[Federal Register Volume 77, Number 34 (Tuesday, February 21, 2012)]
[Rules and Regulations]
[Pages 10038-10182]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-3058]
[[Page 10037]]
Vol. 77
Tuesday,
No. 34
February 21, 2012
Part II
Department of Labor
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Employment and Training Administration
20 CFR Part 655
Wage and Hour Division
29 CFR Part 503
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Temporary Non-Agricultural Employment of H-2B Aliens in the United
States; Final Rule
Federal Register / Vol. 77 , No. 34 / Tuesday, February 21, 2012 /
Rules and Regulations
[[Page 10038]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
Wage and Hour Division
29 CFR Part 503
RIN 1205-AB58
Temporary Non-Agricultural Employment of H-2B Aliens in the
United States
AGENCY: Employment and Training Administration, and Wage and Hour
Division, Labor.
ACTION: Final rule.
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SUMMARY: The Department of Labor (the Department) is amending its
regulations governing the certification of the employment of
nonimmigrant workers in temporary or seasonal non-agricultural
employment and the enforcement of the obligations applicable to
employers of such nonimmigrant workers. This Final Rule revises the
process by which employers obtain a temporary labor certification from
the Department for use in petitioning the Department of Homeland
Security (DHS) to employ a nonimmigrant worker in H-2B status. We have
also created new regulations to provide for increased worker
protections for both United States (U.S.) and foreign workers.
DATES: This Final Rule is effective April 23, 2012.
FOR FURTHER INFORMATION CONTACT: For further information on 20 CFR part
655, Subpart A, contact William L. Carlson, Ph.D., Administrator,
Office of Foreign Labor Certification, ETA, U.S. Department of Labor,
200 Constitution Avenue NW., Room C-4312, Washington, DC 20210;
Telephone (202) 693-3010 (this is not a toll-free number). Individuals
with hearing or speech impairments may access the telephone number
above via TTY by calling the toll-free Federal Information Relay
Service at 1-800-877-8339.
For further information on 29 CFR part 503 contact Mary Ziegler,
Director, Division of Regulations, Legislation, and Interpretation,
Wage and Hour Division, U.S. Department of Labor, 200 Constitution
Avenue NW., Room S-3510, Washington, DC 20210; Telephone (202) 693-0071
(this is not a toll-free number). Individuals with hearing or speech
impairments may access the telephone number above via TTY by calling
the toll-free Federal Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Revisions to 20 CFR part 655 Subpart A
A. Statutory Standard and Current Department of Labor Regulations
Section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act
(INA or the Act) defines an H-2B worker as a nonimmigrant admitted to
the U.S. on a temporary basis to perform temporary non-agricultural
labor or services for which "unemployed persons capable of performing
such service or labor cannot be found in this country." 8 U.S.C.
1101(a)(15)(H)(ii)(b). Section 214(c)(1) of the INA requires DHS to
consult with appropriate agencies before approving an H-2B visa
petition. 8 U.S.C. 1184(c)(1). The regulations of the U.S. Citizenship
and Immigration Services (USCIS), the agency within DHS which
adjudicates requests for H-2B status, require that an intending
employer first apply for a temporary labor certification from the
Secretary of Labor (the Secretary). That certification informs USCIS
that U.S. workers capable of performing the services or labor are not
available, and that the employment of the foreign worker(s) will not
adversely affect the wages and working conditions of similarly employed
U.S. workers. 8 CFR 214.2(h)(6). On Guam, H-2B employment requires
certification from the Governor of Guam, not the Secretary. 8 CFR
214.2(h)(6)(iii).
Our regulations, at 20 CFR part 655, Subpart A, "Labor
Certification Process for Temporary Employment in Occupations other
than Agriculture or Registered Nursing in the United States (H-2B
Workers)," govern the H-2B labor certification process, as well as the
enforcement process to ensure U.S. and H-2B workers are employed in
compliance with H-2B labor certification requirements. Applications for
labor certification are processed by the Office of Foreign Labor
Certification (OFLC) in the Employment and Training Administration
(ETA), the agency to which the Secretary has delegated her
responsibilities as described in the USCIS H-2B regulations.
Enforcement of the attestations made by employers in the course of
submission of H-2B applications for labor certification is conducted by
the Wage and Hour Division (WHD) within the Department, to which DHS on
January 16, 2009 delegated enforcement authority granted to it by the
INA. 8 U.S.C. 1184(c)(14)(B).
Under the 2008 H-2B regulations published at 73 FR 29942, May 22,
2008 (the 2008 Final Rule), an employer seeking to fill job
opportunities through the H-2B program must demonstrate that it has a
temporary need for the services or labor, as defined by one of four
regulatory standards: (1) A one-time occurrence; (2) a seasonal need;
(3) a peakload need; or (4) an intermittent need. 8 CFR
214.2(h)(6)(ii)(B). Generally, that period of time will be limited to 1
year or less, except in the case of a one-time occurrence, which could
last up to 3 years, consistent with the standard under DHS regulations
at 8 CFR 214.2(h)(6) as well as current Department regulations at Sec.
655.6(b).
The 2008 Final Rule also employed an attestation-based filing
model, in which the employer conducted its recruitment with no direct
Federal or State oversight. Lastly, the 2008 Final Rule provided WHD's
enforcement authority under which WHD could impose civil money
penalties and other remedies.
On August 30, 2010, the U.S. District Court for the Eastern
District of Pennsylvania in Comit[eacute] de Apoyo a los Trabajadores
Agricolas (CATA) v. Solis, Civil No. 2:09-cv-240-LP, 2010 WL 3431761
(E.D. Pa. Aug. 30, 2010), invalidated various provisions of the 2008
Final Rule and remanded the rule to the Department to correct its
errors. In the Notice of Proposed Rulemaking (NPRM) published March 18,
2011 (76 FR 15130), we proposed to amend the particular provisions that
were invalidated by the Court, including specifying when H-2B employers
must contact unions as a potential source of labor at Sec. 655.44 and
providing a new definition of full-time and a slightly modified
definition of job contractor in Sec. 655.5 and 29 CFR 503.4.
B. The Need for Rulemaking
The Department determined for a variety of reasons that a new
rulemaking effort is necessary for the H-2B program. These policy-
related reasons, which were discussed at length in the NPRM, include
expansion of opportunities for U.S. workers, evidence of violations of
program requirements, some rising to a criminal level, need for better
worker protections, and a lack of understanding of program obligations.
We accordingly proposed to revert to the compliance-based certification
model that had been used from the inception of the program until the
2008 Final Rule. We also proposed to add new recruitment and other
requirements to broaden the dissemination of job offer information,
such as introducing the electronic job registry and requiring the job
offer to remain open to U.S. workers for a longer period and closer to
the date of need. We stated that these changes were necessary to ensure
that there was
[[Page 10039]]
an adequate test of the U.S. labor market to determine whether U.S.
workers are available for the jobs. Further, we proposed additional
worker protections, such as increasing the number of hours per week
required for full-time employment and requiring that U.S. workers in
corresponding employment who perform the same jobs at the same place as
the H-2B workers receive the same wages and benefits as the H-2B
workers. We discussed how increased worker protections were necessary
to ensure that the employment of H-2B workers does not adversely affect
the wages and working conditions of U.S. workers.
Summing the present value of the costs associated with this
rulemaking in Years 1-10 results in total discounted costs over 10
years of $10.3 million to $12.8 million (with 7 percent and 3 percent
discounting, respectively).
Table 1--Summary of Costs and Transfers
[Millions of dollars]
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Transfers and costs by year
(millions of dollars)
Cost component --------------------------------------
Year 1 Year 2-10 Year 1-10
costs costs costs
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Undiscounted:
Total Costs and Transfers-- $96.34 $94.73 $948.91
Low.........................
Total Costs and Transfers-- 131.38 129.76 1,299.26
High........................
Total Transfers--Low......... 93.37 93.37 933.71
Total Transfers--High........ 128.41 128.41 1,284.06
Total Costs to Employers..... 2.83 1.31 14.64
Total Costs to Government.... 0.14 0.05 0.56
Present Value--7% Real Interest
Rate:
Total Costs & Transfers--Low. ........... ........... 623.22
Total Costs & Transfers--High ........... ........... 853.20
Total Transfers--Low......... ........... ........... 612.89
Total Transfers--High........ ........... ........... 842.87
Total Costs.................. ........... ........... 10.33
Present Value--3% Real Interest
Rate:
Total Costs & Transfers--Low. ........... ........... 786.05
Total Costs & Transfers--High ........... ........... 1,076.20
Total Transfers--Low......... ........... ........... 773.27
Total Transfers--High........ ........... ........... 1,063.42
Total Costs.................. ........... ........... 12.78
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Note: Totals may not sum due to rounding.
Table 2--Summary of Estimated Cost by Provision
[Millions of dollars]
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Provision costs by year (in millions
of dollars)
Cost component --------------------------------------
Year 1 Year 2-10 Year 1-10
costs costs costs
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Transfers:
Corresponding Workers' Wages-- $17.52 $17.52 $175.18
Low.........................
Corresponding Workers' Wages-- 52.55 52.55 525.53
High........................
Transportation............... 61.33 61.33 613.28
Subsistence.................. 2.81 2.81 28.09
Lodging...................... 1.58 1.58 15.83
Visa and Border Crossing Fees 10.13 10.13 101.33
Total Transfers--Low......... 93.37 93.37 933.71
Total Transfers--High........ 128.41 128.41 1,284.06
Costs to Employers:
Read and Understand Rule..... 1.20 0 1.20
Document Retention........... 0.32 0 0.32
Additional Recruiting........ 1.04 1.04 10.36
Disclosure of Job Order...... 0.26 0.26 2.63
Other Provisions \a\......... 0.014 0.014 0.14
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Total Costs to Employers. 2.83 1.31 14.65
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Costs to Government:
Electronic Job Registry...... 0.14 0.05 0.56
Enhanced U.S. Worker Referral Not Not Not
Period......................
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Total First Year Costs to 0.14 0.05 0.56
Government..............
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Total Costs & Transfers:
Total Costs & Transfers--Low. 96.34 94.73 948.91
Total Costs & Transfers--High 131.38 129.76 1,299.26
[[Page 10040]]
Total Transfers--Low......... 93.37 93.37 933.71
Total Transfers--High........ 128.41 128.41 1,284.06
Total Costs.................. 2.97 1.36 15.20
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Note: Totals may not sum due to rounding.
\a\ Includes the sum of: Elimination of Attestation-Based Model; Post
Job Opportunity; Workers Rights Poster.
C. Overview of the Comments Received
We received 869 comments on the proposed rule. We have determined
that 457 were completely unique including 8 representative form
letters, 4 were duplicates, 407 were considered a form letter or based
on a form letter, and 1 comment was withdrawn at the request of the
commenter. Those comments that were received by means not listed in the
proposed rule or that we received after the comment period closed were
not considered in this Final Rule.
Commenters represented a broad range of constituencies for the H-2B
program, including small business employers, U.S. and H-2B workers,
worker advocacy groups, State Workforce Agencies (SWAs), agents, law
firms, employer and industry advocacy groups, union organizations,
members of the U.S. Congress, and various interested members of the
public. We received comments both in support of and in opposition to
the proposed regulation, which are discussed in greater detail below.
One commenter contended that we dismiss comments simply because
they are similar in nature. This statement is incorrect. We read and
analyzed all comments that we received within the comment period. For
purposes of posting comments for the public to view, we posted all
comments we deemed unique with at least one copy of a form letter so
that there is an opportunity to see the concerns being addressed. All
form letters are considered in the final count of comments received and
we address them as required by the Administrative Procedure Act (APA)
in this Final Rule. Another commenter argued that we did not allow
enough time to comment on the proposed rulemaking. We disagree and
believe that 60 days was enough time for the public to comment on the
rulemaking. We note that the APA does not provide a specific time
period during which agencies must accept public comments in response to
proposed rules, see 5 U.S.C. 553, but the 60-day comment period that we
provided during this rulemaking is consistent with the directive of
Executive Order 13563, see Improving Regulation and Regulatory Review,
76 FR 3821-22 (Jan. 21, 2011). Moreover, in light of the Court's ruling
in the CATA case invalidating some of the current regulations, we
believe it was necessary to proceed as expeditiously as reasonable
through the rulemaking process.
There were several issues which we deemed to be beyond the scope of
the proposed rule. Some of these issues included general disapproval of
any foreigners being allowed to work in the U.S., elimination of
temporary foreign worker programs, activities and rules related to the
H-2A program, and general foreign relations and immigration reform
issues (including increasing or decreasing the number of available
visas). Also beyond the scope of this rulemaking were the collective
bargaining rights of H-2B workers, the wage methodology promulgated by
the Wage Methodology for the Temporary Non-agricultural Employment H-2B
Program, 76 FR 3452, Jan. 19, 2011 and the portability of visas.
Lastly, we received a large number of comments from the ski
industry requesting an exemption from the regulations. Many of the
commenters believed that because ski instructors require skills or
experience, under the new rules they would be ineligible for the H-2B
program. Generally, job positions certified under the H-2B program are
low skilled, requiring little to no experience. We do recognize,
however, that there are some occupations and categories under the H-2B
program that may require experience and/or training. Employer
applicants demonstrating a true need for a level of experience,
training or certification in their application have never been
prohibited in the H-2B program, given the breadth of the definition of
H-2B under the INA. See 8 U.S.C. 1101(a)(15)(H)(ii)(b). We have
determined that an exemption for the ski industry is not appropriate as
the commenters presented no valid argument as to why exemption is
necessary. There is nothing about the workers they seek to hire that
prevents them from participating in the H-2B program. Ski resorts are
fixed-site locations that run on a seasonal basis with standard
operating procedures. We do not see a reason, nor was one presented,
that prevents a ski resort from meeting all the recruitment
requirements.
D. Elimination of the Attestation-Based Model
One of the overarching changes we made in the proposed rule was the
elimination of the attestation-based model adopted in the 2008 Final
Rule. We received comments supporting the elimination of the
attestation-based model as well as opposing that change. Generally,
commenters who supported our decision to revert to a compliance-based
model focused on the Department's desire to reduce the susceptibility
of the H-2B program to fraud and abuse. Several commenters expressed
concern about the rise of criminal and civil prosecutions which they
felt demonstrate abuse in the H-2 program. Most of the commenters cited
our audit experience, as discussed in the NPRM, and agreed that this
data alone should foreclose any debate on the necessity of ending the
attestation-based model. One commenter specifically pointed out that
changes in the 2008 Final Rule made it easier for unscrupulous
employers and their agents to use H-2B visas for the illicit purpose of
suppressing wages. This same commenter suggested that a return to a
compliance-based model brings us back to the proper focus of
administering the H-2B program in a manner that fairly balances the
protection of workers with the desires of employers. Another commenter
pointed out that the OFLC's experience of 2 years under the
attestation-based model
[[Page 10041]]
is sufficient to demonstrate that the model cannot be retained without
doing serious damage to the employment prospects and wages and working
conditions of U.S. workers. Similarly, an advocacy group stated that
many aspects of the attestation-based model deprive domestic workers of
employment opportunities, adversely affect their wages and working
conditions, and encourage, rather than curb, the well-documented fraud
in the H-2B program.
Generally, commenters who advocated the retention of an
attestation-based model encouraged us to use our current resources and
enforcement authority to crack down on bad actors, rather than overhaul
the program. A few commenters stated that we did not give the 2008
Final Rule and the attestation-based model sufficient time to be
successful. Contrary to the comments supportive of a change, these
commenters argued that our audit of a random sample of cases is
misleading given that the NPRM does not disclose the number of cases
audited and the details about the audit process and that all violations
appear to be counted with equal weight. Another commenter believed that
reverting to the compliance-based model would create extensive
processing delays.
We disagree with the commenters who asserted that increased
enforcement authority is the answer to resolving concerns about the
attestation-based model. Our enforcement authority is a separate
regulatory component, regardless of the certification model we use. Our
experience, as presented in the NPRM, indicates that despite the fact
that the 2008 Final Rule contained elevated penalties for non-
compliance with the program provisions, the results of the audited
cases demonstrate that an attestation-based process does not provide an
adequate level of protection for either U.S. or foreign workers.
Commenters who assert we did not give the 2008 Final Rule and its
attestation-based model a chance to be successful undervalue the
experience we have had over the last 2 years with the program. In
making our decision to depart from the attestation-based model, we took
into account not only the audits we conducted as described in the NPRM,
but also the various comments and concerns raised by employers,
advocates, and workers about compliance with the program. The
attestation-based model of the 2008 Final Rule is highly vulnerable to
fraud. Under that model, only after an employer has been certified and
the foreign workers have come to the U.S. and begun working for the
employer, is there a probability that the employer's non-compliance
will be discovered or that the foreign worker(s) will report a
violation. Only if an employer is audited or investigated will we learn
of any non-compliance, even minor violations of program obligations,
since the attestation-based model relies on the employer's
attestations.
Consistent with our concerns about the attestation-based model, the
Department's Office of Inspector General (OIG) issued an audit report
on October 17, 2011 in which OIG identified the attestation-based model
as a weakness in the H-2B program \1\. OIG found that the existing
attestation-based application process did not allow for meaningful
validation before application approval and hampered the Department's
ability to provide adequate protections for U.S. workers in the H-2B
applications OIG reviewed. OIG noted that the Department's proposed
transition to a model requiring pre-approval review of compliance
through documentation, as adopted in this Final Rule, would strengthen
the program.
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\1\ Program Design Issues Hampered ETA's Ability to Ensure the
H-2B Visa Program Provided Adequate Protections for U.S. Forestry
Workers in Oregon, Office of the Inspector General of the U.S.
Department of Labor, Report No. 17-12-001-03-321, Oct. 17, 2011.
https://www.oig.dol.gov/public/reports/oa/2012/17-12-001-03-321.pdf.
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As to commenter concerns about the audit sample discussed in the
NPRM, we reiterate that we conducted two rounds of audits of a random
sample of cases, both of which resulted in an indication that many of
the employers were not in compliance with the attestations they agreed
to. These audits we reviewed were a random sample. Employers were not
selected based on specific industries or occupations, nor were they
selected based on compliance with specific provisions. The indication
of employer non-compliance from those audits is not acceptable by our
standards. Additionally, contrary to the commenter's claim that all
violations were given equal weight, regardless of the type of
violations or their consequences, our concern is that these audits
evidenced a pattern of non-compliance with program obligations toward
workers, regardless of the degree of such non-compliance. Moreover, the
results of these audits showed the existence of deficiencies in the
applications that would have warranted further action, the least of
which would have included issuing a Notice of Deficiency, and affording
the employer the opportunity to correct the deficiencies, before
adjudicating the application. Again, under the attestation-based
program model, we are not aware of the non-compliance before
certification.
Furthermore, despite the fact that H-2B cases continue to be
processed under the 2008 Final Rule, which some commenters said
implemented an ideal balance between the attestation-based model and
stronger enforcement authority, we still see evidence in the H-2B
program of a rising number of criminal violations. In addition to the
specific cases cited in the NPRM, there has been more recent evidence
of employers and agents filing fraudulent applications involving
thousands of requested employees for non-existent job opportunities.
For example, according to the OIG's "Semiannual Report to Congress"
(October 2010 until March 2011),\2\ OIG investigations found that
emerging organized criminal groups are using the Department's foreign
labor certification processes in illegal schemes, and in so doing are
committing crimes that negatively impact workers. The report further
lists at least 4 examples of fraud committed by employers or their
attorneys/agents in the H-2B program.
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\2\ Semiannual Report to Congress, Office of the Inspector
General of the U.S. Department of Labor, Volume 65 (October 1, 2010
to March 31, 2011); https://www.oig.dol.gov/public/semiannuals/65.pdf
https://www.oig.dol.gov/public/semiannuals/65.pdf.
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Lastly, while some commenters were concerned about the processing
delays that may result from reverting to a compliance-based
certification model, our focus in administering the H-2B program is to
provide employers with a viable workforce while protecting U.S. and
foreign workers. We will, however, continue to endeavor to process
applications as efficiently and quickly as possible and in accordance
with the timeframes set forth in the application processing provisions
of this Final Rule.
In the NPRM, we solicited comments on maintaining the 2008 Final
Rule or some modification of the attestation-based program design.
While we have chosen to adopt the certification-based model described
in the NPRM, we discuss below the responses to the specific questions
presented in the NPRM:
1. What kind of specific guidance could the Department provide that
would benefit a first-time (or sporadic) employer in the H-2B program
to avoid mistakes in making attestations of compliance with program
obligations?
