under Sec. 655.46.
In developing this final rule, the Departments have given careful
consideration to the responses they received in response to their
request for comments regarding whether there are alternative methods of
recruitment that would more broadly and effectively disseminate
information about available job opportunities to U.S. workers. A number
of commenters suggested other methods of recruitment, such as placing
advertisements on radio stations, making use of 24/7 job hotlines, and
placing advertisements in community-based or other publications that
target populations who may be interested in temporary or seasonal work.
Two commenters representing worker advocacy organizations also
urged the Departments to require more dissemination of H-2B job
opportunities to unemployed U.S. workers through DOL-funded grantees
under the Workforce Innovation and Opportunity Act and expand union
notification requirements to those unions representing workers in the
job opportunity on a nationwide scale. These commenters also
recommended that the Departments expand the recruitment activities of
the SWAs to ensure job seekers, particularly those who lack adequate
access to the internet, are made aware of H-2B job opportunities.
Specifically, one of these commenters suggested the Departments require
the SWAs to consult with worker advocacy organizations to develop
annual plans for recruiting U.S. workers on a nationwide scale
targeting specific groups of unemployed U.S. workers using a variety of
advertising methods.
Some commenters were not opposed to the idea of internet
advertising, but suggested strengthening the requirements in the rule,
maintaining that a single advertisement would not account for the broad
range of positions and geographic areas where H-2B workers are
employed. They urged the Departments to require employers to further
tailor their recruitment. One commenter asserted that modern-day
recruitment of hourly workers demanded a targeted marketing strategy
such as a 24/7 job hotline and applicant tracking system. Another
argued for leaving the specific methods of recruitment to the SWAs, who
could develop recruitment plans suited to the needs of each locality.
Another thought it ``critically important'' that the CO maintain
flexibility to require additional advertising in certain circumstances.
This commenter also recommended that, in addition to any electronic
means for applying to jobs, there should also be a variety of non-
electronic means, to account for the possibility that a U.S. worker
will have limited or only short-term access to the internet.
The Departments appreciate the ideas and suggestions that they
received on alternative forms of recruitment. DOL has considered each
of these suggestions but notes that many of these proposals--including
advertising on local radio stations or in community-based and ethnic
publications or using commercial recruitment services--are challenging
to regulate and monitor. Because the Departments do not currently have
sufficient information regarding the efficacy of these proposals in
recruiting U.S. workers for temporary nonagricultural employment, the
Departments have decided that a generally applicable requirement for
every employer to use these methods is unwarranted at this time.
However, to the extent that DOL receives information indicating that
one or more
[[Page 62442]]
of these methods are effective in a particular area or among specific
groups of U.S. workers, the CO retains the authority under 20 CFR
655.46 to order an employer to use that method to recruit U.S. workers.
The Departments continue to believe that this provision provides
sufficient flexibility to design recruitment procedures--and the
appropriate means of recruitment in those areas--on a case-by-case
basis taking into account the occupation and current labor market
conditions. This provision provides the CO with flexibility to keep
pace with the ever-changing labor market trends and technologies and
select the most appropriate method(s) of recruitment for a particular
job opportunity. The Departments' intention in requiring additional
recruitment under this provision, including in areas of substantial
unemployment (ASU), is predicated on the belief that more recruitment
will result in more opportunities for U.S. workers. ASUs by their
nature have a higher likelihood of worker availability; DOL's
recognition of worker availability in these areas is a strong indicator
that these open job opportunities may have more receptive potential
populations.
Under 20 CFR 655.46 the CO has discretion to evaluate, on a case-
by-case basis, the appropriate locations and methods of recruiting
where there may be qualified U.S. workers available for job
opportunities. The types of additional recruitment the CO may require
the employer to conduct include print advertising, advertising on the
employer's or another website, and contacting community and faith-based
organizations. Title 20 CFR 655.46 does not afford the CO unlimited
discretion; rather, it authorizes the CO to order only the recruitment
necessary to ensure an adequate test of the labor market for the
employer's job opportunity.