We received several comments directly addressing this question, one
of which asserted that the attestation-based model was straightforward
and that non-compliance is attributable to a
[[Page 10042]]
willful choice made by the employer or its attorney/agent. Another
comment, submitted by several employer advocacy groups, encouraged us
to establish additional ongoing education programs throughout the U.S.
and to provide a hotline to answer questions about basic programmatic
issues. The comment suggested the hotline be supplemented by the
Certifying Officer (CO) notifying employers of any technical issues
while the Application for Temporary Employment Certification is
pending. An employer also expressed frustration with its inability to
communicate directly with us to seek immediate guidance on program
processes and policies.
While we have established an email box (tlc.chicago@dol.gov) to
which employers can submit questions about their applications, we
continue to rely on those questions to easily identify recurring issues
for which we may need to issue a Frequently Asked Question (FAQ) and/or
guidance or provide additional training to staff. We also anticipate
stakeholder educational efforts to help familiarize program users and
others with the regulatory requirements and changes in the H-2B
program. Where feasible and necessary, we will provide additional
educational outreach through briefings and other types of guidance
documents for the benefit of all employers.
2. What kind of guidance would benefit frequent users of the program
with respect to repetitive errors in recruitment? What kind of guidance
would be beneficial in avoiding errors in unique situations for these
users?
One commenter suggested that we implement a three-strike policy to
eliminate willful violators from the H-2B program. Another commenter,
including several employer advocacy groups, encouraged us to establish
additional ongoing education programs throughout the U.S. and suggested
that employers document their attendance, which we should consider in
mitigation of employer error in the application process. The commenter
also recommended that we provide a hotline to answer questions about
basic programmatic issues and publish at appropriate intervals a top 10
errors and issues list and a public notice on the OFLC's Web site
indicating where the CO identifies a trend.
We believe that debarment and other program integrity measures are
sufficient to eliminate willful violators from the H-2B program, and
therefore, do not consider a three strike policy to be necessary. As to
the request for a hotline, as stated above, we have established an
email box to which employers can submit questions about the status of
their applications; we believe this will be more accurate than a
telephone line for receiving information and questions that can then be
translated into public guidance as appropriate. We rely on such emailed
questions and information to identify recurring issues for which we may
need to publish an FAQ and/or guidance. We also draft FAQs and other
guidance documentation at the recommendation of the COs, based on
recurring trends and/or issues identified by them. In an effort to
better provide information to the employer community, we will consider
publishing guidance responsive to specific issues, such as a way to
avoid common filing mistakes, once those have been determined under the
re-engineered model. Lastly, we also plan to implement rollout
activities and briefings to help familiarize program users and others
with the regulatory requirements and changes in the H-2B program. Where
we determine that more guidance is needed, we will provide additional
educational outreach to the filing community and other interested
parties.
3. Could pre-certification audits augment a post-certification audit
in an attestation-based program model? If not, how would you propose
the Department obtain information in the absence of supervised activity
in order to arrive at certification while ensuring compliance with
program obligations?
Several commenters stated that they would be supportive of more
post-certification audits as long as we retain the attestation-based
certification model. In asking this question, we were trying to gauge
whether a pre-certification audit process would be a viable way to
alleviate the obvious compliance problems that occur under the
attestation-based certification model. One commenter believed that by
adding a pre-certification audit process, we would only be contributing
to the existing burden on the H-2B worker to report non-compliance
without actually removing those employer applicants that continue to do
poorly. Another commenter stated that a pre-certification audit process
would imply that a review of the documentation will ensure compliance
with program requirements. This same commenter believed that a pre-
certification review cannot ensure that proper wages will be paid or
that U.S. referrals will be properly considered for a job. The
commenter also affirmed that the current enforcement scheme provides
significant incentive for program users to comply based on audits after
an attestation has been made. Lastly, one commenter claimed that asking
a hypothetical question about possible changes in the program
structure, such as pre-certification audits, without actually proposing
language or procedures does not qualify as appropriate notice and would
require us to issue a new NPRM.
As discussed above, we sought comments about possible alternatives
related to retaining the attestation-based certification model. Based
on the comments on the retention of the attestation-based certification
model and pre-certification audits, we have decided not to retain the
attestation-based model. Therefore, we no longer consider the pre-
certification audit process alternative, which was tied to the concept
of the attestation-based model, to be an option.
4. What additional sanctions could be taken against employers to ensure
compliance with program requirements, given the potential for fraud in
the H-2B program?
We received several comments on sanctions. We discuss issues
involving sanctions in the preamble discussions of 29 CFR part 503 and
Sec. Sec. 655.72 and 655.73.
5. What other kinds of actions could the Department take to prevent an
H-2B employer from filing attestations that do not meet program
requirements?
We did not receive specific alternatives in answer to this
question. Any other incidental alternatives received that relate to
specific sections of the Final Rule have been discussed under the
appropriate related provisions.
For the reasons discussed above, we are reverting to a compliance-
based model under the H-2B program as proposed.
II. Discussion of Comments Received
A. Introductory Sections
We address below those areas in which we received comments. For
specific provisions on which we did not receive comments, we have
retained the provisions as proposed, except where clarifying edits have
been made.
1. Sec. 655.1 Scope and Purpose of Subpart A
The proposed provision informs program users of the statutory basis
and regulatory authority for the H-2B labor certification process. This
provision also describes our role in receiving, reviewing,
adjudicating, and preserving the integrity of an Application for
[[Page 10043]]
Temporary Employment Certification. We are adopting the provision as
proposed. We received several general comments relating to this
section. One commenter stated that the scope and purpose was to pay the
highest of all the prevailing wages and to make sure that H-2B workers
are offered the same protections under the law as any other worker.
Another commenter stated that the original scope and purpose was to
find temporary workers or certify applications for foreign workers.
These comments misunderstand our responsibility and the criteria that
must be met before we certify an H-2B Application for Temporary
Employment Certification. Under DHS' regulations at 8 CFR
214.2(h)(6)(iv), the purpose of these regulations is for the Secretary
of Labor to determine that: (1) There are not sufficient U.S. workers
who are qualified and who will be available to perform the temporary
services or labor for which an employer desires to import foreign
workers; and (2) the employment of the H-2B worker(s) will not
adversely affect the wages and working conditions of U.S. workers
similarly employed. It is through the regulatory provisions set forth
below that the Department ensures that that the criteria for its labor
certification determinations are met.
2. Sec. 655.2 Authority of Agencies, Offices and Divisions in the
Department of Labor
This section describes the authority and division of activities
related to the H-2B program among the Department's agencies. The NPRM
discussed the authority of OFLC, the office within ETA that exercises
the Secretary's responsibility for determining the availability of U.S.
workers and whether the employment of H-2B nonimmigrant workers will
adversely affect the wages and working conditions of similarly employed
workers. It also discussed the authority of WHD, the agency responsible
for investigation and enforcement of the terms and conditions of H-2B
labor certifications, as delegated by DHS. We are retaining this
provision as proposed.
We received several comments from employer advocacy organizations
on our authority to administer the H-2B labor certification program.
These commenters alleged that Congress has not vested authority in the
Department and that the statutory provision mandating consultation with
other agencies does not necessarily give us the right to effectuate the
requirements proposed under these regulations. We address this general
assertion below; however, our authority for specific provisions of this
Final Rule is addressed in the discussions of the sections containing
those provisions.
Under the INA, Congress did not specifically address the issue of
the Department's authority to engage in legislative rulemaking in the
H-2B program but the legislative history of the Immigration Reform and
Control Act (IRCA) specifically acknowledges the Department's practice
of issuing legislative rules, see H.R. Rep. No. 99-682, pt. 1, at 79-
80, 1986 WL 31950, at **34. Since 1968, DOL has had regulations
governing the H-2 non-agricultural program, see 33 FR at 7570-71, and
in enacting IRCA in 1986, Congress acknowledged DOL's rulemaking
without withdrawing its authority to issue legislative rules, see H.R.
Rep. No. 99-682, pt. 1, at 80. Ordinarily, when Congress adopts a new
law incorporating sections of a prior law it is presumed to be aware of
existing administrative regulations interpreting the prior law. See
Lorillard v. Pons, 434 U.S. 575, 580-81 (1978). Moreover, when Congress
re-enacts a statutory provision, an agency's prior long-standing
administrative practice under that statutory provision is deemed to
have received congressional approval. Fribourg Nav. Co. v. CIR, 383
U.S. 272, 283 (1966). In this case, Congress did more than re-enact the
H-2 non-agricultural statutory provision, it expressly acknowledged
DOL's rules governing the H-2 program. See H.R. Rep. No. 99-682, pt. 1,
at 80. Thus, Congress approved of DOL's rulemaking authority in the H-
2B program, and saw fit not to alter or further define DOL's practices,
unlike the H-2A agricultural program. Id.
Even if the legislative history does not resolve the issue of DOL's
rulemaking authority, when the statute does not delegate rulemaking
authority explicitly, such statutory ambiguities are implicit
delegations to the agency administering the statute to interpret the
statute through its rulemaking authority. Arnett v. CIR, 473 F.3d 790,
792 (7th Cir. 2007).\3\ Congress expected DOL to ensure that employers
using the H-2B program would not adversely affect similarly situated
United States workers. See 8 U.S.C. 1101(a)(15)(H)(ii)(b); H.R. Rep.
No. 99-682, pt. 1, at 80. This involves policy-type determinations
beyond disputed facts in a particular case, see U.S. v. Fla. E. Coast
Ry., 410 U.S. 224, 245-46 (1973), which renders DOL's use of
legislative rulemaking more appropriate in the administration of the H-
2B program than case-by-case adjudication, see Ford Motor Co. v. FTC,
673 F.2d 1008, 1009-10 (9th Cir. 1982). Given the type of global
considerations confronting DOL in administering the program, it would
defeat Congress's goals to conclude that DOL is only authorized to
engage in case-by-case adjudication. See USV Pharm. Corp. v.
Weinberger, 412 U.S. 655, 665 (1973). DOL's use of legislative
rulemaking also comports with the judicial preference for filling in
the interstices of the law through a quasi-legislative enactment of
rules of general applicability. See SEC v. Chenery Corp., 332 U.S. 194,
202 (1947). Courts encourage agencies to adopt legislative rules when
seeking to establish norms of widespread application. See Ford Motor
Co., 673 F.2d at 1009. Notice and comment rulemaking provides important
procedural protections to the public, allows agencies to apprise
themselves of relevant issues and views, and promotes predictability.
See Int'l Union v. MSHA, 626 F.3d 84, 95 (DC Cir. 2010). Without the
use of this process, the public would be deprived of important
protections that are unavailable in case-by-case adjudication. Nat'l
Petroleum Ref. Ass'n v. FTC, 482 F.2d 672, 683-84 (1973).
---------------------------------------------------------------------------
\3\ In recent decisions, the Supreme Court has affirmed this
approach by applying Chevron deference to an agency's construction
of a jurisdictional provision in its organic statute. See Coeur
Alaska v. Southeast Alaska Conserv. Council, 129 S. Ct. 2458, 2469
(2009); United States v. Eurodif, 129 S. Ct. 878, 888 (2009).
---------------------------------------------------------------------------
Importantly, the CATA decision recently held that the Department is
not permitted to adopt an H-2B prevailing wage regime without engaging
in legislative rulemaking. See CATA I, 2010 WL 3431761, at *19 (E.D.
Pa. Aug.30,2010). That decision specifically invalidated the
Department's attempt to use guidance documents to announce the
applicable prevailing wage methodology for H-2B employers, holding that
doing so deprives the public of the opportunity to comment on important
issues for the administration of the H-2B program. Id. Given the CATA
decision's holding that the Department cannot use guidance documents to
establish prevailing wage rates, without any legislative rulemaking
authority, the Department would lack the authority to administer the H-
2B program in a fair and predictable manner. Lastly, given Congress'
delegation of enforcement authority under 8 U.S.C. 1184(c)(14)(B) to
USCIS and the Department, it would be irrational to assume that
Congress didn't intend for the Department to issue rules to define the
terms of the H-2B program in the absence of statutory standards. Cf.
Nat'l Ass'n of
[[Page 10044]]
Home Bds. v. OSHA, 602 F.3d 464, 467 (DC Cir. 2010).
3. Sec. 655.3 Territory of Guam
As in the 2008 Final Rule, under the proposed rule, the granting of
H-2B labor certifications and the enforcement of the H-2B visa program
on Guam continue to reside with the Governor of Guam, under DHS
regulations. However, the NPRM proposed that we would determine all H-
2B prevailing wages, including those for Guam. Recently, DHS, which
consults with the Governor of Guam about the admission of H-2B
construction workers on Guam, has determined that prevailing wages for
construction workers on Guam will be determined by the Secretary. 8 CFR
214.2(h)(6)(v)(E)(v). DHS and the Department agree that it is more
appropriate for OFLC to issue H-2B prevailing wages for all workers,
including construction workers on Guam, because OFLC already provides
prevailing wage determinations (PWDs) for all other U.S. jurisdictions.
We therefore proposed that the process for obtaining a prevailing wage
in Sec. 655.10 also would apply to H-2B job opportunities on Guam.
Employment opportunities on Guam accordingly would be subject to the
same process and methodology for calculating prevailing wages as any
other jurisdiction within OFLC's purview. We received no comments on
this section and therefore are retaining the provision as proposed.
4. Sec. 655.4 Special Procedures
The proposed rule maintained our authority to establish, continue,
revise, or revoke special procedures that establish variations for
processing certain H-2B Applications for Temporary Employment
Certification. These are situations where we recognize that variations
from the normal H-2B labor certification processes are necessary to
permit the temporary employment of foreign workers in specific
industries or occupations when U.S. workers are not available and the
employment of foreign workers will not adversely affect the wages or
working conditions of similarly employed U.S. workers. These variations
permit those who would otherwise be unable to readily comply with the
program's established processes to participate, such as by allowing
itinerary employment for reforestation employers and certain employers
in the entertainment industry. These special procedures permit us to
accommodate the unique circumstances of certain classes of employers
without undermining our essential responsibilities. We are retaining
the proposed section with one minor clarification reminding the
employer that it must request special procedures.
We also proposed that special procedures already in place on the
effective date of the regulations will remain in force until we
otherwise modify or withdraw them. A couple of commenters objected to
the continuance of current special procedures because they had not
participated in the process. We see no need to upset the settled
expectations of the employers who have relied upon the special
procedures for many years at least to the extent they do not conflict
with these regulations. To the extent that the current special
procedures are in conflict with these regulations, the regulations will
take precedence. An example of a possible conflict would be the current
special procedure provision which allows pre-certification to Canadian
musicians who enter the U.S. to perform within a 50-mile area adjacent
to the Canadian border for a period of 30 days or less. TEGL 31-05
Procedures for Temporary Labor Certification in the Entertainment
Industry under the H-2B Visa program, May 31, 2006, available at
https://wdr.doleta.gov/directives/attach/TEGL/TEGL 31-05.pdf. Since the Final
Rule does not provide for pre-certification for any occupations, such
exemption would no longer be allowed.
A few commenters requested that we revise the proposed language
under this section from "the Administrator, OFLC may consult with
affected employers and worker representatives" to "the Administrator,
OFLC must consult with affected employers and worker representatives."
In addition, some commenters, including labor organizations and
employees in the reforestation industry, recommended that we should
present special procedures through a notice and comment period similar
to an NPRM. Finally, a couple of commenters felt that the special
procedures process violates the APA.
We decline to make the changes proposed by the commenters. We have
complied with the procedural requirements of the APA by proposing this
provision and soliciting public comments. See 5 U.S.C. 553. The purpose
of the special procedures is to allow a particular group of employers
with a need for H-2B workers to participate in the program by waiving
certain regulatory provisions when the provisions cannot be reconciled
with the operational norms of the industry and when the employers
comply with industry-specific alternative procedures. Although we are
not required to provide procedures for requesting a waiver, see FCC v.
WNCN Listeners Guild, 450 U.S. 582, 601 (1981), the Department is
committed to ensuring that the views of affected employers and worker
representatives are considered. The process under which a special
procedure is considered is in most cases initiated by an industry or
group of employers presenting us evidence that demonstrates their
occupations are unique and that application of certain provisions in
the regulations cannot be reconciled with the operational norms of the
industry. Before effectuating such procedures, we will consult with
other employer and worker representatives as well as agencies within
and outside the Department, as appropriate, to identify necessary
revisions which will, at the same time, keep the integrity and
principal concepts of the program intact. We also will continue to look
to our program experts in OFLC and WHD and review industry data
gathered from employers that have previously used the H-2B program.
Additionally, while special procedures allow for necessary and specific
variations to regulations, we expect employers to adhere to all other
aspects of the regulations not addressed in the special procedures. The
application of a special procedure by an employer or an industry in no
way relieves an employer from its obligation to obtain an approved
temporary labor certification from the Department before submitting a
request for workers to USCIS.
5. Sec. 655.5 Definition of Terms
a. Area of substantial unemployment. We proposed to add a
definition of area of substantial unemployment to the H-2B program. The
proposed definition reflected the established definition of area of
substantial unemployment in use within ETA as it relates to Workforce
Investment Act (WIA) fund allocations. We have retained the proposed
definition of area of substantial unemployment without change.
Some commenters suggested alternative methods of defining an area
of substantial unemployment. Several commenters contended that a
different threshold percentage than 6.5 percent (e.g., 8 percent or 9
percent, the current national unemployment rate) or a different time
period than 12 months (e.g., 3 months or the period of need requested)
should be used to identify an area of substantial unemployment. One
labor organization proposed more than a definitional alternative,
suggesting that employers in areas with 5 percent or higher
unemployment should be subject to an automatic legal presumption that
there is no labor
[[Page 10045]]
shortage sufficient to support an H-2B application and that those
employers' applications should be given a strict, high level review,
including review by a senior official in Washington, DC.
The definition proposed in the NPRM and retained in the Final Rule
is the existing definition of area of substantial unemployment within
ETA. ETA uses this definition to identify areas with concentrated
unemployment and focus WIA funding for services to facilitate
employment in those areas. We proposed using this existing definition,
and have chosen to retain it in the Final Rule, both as a way to
improve labor market test quality and for the sake of operational
simplicity. This existing definition provides the appropriate standard
for identifying areas of concentrated unemployment where additional
recruitment could result in U.S. worker employment. Also, the process
of collecting data and designating an area of substantial unemployment
using the existing definition is already established, as discussed in
ETA's Training and Employment Guidance Letter No. 5-11, Aug. 12,
2011,\4\ providing OFLC with a ready resource for identifying areas to
focus additional recruitment. Finally, using this definition of area of
substantial unemployment in the Final Rule enables an employer to check
the list of areas of substantial unemployment ETA publishes to
determine whether its job opportunity may fall within an area of
substantial unemployment and, as appropriate, be subject to enhanced
recruitment.
---------------------------------------------------------------------------
\4\ TEGL 5-11--Designation of Areas of Substantial Unemployment
(ASUs) under the Workforce Investment Act (WIA) for Program Year
(PY) 2012 has been added to the ETA Advisory Web site and is
available at https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3069.
---------------------------------------------------------------------------
Adopting a legal presumption of the availability of domestic
workers in areas with 5 percent or higher unemployment would
significantly impact employers' access to the H-2B program and could
not be viewed as a logical outgrowth of the proposal. Furthermore,
while we appreciate the commenter's concern, we disagree with the
approach suggested. We thoroughly review all applications submitted for
all areas of intended employment. We consider enhanced recruitment
requirements, as proposed in the NPRM, to be the most appropriate way
to handle job opportunities in areas of substantial unemployment.
Accordingly, we will retain the provision as proposed in the Final
Rule.
b. Corresponding employment. The NPRM proposed to include a
definition of corresponding employment and to require that employers
provide to workers engaged in corresponding employment at least the
same protections and benefits as those provided to H-2B workers (except
for border crossing and visa fees which would not be applicable). The
NPRM defined corresponding employment as the employment of workers who
are not H-2B workers by an employer that has an accepted H-2B
application in any work included in the job order (i.e., the certified
job duties in places of employment or worksite locations specified by
the employer) or in any work performed by the H-2B workers during the
period of the job order (anywhere the H-2B employer places H-2B workers
outside the scope of the labor certification), including any approved
extension.
For the reasons discussed below, the Final Rule modifies the
corresponding employment definition by deleting the word "any" from
before the word "work" in two places and inserting the words "doing
substantially the same" instead. The preamble also clarifies and
provides examples of what is and is not covered. The Final Rule also
excludes from the definition of corresponding employment two categories
of incumbent employees: (1) Those employees who have been continuously
employed by the H-2B employer in the relevant occupation for at least
the prior 52 weeks, who have worked or been paid for at least 35 hours
in at least 48 of the prior 52 workweeks, and have averaged at least 35
hours of work or pay over the prior 52 workweeks, and whose terms and
conditions of employment are not substantially reduced during the
period of the job order. In determining whether the standard is met,
the employer may take credit for any hours that were reduced because
the employee voluntarily chose not to work due to personal reasons such
as illness or vacation; and (2) those employees who are covered by a
collective bargaining agreement or individual employment contract that
guarantees an offer of at least 35 hours of work each week and
continued employment with the H-2B employer through at least the period
of the job order, except that the employee may be dismissed for cause.
Significantly, the Final Rule retains in the definition the
requirement that "to qualify as corresponding employment, the work
must be performed during the period of the job order, including any
approved extension thereof." Any work performed by U.S. workers
outside the specific period of the job order does not qualify as
corresponding employment. Accordingly, the Final Rule does not require
employers to offer their U.S. workers (part-time or full-time workers)
corresponding employment protections outside of the period of the job
order. If, for example, a U.S. worker works year-round and is in
corresponding employment with the H-2B workers during the period of the
job order, the employer must provide corresponding employment
protections during the time period of the job order but may choose not
to do so during the time period outside of the job order.
There were many comments related to the proposed protections for
workers in corresponding employment. Employee advocates, unions, and a
member of Congress strongly endorsed the proposed provision, stating
that it was essential to ensuring that the employment of H-2B workers
does not adversely affect the wages, benefits, and working conditions
of similarly employed domestic workers. They emphasized that it is
important for corresponding workers to receive not just the prevailing
wage, but all the other assurances and benefits offered to H-2B
workers, such as transportation, the three-fourths guarantee, and full-
time employment, in order to place U.S. workers on at least the same
footing as foreign workers. These commenters noted that the principle
that there should be no preference for foreign workers is fundamental
to the INA, and that a corresponding employment requirement prohibits
employer practices that would hurt the employment prospects of U.S.
workers. They also emphasized that the proposed rule's assurance of
equal protection was a significant improvement for domestic workers who
have, in the past, been bypassed in favor of foreign workers. Thus,
they stated that this protection is necessary to provide a meaningful
test of whether there are U.S. workers available for employment. The
employee advocates also stated that the proposed definition's
broadening of the requirement to protect incumbent employees, rather
than just those newly hired in response to the H-2B recruitment, is
important because many employers employ some U.S. workers on a year-
round basis, and they should not be employed alongside H-2B workers who
receive greater pay, benefits, and protections. Similarly, an employee
advocate specifically commended the proposed rule's coverage of
situations where employers place H-2B workers in occupations and/or job
sites outside the scope of the labor certification, which the commenter
stated happens regularly. Thus, it asserted that protecting U.S.
workers (including incumbent workers)
[[Page 10046]]
who are performing the same work as the H-2B workers is necessary to
ensure that U.S. workers are not adversely affected by the presence of
H-2B workers in the labor market. Finally, one union stated that this
additional protection for U.S. workers would also protect H-2B workers,
because U.S. workers would be empowered to assist in policing
unscrupulous H-2B employers.
Employers, on the other hand, generally opposed the extension of
protections to workers in corresponding employment. Some stated that
they could not afford to provide the same terms and conditions of
employment to corresponding workers, including paying the prevailing
wage and guaranteeing three-fourths of the hours. For example, a golf
course association stated that it would be financially impossible to
provide the same wages and benefits to summer high school and college
laborers as it provided to H-2B workers performing the same manual
labor. Others stated that paying the prevailing wage to corresponding
workers would not be problematic, but that they wanted to be able to
continue to reward long-tenured employees (foreign or U.S.) or more
skilled staff with higher pay than new workers, such as by providing a
pay increase based upon years of service.
It appeared there was confusion about the impact of the
corresponding employment requirement. Employers expressed concern
because they have overlap in the job duties of various positions, with
supervisors performing some of the same tasks as the workers they
supervise. They believed that, if there is some slight nexus between
what an H-2B workers does and what a higher-paid year-round worker
does, the employer would have to pay all workers the higher wage. They
stated that this requirement would compel changes to management
techniques and eliminate or greatly reduce employers' flexibility to
have employees perform whatever task is necessary to complete their
work, thereby harming productivity. Employer representatives stated
that the definition is so broadly worded ("any" work included in the
job order or "any" work performed by the H-2B workers) that it would
cover the entire workforce of many businesses. One firm gave the
example of a large resort with roughly 2000 employees where senior
management (including the resident manager, the director of food and
beverage, and even the finance manager) clean rooms on a busy day;
supervisors carry guests' luggage; managers in the restaurant clear
tables; and managers on the golf course pick up trash or cut the grass.
The firm wondered what the H-2B workers should be paid in this case and
whether every employee is a corresponding employee who would be
entitled to the three-fourths guarantee. Other employers assumed that
their laborers would have to be compensated at the same rate as a
supervisor if the supervisor occasionally performed some of their same
tasks, such as mowing, because of a weather event, large golf
tournament, or shortage of staff due to illness. An employer
association stated that employers, such as restaurants, needed the
flexibility to have a waitress serve as a cashier or hostess, or to
have a dishwasher assist with food preparation or cooking, in order to
get the work done and keep employees working throughout the day.
Therefore, some employer representatives suggested that the rule
should limit the definition to work in the occupation listed in the job
order. They stated this would avoid a situation where all U.S. workers
who dig holes and plant bushes would be viewed as corresponding
employees if the H-2B job order was for a supervisory landscaper with
knowledge of irrigation systems and plant species but the supervisor
occasionally helped to dig or plant. These commenters also suggested
that the Department limit the rule's scope to those U.S. workers who
are newly hired by the employer on or after the beginning of the job
order period, rather than extending it to workers employed prior to the
employment of H-2B workers. Some employer commenters suggested that the
Department delete the word "any" from before the word "work." Other
commenters questioned whether the Department has the legal authority to
impose the requirement.
After carefully considering all of these comments, the Department
has decided to modify the definition of corresponding employment to
delete the word "any" from before "work" in two places and insert
the words "substantially the same," and to exclude two categories of
incumbent employees: (1) Those who have worked in the relevant job
continuously for the H-2B employer for at least the prior 52 weeks,
have averaged at least 35 hours of work or pay over those 52 weeks and
have received at least 35 hours of work or pay in at least 48 of the 52
weeks, as demonstrated by the employer's payroll records and whose
terms and conditions of employment are not substantially reduced during
the job order period (an employer may take credit for those hours that
were reduced due to an employee's voluntary leave); and (2) those who
are covered by a collective bargaining agreement or individual
employment contract that guarantees at least 35 hours of work each week
and continued employment with the H-2B employer at least through the
end of the job order period. Incumbent employees who fall within one of
these categories may have valuable terms of employment, including job
security and benefits, that neither H-2B workers nor other temporary
workers have. This may account for wage differentials between these
incumbents and those who are entitled to the H-2B prevailing wage, as
well as other differences in terms and conditions of employment.
The Final Rule continues to include other workers within the
definition of corresponding employment as proposed in order to fulfill
the DHS regulatory requirement that an H-2B Petition will not be
approved unless the Secretary certifies that the employment of the
alien will not adversely affect the wages and working conditions of
similarly employed U.S. workers. 8 CFR 214.2(h)(6). As the NPRM
explained, Congress has long intended that similarly employed U.S.
workers should not be treated less favorably than temporary foreign
workers. For example, a 1980 Senate Judiciary Report on Temporary
Worker Programs stated that U.S. employers were required to offer
domestic workers wages equal to foreign workers as a prerequisite for
labor certification. See Congressional Research Service: "Report to
the Senate Committee on the Judiciary: Temporary Worker Programs:
Background and Issues, 53 (1980)"; see also H.R. Rep. No. 99-682, pt.
1 at 80 (1986) ("The essential feature of the H-2 program has been and
would continue to be the requirement that efforts be made to find
domestic workers before admitting workers from abroad. A corollary
rule, again preserved in the bill, is that the importation of foreign
workers will not be allowed if it would adversely affect the wages and
working conditions of domestic workers similarly employed"). Current
Sec. 655.22(a) reflects this principle, in part, by requiring that the
terms and conditions of offered employment cannot be less favorable
than those offered to H-2B workers. Thus, the current regulation
provides for equal treatment of workers newly hired during the current
10-day H-2B recruitment process.
The current regulation, however, does not protect U.S. workers who
engage in similar work performed by H-2B workers during the validity
period of the job order, because it does not protect any incumbent
employees. Therefore, for example, a U.S. employee hired three months
previously performing the
[[Page 10047]]
same work as the work requested in the job order, but earning less than
the advertised wage, would be required to quit the current employment
and re-apply for the same job with the same employer to obtain the
higher wage rate offered to H-2B workers. This would be disruptive for
the employer and could create an additional administrative burden for
the SWAs with respect to any workers being referred through them. It
also puts too high a premium on employees understanding their rights
under the regulations, and feeling secure enough--rare in low-wage
employment--to quit a job with the expectation of being immediately
rehired. Therefore, the Final Rule does not require incumbent employees
to jump through this unnecessary hoop; U.S. workers generally would be
entitled to the wage rates paid to H-2B employees without having to
quit their jobs and be rehired.
There are only two categories of incumbent U.S. employees who would
be excluded from the definition of corresponding employment. The first
category covers those incumbents who have been continuously employed by
the H-2B employer for at least the 52 weeks prior to the date of need,
who have averaged at least 35 hours of work or pay over those 52 weeks,
and who have worked or been paid for at least 35 hours in at least 48
of the 52 weeks, and whose terms and conditions of employment are not
substantially reduced during the period of the job order. The employer
may take credit for any hours that were reduced because the employee
voluntarily chose for personal reasons not to work hours that the
employer offered, such as due to illness or vacation. Thus, for
example, assume an employee took six weeks of unpaid leave due to
illness, and the employer offered the employee 40 hours of work each of
those weeks. In that situation, the employer could take credit for all
those hours in determining the employee's average number of hours
worked in the prior year and could take credit for each of those six
weeks in determining whether it provided at least 35 hours of work or
pay in 48 of the prior 52 weeks. Similarly, if the employer provided a
paid day off for Thanksgiving and an employee worked the other 32 hours
in that workweek, the employer would be able to take credit for all 40
hours when computing the average number of hours worked and count that
week toward the required 48 weeks. In contrast, assume another
situation where the employer offered the employee only 15 hours of work
during each of three weeks, and the employee did not work any of those
hours. The employer could only take credit for the hours actually
offered when computing the average number of hours worked or paid
during the prior 52 weeks, and it would not be able to count those
three weeks when determining whether it provided at least 35 hours of
work or pay for the required 48 weeks.
The second category of incumbent workers excluded from the
definition of corresponding employment includes those covered by a
collective bargaining agreement or individual employment contract that
guarantees both an offer of at least 35 hours of work each week and
continued employment with the H-2B employer at least through the period
of the job order (except that the employee may be dismissed for cause).
As noted above, incumbent employees in the first category are year-
round employees who began working for the employer before the employer
took the first step in the H-2B process by filing an Application for
Temporary Employment Certification. They work 35 hours per week for the
employer, even during its slow season. The Department recognizes that
there may be some weeks when, due to personal factors such as illness
or vacation, the employee does not work 35 hours. The employer may
still treat such a week as a week when the employee worked 35 hours for
purposes of the corresponding employment definition, so long as the
employer offered at least 35 hours of work and the employee voluntarily
declined to work, as demonstrated by the employer's payroll records.
Thus, these workers have valuable job security that H-2B workers and
those hired during the recruitment period or the period of the job
order lack. Such full-time, year-round employees may have other
valuable benefits as well, such as health insurance or paid time off.
Similarly, employees covered by a collective bargaining agreement or an
individual employment contract with a guaranteed weekly number of hours
and just cause provisions also have valuable job security; they may
also have benefits beyond those guarantees provided by the H-2B
program. These valuable terms and conditions of employment may account
for any difference in wages between what they receive and what H-2B
workers receive. Therefore, these U.S. workers are excluded from
corresponding employment only if they continue to be employed full-time
at substantially the same terms and conditions throughout the period
covered by the job order, except that they may be dismissed for cause.
The Final Rule's inclusion of other workers within the definition
of corresponding employment is important because the current regulation
does not protect U.S. workers in the situation where an H-2B employer
places H-2B workers in occupations and/or at job sites outside the
scope of the labor certification, in violation of the regulations. For
example, if an employer submits an application for workers to serve as
landscape laborers, but then assigns the H-2B workers to serve as
bricklayers constructing decorative landscaping walls, the employer has
bypassed many of the H-2B program's protections for U.S. workers. The
employer has deprived them of their right to protections such as
domestic recruitment requirements, the right to be employed if
available and qualified, and the prevailing wage requirement. The Final
Rule guards against this abuse of the system and protects the integrity
of the H-2B process by ensuring that the corresponding U.S. workers
employed as bricklayers receive the prevailing wage for that work.
The current regulation also does not protect U.S. workers if the
employer places H-2B workers at job sites outside the scope of the
labor certification. For example, an employer may submit an application
for workers to serve as landscape laborers in a rural county in
southern Illinois, but instead assign its H-2B workers to work as
landscape laborers in the Chicago area. Because the employer did not
fulfill its recruitment obligations in Chicago, U.S. workers were not
aware of the job opportunity, they could not apply and take advantage
of their priority hiring right, and the prevailing wage assigned was
not the correct rate for Chicago. Such a violation of the employer's
attestations results both in the absence of a meaningful test of the
labor market for available U.S. workers and U.S. workers being
adversely affected by the presence of the underpaid H-2B workers. The
Final Rule's definition of corresponding employment ensures that the
employer's incumbent landscape laborers who work where the H-2B workers
actually are assigned to work will receive the appropriate prevailing
wage rate; paying the proper wage to such workers is necessary to
protect against possible adverse effects on U.S. workers due to wage
depression from the introduction of foreign workers. Therefore,
adoption of the definition of corresponding employment in the Final
Rule is necessary to allow the Department to fulfill its mandate from
DHS to provide labor certifications only in appropriate circumstances.
[[Page 10048]]
On the other hand, it is important to clarify that the
corresponding employment requirement does not apply in the way that a
number of employer commenters feared it would apply. Employers
expressed concern that, if a supervisor or manager picked up a piece of
trash on a golf course, planted a tree, or cleared a dining room table
(the duties of its H-2B workers), all its employees who performed such
work would be entitled to the higher wage rate paid to the supervisor.
This concern is misplaced because this is not what the definition of
corresponding employment requires. Under the Final Rule, a U.S.
employee who performs work that is either within the H-2B job order or
work actually performed by H-2B workers is entitled to be paid at least
the H-2B required wage for that work. However, as the employer
commenters recognized, the supervisor already is earning more than the
H-2B workers. The corresponding employment requirement does not impose
obligations in the opposite direction. Thus it does not, for example,
require an employer to bump up the wages it pays to its landscape
laborers to the supervisor's wage rate simply because the supervisor
performed some of their landscaping laborer duties. Of course, if the
H-2B certification was for a landscaping supervisor, and one of its
laborers actually worked as a supervisor (perhaps because the
supervisor was away on vacation for a week or was out sick for a day or
two), then that laborer would be entitled to the H-2B prevailing
supervisory rate for those hours actually worked as a supervisor. The
laborer would not be entitled to the supervisory wage rate on an
ongoing basis after the worker has returned to performing laborer
duties.
Employers also expressed concern about how the corresponding
employment provision would affect their flexibility in assigning
workers different tasks. It is the employer's obligation to state
accurately on the Application for Temporary Employment Certification
the job duties that their H-2B workers will perform and to comply with
the terms of their labor certifications by limiting the H-2B workers to
those duties. This will maximize the employers' flexibility with regard
to their U.S. employees. For example, if a restaurant receives a labor
certification based on its temporary need for dishwashers, and it
limits its H-2B employees to such duties, the restaurant may freely
assign any of its U.S. workers to other jobs as needed, such as
cashiers, servers and cooks. If the restaurant had previously used both
its H-2B and U.S. workers interchangeably in various jobs, it must plan
more carefully in the future in order to comply with the terms of its
certification.
Nevertheless, in order to address employer concerns that the
proposed definition of corresponding employment ("any work included in
the job order" or "any work performed by the H-2B workers") was so
broadly worded that it would encompass the entire workforce of a
company, the Final Rule deletes the word "any" in both places and
uses the term "substantially the same" instead. The Department did
not intend for the word "any" to indicate that occasional or
insignificant instances of overlapping job duties would transform a
U.S. worker employed in one job into someone in corresponding
employment with an H-2B worker employed in another job. The following
explanation is intended to provide clarity regarding when work is
substantially the same that it should be considered corresponding
employment. We note that the Wage and Hour Division has considerable
enforcement experience under a number of statutes in determining the
extent to which employees who are assigned to one type of work actually
perform other types of work and that employers are generally familiar
with these analyses.
Where the U.S. worker is performing "either substantially the same
work included in the job order or substantially the same work performed
by the H-2B workers * * * during the period of the job order, including
an approved extension thereof," the U.S. worker is in corresponding
employment and entitled to the H-2B prevailing wage if it is higher
than the worker currently receives. This includes situations where the
U.S. worker performs the same job as the H-2B worker as well as those
situations where the U.S. worker regularly performs a significant
number of the duties of the H-2B worker for extended periods of time,
because that worker's job is substantially the same as the H-2B
worker's job. The U.S. worker in both situations is in corresponding
employment and thus entitled to the higher H-2B prevailing wage.
Because the definition of corresponding employment also applies to
"work performed by H-2B workers," it is important to note that
corresponding employment can also arise where H-2B worker is assigned
to perform a job that significantly deviates from the job order;
effectively making the H-2B worker perform a different job than was
stated in the labor certification. If this violation causes the H-2B
worker to regularly perform a job for extended periods of time that
U.S. workers perform, then the U.S. workers performing the same job are
in corresponding employment. If the prevailing wage for that job is
higher than the wages the U.S. workers earn, then the U.S. workers are
entitled to the higher wage.
An issue of corresponding employment will arise if the employer
assigns the H-2B worker to work at a different worksite(s) or place(s)
of employment than the worksite(s) or place(s) of employment listed in
the certified application. U.S. workers at the new, non-certified
location may be performing the same or substantially the same job as
the H-2B worker. Deviating from the labor certification in this manner
and moving an H-2B worker to the non-certified place of employment will
cause the U.S. workers who perform the same work to be deemed to be in
corresponding employment. They will be entitled to the H-2B prevailing
wage if it is higher than what they currently earn.
Finally, employers expressed their interest in continuing to reward
their experienced employees with higher wage rates than those paid to
new workers. The H-2B program does not prohibit such higher wage rates
for an employer's experienced employees. Of course, an employer must
offer at least the same terms and conditions of employment to its U.S.
workers in corresponding employment as it offers, plans to offer, or
will provide to its H-2B workers. So if an employer rewards an H-2B
worker with extra pay and/or benefits based on the H-2B employee's
previous work experience, the employer must offer and provide at least
the same extra pay and/or benefits to U.S. workers in corresponding
employment with same or similar level of previous work experience.
Employers can and should indicate the additional pay amounts based upon
years of experience on any Application for Temporary Employment
Certification, and properly advertise and recruit for those positions.
c. Full-time. The Department proposed to change the definition of
full-time from 30 or more hours of work per workweek to 35 or more
hours of work per week. This proposal was precipitated by the District
Court's decision in CATA v. Solis, 2010 WL 3431761 (E.D. Pa. 2010),
invalidating the 2008 Final Rule's 30-hour definition. The Department
stated in its NPRM that a 35-hour workweek was more reflective of
empirical data, was consistent with other temporary work programs, and
would comport with H-2B employment relationships that the
[[Page 10049]]
Department has encountered during its limited enforcement experience.
In addition, the Department solicited comment for an alternative
definition of 40 hours, noting that the December 2010 Bureau of Labor
Statistics (BLS) Current Population Survey (CPS) found that the average
workweek for employees who consider themselves full-time was 42.4 hours
per week.\5\
---------------------------------------------------------------------------
\5\ Bureau of Labor Statistics, Labor Force Statistics, Table A-
24; Persons at work in agriculture and related nonagricultural
industries by hours of work, Dec. 2010.
https://www.bls.gov/web/empsit/cpseea24.htm.