In determining whether and what additional recruitment is required
for a position, the CO will continue to consider, among other
information, information that DOL obtains from SWAs who are familiar
with current labor market conditions and positioned to provide advice
about the effective methods of recruiting U.S. workers for the job
opportunity. The Departments acknowledge the comments they received
suggested a wide array of alternative methods of advertising that,
depending on the information provided to the CO, may effectively
disseminate information about available job opportunities to U.S.
workers. For example, based on the information DOL receives from SWAs,
the CO may determine that a particular method of advertising (e.g., a
community-based newspaper) covering a regional area may be effective in
recruiting U.S. workers for a particular position, in a specific
location, during certain periods of the year, or in response to local
or regional events like natural disasters, layoffs, and plant closures.
In requiring the use of a particular method of advertising, the CO will
take into consideration all available information about whether that
method has been, or is likely to be, effective in generating referrals
of qualified U.S. workers.
D. Other Technical Amendments Related to the Final Rule
This final rule also makes technical amendments to several
regulatory provisions to ensure they conform with the substantive
changes to the recruitment process discussed above. First, the rule
amends 20 CFR 655.19(e)(1), 655.40(b), and 655.41(a) by replacing
references to 20 CFR 655.42 with references to 20 CFR 655.43 to reflect
the Departments' decision to eliminate the requirement for all
employers to place print newspaper advertisements. For the same
purpose, the final rule amends 20 CFR 655.56 by eliminating paragraph
(c)(2)(ii), which references 20 CFR 655.42, and redesignating
paragraphs (c)(2)(iii), (iv), and (v) as paragraphs (c)(2)(ii), (iii),
and (iv), respectively. The final rule also amends 20 CFR 655.71 by
removing the reference to ``newspapers and other publications'' to
clarify that the CO has the discretion to order advertising in sources
like newspapers and other publications, but 20 CFR 655.71(c) does not
require the CO to order advertising in these sources.
Finally, the final rule also makes a minor technical revision to
WHD regulations at 29 CFR part 503 to ensure they conform with the
substantive changes to the recruitment process discussed above.
Specifically, the final rule eliminates 29 CFR 503.17(c)(2)(ii), which
includes reference to 20 CFR 655.41 and 655.42, and redesignates
paragraphs (c)(2)(iii), (iv), and (v) as (c)(2)(ii), (iii), and (iv),
respectively.
E. Out of Scope Comments on the Proposed Rule
The Departments received comments on several issues that were
unrelated to their proposal to modernize the recruitment that an
employer must conduct under the regulations by replacing print
newspaper advertisements with electronic advertisements posted on the
internet. The Departments recognize and appreciate the value of these
comments and suggestions. However, they are outside the scope of this
rulemaking and the Departments cannot adopt them without additional
regulatory--and in some cases Congressional--action.
II. Administrative Information
A. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 13771 (Reducing
Regulation and Controlling Regulatory Costs)
Under Executive Order (E.O.) 12866, the Office of Management and
Budget (OMB)'s Office of Information and Regulatory Affairs determines
whether a regulatory action is significant and, therefore, subject to
the requirements of the E.O. and review by OMB. See 58 FR 51735 (Oct.
4, 1993). Section 3(f) of E.O. 12866 defines a ``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
affects in a material way 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. Id. OMB has determined that this final rule is a
significant, but not economically significant, regulatory action under
Sec. 3(f) of E.O. 12866. Consequently, OMB has reviewed this rule.
E.O. 13563 directs agencies to propose or adopt a regulation only
upon a reasoned determination that its benefits justify its costs; the
regulation is tailored to impose the least burden on society,
consistent with achieving the regulatory objectives; and in choosing
among alternative regulatory approaches, the agency has selected those
approaches that maximize net benefits. E.O. 13563 recognizes that some
benefits are difficult to quantify and provides that, where appropriate
and permitted by law, agencies may consider and discuss qualitatively
values that are difficult or impossible to quantify, including equity,
human dignity, fairness, and distributive impacts.
This final rule is an E.O. 13771 deregulatory action because the
cost savings to H-2B employers associated with the rule are larger than
the costs.
[[Page 62443]]
The estimated cost savings associated with this regulatory action are
derived from the rescission of Sec. 655.42 to remove the newspaper
advertising requirement, and the revision of Sec. 655.56 to eliminate
document retention requirements associated with print newspaper
advertisements.
1. Discussion of Comments
In response to the NPRM, which instituted an online advertising
requirement in place of the current print advertising requirement, some
commenters took issue with the Departments' assumption that the cost
savings of the proposed rule outweighed its costs. One commenter stated
that the analysis did not attempt to estimate what burdens the proposed
rule or any alternative rules considered would impose on U.S. workers,
relative to the current rule, in terms of their ability to search for
and locate available jobs. Another commenter suggested that the
Departments' estimates for the costs of online advertisements
underestimated actual fees, stating that prices for advertising online
are in some instances the same as, if not greater than, the cost of a
single newspaper advertisement. The same commenter believed the
proposed rule's use of advertising rates for the largest newspapers in
the five states with the most H-2B temporary labor certifications
inflated the NPRM's estimated costs. The commenter stated that the
proposed rule's analysis did not specify the criteria used for
developing the cost estimates and was not representative of the smaller
newspapers employers may use to meet print advertising requirements,
noting that print advertising costs vary based on a number of factors
(e.g., advertisement size, number of lines, and geographic location).
Additionally, the commenter asserted that the analysis inflated cost
estimates because it failed to account for the fact that the
advertising fee charged by many newspapers includes both digital and
print advertising. Finally, the commenter asserted the analysis failed
to account for the costs of compliance with the proposed rule for
employers and the costs associated with DOL enforcement of the rule.
The proposed rule based the cost estimates for two newspaper
advertisements on advertising costs from newspapers with the widest
circulation in the five states where H-2B certifications are most
prevalent, as well as the advertising costs from the most widely
circulating newspapers in the top feeder states that are adjacent to
the primary H-2B prevalent states. The estimate of $1,606.16
represents, on average, a reasonable estimate of cost savings of
removing print newspaper requirements. As for the costs associated with
online job posting, the Departments agree with the commenter's concern
that DOL may have underestimated the cost of online advertising. As
explained elsewhere in this preamble, the Departments have concluded
that, to reduce this cost and burden, expand the reach of each ad, and
leverage DOL's existing technology and infrastructure, it is
appropriate for DOL rather than employers to place H-2B electronic
advertisements. The final rule replaces the print newspaper-advertising
requirement with employers' job opportunities posted on a DOL-
maintained website, SeasonalJobs.dol.gov, thus eliminating the cost to
employers. Additionally, the enhancements DOL has and continues to make
to SeasonalJobs.dol.gov are designed to further the Departments' goal
to promote greater public awareness of and access to H-2B job
opportunities in order to increase the likelihood that U.S. workers
interested in nonagricultural opportunities, as well as intermediaries
providing services to those workers, receive timely notice of H-2B job
opportunities. Any costs or burden that an employer incurs reviewing
increased applications from U.S. workers is a fundamental obligation
for choosing to participate in the H-2B program and outweighed by the
Departments' statutory obligation to ensure that able, willing, and
qualified U.S. workers are not available. As explained above, DOL has
also estimated the cost savings from eliminating the document retention
requirement. In terms of cost impacts on job seekers, the costs of
searching and applying for a job electronically are less than the cost
associated with searching and applying for a job through a newspaper
recruitment advertisement.\11\
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\11\ The Departments acknowledge that some job seekers may not
have access to the internet. For this group of job seekers, it may
not necessarily be less costly to search and apply for a job online.
However, the Departments believe that the number of job seekers
without internet access is a small portion of the population.