---------------------------------------------------------------------------
Several trade associations and private businesses supported
retaining the 2008 Final Rule's standard of 30 hours per workweek,
citing the difficulties of scheduling work around unpredictable and
uncontrollable events, particularly the weather. A number of those
commenters suggested that full-time employment should be determined not
in each individual workweek, but by averaging workweeks over the length
of the certified employment period. Two trade associations and a
private business claimed that increasing full-time to 35 hours per
workweek would decrease employer flexibility and/or increase costs.
Comments from several trade associations and a professional association
stated that a 35-hour workweek would be burdensome in combination with
other aspects of the proposed rule, particularly the three-quarter
guarantee. Finally, one private business commented that the definition
of full-time should be determined by industry standards.
A private business, a private citizen, a research institute, two
unions, and a number of worker advocacy groups commented that a
definition of full-time as 40 hours per workweek is preferable to 35,
arguing that the higher standard is more representative of typical
full-time jobs. Several of these commenters referred to the CPS
findings cited by the Department. Two H-2B worker advocacy groups
asserted their experience indicated that long hours are standard in
many industries employing H-2B workers and, therefore, a 40-hour
definition would be more representative of H-2B job opportunities.
Another union and a research institute, in their support of a 40-hour
standard, noted that the H-1B visa program also defines full-time as 40
hours per workweek. Finally, a private business, a union, a research
organization, and two advocacy organizations argued that establishing a
40-hour standard is more protective of U.S. workers than a 35-hour
standard, as more U.S. workers are likely to consider jobs that offer
40 hours of work. One union suggested changing the definition to 37.5
hours per workweek, arguing that this was a common measure.
In accord with the District Court's decision in CATA v. Solis, the
Department has continued to carefully consider relevant factors in
determining the hours threshold for full-time, including national labor
market statistics, empirical evidence from a random sample of approved
applications, and other employment laws. All available evidence
suggests that the existing definition of 30 hours or more per workweek
is not an accurate reflection of full-time employment. According to the
ay 2011 Employment Situation report published by BLS, the average
number of hours worked per week for employees who consider themselves
full-time was 42.7.\6\ Another BLS publication, the Current Population
Survey, uses a 35-hour threshold to define full-time employment.
Employer practices also strongly suggest that the existing definition
of 30 hours is not reflective of actual employer practices: in a
randomly selected sample of 200 Applications that the Department
certified or partially certified in 2009 and 2010, more than 99 percent
reflected workweeks of at least 35 hours. This finding is consistent
with the Department's enforcement experience: the vast majority of
Applications that are the subject of investigations are certified for
35 or more hours per week. Under another similar nonimmigrant visa
program the Department regulates, H-2A program for agricultural
workers, full-time is defined as 35-hours per week.
---------------------------------------------------------------------------
\6\ Bureau of Labor Statistics, Employment Situation, Table A-
24: Persons at work in agriculture and related and in
nonagricultural industries by hours of work, May 2011.
https://www.bls.gov/web/empsit/cpseea24.htm.
---------------------------------------------------------------------------
The Department recognizes that there is no universally-accepted
definition of full-time employment and, without such a standard, must
determine a reasonable floor of hours per week below which a job is not
considered full-time and therefore ineligible for inclusion in the H-2B
program. After careful consideration, the Department has decided to
retain the proposed definition of at least 35 hours per week, which
more accurately reflects full-time employment expectations than the
current 30-hour definition, will not compromise worker protections, and
is consistent with other existing Department standards and practices in
the industries that currently use the H-2B program to obtain workers.
Though a 40-hour threshold, as some commenters pointed out, would
be more consistent with the BLS-reported average of workweek of nearly
43 hours, an average level, by definition, accounts for both higher and
lower values. The average includes, for example, hours worked by exempt
managerial and professional employees who are not entitled to overtime
and who tend to work longer hours. The Department observes that it is
entirely likely that the average calculation includes employment
relationships in which both the employer and the workers consider full-
time to be 35 hours of work per week. This assertion is borne out by
some Applications for Temporary Employment Certification currently
being filed with ETA that request such a weekly schedule.
The Department's decision to define full-time as 35 or more hours
does not conflict with worker advocacy groups' claims that many H-2B
jobs require 40 or more hours per week. The 35-hour floor simply allows
employers access to the H-2B program for a relatively small number of
full-time jobs that would not have been eligible under a 40-hour
standard. H-2B employers are and will remain required to accurately
represent the actual number of hours per week associated with the job,
recruit U.S. workers on the basis of those hours, and pay for all hours
of work. Therefore, the employer is obligated to disclose and offer
those hours of employment--whether 35, 40 or 45, or more--that
accurately reflect the job being certified. Failure to do so could
result in a finding of violation of these regulations.
d. Job contractor. We proposed to amend the definition of job
contractor to resolve concerns raised by the U.S. District Court for
the Eastern District of Pennsylvania in CATA v. Solis, 2010 WL 3431761,
about our adoption of language in the 2008 Final Rule that states a job
contractor "will not exercise any supervision or control in the
performance of the services or labor to be performed other than hiring,
paying, and firing the workers." The Court found that our explanation
that we adopted this language to "make clear that the job contractor,
rather than the contractor's client, must control the work of the
individual employee," 73 FR 78020, 78024, Dec. 19, 2008, "did
precisely the opposite--it clarified that it is the contractor's client
who 'must control the work of the individual employee.' The explanation
is therefore not rationally connected to the change, which will
accordingly be invalidated as arbitrary." CATA, 2010 WL 3431761 at
*16.
The proposed definition of job contractor included the phrase
"will not exercise substantial, direct day-to-day supervision or
control." This addition further clarified that an entity exercising
[[Page 10050]]
some limited degree of supervision or control over the H-2B workers
would still be considered a job contractor, while an entity exercising
substantial, direct day-to-day supervision or control over the H-2B
workers would not be considered a job contractor. For the reasons
stated below, we have decided to amend the definition as proposed to
include the phrase supervision and control rather than supervision or
control.
While some commenters contended that the CATA decision was flawed
and urged us to use existing enforcement mechanisms rather than change
the definition, other commenters welcomed the additional language
clarifying that an employer exercising substantial, daily supervision
and control would not be considered a job contractor. A specialty bar
association suggested that since an employer's status as a job
contractor determines an employer's eligibility to use the H-2B program
under the NPRM, we should provide more concrete examples of employers
that we would or would not consider to be job contractors.
While we appreciate the bar association's suggestion, given the
infinite variety of business arrangements employers can make with other
employers for the provision of labor or services, it is impossible to
provide a definitive list of types of employers that would or would not
be deemed job contractors. However, the following examples may be
instructive for illustrating the differences between an employer that
is a job contractor and an employer that is not. Employer A is a
temporary clerical staffing company. It sends several of its employees
to Acme Corporation to answer phones and make copies for a week. While
Employer A has hired these employees and will be issuing paychecks to
these employees for the time worked at Acme Corporation, Employer A
will not exercise substantial, direct day-to-day supervision and
control over its employees during their performance of services at Acme
Corporation. Rather, Acme Corporation will direct and supervise the
Employer A's employees during that week. Under this particular set of
facts, Employer A would be considered a job contractor. By contrast,
Employer B is a landscaping company. It sends several of its employees
to Acme Corporation once a week to do mowing, weeding, and trimming
around the Acme campus. Among the employees that Employer B sends to
Acme Corporation are several landscape laborers and one supervisor. The
supervisor instructs and supervises the laborers as to the tasks to be
performed on the Acme campus. Under this particular set of facts,
Employer B would not be considered a job contractor. Note that the
provision of services under a contract alone does not render an
employer a job contractor; rather, each employment situation must be
evaluated individually to determine the nature of the employer-employee
relationship and accordingly, whether the petitioning employer is in
fact a job contractor.
We believe that our discussion of reforestation employers in the
NPRM also may help to further clarify the definition of job contractor.
As described in the NPRM, a typical reforestation employer, such as
those who have historically used the H-2B program, performs contract
work using crews of workers subject to the employer's on-site, day-to-
day supervision and control. Such an employer, whose relationship with
its employees involves substantial, direct, on-site, day-to-day
supervision and control would not be considered a job contractor under
this Final Rule. However, if a reforestation employer were to send its
workers to another company to work on that company's crew and did not
provide substantial, direct, on-site, day-to-day supervision and
control of the workers, that employer would be considered a job
contractor under this Final Rule.
Some commenters asserted that a job contractor's degree of
supervision does not change the fact that its need for workers is
permanent. These commenters appear to misunderstand our objective in
proposing to prohibit job contractors from participating in the H-2B
program. The NPRM created an irrebuttable presumption that a job
contractor's need for workers is inherently permanent. The
implementation of that determination necessitates that we create a
definition of job contractor. Only after a job contractor is identified
through the definition can we conclude that the entity's need is
permanent.
One commenter asserted that the language "where the job contractor
will not exercise substantial, direct day-to-day supervision or control
in the performance of the services or labor to be performed other than
hiring, paying and firing the workers" created a loophole for job
contractors to artificially increase their level of supervision in
order to avoid being labeled job contractors. Another commenter was
concerned that an employer performing contracts on a year-round basis
with on-site supervised crews would avoid being designated a job
contractor based on its level of supervision. Both suggested removing
the supervision or control language from the definition. While we are
concerned about job contractors artificially changing their business
model to circumvent a job contractor designation, we believe that the
permanency of such an employer's need will be evident and addressed
during the registration and application processes. Moreover, we believe
that retaining the supervision and control language in the definition
is essential to continuing to provide access to employers with
legitimate temporary needs who perform contracts for services (e.g.
reforestation or landscaping). Therefore, we will not alter the
definition of job contractor in such a way as to bar all employers that
perform contracts for services.
A specialty bar association contended that the phrase
"substantial, direct day-to-day supervision or control" is ambiguous
and will lead to confusion and uncertainty. The commenter asserted that
the word "or" could lead to proof of either supervision or control
enabling an employer to avoid designation as a job contractor and
suggested that the word substantial adds to interpretive difficulty.
Contrary to the commenter's reading, we intended supervision or control
to prevent an employer which did not exercise both supervision and
control from avoiding designation as a job contractor. In order to
resolve this ambiguity, we have changed "or" to "and" in the Final
Rule. We believe the use of the word substantial is important because
some job contractors do exercise minimal levels of supervision and
control, for example, by sending a foreman to check that a crew is
working. We have retained the rest of the definition without change
because, as discussed above, we believe the language is essential to
distinguishing between employers who perform contracts for services and
employers who fill staffing contracts. The Final Rule now states that
job contractors do not exercise substantial, direct day-to-day
supervision and control in the performance of the services or labor to
be performed other than hiring, paying and firing the workers.
e. Other definitions. As discussed under Sec. 655.6, we have
decided to permit job contractors to participate in H-2B program where
they can demonstrate their own temporary need, not that of their
clients. The particular procedures and requirements that govern their
participation are set forth in Sec. 655.19 and provide in greater
detail the responsibilities of the job contractors and their clients.
Accordingly, we are adding a definition
[[Page 10051]]
of employer-client to this Final Rule to define the characteristics of
the employer that is served by the job contractor and the nature of
their relationship.
We also proposed to define several terms not previously defined in
the 2008 Final Rule, including job offer and job order. We proposed
definitions for job offer and job order to ensure that employers
understand the difference between the offer that is made to workers,
which must contain all the material terms and conditions of the job,
and the order that is the published document used by SWAs in the
dissemination of the job opportunity. In response to comments about the
definitions of job offer and job order, we have retained the definition
of job offer without change but have revised the definition of job
order to indicate that it must include some, but not all, of the
material terms and conditions of employment as reflected in modified
Sec. 655.18 which identifies the minimum content required for job
orders.
Some commenters expressed concern that both the definition of job
offer and the definition of job order require the employer to include
all material terms and conditions for the job opportunity. The
commenters contended that since employment contracts typically
incorporate employee handbooks and other documents by reference, it
would be difficult, if not impossible, to draft a document that
contains all material terms and conditions. In addition, the commenters
argued that including such extensive content would infringe on an
employer's legitimate business interest in maintaining the
confidentiality of employment terms and subject employers to exorbitant
fees when the document was used in mandatory advertising. We agree that
including all material terms and conditions for the job opportunity in
the job order and advertising would be difficult, if not impossible, as
well as a dramatic departure from how employers hire for these
positions. Accordingly, we have amended the definition of job order so
that it now reads "[t]he document containing the material terms and
conditions of employment * * *" rather than "[t]he document
containing all the material terms and conditions of employment * * *"
and "including obligations and assurances under 29 CFR part 503 * *
*" and we have amended Sec. 655.18 to reflect the minimum content
requirements for job orders. We also removed the phrase "on their
inter- and intra-State job clearance systems" as unnecessary. The
definition of job offer remains unchanged and requires an employer's
job offer to contain all material terms and conditions of employment.
We also proposed revising the definition of strike so that the term
is defined more consistently with our 2010 H-2A regulations. We are
retaining the proposed definition without change. Some worker advocacy
organizations supported the revised definition, appreciating that the
definition recognizes a broad range of protected concerted activity and
clearly notifies employers and workers of their obligations when
workers engage in these protected activities. Other commenters,
representing employer concerns, opposed the revised definition, finding
it too broad. These commenters contended that the proposed definition
includes minor disagreements not rising to the level of what the
commenters or prior regulatory language would consider a strike and
that the definition covered an employer's local workforce, rather than
just the H-2B position. Some commenters requested a return to the
language of the 2008 Final Rule, arguing that the proposed definition
rejects our longstanding position limiting the admission of H-2B
workers where the specific job opportunity is vacant because the
incumbent is on strike or being locked out in the course of a labor
dispute. These commenters were concerned that two workers could claim
to have a dispute and, thereby, prevent the employer from using the
program.
Given our desire to align the definition of strike in this Final
Rule with the definition in the 2010 H-2A regulations, we have decided
to retain the definition as proposed. As we explained in the preamble
to the 2010 H-2A Final Rule at 75 FR 6884, Feb. 12, 2010, we believe
narrowing the provision as recommended by commenters would
unjustifiably limit the freedom of workers to engage in concerted
activity during a labor dispute.
6. Sec. 655.6 Temporary Need
We proposed to interpret temporary need in accordance with the DHS
definition of that term and of our experience in the H-2B program. The
DHS regulations define temporary need as a need for a limited period of
time, where the employer must "establish that the need for the
employee will end in the near, definable future." 8 CFR.
214.2(h)(6)(ii)(B). The Final Rule, as discussed in further detail
below, is consistent with this approach.
Also, consistent with the definition of temporary need, we proposed
to exclude job contractors from participation in the H-2B program, in
that they have an ongoing business of supplying workers to other
entities, even if the receiving entity's need for the services is
temporary. The proposal was based on our view that a job contractor's
ongoing need is by its very nature permanent rather than temporary and
therefore the job contractor does not qualify to participate in the
program. As discussed below, we have revised the proposed provisions in
the Final Rule.
a. Job Contractors. We received a number of comments on our
proposal to eliminate job contractors from the H-2B program. We
received some comments related to the definition of job contractor and
how we will identify a job contractor. Those comments related to the
definition of job contractor rather than the nature of a job
contractor's need. Specifically, commenters from the reforestation
industry expressed concerns over being classified as job contractors.
These comments are addressed in the discussion of Sec. 655.5.
A number of commenters expressed support for the elimination of job
contractors, agreeing that job contractors' need is permanent and that
the job openings are actually with a job contractor's employer-client,
rather than with the job contractor. A worker advocacy organization
asserted that the proposed approach, ensuring that the program is
reserved for temporary job openings and excluding job contractors whose
need is inherently permanent, was consistent with Congressional intent
with respect to the program. One commenter expressed support for the
changes in the proposed rule which reflected the court's ruling in CATA
v. Solis and which prohibited job contractors from filing in the
program if their clients did not also submit an application to the
Department.
Other commenters generally supported the elimination of job
contractors from the program as a way of protecting workers from
trafficking and forced labor. One commenter also asserted that the
elimination of job contractors will prevent circumstances where the H-
2B workers are left without sufficient work or pay while in the job
contractor's employ and where H-2B workers, who may be willing to work
for less pay or in worse conditions, compete with similarly situated
U.S. workers.
Another commenter offered support for the prohibition on job
contractors due to the difficulty in holding them accountable for
program violations, either because they disappear at the threat of
litigation or because they have so little money that they are judgment-
proof when they violate employment and labor laws. This commenter
[[Page 10052]]
reasoned that the job contractors act as a shield for the employers who
actually employ the workers and indicated that the proposed change to
the regulations would stem violations of laws by both contractors and
the employers who work in concert with them.
On the other hand, one commenter asserted that the bar on job
contractors should not be complete because to the extent that any one
job contractor does not have a year-round need and routinely does not
employ workers in a particular occupation for a specific segment of the
year, its needs are seasonal. This commenter argued that the standard
for rejection from the H-2B program should be definitively permanent,
not potentially permanent, with respect to whether or not a job
contractor's need is permanent. Job contractors should be afforded the
same opportunity as all other employers to prove they have a temporary
need for services or labor. Relying on Matter of Vito Volpe, 91-INA-300
(BALCA 1994), this commenter indicated that any need that does not
constitute "permanent full-time work, such as where the occupation is
one where employers have seasonal layoffs each year, the position is
temporary."
As discussed in the NPRM, a person or entity that is a job
contractor, as defined under Sec. 655.5, has no individual need for
workers. Rather, its need is based on the underlying need of its
employer-clients, some which may be concurrent and/or consecutive.
However, we recognize the validity of the concern raised by the
commenter that we should exclude from the program only those who have a
definitively permanent need for workers, and that job contractors who
only operate several months out of the year and thus have a genuine
temporary need should not be excluded. Therefore, we are revising Sec.
655.6 to permit only those contractors that demonstrate their own
temporary need, not that of their employer-clients, to continue to
participate in the H-2B program. Job contractors will only be permitted
to file applications based on seasonal need or a one-time occurrence.
In other words, in order to participate in the H-2B program, a job
contractor would have to demonstrate, just as all employers seeking H-
2B workers based on seasonal need have always been required: (1) If
based on a seasonal need that the services or labor that it provides
are traditionally tied to a season of the year, by an event or pattern
and is of a recurring nature; or (2) if based on a one-time occurrence,
that the employer has not employed workers to perform the services or
labor in the past and will not need workers to perform the services in
the future or that it has an employment situation that is otherwise
permanent, but a temporary event of short duration has created the need
for a temporary worker.
For a job contractor with a seasonal need, the job contractor must
specify the period(s) or time during each year in which it does not
provide any services or labor. The employment is not seasonal if the
period during which the services or labor is not provided is
unpredictable or subject to change or is considered a vacation period
for the contractor's permanent employees. For instance, a job
contractor that regularly supplies workers for ski resorts from October
to March but does not supply any workers outside of those months would
have its own temporary need that is seasonal.
Limiting job contractor applications to seasonal need and a one-
time occurrence is appropriate, as it is extremely difficult, if not
impossible, to identify appropriate peakload or intermittent needs for
job contractors with inherently variable client bases. The seminal,
precedent decision in Matter of Artee, 18 I. & N. Dec 366, Interim
Decision 2934, 1982 WL 190706 (Comm'r 1982), established that a
determination of temporary need rests on the nature of the underlying
need for the duties of the position. To the extent that a job
contractor is applying for a temporary labor certification, the job
contractor whose need rests on that of its clients has itself no
independent need for the services or labor to be performed. The Board
of Alien Labor Certification Appeals (BALCA) has further clarified the
definition of temporary need in Matter of Caballero Contracting &
Consulting LLC, 2009-TLN-00015 (Apr. 9, 2009), finding that "the main
point of Artee * * * is that a job contractor cannot use [solely] its
client's needs to define the temporary nature of the job where focusing
solely on the client's needs would misrepresent the reality of the
application." The BALCA, in Matter of Cajun Constructors, Inc. 2009-
TLN-00096 (Oct. 9, 2009), also decided that an employer that by the
nature of its business works on a project until completion and then
moves on to another has a permanent rather than a temporary need.