---------------------------------------------------------------------------
Four commenters asserted that the analysis did not consider the
effect the rule would have on the newspaper industry, though three of
these commenters acknowledged that the proposed rule estimated that
lost revenue would equal $9.45 million. While this rule may have an
effect on the newspaper industry, the advertising revenue lost from
employers who are no longer required to post job openings in print is
expected to represent an insignificant portion of the industry's
overall advertisement revenue.\12\
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\12\ The total estimated advertising revenue for the newspaper
industry in 2018 was $14.3 billion (https://www.journalism.org/fact-sheet/ newspapers/).
---------------------------------------------------------------------------
2. Subject-by-Subject Analysis
The Departments' analysis below considers the expected impacts of
the following aspects of the final rule against the baseline (i.e., the
2015 Interim Final Rule (80 FR 24042 (Apr. 29, 2015)): (a) Rescission
of the requirement that an employer advertise its job opportunity in a
print newspaper of general circulation in the area of intended
employment; (b) elimination of the document retention requirement
associated with print newspaper advertisements; and (c) the time it
takes the regulated community to read and review the rule.
(a) Eliminating the Use of Print Newspaper Advertisements
This final rule modernizes H-2B recruitment by rescinding the
regulation at 20 CFR 655.42 imposing the requirement for print
newspaper advertisements, and amending the regulation at 20 CFR
655.41(a) to delete reference to the content of print advertisements.
In conjunction with this rule, DOL will assume responsibility for these
recruitment activities by advertising each employer's job opportunity
on a DOL website designed to make the job opportunity more broadly
available to U.S. workers.
To estimate the cost savings to employers that would result from
this final rule, the Departments multiplied the average number of H-2B
labor certifications issued each fiscal year by the average cost to an
employer of placing a print advertisement. First, the Departments used
program data for FYs 2015-2017 to estimate that DOL approves, on
average, 5,879 H-2B labor certifications each fiscal year.\13\ To
estimate the average cost of a print ad, the Departments identified the
top five states where prospective H-2B employers received temporary
labor certifications,\14\ and researched the cost of placing a
newspaper advertisement in the most populous city in each of these
states (for several newspapers, including large and local papers), for
advertisements satisfying the content requirements set forth in Sec.
655.41. Based
[[Page 62444]]
on this data, the Departments estimated that, on average, it costs an
employer $803.08 to place a single advertisement (one day) complying
with Sec. 655.41's content requirements.
---------------------------------------------------------------------------
\13\ The average is based on 5,106 H-2B certifications in FY
2015; 5,933 certifications in FY 2016; and 6,599 certifications in
FY 2017. See https://www.foreignlaborcert.doleta.gov/performancedata.cfm.
\14\ The top five states where employers seek to place H-2B
workers are Colorado, Florida, Louisiana, Texas, and Virginia.
---------------------------------------------------------------------------
Thus, placing the advertisement on two separate days, as required
by Sec. 655.42, costs an employer, on average, twice as much, or
$1,606 ($803 for each advertisement).
As mentioned above, employers can advertise using the DOL-
maintained website free of charge, so removing the requirement to
advertise in a print newspaper would result in a cost savings equal to
the cost of complying with the current regulation. Although Sec.
655.42 currently requires that one of the advertising days be a Sunday,
the Departments did not identify a significant difference in cost
between advertisements placed on Sundays and weekdays. Therefore, the
Departments did not distinguish between these two costs when
calculating total advertising cost savings.
To estimate the annual newspaper advertising costs that employers
will avoid under the final rule, the Departments multiplied the
estimated annual number of H-2B temporary labor certifications (5,879)
by the average newspaper advertising cost of $1,606. This yielded
annual cost savings of $9.44 million. The annualized cost savings over
the 10-year period is $9.44 at both discount rates of 3 and 7 percent.
The Departments believe that the cost to DOL of upgrading its database
and posting an employer's job opportunity on its website would be de
minimis on an annual basis.
(b) Eliminating Document Retention Requirements
The final rule amends Sec. 655.56 to eliminate the document
retention requirement at Sec. 655.56(c)(2)(ii) associated with print
newspaper advertisements. To estimate the cost savings from this
revision, the Departments calculated the average cost for each employer
to retain print advertisements records for each H-2B certification. To
do so, the Departments multiplied each employer's per-certification
staff time by its per-certification staff cost. The Departments
estimate that it takes a human resources (HR) specialist, on average,
two minutes to store (print and file) proof of print advertisement. The
Departments used the median hourly wage rate of an HR specialist at a
nonagricultural business ($31.84) \15\ then adjusted the base wage rate
using a loaded wage factor (1.63) \16\ to account for fringe benefits
and overhead. The Departments then multiplied the resulting wage rate
by the staff time (two minutes), which yielded a cost of $1.73 per
certification. As explained above, the Departments estimate that DOL
issues, on average, 5,879 H-2B labor certifications each fiscal year.
By multiplying the estimated annual number of certifications by the
cost per certification ($1.73), the Departments estimated an annual
cost savings of $10,171. The annualized cost savings over the 10-year
period is $10,171 at both discounts rates of 3 percent and 7 percent.
---------------------------------------------------------------------------
\15\ Wage derived from Bureau of Labor Statistics median hourly
wage for HR Specialists (occupational code 13-1071), May 2017.
\16\ The loaded wage factor is calculated using a fringe benefit
rate of 46 percent, which is based on the Bureau of Labor Statistics
Employer Cost for Employee Compensation data. This fringe benefit
rate was added to an overhead rate of 17 percent, which is based on
DOL practices.
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(c) Time To Review and Understand the Rule
During the first year after this rule takes effect, employers
seeking H-2B workers will need time to learn about the new
requirements. The Departments assume that many employers participating
in the H-2B program will learn about the requirements of the new rule
from an industry newsletter or bulletin. The Departments estimate that
an employer will require approximately 10 minutes to understand the
rule change, as this final rule addresses only the job-advertising and
document retention requirements for employers seeking H-2B workers, and
eliminates those requirements without replacing them with new ones.
The requirement to review and understand the rule represents a cost
to employers participating in the H-2B program only in the first year
of the rule. The Departments estimate this cost for each employer by
multiplying the staff time required to read and review the new rule by
the estimated staff cost. As above, the Departments estimated a wage
rate by multiplying the median hourly wage of an HR specialist at a
nonagricultural business ($31.84) by the loaded wage rate (1.63) to
account for fringe benefits and overhead. The Departments then
multiplied the resulting wage rate by the required staff time (10
minutes), which yielded a cost of $8.65 per employer. The Departments
estimated the total cost of reading and reviewing the rule by
multiplying $8.64 by the average annual number of employers
participating in the H-2B program over FY 2015-2017 (5,326).\17\ This
calculation results in a cost of $46,069 in the first year the rule is
in effect. The annualized cost over the 10-year period is $5,243 and
$6,130 at the discount rates of 3 percent and 7 percent, respectively.
---------------------------------------------------------------------------
\17\ The average is based on 4,764 unique H-2B employer
applicants in FY 2015; 5,296 employers in FY 2016; and 5,917
employers in FY 2017.
---------------------------------------------------------------------------
3. Summary of Impacts
The Departments estimate the total first-year cost of the final
rule to be $46,069. This cost results from the time required to read
and review the final rule for the average annual number of unique H-2B
employer applicants (based on FY 2015-2017 data). The Departments
estimate total first-year cost savings of $9.45 million. This cost
savings results from eliminating the requirement that employers place
print newspaper advertisements and retain ad-related documents. Net
first-year cost savings, therefore, amount to $9.41 million.