The limited circumstances under which job contractors may continue
to participate in the H-2B program would still be subject to the
limitations provided in the CATA decision, which resulted in the
Department no longer being able to accept H-2B labor certification
applications from job contractors if the job contractor's employer-
clients also did not submit labor certification applications. Section
655.19 sets forth the procedures and requirements governing the filing
of applications by job contractors.
The Department understands that in some cases the use of a job
contractor may be advantageous to employers. However, the advantages
provided to employers by using job contractors do not overcome the fact
that many job opportunities with job contractors are inherently
permanent and therefore such job contractors are not permitted to
participate in the program. We recognize that by taking this position
the result may be that some employers who have been clients of such job
contractors, and who have not previously participated in the program,
may now seek to do so. In the proposed rule, the Department encouraged
employers to submit information about their changed circumstances as a
result of the proposal to bar job contractors from the program,
including the potential costs and savings that may result. The
Department did not receive any comments from employers describing or
quantifying the cost of the elimination of job contractors from the
program to aid in the Department's estimation of the economic impact of
this proposal.
One commenter was concerned that job contractors would get around
this prohibition by representing employers as agents. Agents, by their
role in the program, have no temporary need apart from the underlying
need of the employer on whose behalf they are filing the Application
for Temporary Employment Certification. When considering any employer's
H-2B Registration, the Department will require that employer to
substantiate its temporary need by providing evidence required to
support such a need. The Department does not anticipate an issue with
this type of misclassification.
b. Change in the Duration of Temporary Need. In addition to
proposing to bar job contractors from the H-2B program based on their
underlying permanent need for the employees, we proposed to define
temporary need, except in the event of a one-time occurrence, as 9
months in duration, a decrease from the 10-month limitation under the
2008 Final Rule. As also discussed in the NPRM, this definition is more
restrictive than, yet still consistent with, the DHS definition of
temporary need, in which the "period of time will be 1 year or less,
but in the case of a one-time event could last up to 3 years." 8 CFR
214.2(h)(6)(ii)(B). We
[[Page 10053]]
are adopting this provision in the Final Rule as proposed.
We received a number of comments on this proposal. Most commenters
supported the clarification of the temporary need standard. Two such
commenters recommended a further reduction in the duration of temporary
need to no more than 6 months. In support of their proposal, these
commenters suggested that half a year is a reasonable amount of time
for an employer to have an unskilled temporary foreign worker, because
there are currently millions of unemployed unskilled U.S. workers
seeking employment across the country. These commenters hoped that
shortening the certification periods for H-2B workers will compel
employers to increase recruitment of U.S. workers (because they will
have to recruit more often), which better achieves the statutory
mandate not to use H-2B labor unless "unemployed persons capable of
performing such service or labor cannot be found in this country." 8
U.S.C. 1101(a)(15)(H)(ii)(b).
Other commenters opposed the proposal to change the maximum
duration of temporary need from 10 months to 9 months. One commenter,
who conducted a private survey of H-2B employers, indicated that 32
percent of its respondents indicated that curtailing the temporary work
period to 9 from 10 months will have a severe effect on their bottom
line. The remainder of respondents indicated moderate to no effect.
This commenter indicated that some industries reported greater effects
than others; those primarily concerned over the shorter season
included: Landscaping, seafood processing, ski resorts, summer resorts,
and forestry. As reported by this commenter, for some of these
industries, a shorter season would mean less time for training and
quality control, decreased revenues and loss of permanent full-time
employees. Another commenter concurred that the adoption of a 9-month
limit would have a devastating impact on many types of businesses,
ranging from hospitality and food service to landscaping and numerous
others. This commenter raised concerns about a significant drop in
participation in the program by nearly a third of the businesses
currently using the H-2B program and predicted substantial effects on
the economy, including upstream ripple effects. In contrast to
commenters who called for a yet shorter duration, most of these
commenters agreed that they would not be able to use the H-2B program
if we define a temporary need as less than 9 months.
Another commenter asserted that the standard for temporary need
should be the employer's actual need (up to 1 year, or up to 3 years
for one-time events) and not an arbitrary time period defined by the
Department under the guise of ensuring the integrity of the program.
Supporting the retention of a 10-month standard, this commenter
challenged our reasoning for reducing the duration of seasonal,
peakload, or intermittent need, including referring to the discussion
under the 2008 Final Rule which indicated that a period of need in
excess of 1 year may be justified in certain circumstances. Finally, an
association of employers and temporary workers argued that temporary
need should not be generally quantified because it is industry-specific
and suggested that each employer should be able to argue that its need
is temporary and consistent with the definition of seasonal or
peakload.
DHS categorizes and defines temporary need into four
classifications: seasonal need; peakload need; intermittent need; and
one-time occurrence. A one-time occurrence may be for a period of up to
3 years. The other categories are limited to 1 year or less in
duration. See, generally, 8 CFR 214.2(h)(6)(ii)(B).
We believe that the proposed time period is an appropriate
interpretation of the one year or less limitation contained in the DHS
regulations. Allowing employers to file seasonal, peakload or
intermittent need applications for periods approaching a year (364 days
is less than 1 year) would be inconsistent with the statutory
requirement that H-2B job opportunities need to be temporary. The
closer the period of employment is to one year, the more the
opportunity resembles a permanent position. For instance, it would be
difficult, if not impossible, to distinguish between a permanent job
opportunity and one in which the work begins on March 1st and ends on
February 20th, only to begin again on March 1st. We believe that a
maximum employment period of 9 months definitively establishes the
temporariness of the position, as there is an entire season in which
there is simply no need for the worker(s). Where there are only a few
days or even a month or two for which no work is required, the job
becomes less distinguishable from the permanent position, particularly
one that offers time off due to a slow-down in work activity. Recurring
temporary needs of more than 9 months are, as a practical matter,
permanent positions for which H-2B labor certification is not
appropriate. The current approach that permits temporary certifications
for periods up to 10 months encompasses job opportunities that we
believe are permanent in nature and not consistent with Congressional
intent to limit H-2B visas to employers with temporary or seasonal
needs. However, we recognize that some employers may have a legitimate
temporary need that lasts up to 9 months, and for that reason, we
decline to reduce the duration of temporary need to 6 months. A job
opportunity that does not exist in the winter months would likely be
considered seasonal. We believe that the 9-month limitation that fairly
describes the maximum scope of a seasonal need should also be applied
to peakload need since there is no compelling rationale for creating a
different standard for peakload.
While we recognize the impact that a movement from 10 months, which
had been previously acceptable, to 9 months will have an adverse impact
on some employers, the impact is not relevant to our legal obligation
to protect the wages and working conditions of U.S. workers. The
Department previously relied on the standard articulated in In the
atter of Vito Volpe Landscaping, 91-INA-300, 91-INA-301, 92-INA-170,
91-INA-339, 91-INA-323, 92-INA-11 (Sept. 29, 1994), which stated that a
period of 10 months was not permanent. The Department may adopt through
notice and comment rulemaking a new standard that is within our
obligation to administer the program. See United States v. Storer
Broadcasting, 351 U.S. 192, 203 (1956); Heckler v. Campbell, 461 U.S.
458, 467 (1983). We have determined that 9 months better reflects a
recurring seasonal or temporary need and have accordingly proposed a
new standard which has been adopted in this Final Rule. Recurring
temporary needs of more than 9 months are, as a practical matter,
permanent positions for which H-2B labor certifications are not
appropriate. The majority of H-2B employer applicants will not be
affected by this change. According to H-2B program data for FY 2007-
2009, 68.7 percent of certified and partially certified employer
applicants had a duration of temporary need less than or equal to 9
months, while 31.3 percent of certified or partially certified
applicants had a duration of temporary need greater than 9 months. Many
seasonal businesses experience "shoulder seasons," which are periods
of time at the beginning and end of the season when fewer workers are
needed. Therefore, we anticipate that employers will be able to meet
their labor needs during the short additional period they
[[Page 10054]]
must cover of the shoulder seasons with U.S. workers and, therefore,
will not be impacted by the change from the 10-month standard.
Similarly, we have determined that limiting the duration of
temporary need on a peakload basis would ensure that the employer is
not mischaracterizing a permanent need as one that is temporary. For
example, since temporary need on a peakload basis is not tied to a
season, under the current 10-month standard, an employer may be able to
characterize a permanent need for the services or labor by filing
consecutive applications for workers on a peakload basis. To the extent
that each application does not exceed the 10 months, the 2-month
inactive period may correspond to a temporary reduction in workforce
due to annual vacations or administrative periods. Increasing the
duration of time during which an employer must discontinue operations
from 2 months to 3 will ensure that the use of the program is reserved
for employers with a genuine temporary need. Similarly, a 9-month
limitation is appropriate for ensuring that the employer's intermittent
need is, in fact, temporary. In addition, under the Final Rule, each
employer with an intermittent need will be required to file a separate
H-2B Registration and Application for Temporary Employment
Certification to ensure that any disconnected periods of need are
accurately portrayed and comply with the 9-month limitation.
With respect to one commenter's assertion that we have acknowledged
in the 2008 Final Rule that temporary need may last longer than 1 year
in some circumstances, the definition of a one-time occurrence as
lasting up to 3 years is consistent with DHS regulations and is
intended to address those limited circumstances where the employer has
a one-time need for workers that will exceed the 9-month limitation.
With respect to the commenter's concern regarding the potential
economic impact of the shorter standard on the operations of businesses
and the drop in program participation, the Department has accounted in
both the NPRM and this Final Rule for the potential drop in program
use. Employers participating in the H-2B program must demonstrate that
they have a temporary need for the labor or services to be performed
which they are unable to meet with U.S. workers. In interpreting the
DHS standard for defining temporary need, the Department has struck a
balance between ensuring that each position certified will comport with
the regulatory requirements and accommodating an employer's legitimate
need to fill its job opportunities in cases where United States workers
are not available.
c. Peakload need. In addition to re-defining the duration of
temporary need, we expressed concern in the NPRM that certain employers
who lack the ability to demonstrate temporary need on a seasonal basis
may mischaracterize a permanent need as a short-term temporary need
which would fit under the peakload need standard. We used as an example
the landscaping industry in which the off season is primarily a product
of the absence of H-2B workers rather than a reduction in the
underlying need for the services or labor. In that context, we sought
comments and ideas from the public on the factors or criteria that we
should consider in determining whether the employer has a genuine
peakload need based on short-term demand. In addition, we requested
input on whether we should limit these occurrences to those resulting
from climactic, environmental or other natural conditions, or on
limiting short-term demand to 6 months.
We received several comments on this proposal. The majority of
commenters opposed the restriction of the peakload need standard. One
commenter indicated that approximately a quarter of all H-2B
applications are filed for landscaping employment, and that the
employer's underlying need may well depend on the location of the
company and the climate in that location. This commenter suggested that
these employers should not be precluded from program participation by
virtue of where they are located, and requested that we retain our
peakload need definition as proposed.
In response to commenters' suggestions, we have concluded that no
commenters offered a practical rationale indicating that a 6 month
limitation would be more effective at curbing the issue of
misclassifying the nature of the employer's need, rather than a 9 month
limitation but we received a large number of comments noting that such
a change would have an unintended consequence of effectively barring at
least one sustaining industry--landscaping--from the program. With
respect to another commenter's suggestion that we estimate short-term
demand in relation to the number of temporary workers on a peakload
basis as a percentage of the employer's total workforce, we note that
such a suggestion is not operationally feasible.
One commenter responded to the request for comments on establishing
criteria for distinguishing genuine peakload need from a permanent
need. The commenter proposed the application of a specific criterion,
namely: a limitation of peakload need to 6 months, defining short-term
demand in relation to the percentage of temporary workers on a peakload
basis as a percentage of the employer's total workforce. This commenter
proposed concrete numbers of workers and percentages based on the
numbers of workers employed by the employer, indicating that such an
approach ought to preclude employers that conduct year-round activities
constituting permanent need from using the H-2B program.
Having considered all comments on this proposal, we have determined
to retain the provision as proposed. We thank the commenters for their
valuable suggestions; however, we have determined that this regulation,
as proposed, better meets our program mandate than any of the suggested
alternatives.. Therefore, we are retaining this provision as proposed.
d. One-Time Occurrence. In addition to barring job contractors, and
reducing the duration of the seasonal/peakload need to 9 months, we
proposed an interpretation of a one-time occurrence to be consistent
with DHS regulations under which such an occurrence could last up to 3
years. We received a number of comments on this proposal.
The majority of commenters opposed the apparent expansion of this
requirement. One commenter indicated that while the reduction in the
duration of seasonal/peakload need to 9 months was a notable
improvement, the 3-year one-time occurrence provided employers with a
loophole. This commenter referred to the H-2B definition under section
101 of the INA to indicate an inconsistency. Other commenters suggested
that we institute an across the board 9-month limitation to the
duration of temporary need. Many of the commenters opposing this
proposal referred to average durations U.S. workers stay in their jobs,
noting that the duration was typically less than 3 years and thus that
our proposal was inconsistent with labor market information.
Other commenters addressing the needs of the construction industry
indicated that the standard for proving a temporary need based on a
one-time occurrence would be difficult to meet under the definition, in
that the employer must establish that [1] it has not employed workers
to perform the services or labor in the past and that it will not need
workers to perform the services or labor in the future, or [2] it has
an employment situation that is
[[Page 10055]]
otherwise permanent, but a temporary event of short duration has
created the need for a temporary worker. These commenters expressed
concern that construction contractors will not able to pass the first
test unless the project for which the H-2B worker is hired is the only
project they ever work on, because they invariably use the same types
of workers. As to the second alternative, they argued that the
construction industry consists primarily of short-term and intermittent
work and therefore does not qualify under this test. Another commenter
opposing the change in the definition for consistency with DHS
regulations indicated that in crafting its definition DHS relied on an
example from the construction industry which was not an accurate
portrayal of the way in which that industry operates. Another commenter
opposing the 3-year standard for one-time occurrences indicated that
circumstances where an employer will be able to comply with the
requirements for meeting the standard may be rare.
We proposed to define temporary need consistent with DHS
regulations, so that both agencies make consistent decisions on
applications/petitions. The majority of commenters asserted that our
reliance on DHS regulations, in this instance, is misplaced. These
commenters focused on the examples relied upon by DHS in the preamble
to its 2008 regulations at 73 FR 78104, Dec. 19, 2008 to explain the
operation of the 3-year, one-time occurrence. Although we adopt the DHS
regulatory standard, we acknowledge, as DHS did, that it did not intend
for the 3-year accommodation of special projects to provide a specific
exemption for the construction industry in which many of an employer's
projects or contracts may prove a permanent rather than a temporary
need. Therefore, we will closely scrutinize all assertions of temporary
need on the basis of a one-time occurrence to ensure that the use of
this category is limited to those special and rare circumstances where
the employer has a non-recurring need which exceeds the 9 month
limitation. For example, an employer who has a construction contract
which exceeds 9 months may not use the program under a one-time
occurrence if it has previously filed an Application for Temporary
Employment Certification identifying a one-time occurrence and the
prior Application for Temporary Employment Certification requested H-2B
workers to perform the same services or labor in the same occupation.
For all of the reasons articulated above, we are retaining the
standard for a one-time occurrence as proposed.
7. Sec. 655.7 Persons and Entities Authorized To File
In the NPRM, we proposed to designate the persons authorized to
file an H-2B Registration or an Application for Temporary Employment
Certification as the employer, or its attorney or agent. The proposed
provisions also stressed the requirement that the employer must sign
the H-2B Registration or Application for Temporary Employment
Certification and any other required documents, whether or not it is
represented by an attorney or agent. We did not receive comments on
this proposal. Therefore, the provision is retained as proposed.
8. Sec. 655.8 Requirements for Agents
In the NPRM, we noted that we have long accepted applications from
agents acting on behalf of employers in the H-2B program, but that in
administering the H-2B program, we have become concerned about the role
of agents in the program and whether their presence and participation
have contributed to program compliance problems. We proposed that if we
were to continue to accept applications from agents, that the agents be
required, at a minimum, to provide copies of current agreements
defining the scope of their relationships with employers and that where
an agent is required under the Migrant and Seasonal Agricultural Worker
Protection Act (MSPA) to have a Certificate of Registration, the agent
must also provide a current copy of the certificate which identifies
the specific farm labor contracting activities that the agent is
authorized to perform. The Final Rule adopts this provision as
proposed. We also invited the public to provide ideas and suggestions
on the appropriate role of agents in the H-2B program. We specifically
sought comments on whether we should continue to permit the
representation of employers by agents in the H-2B program, and if so,
whether any additional requirements should be applied to agents to
strengthen program integrity.
Based on the comments we received, we have concluded that agents
should be permitted to continue to represent employers in the H-2B
process before the Department and file Applications for Temporary
Employment Certification on their behalf. To assist in verifying the
scope of the agent's relationship with the employer, we will also
require agents to provide copies of their agreement with the employer
as well as the MSPA Certificate of Registration, where applicable. We
are collecting the agreements and will be reviewing them as evidence
that a bona fide relationship exists between the agent and the employer
and, where the agent is also engaged in international recruitment, to
ensure that the agreements include the language required at Sec.
655.20(p) prohibiting the payment of fees by the worker. We do,
however, also reserve the right to further review the agreements in the
course of an investigation or other integrity measure. We therefore
remind the public that a certification of an employer's application
that includes such a submitted agreement in no way indicates a general
approval of the agreement or the terms therein.
A few commenters suggested that agents be barred from filing
applications on behalf of H-2B employers. At least two commenters, both
trade organizations, suggested that agents create a problematic level
of separation between employers and their obligations under the H-2B
program.
An overwhelming number of commenters, however, stated that while
disreputable agents may exist, bona fide agents are critical to the
employers' ability to maneuver through the H-2B application process and
requirements. Many of these commenters reiterated our own statistics
for FY 2010, showing that that only 14 percent of employers filed
applications without an agent and that 38 percent of these cases were
denied. These commenters argued that we should continue to allow agents
to file applications on behalf of H-2B employers. These same
commenters, however, expressed an interest in program integrity and
therefore agreed with the proposal to require agents to provide copies
of their agreements with employers, to verify the existence of a
relationship. Some commenters suggested that the agent(s) should be
permitted to redact confidential proprietary business information
before providing such agreements. Again, we are requiring agents to
supply copies of the agreements defining the scope of their
relationship with employers to ensure that there is a bona fide agency
relationship and maintain program integrity. The requirement, however,
in no way obligates either the agent or the employer to disclose any
trade secrets or other proprietary business information. The Final Rule
only requires the agent to provide sufficient documentation to clearly
demonstrate the scope of the agency relationship. In addition, under
this Final Rule, we do not presently plan to post these agreements for
public viewing. If, however, we do so in the future, we will continue
to follow all applicable legal and internal procedures for complying
with Freedom of Information Act (FOIA) requests to
[[Page 10056]]
ensure the protection of private data in such circumstances.
One commenter, a trade organization, suggested that the proposed
requirement that agents provide a copy of their MSPA Certificate of
Registration, if required under MSPA, may be confusing since H-2B is
viewed as non-agricultural, in contrast with the H-2A program, which is
for agricultural labor and services. This commenter recommended that we
provide a list of those businesses to which this additional requirement
applies.
Several commenters also suggested that, in addition to receiving
agent-employer agreements we should: limit the tasks in which agents
can engage to those not involving the unauthorized practice of law or
for which no payment is received, in accordance with DHS' regulations;
make such agreements publicly available; maintain a public list of the
identity of agents who represent employers in the labor certification
process; require mandatory registration for agents; hold employers
strictly liable for the actions and representations of their agents;
and lastly, enhance enforcement mechanisms to combat fraud.
After evaluating all the comments, we have decided to continue to
permit agents to participate in the Department's H-2B labor
certification program. Their importance to employers, as reflected in
numerous comments, outweighs any value gained by their exclusion. We
remain interested in furthering program integrity; while we are not
prepared to accept any of the specific requirements on agents suggested
by commenters at this time, we have clarified in Sec. 655.73(b) that
an agent signing ETA Form 9142 may be debarred for its own violation as
well as for participating in a violation committed by the employer.
Some of the commenters' ideas, such as requiring agents to be
registered with the Department to participate in the program would
require additional government resources which are currently limited,
while other ideas are not deemed necessary at this time, such as making
the agreements publicly available. We believe that the Department will
be able to preserve program integrity by collecting such agreements to
ascertain the validity of and scope of the agency relationship and,
where the agent is also engaged in international recruitment, to ensure
they include the contractual prohibition against charging fees language
required at Sec. 655.20(p) prohibiting the payment of fees by the
worker. Such action, in combination with the enforcement mechanisms and
compliance-based model adopted by this Final Rule, will resolve many of
the expressed concerns without requiring the expenditure of additional
resources. However, as stated under Sec. 655.63, we reserve the right
to post any documents received in connection with the Application For
Temporary Employment Certification and will redact information
accordingly.
Lastly, in response to commenters that urged us to hold employers
strictly liable for the actions of the agents, we remind both agents
and employers that each is responsible for the accuracy and veracity of
the information and documentation submitted, as indicated in the ETA
Form 9142 and Appendix B.1, both of which must be signed by the
employer and its agent. As discussed under Sec. 655.73(b), agents who
are signatories to ETA Form 9142 may now be held liable for their own
independent violations of the H-2B program. As to the commenter's
suggestion that we provide additional examples of H-2B occupations
subject to MSPA guidelines, we believe that employers or individuals
working in affected industries are already aware of their obligations
under MSPA, including the requirement to register.
9. Sec. 655.9 Disclosure of Foreign Worker Recruitment
We proposed to require an employer and its attorney and/or agent to
provide a copy of all agreements with any agent or recruiter whom it
engages or plans to engage in the international recruitment of H-2B
workers. We also proposed to disclose to the public the names of the
agents and recruiters used by employers and their attorneys and/or
agents participating in the H-2B program. We received several comments,
all of which agreed with the proposal to provide information about the
recruiter's identity. We have expanded this section in the Final Rule
to better reflect the obligation therein. For example, we revised the
Final Rule to specify that the requirement to provide a copy of the
written contract applies to agreements between the employer or the
employer's attorney or agent and that the written contract must contain
the contractual prohibition on charging fees, as set forth in Sec.
655.20(p). Where the contract is not in English and the required
contractual prohibition is not readily discernible, we reserve the
right to request further information to ensure that the contractual
prohibition is included in the agreement.
Several commenters requested that we strengthen the section by
requiring the employer to also provide the identity and location of the
foreign labor recruiter's sub-recruiters or sub-agents and to expand
the provision to include verbal agreements, as such informal
arrangements with foreign recruiters are not uncommon. We agree that in
addition to bolstering program integrity by aiding in the enforcement
of certain regulatory provisions, collecting the identity and location
of persons hired by or working for the recruiter or its agent to
recruit or solicit prospective H-2B workers--effectively acting as sub-
recruiters, sub-agents, or sub-contractors--will bring a greater level
of transparency to the foreign recruitment process that will assist the
Department, other agencies, workers, and community and worker advocates
in understanding the roles of each participant and the recruitment
chain altogether. This requirement advances the Department's mission of
ensuring that employers comply with overall H-2B program requirements,
and do not engage in practices that adversely affect the wages and
working conditions of U.S. workers. See 8 U.S.C. 1184(c)(14).
We have therefore added paragraph (b) of this section in the Final
Rule, requiring that employers and their attorneys or agents provide
the identity (name) of the persons and entities hired by or working for
the recruiter or recruiting agent and any of the agents or employees of
those persons and entities, as well as the geographic location in which
they are operating. We interpret the term "working for" to encompass
any persons or entities engaged in recruiting prospective foreign
workers for the H-2B job opportunities offered by the employer, whether
they are hired directly by the primary recruiter or are working
indirectly for that recruiter as a downstream recruiter in the
recruitment chain. We expect employers, and their attorneys or agents,
as applicable, to provide these names and geographic locations to the
best of their knowledge at the time the application is filed. We expect
that, as a normal business practice, when completing the written
agreement with the primary recruiting agent or recruiter, the employer/
attorney/agent will ask who the recruiter plans to use to recruit
workers in foreign countries, and whether those persons or entities
plan to hire other persons or entities to conduct such recruitment,
throughout the recruitment chain.
As mentioned above, the public disclosure of the names of the
foreign labor recruiters used by employers, as well as the identities
and locations of persons or entities hired by or working for the
primary recruiter in the recruitment of H-2B workers, and the agents or
employees of these entities, will provide greater transparency to the
H-2B worker recruitment process. By
[[Page 10057]]
providing us with this list, which we will make public, the Department
will be in a better position to enforce recruitment violations, and
workers will be better protected against fraudulent recruiting schemes
because they will be able to verify whether a recruiter is in fact
recruiting for legitimate H-2B job opportunities in the U.S. We intend
to use this list of foreign labor recruiters to facilitate information
sharing between the Department and the public, so that where we believe
it is appropriate, we can more closely examine applications or
certifications involving a particular recruiter or its agent identified
by members of the public as having engaged in improper behavior.
Additionally, information about the identity of the international
recruiters will assist us in more appropriately directing our audits
and investigations.
To reiterate the overall requirements of Sec. 655.9 in the Final
Rule, Sec. 655.9(a) requires employers or their agents or attorneys,
as applicable, to provide us with a copy of all agreements with any
foreign labor recruiter, and those written agreements must contain the
required contractual prohibition on the collection of fees, as set
forth in Sec. 655.20(p). The requirement in Sec. 655.9(b) to disclose
to the Department the identities and locations of persons and entities
hired by or working for the foreign labor recruiter and any of the
agents or employees of those persons and entities who will recruit or
solicit H-2B workers for the job opportunities offered by the employer
encompasses all agreements, whether written or verbal, involving the
whole recruitment chain that brings an H-2B worker to the employer's
certified H-2B job opportunity in the U.S.
Several commenters erroneously assumed the agreements between the
employer and the foreign recruiter would be made public. The NPRM
provided for obtaining the agreements and sharing with the public the
identity of the recruiters, not the full agreements.
As stated above, we intend to collect the submitted agreements for
the purpose of maintaining a public list of recruiters involved with H-
2B workers. At the time of collection, we will review the agreements to
obtain the names of the foreign recruiters and to verify that these
agreements include the contractual prohibition against charging fees
language required at Sec. 655.20(p) prohibiting the payment of fees by
the worker. We may also further review the agreements in the course of
an investigation or other integrity measure. We therefore remind the
public that a certification of an employer's application that includes
such a submitted agreement in no way indicates a general approval of
the agreement or the terms therein.
Several commenters agreed that the disclosure of the identity of
the foreign recruiters is helpful and badly needed, but suggested that
it is not enough. One commenter, an individual, suggested that if an
employer is paying a recruiter to locate foreign workers, that employer
should also pay for a U.S. recruiter to locate U.S. workers. We did not
impose such a requirement. This Final Rule, as discussed below in
further detail, contains several recruitment steps the employer must
conduct, aimed at providing U.S. workers ample opportunity to learn
about and apply for these jobs.
Other commenters suggested that we should institute a mandatory
registration or licensing system, that we should require recruiters to
make themselves subject to U.S. jurisdiction, or that employers should
be held strictly liable for recruitment violations. While we appreciate
these suggestions, we will not implement them because we neither have
the resources nor the authority to do so. However, we will continue to
implement enforcement and integrity measures to decrease potential
fraud in the H-2B program.
B. Prefiling Procedures
1. Sec. 655.10 Prevailing Wage
We proposed a modified process for obtaining a prevailing wage
designed to simplify how an employer requests a PWD. The proposed rule
required employers to request PWDs from the National Prevailing Wage
Center (NPWC) before posting their job orders with the SWA and stated
that the PWD must be valid on the day the job orders are posted. We
encourage employers to continue to request a PWD in the H-2B program at
least 60 days before the date the determination is needed. After
reviewing comments on the proposed prevailing wage process, we are
adopting the provisions as proposed, with one amendment.
Several labor and worker advocacy groups supported the proposed
process for obtaining a PWD. One, while agreeing that we should require
employers to test the U.S. labor market using a currently valid PWD,
suggested that we should also require employers to pay any increased
prevailing wage that is in effect for any time during the certified
period of employment. The commenter cited the Court's ruling in CATA
and the requirement in the H-2A program requirement that an employer
pay a higher adverse effect wage rate (AEWR) when a new, higher AEWR
becomes effective during the period of employment as its basis for the
suggestion.
Since this concept of paying any increased prevailing wage that is
in effect for any time during the certified period of employment was
not contained in the NPRM and the public did not have notice and an
opportunity to comment, we cannot adopt the commenter's suggestion in
this Final Rule.
Some labor and worker advocacy groups suggested that removing the
last sentence of proposed paragraph (d), which exempts employers
operating under special procedures, would clarify the proposed
regulatory language on prevailing wages for multiple worksites. We
agree and have removed the sentence in the Final Rule. We issue special
procedures through TEGLs which detail the variances permitted for
occupations covered by the special procedures.
Some commenters noted that existing special procedures will require
updating, given this rule and the Prevailing Wage Final Rule. We agree
that we will need to update existing special procedure guidance to
reflect organizational and regulatory changes; however, those updates
will be issued through new Training and Employment Guidance Letters
(TEGLs) rather than within this rule, where appropriate. Until such
time as new TEGLs are issued, we will continue to honor the special
procedures that were in place before the effective date of the new
regulations.
A number of commenters expressed concern about the application of
the new prevailing wage methodology to workers in corresponding
employment. We address these comments in the larger discussion of
corresponding employment at Sec. 655.5.
As discussed in the NPRM, this rulemaking does not address or seek
to amend the prevailing wage methodology established under the H-2B
Wage Final Rule. Comments related to the new prevailing wage
methodology fall outside the scope of this rulemaking.
2. Sec. 655.11 Registration of H-2B Employers
We proposed to bifurcate the current application process into a
registration phase, which addresses the employer's temporary need, and
an application phase, which addresses the labor market test. We
proposed to require employers to submit an H-2B Registration and
receive an approval before submitting an Application for Temporary
Employment Certification and conducting the U.S. labor market test. The
proposed registration required
[[Page 10058]]
employers to document the number of positions the employer desires to
fill in the first year of registration; the period of time for which
the employer needs the workers; and that the employer's need for the
services or labor is non-agricultural, temporary and is justified as
either a one-time occurrence, a seasonal need, a peakload need, or an
intermittent need, as defined by DHS in 8 CFR 214.2(h)(6)(ii)(B) and
interpreted in Sec. 655.6. If approved, we proposed that the
registration would be valid for a period of up to 3 years, absent a
significant change in conditions, enabling an employer to begin the
application process at the second phase without having to re-establish
temporary need for the second and third years of registration. We have
retained the proposed registration process in the Final Rule, with one
minor change related to Requests for Information (RFIs) and other
clarifying language that if and when the H-2B Registration is permitted
to be filed electronically, the employer must print and sign it to
satisfy the original signature requirement.
a. Method of registration. Many commenters voiced support for the
proposal to bifurcate the application process and shift the temporary
need and bona fide job opportunity review to the registration process
described in the NPRM. Some commenters supported bifurcation believing
that the registration process will provide more time for OFLC to
thoroughly review an employer's intended use of the program and
temporary need. Others supported the registration process, asserting
that the 3-year registration validity and removal of employers without
legitimate temporary need will result in a more efficient process,
better program oversight, better protection for workers, and greater
visa availability for employers with legitimate temporary needs. Still
other commenters believed that the registration would help prevent visa
fraud. These comments were consistent with our reasoning, as
articulated in the NPRM.
Other commenters opposed the registration process. Some industry
organizations and employers feared that the addition of a registration
step will make the application process more cumbersome and time-
consuming and some urged us to use increased enforcement activities
rather than program restructuring to accomplish our stated goals. We
view the proposed separation of the temporary need evaluation process
from the labor market test process as an opportunity to fully evaluate
an employer's intended use of the H-2B program without sacrificing
overall program efficiency. We have found that evaluating temporary
need is a fact-intensive process which, in many cases, can take a
considerable amount of time to resolve. Separating the two processes
will give OFLC the time to make a considered decision about temporary
need without negatively impacting an employer's ability to have the
workers it needs in place when needed. In addition, we anticipate that
many employers, with 3 years of registration validity, will enjoy a
one-step process involving only the labor market test in their second
and third years after registration, which will allow the Department to
process these applications more efficiently. We disagree that
enforcement alone can ensure program integrity; we believe the move
from an attestation-based model to a compliance-based model, the
bifurcation of application processing into registration and labor
market test phases, and enforcement activities all contribute to
program integrity. We appreciate and understand stakeholder concerns
about transition to a new registration process and will make every
effort to ensure that the transition does not adversely impact
processing by announcing the procedures by which we will implement the
registration process. We have accordingly added a regulatory provision
to allow for the transition of the registration process through a
future announcement in the Federal Register, until which time the CO
will adjudicate temporary need through the application process.
One commenter expressed concern that DHS and the Department of
State (DOS) each also review temporary need and that the three agencies
differ in approach, resulting in inconsistent findings related to
temporary need. We understand that, throughout the H-2B process, an
employer must interact with multiple government agencies, each with
different responsibilities related to the H-2B program. However, while
each may perform different functions, the definition of temporary need
is consistent across all relevant agencies, and we seek to minimize
differences by participating in inter-agency communication designed to
align the agencies' H-2B processing efforts.
One specialty bar association asserted that the new registration
process is a departure from previous practice and that we are exceeding
our authority by adjudicating temporary need in the registration
process, effectively removing USCIS from the process and assuming an
adjudicatory role that Congress did not intend. We disagree. We have a
longstanding practice of evaluating temporary need as an integral part
of the adjudication of the Application for Temporary Labor
Certification; the bifurcation of the application process into a
registration phase and a labor market test phase shifts the timing of,
but does not change the nature of, our review. See Matter of Golden
Dragon Chinese Restaurant, 19 I. & N. Dec. 238, 239 (Comm'r 1984).
oreover, following lengthy discussions, DHS and the Department both
issued companion H-2B final rules in 2008. 73 FR 78020, Dec. 19, 2008;
73 FR 78104, Dec. 19, 2008. These final rules left our evaluation of
temporary need in place and shifted administrative review of the
Application for Temporary Labor Certification from DHS to the
Department. The bifurcation of the application process simply
represents a timing shift, not a change, in our longstanding review of
temporary need and bona fide job opportunity issues.
b. Timing of registration. We proposed to require employers to file
an H-2B Registration no fewer than 120 and no more than 150 calendar
days before the date of initial need for H-2B workers. The Final Rule
retains this provision with minor clarification.
Several commenters supported bifurcation of the application process
as a means of enabling employers to conduct recruitment in the U.S.
labor market closer to the date of need. We agree and anticipate, as
these commenters do, that recruitment closer to the date of need should
provide a more accurate reflection of actual labor market conditions.
Other commenters feared that the addition of a registration step
will make the application process more time-consuming. Commenters
expressed concern that, without timelines or deadlines on registration
processing, an employer cannot be sure it will have time to complete
Department, DHS, and DOS processing and receive the requested workers
before its date of need. One commenter alleged that we sought to hide
registration processing time outside the application processing time
counted against our 60-day processing guideline.
Our timeline for processing applications in the new two-step
process is sensitive to these concerns. The proposed registration
window (i.e., 120 to 150 days before the employer's anticipated date of
need) provides enough time for processing the registration before an
employer may submit an Application for Temporary Employment
Certification (i.e., 75 to 90 days before the employer's anticipated
date of need) to assure that the adjudication of the Application for
[[Page 10059]]
Temporary Employment Certification will not be delayed. In addition,
many employers will not have to repeat the registration process for the
next 2 years. The registration timeframe also reflects our
understanding that some employers may have difficulty accurately
predicting their need more than 5 months in advance. The registration
window seeks to balance both processing time and accuracy concerns. We
anticipate an employer's overall processing time to decrease
significantly when the bifurcated process goes into effect.
For consistency with other provisions under the Final Rule and
clarification of the process therein, this provision has been slightly
revised to add reference to the exception to the filing time
requirement of the H-2B Registration where it is filed in support of an
emergency filing under Sec. 655.17.
c. Registration process. The proposed rule authorized the CO to
issue one or more RFIs before issuing a Notice of Decision on the H-2B
Registration if the CO determined that he or she could not approve the
H-2B Registration for various reasons, including, but not limited to:
An incomplete or inaccurate ETA Form 9155; a job classification and
duties that do not qualify as non-agricultural; the failure to
demonstrate temporary need; and/or positions that do not constitute
bona fide job opportunities. We retained the proposed provisions in the
Final Rule, with one amendment.
One employer suggested we remove the word "normally" from
paragraph (g) of this section to establish a definitive timeframe for
RFI issuance. We agree and have removed "normally" from paragraph (g)
of this section in the Final Rule.
Another employer suggested that we should not permit the CO to
issue an unlimited number of RFIs. In order to provide the CO with
flexibility to work with employers seeking to resolve deficiencies and
secure registration approval, we will retain the provision as proposed.
One commenter suggested limiting 3-year registration validity to
employers with recurring predictable seasonal and peakload needs, while
requiring one-time or intermittent need employers to re-register every
year. We find that this concern is sufficiently accommodated in the
regulation as written, which provides the CO with discretion over the
validity period of registrations approved. The CO may approve a
registration for a period up to 3 consecutive years, taking into
consideration the standard of need and any other factors in the
registration.
d. Registration content. Under the proposed rule, supporting
documentation was to accompany the H-2B Registration, including
documentation showing the number of positions the employer desires to
fill in the first year of registration; the period of time for which
the employer needs the workers; and that the employer's need for the
services or labor is non-agricultural, temporary and justified as
either a one-time occurrence, a seasonal need, a peakload need, or an
intermittent need, as defined by DHS in 8 CFR 214.2(h)(6)(ii)(B) and
interpreted in Sec. 655.6. We are adopting the proposed provision of
the NPRM without change.
One commenter suggested that we include a basic recruitment effort
requirement at the time of registration to show need for the program.
We do not believe requiring recruitment prior to registration filing is
consistent with our purpose in separating the application process into
a registration step and a labor market test. Recruitment efforts close
to an employer's period of need are most likely to result in an
accurate labor market test, while recruitment far in advance of the
employer's period of need is unlikely to yield valid recruitment
results. The Final Rule retains recruitment requirements during the
application process, which is closer to the employer's date of need.
One commenter encouraged us to include a bona fide employer check,
in order to eliminate fraud by fictitious employers. The commenter
suggested requiring Federal Employer Identification Number (FEIN)
documentation and a certificate of good standing from the company's
State of formation (in the case of a corporation or a limited liability
company) or comparable document for a sole proprietorship (e.g.,
certified payrolls and confirmation of a bank account form a financial
institution) as well as disclosure of beneficial owners. We agree with
the importance of allowing only bona fide employers access to the H-2B
program and will verify business existence at the time of registration
to protect program integrity. We will perform the initial business
existence verification and, if questions arise, will request additional
documentation of bona fide existence through the RFI process already
contained in the Final Rule.
Some labor and advocacy groups suggested making registration
information available to the public, for both transparency and
information purposes, as well as to permit public input on
registrations before adjudication. Comments related to transparency and
community interest in publicly available information have been
addressed in the larger discussion of public disclosure. While we
anticipate continuing to receive information and concerns from the
public informally, which OFLC takes under consideration during its
review, we cannot permit the public to formally participate in the
adjudication process. It would present serious operational burdens, and
as a result it would become difficult to complete the registration
process in a timely fashion. Finally, we anticipate that the various
provisions of this Final Rule will result in improved employer
compliance, resolving some of the underlying concerns.
e. Registration documentation retention. We proposed requiring all
employers that file an H-2B Registration to retain any documents and
records not otherwise submitted proving compliance with this subpart
for a period of 3 years from the final date of applicability of the H-
2B Registration, if approved, or the date of denial or withdrawal. We
have retained this requirement in the Final Rule.
We received few comments on this provision. One worker advocacy
organization expressed support for the registration documentation
retention requirement, believing the requirement will improve
protections for U.S. workers, while another commenter suggested that a
5-year retention requirement would be better than 3 years in preserving
evidence for criminal prosecution. We believe the 3-year retention
requirement is sufficient to address our interests in upholding program
integrity and, as with any document retention requirement, if an
employer is involved in a proceeding in which documents are relevant,
the time for retaining the documents is tolled.