Generally, annual cost savings are expected to be $9.45 million in
every year following the first. The 10-year discounted net cost savings
of the rule range from $80.59 million to $66.35 million (with 3 percent
and 7 percent discount rates, respectively). The annualized net cost
savings of the final rule is $9.45 at both the 3 percent and 7 percent
discount rates. When the Departments use a perpetual time horizon to
allow for cost comparisons under E.O. 13771, the annualized cost
savings of this final rule are $7.57 million at a discount rate of 7
percent.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (March 29, 1996), requires federal agencies
engaged in rulemaking to consider the impact of their proposals on
small entities, consider alternatives to minimize that impact, and
solicit public comment on their analyses. The RFA requires the
assessment of the direct effects \18\ of a regulation on a wide range
of small entities, including small businesses, not-for-profit
organizations, and small governmental jurisdictions. Agencies must
perform a review to determine whether a proposed or final rule would
have a significant economic impact on a substantial number of small
entities. 5 U.S.C. 603 and 604.
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\18\ Because this rule does not directly regulate newspapers,
the rule's potential effects on newspaper revenue are outside the
scope of this specific analysis. The Departments note, however, that
these effects are discussed above.
---------------------------------------------------------------------------
This final rule may impact small businesses that request H-2B
temporary labor certification. The Departments
[[Page 62445]]
assume that the average number of H-2B certifications requested by any
small business per year would be one. The Departments estimate that
small businesses would incur a one-time cost of $8.65 to familiarize
themselves with the rule and would incur annual cost savings of $1,606
associated with advertising online rather than in print newspapers. In
addition, the Departments estimate that a small business would incur
annual cost savings of $1.63 related to the elimination of the document
retention requirement. Over a 10-year analysis period, the net
annualized cost savings for a small business would be $1,719 at a 7-
percent discount rate.
The Departments reviewed the impacts of the proposed rule for two
North American Industry Classification System (NAICS) Codes that
frequently request H-2B certification: NAICS 561730: Landscaping
Services, and NAICS 721110: Hotels (except Casino Hotels) and Motels.
The Small Business Administration estimates that revenue for a small
business with NAICS Code 561730 is $7.5 million and for NAICS Code
721110 is $32.5 million.\19\ The impact of the final rule would be less
than 1 percent of annual revenue for the smallest businesses in these
industries with an employment size fewer than five ($197,491 for NAICS
561730 and $321,239 for NAICS 721110).\20\ Based on this determination,
the Departments certify that this final rule will not have a
significant economic impact on a substantial number of small entities.
---------------------------------------------------------------------------
\19\ U.S. Small Business Administration (2017), Table of Small
Business Size Standards Matched to North American Industry
Classification System Codes, retried from: https://www.naics.com/wp-content/uploads/2017/10/SBA_Size_Standards_Table.pdf.
\20\ U.S. Census, 2012 SUSB Annual Data Tables by Establishment
Industry, https://www.census.gov/data/tables/2012/econ/susb/2012-susb-annual.html.
---------------------------------------------------------------------------
C. Paperwork Reduction Act
The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., provides
that a Federal agency generally cannot conduct or sponsor a collection
of information, and the public is generally not required to respond to
an information collection, unless it is approved by OMB under the PRA
and displays a currently valid OMB Control Number. In addition,
notwithstanding any other provisions of law, no person shall generally
be subject to penalty for failing to comply with a collection of
information that does not display a valid Control Number. See 5 CFR
1320.5(a) and 1320.6. DOL has submitted the Information Collection
Request (ICR) contained in this final rule to OMB and obtained approval
using emergency clearance procedures outlined at 5 CFR 1320.13.
This final rule modernizes and improves the labor market test that
DOL uses to assess whether qualified U.S. workers are available by: (1)
Rescinding the requirement that an employer advertise its job
opportunity in a print newspaper of general circulation in the area of
intended employment; and (2) expanding and enhancing the Department's
electronic job registry. More specifically, this final rule eliminates
the general requirement for a prospective H-2B employer to advertise
its job opportunity in a print newspaper of general circulation in the
area of intended employment. However, in contrast to the NPRM, this
final rule does not require the employer to place an electronic
advertisement on a website that is widely viewed and appropriate for
use by workers who are likely to apply for the job opportunity in the
area of intended employment. Rather, as explained in detail in this
final rule, DOL will advertise the employer's job opportunity on the
employer's behalf on SeasonalJobs.dol.gov, an expanded and improved
version of DOL's existing H-2B job registry website.
During the NPRM stage of this rule, DOL requested the creation of a
new OMB Control Number 1205-0534 to account for the time burden and
cost associated with the online recruitment process. However, upon
further consideration and in light of the revised requirements in the
final rule, it is appropriate, instead, to revise the existing OMB
Control Number 1205-0509 to account for the burden and costs associated
with requiring online ads only, and for the transfer of this burden
from employers to DOL. DOL is seeking OMB's approval under PRA
emergency procedures to revise 1205-0509 to accommodate this change.
The information collection requirements associated with OMB Control
Number 1205-0509, are revised under this final rule as follows. This
burden breakdown only reflects the updated burden with regard to the
advertisement requirement:
Agency: DOL-ETA.
Type of Information Collection: Currently approved.
Title of the Collection: Advertising Requirements for Employers
Seeking to Employ H-2B Nonimmigrant Workers.
Agency Form Number: ETA 9142B, instructions and accompanying
appendixes.
Affected Public: Private Sector--businesses or other for-profits.
Total Estimated Number of Respondents: 5,879.
Average Responses per Year per Respondent: 2.
Total Estimated Number of Responses: 11,758.
Average Time per Response: 7 minutes per application.
Total Estimated Annual Time Burden: 0 hours. (Employers will not be
burdened with the advertisement requirements.)
Total Estimated Other Costs Burden: $0
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the Act
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in $100 million or more expenditure (adjusted annually
for inflation) in any one year by State, local, and tribal governments,
in the aggregate, or by the private sector.
This final rule does not exceed the $100 million expenditure in any
1 year when adjusted for inflation, and this rulemaking does not
contain such a mandate. The requirements of Title II of the Act,
therefore, do not apply, and the Departments have not prepared a
statement under the Act.
E. Small Business Regulatory Enforcement Fairness Act of 1996
This final rule would not be a major rule as defined by section 804
of the Small Business Regulatory Enforcement Act of 1996, Public Law
104-121, 804, 110 Stat. 847, 872 (1996), 5 U.S.C. 804(2). The Office of
Information and Regulatory Affairs has found that this final rule is
not likely to result in an annual effect on the economy of $100 million
or more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic or export markets.
F. Executive Order 13132: Federalism
This final rule does not have federalism implications because it
would not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.
[[Page 62446]]
Accordingly, Executive Order 13132, Federalism, requires no further
agency action or analysis.
G. Executive Order 13175, Indian Tribal Governments
This final rule does not have ``tribal implications'' because it
would 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. Accordingly, Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
requires no further agency action or analysis.
H. The Treasury and General Government Appropriations Act of 1999:
Assessment of Federal Regulations and Policies on Families
This final rule would have no effect on family well-being or
stability, marital commitment, parental rights or authority, or income
or poverty of families and children. Accordingly, section 654 of the
Treasury and General Government Appropriations Act of 1999 (5 U.S.C.
601 note) requires no further agency action, analysis, or assessment.
I. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This final rule would have no adverse impact on children.
Accordingly, Executive Order 13045, Protection of Children from
Environmental Health Risks and Safety Risks, as amended by Executive
Orders 13229 and 13296, requires no further agency action or analysis.
J. Environmental Impact Assessment
This final rule is one of a category of actions that do not
individually or cumulatively have a significant effect on the human
environment. This final rule is therefore categorically excluded from
further review under the National Environmental Policy Act of 1969
(NEPA), 42 U.S.C. 4321-4375.
K. Executive Order 13211, Energy Supply
This final rule has not been identified to have impacts on energy
supply. Accordingly, Executive Order 13211 requires no further agency
action or analysis.