One State bar association expressed concern about our discussion in
the NPRM about requiring retention of documentation related to an H-2B
Registration so that we could, potentially, use a prior year's
registration, even if withdrawn, as a factor in evaluating current
temporary need. The commenter argued that there are many legitimate
business reasons why an employer's situation could change following
denial or withdrawal of a registration. We understand that, in some
situations, circumstances may change and legitimately affect the nature
of an employer's need for workers. We also expect that employers who
accurately document their need when submitting a registration will be
able to articulate the change, if requested. We will not deny an
employer's H-2B
[[Page 10060]]
Registration where the employer documents a change in circumstances and
the H-2B Registration otherwise complies with program requirements.
f. Registration of job contractors. As discussed in the preamble to
Sec. 655.6, we are continuing to permit job contractors to participate
in the H-2B program where they can demonstrate their own temporary need
and not that of their employer-clients, and that this temporary need is
seasonal or a one-time occurrence. Accordingly, we have made several
edits to reflect the requirement that job contractors provide
documentation that establishes their temporary seasonal need or one-
time occurrence during the registration process and to make this
requirement a factor in the National Processing Center's (NPC's) review
of the H-2B Registration. While a job contractor must file an
Application for Temporary Employment Certification jointly with its
employer-client, in accordance with Sec. 655.19, a job contractor and
its employer-client must each file a separate H-2B Registration.
g. Document retention. We proposed that the documents for
registration would be retained for a period of 3 years from the date of
applicability of the H-2B Registration. This meant that all documents
retained in connection with an H-2B Registration would be retained for
3 years after the last date of validity--for up to 6 years. We have
clarified in this Final Rule that the documents to be retained must be
retained for 3 years from the date of certification of the last
Application for Temporary Employment Certification supported by the H-
2B Registration. We have also added clarifying language in the document
retention provision at Sec. 655.56 with respect to the document
retention of an H-2B Registration.
3. Sec. 655.12 Use of Registration by H-2B Employers
We proposed to permit an employer to file an Application for
Temporary Employment Certification upon approval of its H-2B
Registration, and for the duration of the registration's validity
period, which may be up to 3 consecutive years from the date of
issuance, provided that the employer's need for workers (i.e., dates of
need or number of workers) had not changed more than the specified
levels. In the NPRM, we proposed that if the employer's need for
workers increased by more than 20 percent (or 50 percent for employers
requesting fewer than 10 workers); if the beginning or ending date of
need for the job opportunity changed by more than 14 calendar days; if
the nature of the job classification and/or duties materially changed;
and/or if the temporary nature of the employer's need for services or
labor materially changed, the employer would be required to file a new
H-2B Registration. We also proposed that the H-2B Registration would be
non-transferable. In the Final Rule, for the reasons stated below, we
have retained this provision as proposed, except for a modification to
the variance in the period of need permitted without an employer
needing to re-register.
a. Limitation on variances in temporary need. Some commenters
contend that, given that business is not static, the limitations on H-
2B Registration validity make it likely that an employer will have to
register each year or at least more than once every 3 years due to
fluctuations in the number of workers needed, the dates of need, or the
nature of the duties. We recognize that there may be fluctuations from
year to year and accordingly have designed the H-2B Registration to
accommodate minor variations. However, we also have an interest in
preserving program integrity, and thus do not believe that it would be
appropriate to allow for the same H-2B Registration to apply to a
substantially different job opportunity.
Commenters suggested other thresholds for variances in the period
of need or in the number of workers requested that could trigger re-
registration requirements. One commenter supported the requirement that
employers be required to re-register when there are significant
variances in temporary need as an important fraud reduction mechanism,
but suggested we alter the formula from a percentage system to a whole
number ratio system (e.g., employer can request an extra 2 workers for
every 10 that were sought in the initial registration). As the basis
for the suggestion, the commenter identified a scenario in which an
employer that initially requested 9 workers could increase its request
by 4 workers without having to re-register, while an employer that
initially requested 16 could only request 3 workers without having to
re-register.
We believe that material changes in the job classification or job
duties, material changes in the nature of the employer's temporary
need, or changes in the number of workers needed greater than the
specified levels, from one year to the next, merit a fresh review
through re-registration. We note that the tolerance level for the
number of workers requested proposed for the registration process
(i.e., 20 percent (or 50 percent for employers requesting fewer than 10
workers)) is the same as the tolerance level in the 2008 H-2B Final
Rule, the current H-2A regulation, and Sec. 655.35 of this Final Rule
for amendments to an Application for Temporary Employment Certification
before certification. We do not find the difference of one worker, in
the scenario provided, sufficient to justify changing our method of
calculating minor changes in the number of workers requested.
Another commenter suggested focusing the number of workers
limitation on the number of H-2B workers actually employed rather than
the number requested. We find this suggestion unworkable both for OFLC
and employers. Our focus is on an employer's need for workers and
openings to be filled during recruitment, not actual visa usage. While
we plan to begin collecting data on the number of workers an employer
ultimately employs under H-2B visas for other purposes, such as gaining
a better understanding of program usage, we will base our evaluation of
H-2B Registration use on the number of workers requested.
We agree, however, that a wider variation in the employer's stated
period of need would accommodate reasonable fluctuations in temporary
need, without sacrificing program integrity, and would better
effectuate our goal of streamlining the process by enabling more
employers to use an H-2B Registration for more than 1 year.
Accordingly, we have changed the limitation on a valid H-2B
Registration to permit an employer's beginning and/or ending date of
need to change by no more than a total of 30 calendar days from the
initial year without requiring re-registration.
b. Prohibition on transfer. We proposed to prohibit the transfer of
an approved H-2B Registration. One commenter agreed with the proposal,
finding the approach critical to preventing program abuse. Under the
Final Rule, an H-2B Registration is non-transferrable.
c. Validity of registration. We proposed to issue H-2B Registration
approvals, valid for up to a period of 3 years. Apart from the concerns
discussed earlier, such as business fluctuations requiring an employer
to re-register more often than its registration validity required,
commenters generally supported the 3-year validity of a registration as
a mechanism for potentially streamlining the process for repeat users.
4. Sec. 655.13 Review of Prevailing Wage Determinations
We proposed changing the process for the review of PWDs for
purposes of clarity and consistency. Specifically, we
[[Page 10061]]
proposed reducing the number of days within which the employer must
request review of a PWD by the NPWC Director from 10 calendar days to 7
business days from the date of the PWD. We also proposed revising the
language of the 2008 Final Rule to reflect that the NPWC Director will
review determinations, and specifying that the employer has 10 business
days from the date of the NPWC Director's final determination within
which to request review by the BALCA. We adopt this provision of the
NPRM without change in the Final Rule.
A labor and worker advocacy organization suggested that U.S. and
foreign workers should not be excluded from the PWD appeal process. We
cannot permit public participation in the prevailing wage appeal
process. The prevailing wage process is an employer-based application
process, which often occurs before specific workers are identified.
Operationally, doing so would present serious questions as to who could
or could not become parties to the process and would make timely
resolution of issues difficult. We will continue however, to accept
information from the public regarding wage issues, including
information concerning appeals.
C. Application for Temporary Employment Certification Filing Procedures
1. Sec. 655.15 Application Filing Requirements
Under the proposed rule, we returned to a post-filing recruitment
model in order to develop more robust recruitment and to ensure better
and more complete compliance by H-2B employers with program
requirements. As explained in the proposed rule, our experience in
administering the H-2B program since the implementation of the 2008
Final Rule suggests that the lack of oversight by the Department and
the SWAs during the pre-filing recruitment process has resulted in
failures to comply with program requirements. We believe the
recruitment model described in the proposed rule and now adopted in
this Final Rule will enhance coordination between OFLC and the SWAs,
better serve the public by providing U.S. workers more access to
available job opportunities, and assist employers in obtaining the
qualified personnel that they require in a timelier manner.
The proposed rule required the employer to file the Application for
Temporary Employment Certification, with original signature(s), copies
of all contracts and agreements with any agent and/or recruiter
executed in connection with the job opportunities, and a copy of the
job order with the Chicago NPC at the same time it files the job order
with the SWA. The employer must submit this filing no more than 90 days
and no fewer than 75 days before its date of need. The proposed process
continues to employ the SWAs' significant knowledge of the local labor
market and job requirements. In the Final Rule, this provision is
slightly revised to clarify that the employer is required to also
submit to the NPC any information required under Sec. Sec. 655.8 and
655.9 (including the identity and location of persons and entities
hired by or working with the recruiter or agent or employee of the
recruiter to recruit prospective foreign workers for the H-2B job
opportunities). The signature portion of this section is also slightly
revised to clarify that if and when the Application for Temporary
Employment is permitted to be filed electronically, the employer must
print and sign it after receiving a determination to satisfy the
original signature requirement.
For purposes of simultaneous filing, we use the term "job order"
when in fact the job order has yet to be created and posted by the SWA.
We recognize that this may be confusing to the employer, as what will
actually be submitted simultaneously to both agencies is a document
which outlines the details of the employer's job opportunity, not the
official job order. We expect the employer to provide the Chicago NPC
with an exact copy of the draft the employer provides to the SWA for
the creation of the SWA job order.
We also proposed to continue to require employers to file separate
applications when there are different dates of need for the same job
opportunity within an area of intended employment. Lastly, we proposed
to continue to require filing of an Application for Temporary
Employment Certification in a paper format until such time as an
electronic system can be fully implemented. We are retaining the
provisions as proposed.
A few commenters disagreed with the proposal to allow for the
simultaneous filing of the job order with the Department and the SWA,
contending that the process would be unwieldy and result in duplicative
efforts. In contrast, other commenters supported a return to a post-
filing recruitment model. As discussed in the NPRM, by involving the
SWA in the job order review, the proposed process directly employs the
SWAs' significant knowledge of the local labor market and job
requirements. We agree with the commenters who asserted that the
resulting job order will provide accurate, program compliant
notification of the job opportunity to U.S. workers. In addition,
requiring the employer to simultaneously file the job order with the
Chicago NPC and the SWA will enhance coordination between the agencies,
resulting in increased U.S. worker access to job opportunities as well
as helping employers locate qualified and available U.S. workers.
Some commenters supported the proposed timeframe for submitting the
Application for Temporary Employment Certification. These commenters
thought the requirement that employers file an Application for
Temporary Employment Certification no more than 90 days and no fewer
than 75 days before their date of need, combined with the proposed
post-filing recruitment, would allow employers to conduct a more
accurate test of the U.S. labor market and the CO to make a more
accurate determination about availability of U.S. workers. OIG, in its
October 17, 2011 report, found that permitting employers to recruit for
job openings up to 120 days prior to the job start makes the
recruitment less likely to result in U.S. worker hires than recruitment
closer to the start date. OIG identified our proposal to shorten the
timeframe between recruitment and job start date as strengthening U.S.
worker recruitment. We agree and have retained the proposed timeframe
for filing the Application for Temporary Employment Certification in
the Final Rule.
One worker advocacy group expressed support for requiring separate
applications for work occurring at separate worksites, with separate
employers, or for different positions that have different job duties or
terms and conditions of employment. We also received comments opposing
the proposal to continue to require employers to file separate
applications when there are different dates of need for the same job
opportunity within an area of intended employment. Commenters argued
that their business ramps up during the period of need, resulting in a
need for some, but not all, of the workers requested on the date of
need provided in the Application for Temporary Employment
Certification. These commenters asserted that they also need
flexibility to respond to changes in the market. We acknowledge that
business is not static and an employer's need for workers during its
period of greatest and least need may not be consistent. However,
employers should accurately identify their personnel needs and, for
each period within its season, file a separate application containing a
different date
[[Page 10062]]
of need. An application with an accurate date of need will be more
likely to attract qualified U.S. workers to fill those open positions,
especially when the employer conducts recruitment closer to the actual
date of need. This prohibition against staggered entries based on a
single date of need is intended to ensure that employers provide U.S.
workers the maximum opportunity to consider the job opportunity and is
consistent with USCIS policies. It ensures that U.S. workers are not
treated less favorably than H-2B workers who, for example, may be
permitted to report for duty 6 weeks after the stated date of need. We
recognize that there may be industries whose participation in the H-2B
program may be constrained as a result of this revised 90- to 75-day
timeframe filing in years in which the statutory cap of for the six-
month intervals beginning October 1 and April 1 is at issue. However,
this is largely a function of the statutory cap on the available visas
over which we have no control. We are, therefore, retaining the
provision as proposed and only slightly revising the language to
further clarify that an employer must file only one Application for
Temporary Employment Certification for worksite(s) within one area of
intended employment for each job opportunity for each date of need.
We received comments suggesting that we post the Application for
Temporary Employment Certification to increase transparency. These
comments have been addressed in the larger discussion of public
disclosure at Sec. 655.63.
We did not receive comments on our proposal to continue to use ETA
Form 9142 to collect the necessary information, with slightly modified
appendices reflecting changes from the 2008 Final Rule (such as a
change of tense to note pre-recruitment filing). As discussed in the
NPRM, while we have begun efforts to establish an online format for the
submission of an Application for Temporary Employment Certification,
deployment of the system depends upon the resolution of issues in this
rulemaking; we cannot implement it until after this Final Rule is
effective. After the rule is effective, there will have to be a period
during which entities may only file applications by paper submissions.
However, in anticipation of the deployment of an online filing system,
we have added language in the regulatory text that clarifies that when
an employer submits an Application for Temporary Employment
Certification electronically, the CO will inform the employer how to
fulfill the signature requirement.
2. Sec. 655.16 Filing of the Job Order at the SWA
We proposed to require the employer to submit its job order
directly to the SWA at the same time as it files the Application for
Temporary Employment Certification and a copy of the job order with the
Chicago NPC, no more than 90 calendar days and no fewer than 75
calendar days before the employer's date of need. As discussed above,
we sought to continue to use the SWAs' experience with the local labor
market, job requirements, and prevailing practices by requiring the SWA
to review the contents of the job order for compliance with Sec.
655.18 and to notify the CO of any deficiencies within 4 business days
of its receipt of the job order. The proposed rule differed from the
2008 Final Rule in that it prohibited the SWA from posting the job
order before receiving a Notice of Acceptance from the CO directing it
to do so. We have retained the provision in the Final Rule as proposed
except for a modification to the SWA's job order review timeframe and
minor clarifications.
Many commenters supported the return to more direct SWA
participation in the U.S. labor market test, including the SWA's
simultaneous review of job order content with the Chicago NPC. These
commenters agreed that the SWA's local knowledge would be helpful in
ensuring that an accurate job order is posted presenting the job
opportunity to available workers. In contrast, some commenters opposed
the simultaneous job order review process as burdensome for SWAs at
current funding levels and duplicative of the Chicago NPC's review. By
requiring such concurrent filing and review, the CO can use the
knowledge of the SWA, in addition to its own review, in a single Notice
of Deficiency before the employer conducts its recruitment. While we
are sensitive to SWA budget concerns, SWAs can continue to rely on
foreign labor certification grant funding to support those functions.
We believe that this continued cooperative relationship between the CO
and the SWA will ensure greater program integrity and efficiency.
Despite supporting re-introduction of SWA job order review, some
commenters contended that 4 calendar days was insufficient time for the
SWA to conduct an adequate compliance review and notify the Chicago NPC
of its findings. After reviewing these comments, we have decided to
modify the SWA's timeframe for job order review in the Final Rule, from
4 calendar days to 6 business days.
One commenter suggested requiring the employer to submit the job
order to all SWAs having jurisdiction over the anticipated worksite(s).
We will not accept this suggestion, finding the result potentially
burdensome and confusing to SWAs and employers, as well as the Chicago
NPC. Limiting the job order submission and review to one SWA and the
Chicago NPC and, after acceptance, circulating the job order to other
appropriate SWAs, best accomplishes the cooperative relationship and
thorough review we seek to implement without increasing confusion or
sacrificing efficiency.
A labor organization suggested that we clarify the meaning of
intrastate and interstate clearance to ensure that the SWA circulates
the job order to all appropriate States. Intrastate clearance refers to
placement of the job order within the SWA labor exchange services
system of the State to which the employer submitted the job order and
to which the NPC sent the Notice of Acceptance, while interstate
clearance refers to circulation of the job order to SWAs in other
States, including those with jurisdiction over listed worksites and
those the CO designates, for placement in their labor exchange services
systems. We note that, under Sec. 655.33(b)(4), the CO directs the SWA
in the Notice of Acceptance to the States to which the SWA must
circulate the job order, ensuring that the employer is also aware of
the job order's exposure in the SWAs' labor exchange services systems.
However, to further this distinction in the Final Rule, this section
has been slightly revised to clarify that the SWA must place the job
order in intrastate clearance and must also provide it to other States
as directed by the CO.
The same labor organization suggested we require the SWA to post
the job at State motor vehicle offices and Web sites. Another commenter
suggested we require the job order to be open until the end of the
certification period, not only the recruitment period. Still another
commenter suggested the SWA be required to keep the job order posted
for 30 days. We note that job order posting in the SWA labor exchange
system is but one of the SWA and employer recruitment activities
contained in the Final Rule, which together are designed to ensure
maximum job opportunity exposure for U.S. workers during the
recruitment period. Also, in most cases, the job order will be posted
for more than 30 days, since the Final Rule requires the employer to
file its application no more than 90 calendar days and no less than 75
calendar days before its date of need and the SWA to post the job order
upon
[[Page 10063]]
receipt of the Notice of Acceptance and to keep the job order posted
until 21 days before the date of need, as discussed in the preamble to
Sec. 655.20(t). We do not consider it feasible to add further SWA
requirements; as stated above, we have to be sensitive to SWA resource
concerns. Additionally, the H-2B electronic job registry, for instance,
already provides nationwide exposure of the job opportunities, which
renders the additional postings suggested by the commenter unnecessary.
We have decided to retain the requirement that SWAs post the job order
for the duration of the recruitment period, which was revised as
discussed in the preamble to Sec. 655.40. This ensures the job order
is afforded maximum visibility for the most relevant period of time--
the time during which workers are most likely to apply for an imminent
job opening, and when employers are most in need of workers.
One commenter suggested we require employers to simultaneously file
the Application for Temporary Employment Certification rather than the
job order with the SWA and Chicago NPC. In addition to citing the lack
of a uniform job order form, the commenter contended that the
Application for Temporary Employment Certification form contains the
information necessary to place a job order and provides additional
information, thereby enhancing the SWA's review ability. While we
acknowledge that there is no uniform job order form available, we note
that the SWA labor exchange system is a State, not Federal, system. The
existing cooperative Federal-State model under the Wagner-Peyser system
is much too decentralized to accommodate the requirement that SWAs use
a specific form. Moreover, in deference to concerns about SWA
administrative burden, we do not wish to add forms, such as the
Application for Temporary Employment Certification, outside of a SWA's
normal job order placement function. Additionally, the job order
contains different reference points than the ETA Form 9141 and collects
different information. Therefore, we will retain the provision without
change. In an effort to acknowledge the fact that SWAs have different
forms and emphasize the employer's need to comply with each State's
form and requirements, we have revised this provision to provide that
the employer's job order must conform to the State-specific
requirements governing job orders as well as the requirements set forth
in Sec. 655.18.
3. Sec. 655.17 Emergency Situations
We proposed to permit an employer to file an H-2B Registration
fewer than 120 days before the date of need and/or an Application for
Temporary Employment Certification along with the job order fewer than
75 days before the date of need where an employer has good and
substantial cause and there is enough time for the employer to
undertake an adequate test of the labor market. This was a change from
the 2008 regulations, which do not allow for emergency filings, and
sought to afford employers flexibility while maintaining the integrity
of the application and recruitment processes. To meet the good and
substantial cause test, we proposed that the employer must provide to
the CO detailed information describing the reason(s) which led to the
emergency request. Such cause may, in the Final Rule, include the
substantial loss of U.S. workers due to Acts of God or similar
unforeseeable man-made catastrophic event that is wholly outside the
employer's control, unforeseen changes in market conditions, or
pandemic health issues. These edits have been made for consistency and
clarity so that employers will easily understand those areas in which
emergency situations will be permitted. However, the CO's denial of an
H-2B Registration in accordance with the procedures under Sec. 655.11
does not constitute good and substantial cause for a waiver request.
In the NPRM, apart from permitting an employer to file fewer than
75 days before the start date of need and requiring the employer to
show good and substantial cause, we proposed to process an H-2B
Registration and/or an Application for Temporary Employment
Certification and job orders in a manner consistent with non-emergency
processing. In the Final Rule, we have adopted the proposed provision
with a few clarifying edits.
For purposes of simultaneous filing we use the term job order in
the NPRM, when in fact the job order has yet to be created and posted
by the SWA. We recognize that this may be confusing to the employer, as
what will actually be submitted simultaneously with the Application for
Temporary Employment Certification in such instances is a draft
document which outlines the details of the employer's job opportunity,
not the official job order. Therefore, we have made such clarification
in the Final Rule, indicating that the job order is proposed and not
final.