L. Executive Order 12630, Constitutionally Protected Property Rights
This final rule will not implement a policy with takings
implications. Accordingly, Executive Order 12630, Governmental Actions
and Interference with Constitutionally Protected Property Rights,
requires no further agency action or analysis.
M. Executive Order 12988, Civil Justice Reform Analysis
This final rule was drafted and reviewed in accordance with
Executive Order 12988, Civil Justice Reform. It was written to provide
a clear legal standard for affected conduct and was carefully reviewed
to eliminate drafting errors and ambiguities, so as to minimize
litigation and undue burden on the Federal court system. It meets the
applicable standards provided in section 3 of Executive Order 12988.
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, part 655 of title 20 and part 503 of title 29 of the
Code of Federal Regulations are amended as follows:
Title 20--Employees' Benefits
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
0
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), 8 U.S.C.
1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (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); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat.
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR
214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218,
132 Stat. 1547 (48 U.S.C. 1806).
Subpart A 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).
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec.
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note,
Pub. L. 114-74 at section 701.
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; 8 CFR 214.2(h); and 28 U.S.C. 2461
note, Pub. L. 114-74 at section 701.
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).
0
2. Amend Sec. 655.19 by revising paragraph (e)(1) to read as follows:
Sec. 655.19 Job contractor filing requirements.
* * * * *
(e)(1) Either the job contractor or its employer-client may place
the required job order and conduct recruitment as described in
Sec. Sec. 655.16 and 655.43 through 655.46. 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 9142B.
* * * * *
0
3. Amend Sec. 655.40 by revising paragraph (b) to read as follows:
Sec. 655.40 Employer-conducted recruitment.
* * * * *
(b) Employer-conducted recruitment period. Unless otherwise
instructed by the CO, the employer must conduct the recruitment
described in Sec. Sec. 655.43 through 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 Sec. 655.48.
* * * * *
0
4. Amend Sec. 655.41 by revising paragraph (a) to read as follows:
Sec. 655.41 Advertising requirements.
(a) All recruitment conducted under Sec. Sec. 655.43 through
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 Sec. 655.18(a).
* * * * *
[[Page 62447]]
Sec. 655.42 [Removed and Reserved]
0
5. Remove and reserve Sec. 655.42.
Sec. 655.56 [Amended]
0
6. Amend Sec. 655.56 by removing paragraph (c)(2)(ii) and
redesignating paragraphs (c)(2)(iii), (iv), and (v) as paragraphs
(c)(2)(ii), (iii), and (iv), respectively.
0
7. Amend Sec. 655.71 by revising paragraph (c)(2) to read as follows:
Sec. 655.71 CO-ordered assisted recruitment.
* * * * *
(c) * * *
(2) Designating the sources where the employer must recruit for
U.S. workers and directing the employer to place the advertisement(s)
in such sources;
* * * * *
Title 29--Labor
PART 503--ENFORCEMENT OF OBLIGATIONS FOR TEMPORARY NONIMMIGRANT
NON-AGRICULTURAL WORKERS DESCRIBED IN THE IMMIGRATION AND
NATIONALITY ACT
0
8. The authority citation for part 503 continues to read as follows:
Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(b); 8 U.S.C. 1184; 8 CFR
214.2(h); 28 U.S.C. 2461 note (Federal Civil Penalties Inflation
Adjustment Act of 1990); Pub. L. 114-74 at Sec. 701.2.
Sec. 503.17 [Amended]
0
9. Amend Sec. 503.17 by removing paragraph (c)(2)(ii) and
redesignating paragraphs (c)(2)(iii), (iv), and (v) as paragraphs
(c)(2)(ii), (iii), and (iv), respectively.
Kevin K. McAleenan,
Acting Secretary of Homeland Security.
Eugene Scalia,
Secretary of Labor.
[FR Doc. 2019-24832 Filed 11-13-19; 4:15 pm]
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