We also received several comments from employers, employer advocacy
groups, and trade organizations, requesting that we include man-made
disasters in this provision. While we indicated in the NPRM that the
examples listed as good and substantial cause are not exclusive,
suggesting that the expansion of the list is in line with the intent of
the provision, for clarification we have revised this provision in the
Final Rule to specifically include man-made disasters as being
circumstances beyond the control of the employer that can result in the
need to file an H-2B Registration and/or an Application for Temporary
Employment Certification along with the job order fewer than 75 days
before the date of need.
Several commenters expressed concern about the potential for
employers to use natural disasters to abuse the program and workers.
These commenters urged us to be vigilant when processing emergency
applications. We are sensitive to these concerns. We intend to subject
emergency applications to a higher level of scrutiny than non-emergency
applications. As proposed and as adopted in the Final Rule, an H-2B
Registration and/or Application for Temporary Employment Certification
processed under the emergency situation provision is subject to the
same recruitment activities, potential to be selected for audit, and
enforcement mechanisms as a non-emergency H-2B Registration and/or
Application for Temporary Employment Certification.
A labor organization asserted that in times of disaster, U.S.
workers may be interested in assuming these temporary positions after
an initial period of securing basic provisions and safety because they
have been displaced from their normal jobs. This commenter suggested
expanding the recruitment period for emergency situation filings to
require the employer to replace H-2B workers with U.S. workers up to 50
percent of the period of need requested. We have decided not to
incorporate this suggestion. We believe each emergency situation is
unique and must be evaluated on its specific characteristics, both as
to whether a qualifying situation exists and whether there is
sufficient time to thoroughly test the U.S. labor market. The
regulation gives the CO the discretion not to accept the emergency
filing if the CO believes there is insufficient time to thoroughly test
the U.S. labor market and make a final determination. Moreover, under
Sec. 655.46, the CO has the discretion to instruct an employer to
conduct additional recruitment. We believe the Final Rule accommodates
both the urgency of these situations and the importance of conducting
an appropriate test of the U.S. labor market.
[[Page 10064]]
A worker advocacy group supported the inclusion of an emergency
situation provision, but urged us to permit only late applications, not
early applications. As discussed above, it is our intention that the
emergency situation provision permit an employer to file fewer than 75
days before the start date of need. This provision in no way expands
the earliest date an employer is eligible to submit an H-2B
Registration or Application for Temporary Employment Certification.
A private citizen suggested limiting an employer to one emergency
application per year. We have decided not to accept this suggestion.
Given that some employers file multiple applications, each for a
different occupation and/or area of intended employment, we believe
such an approach is too strict and contrary to the purpose of the
provision.
Two labor organizations suggested limiting the subjectivity of the
provision. One specifically recommended adding the word reasonably to
unforeseen changes in market conditions, while the other recommended
limiting emergencies to objectively verifiable events such as those
confirmed in Federal, State or local government statements formally
certifying a natural or manmade disaster, necessitating extraordinary
measures by Federal, State or local government. The CO will adjudicate
foreseeability based on the precise circumstances of each situation
presented. The burden of proof is on the employer to demonstrate the
unforeseeability leading to a request for a filing on an emergency
basis. Therefore, we believe the language as proposed strikes an
appropriate balance between providing flexibility to employers
experiencing emergencies that create a need to submit applications
closer to their need than normal processing permits, and limiting the
scope of such emergencies so that emergency processing is truly an
exception rather than the norm.
4. Sec. 655.18 Job Order Requirements and Contents
The job order is essential for U.S. workers to make informed
employment decisions. The Department proposed to require employers to
inform applicants in the job order not only of the standard information
provided in advertisements, but also several key assurances and
obligations to which the employer is committing by filing an
Application for Temporary Employment Certification for H-2B workers and
to which U.S. workers are also entitled. The job order must also be
provided to H-2B workers with its pertinent terms in a language the
worker understands.
Several commenters found the organization of this section to be
confusing when read in concert with the advertising requirements at
Sec. 655.41. The proposed rule at Sec. 655.18 reads: "An employer
must ensure that the job order contains the information about the job
opportunity as required for the advertisements required in Sec. 655.41
and the following assurances * * *" many of which overlapped with
those requirements found in Sec. 655.41. 76 FR 15182, Mar. 18, 2011.
In order to dispel confusion and reconcile the sections, the Department
has reorganized Sec. 655.18 and imported some requirements from Sec.
655.41 that were implied, but not explicitly required, in the NPRM.
Those specific changes are discussed below and in the preamble to Sec.
655.41, and as a result of those changes, this section no longer cross-
references Sec. 655.41.
In addition, the Department has reorganized this section in order
to ensure that employers include all pertinent information in each job
order, regardless of the State in which the job order is being placed.
As there is not a single H-2B job order form that is applicable to all
States and job opportunities, this change is necessary for the uniform
administration of the program requirements. This approach will ensure
that workers have a full understanding of the terms and conditions of
employment, improve employer compliance, and support program
enforcement.
Furthermore, the Department clarifies that the assurances
pertaining to the prohibition against preferential treatment and bona
fide job requirements in paragraph (a) of this section need not be
included in the job order verbatim; rather they are applicable to each
job order insofar as they apply to each listed term and condition of
employment.
One commenter suggested that the lengthy job orders have the effect
of discouraging U.S. workers from pursuing a job opportunity and
suggested that the Department adopt an abbreviated form which might be
provided to each job applicant by the SWA which summarizes the job
order. The Department is not able to accept this suggestion as it is
our primary concern in this context that U.S. applicants be provided
with all of the terms and conditions of employment and fully apprised
of the job opportunity.
a. Prohibition against preferential treatment (proposed rule Sec.
655.18(a); Final Rule Sec. 655.18(a)(1)). The proposed rule required
the employer to provide to U.S. workers at least the same level of
benefits, wages, and working conditions that are being or will be
offered or paid to H-2B workers, similar to the requirements under
Sec. 655.22(a) of the 2008 Final Rule, with the additional requirement
that this guarantee must be set forth in the job order to ensure that
all workers are aware of their rights to similar benefits, wages, and
working conditions. These protections were also reflected in the
proposed rule as an employer assurance and obligation under Sec.
655.20(q).
Some commenters may have misunderstood the protections guaranteed
to U.S. workers under the proposed section because the last sentence of
the proposed section stated that an employer is not relieved from
providing H-2B workers the minimum benefits, wages, and working
conditions that must be offered to U.S. workers under this section. One
commenter expressed support for the proposed changes and elaborated on
the importance of preventing disparate treatment of H-2B and U.S.
workers that could lead to the creation of substandard jobs and lead to
the abuse of vulnerable H-2B workers. To clarify, the purpose of Sec.
655.18(a)(1) is to protect U.S. workers by ensuring that the employers
do not understate wages and/or benefits in an attempt to discourage
U.S. applicants or to provide preferential treatment to temporary
foreign workers. Employers are required to offer and provide H-2B
workers at least the minimum wages and benefits outlined in these
regulations. So long as the employer offers U.S. workers at least the
same level of benefits as will be provided to the H-2B workers, the
employer will be in compliance with this provision. Section
655.18(a)(1) does not preclude an employer from offering a higher wage
rate or more generous benefits or working conditions to U.S. workers,
as long as the employer offers to U.S. workers all the wages, benefits,
and working conditions offered to and required for H-2B workers
pursuant to the certified Application for Temporary Employment
Certification.
In addition to commenters who generally supported the expanded
protections of H-2B workers, several commenters--a legal network a
human rights organization, a labor organization and an alliance of
human rights organizations--specifically requested that the Department
add an additional provision into the job order which would require the
employer to offer to H-2B workers the same fringe benefits as those the
employer is offering to U.S. workers in corresponding employment. As
discussed above, the Department's
[[Page 10065]]
mandate requires that an employer be permitted to hire H-2B workers
only in circumstances where there are no qualified and available U.S.
workers, and where the employment of H-2B workers will not have an
adverse effect on the wages and working conditions of U.S. workers. To
that end, the regulation under Sec. 655.18(a)(1) requires that the job
order "must offer to U.S. workers no less than the same benefits,
wages, and working conditions that the employer is offering, intends to
offer, or will provide to H-2B workers." Any fringe benefits offered
or provided by an employer would fall under the category of benefits,
and the employer would therefore be required to list them on the job
order. However, nothing in this regulation precludes an employer from
offering more generous benefits than those required by the regulations
to either U.S. workers or H-2B workers, as long as the employer offers
to U.S. workers at least the same wages, benefits, and working
conditions offered to and required for H-2B workers pursuant to the
approved Application for Temporary Employment Certification. However,
for further clarification, the Department has amended Sec.
655.18(b)(9) to require that the job order specifically list any fringe
benefits that will be offered.
The Department received no more comments on this section; the
Department is therefore adopting the proposed language in the Final
Rule without change.
b. Bona fide job requirements (proposed rule Sec. 655.18(b); Final
Rule Sec. 655.18(a)(2)). The Department proposed to require that the
job qualifications and requirements listed in the job order be bona
fide and consistent with the normal and accepted job qualifications and
requirements of employers that do not use H-2B workers for the same or
comparable occupations in the same area of intended employment. Several
commenters expressed concern about how the Department and the SWAs will
determine what qualifications and requirements are bona fide and normal
to the job opportunity. The determination of whether job requirements
and qualifications are consistent with the normal and accepted job
requirements and qualifications of non-H-2B employers is fact-specific.
The SWAs have decades of experience reviewing job orders according to
these standards. However, the Department recognizes that some confusion
exists concerning the distinction between job requirements and
qualifications and the application of each. Therefore, this provision
of the Final Rule includes a definition of job requirements and
qualifications. As stated in Sec. 655.18(b), a qualification means a
characteristic that is necessary for the individual to perform the job
in question. A requirement means a term or condition of employment
which a worker is required to accept in order to obtain the job
opportunity. Additionally, the Department added language requiring that
any on-the-job training that will be provided to the worker must be
disclosed in the job order. This change was made to align with the
advertising requirements in Sec. 655.41.
c. Benefits, wages, and working conditions (proposed rule Sec.
655.18(c)-(g); Final Rule Sec. 655.18(b)(1)-(8), (11)). The Department
proposed to require that the employer list the following benefits,
wages, and working conditions in the job order: The rate of pay,
frequency of pay, deductions that will be made, and that the job
opportunity is full-time. These requirements are generally consistent
with those required in Sec. 655.17 and Sec. 655.22 of the 2008 Final
Rule. These disclosures are critical to any applicant's decision to
accept the job opportunity.
Many advocacy groups commented on the importance of including
information related to benefits, wages, and working conditions in the
job order. These commenters noted that when this information is
specifically listed on the job order, workers are better able to make
an informed decision regarding the job opportunity prior to accepting a
position. As no specific comments were received on proposed Sec. Sec.
655.18(d), (e), or (g), the Department is adopting those provisions
without change in the Final Rule. A full discussion of comments
received on Sec. 655.18(f) is below.
In response to the aforementioned confusion caused by discrepancies
between proposed Sec. 655.18 (Contents of the job order) and Sec.
655.41 (Advertising requirements), the following sections were
reorganized: Proposed Sec. 655.18(d) (Rate of pay) is Sec.
655.18(b)(5) in the Final Rule, proposed Sec. 655.18(e) (Frequency of
pay) is Sec. 655.18(b)(9) in the Final Rule, proposed Sec. 655.18(f)
(Deductions that will be made) is Sec. 655.18(b)(11) in the Final
Rule, proposed Sec. 655.18(g) (Statement that the job opportunity is
full-time) is Sec. 655.18(b)(2) in the Final Rule, proposed Sec.
655.18(h) (Three-fourths guarantee) is Sec. 655.18(b)(17) in the Final
Rule, proposed Sec. 655.18(i) (Transportation and visa fees) is Sec.
655.18(b)(12) through (15) in the Final Rule, proposed Sec. 655.18(j)
(Employer-provided items) is Sec. 655.18(b)(16) in the Final Rule, and
proposed Sec. 655.18(k) (Board, lodging, or facilities) is Sec.
655.18(b)(10) and (11).
d. Deductions (proposed rule Sec. 655.18(f); Final Rule Sec.
655.18(b)(10)). In Sec. 655.18(f), the Department proposed to require
that the job order specify that the employer will make all deductions
from the worker's paycheck required by law and specifically list all
deductions not required by law that the employer will make from the
worker's paycheck. Numerous commenters--including advocacy
organizations, legal networks, and labor organizations--offered
unqualified support for this provision. One foreign worker advocacy
group noted that workers have expressed concern that the various
deductions are unlawful and affect their ability to support family
members in their countries of origin.
In addition, a coalition representing agents and employers
requested that the Department amend this section in three ways. First,
the commenter suggested that the Department define deductions for the
purpose of this section as an actual subtraction from earned wages.
This commenter contended that such an amendment would prevent an
employer from finding itself in violation of this obligation because an
employee expended sums without its knowledge, which some treat as
deductions. Second, the commenter requested that the Department amend
this section to deal with the circumstance where deductions may, but
not necessarily will, be made. The commenter asserted that an employer
should be able to avoid discouraging a potential applicant by
suggesting that a deduction will be made when it might never be, for
example, a deduction for damages to employer-owned items, where State
law permits such a deduction. Finally, this commenter requested that
the Department clarify that required by law includes judicial process,
such as child support orders.
The Department reminds the commenter that under the Fair Labor
Standards Act (FLSA) there is no legal difference between deducting a
cost from a worker's wages and shifting a cost to an employee to bear
directly. As the court stated in Arriaga v. Florida Pacific Farms,
L.L.C., 305 F.3d 1228, 1236 (11th Cir. 2002):
An employer may not deduct from employee wages the cost of
facilities which primarily benefit the employer if such deduction
drive wages below the minimum wage. See 29 C.F.R. Sec. 531.36(b).
This rule cannot be avoided by simply requiring employees to make
such purchases on their own, either in advance of or during
employment. See id. Sec. 531.35; Ayres v. 127
[[Page 10066]]
Rest. Corp., 12 F.Supp.2d 305, 310 (S.D.N.Y.1998).
Consistent with the FLSA and the Department's obligation to prevent
adverse effects on U.S. workers by protecting the integrity of the H-2B
offered wage, the Department views the offered wage as the effective
minimum wage for H-2B and corresponding U.S. workers.
In response to the second instance mentioned by the commenter, the
Department reminds the commenter that deductions for damage to
employer-provided items are prohibited under the Final Rule, regardless
of State laws permitting such deductions. This prohibition is explained
in detail in the preamble to Sec. 655.20(k). However, as a general
rule, if an employer reserves the right to make a deduction, the
potential that such a deduction could be made must be disclosed in the
job order to ensure that employees are fully informed of the terms and
conditions of employment. Finally, the Department includes garnishments
in deductions required by law; this is made explicit in the Final Rule
at Sec. 655.20(c).
No other comments were received on this provision. However, for
clarification, the Department has moved this section to Sec.
655.18(b)(10) in the Final Rule and added language, previously
contained in proposed Sec. 655.18(k), specifying that the job order
must include, "if applicable, any deduction for the reasonable cost of
board, lodging, or other facilities." The Department has made another
clarifying edit, modifying the provision to require the disclosure of
any deductions the employer intends to make rather than those an
employer will make. This change is consistent with the intent of the
proposed rule. No other changes were made to this provision.
e. Three-fourths guarantee (proposed rule Sec. 655.18(h); Final
Rule Sec. 655.18(b)(17)). The NPRM proposed to require that H-2B
employers list in the job order the new obligation that the employer
would guarantee to offer employment for a total number of work hours
equal to at least three-fourths of the workdays of each 4-week period
and, if the guarantee was not met, to pay the worker what the worker
would have earned if the employer had offered the guaranteed number of
days, as required by proposed Sec. 655.20(f). For the reasons
discussed in the preamble under Sec. 655.20(f), the Final Rule
modifies this provision to lengthen the increment to a 12-week period
instead of a 4-week period if the period of employment covered by the
job order is 120 days or more, and lengthens the increment to a 6-week
period if the employment covered by the job order is less than 120
days. As there were no comments specific to inclusion of this
requirement in the job order, the Department adopts this provision
without further change in the Final Rule.
f. Transportation and visa fees (proposed rule Sec. 655.18(i);
Final Rule Sec. 655.18(b)(12)-(15)). The NPRM proposed to require the
job order to disclose that the employer will provide, pay for, or fully
reimburse the worker for inbound and outbound transportation and daily
subsistence costs for U.S. workers who are not reasonably able to
return to their residence within the same workday and H-2B workers when
traveling to and from the employer's place of employment. Additionally,
the NPRM proposed to require employers to disclose if they will provide
daily transportation to the worksite and that the employer will
reimburse H-2B workers for visa and related fees. For the reasons
discussed in the preamble under Sec. 655.20(j), the Final Rule adopts
these obligations with the modification that employers must arrange and
pay for the inbound transportation and subsistence directly, advance
the reasonable cost, or reimburse the worker's reasonable costs if the
worker completes 50 percent of the period of employment covered by the
job order, and must provide, pay for, or reimburse outbound
transportation and subsistence if the worker completes the job order
period or is dismissed early. However, under Sec. 655.18(y), if
separation is due to the voluntary abandonment of employment by the H-
2B worker or the worker in corresponding employment and the employer
provides proper notice to DHS and DOL, the employer will not be
responsible for providing or paying for the subsequent transportation
and subsistence expenses of that worker and that worker is not entitled
to the three-fourths guarantee described in Sec. 655.20(f). As there
were no comments specific to the disclosure requirements under this
section, the Department adopts this provision without further change in
the Final Rule.
g. Employer-provided items (proposed Sec. 655.18(j); Final Rule
Sec. 655.18 (b)(16)). The proposed rule required the job order to
disclose that the employer will provide workers with all tools,
supplies, and equipment needed to perform the job at no cost to the
employee. This provision, which is consistent with the FLSA regulations
at 29 CFR part 531 and current Sec. 655.22(g) requiring all deductions
to be reasonable, gives the workers additional protection against
improper deductions from wages for items that primarily benefit the
employer, and assures workers that they will not be required to pay for
items necessary to perform the job.
Several commenters expressed unqualified support for this
provision. However, some commenters noted that this provision could be
impractical in industries in which employees customarily prefer to use
specialized, custom-made equipment, such as the skis used by some ski
instructors. One commenter, a ski industry representative, suggested
that the Department amend Sec. 655.18(j) to require that employers
offer standard equipment instead of provide * * * all tools, supplies,
and equipment required to perform the duties assigned to clarify that
employers are not responsible for providing employees with custom-
fitted equipment. The Department wishes to clarify that this provision
is intended to protect workers against improper deductions by ensuring
that they are fully capable of performing their jobs without any
personal investment in tools or equipment. Thus, employers must provide
standard equipment that allows employees to perform their job fully,
but they are not required to provide, for example, equipment such as
custom-made skis that may be preferred, but not needed by, ski
instructors. It does not prohibit employees from electing to use their
own equipment, nor does it penalize employers whose employees
voluntarily do so, so long as a bona fide offer of adequate,
appropriate equipment has been made.
Another commenter, a worker advocate, suggested further
protections, requesting that the provision be revised to include
language explicitly prohibiting employers from charging workers for
broken, stolen, or lost equipment. Section 3(m) of the FLSA prohibits
deductions that are primarily for the benefit of the employer that
bring a worker's wage below the applicable minimum wage, including
deductions for tools, supplies, or equipment that are incidental to
carrying out the employer's business. Consistent with the FLSA, current
Sec. 655.22(g) (which requires all deductions to be reasonable), and
the Department's obligation to prevent adverse effects on U.S. workers,
the Department believes this Final Rule similarly should protect the
integrity of the H-2B offered wage by treating it as the effective
minimum wage. This gives U.S. and H-2B workers additional protection
against improper deductions from the offered wage for items that
primarily benefit the employer. Therefore, because
[[Page 10067]]
deductions for damaged and lost equipment are encompassed within
deductions for equipment needed to perform a job, such deductions that
bring a worker's wage below the offered wage are not permissible. The
Department believes these principles are sufficiently clear as set
forth in the FLSA regulations, 29 CFR part 531, and declines to adopt
this commenter's suggestion. No other comments were received on this
section. Therefore, the Final Rule retains the requirement as proposed.
h. Board, lodging, or facilities (proposed rule Sec. 655.18(k));
Final Rule Sec. 655.18(b)(9). In Sec. 655.18(k) the Department
proposed to require that, if an employer provides the worker with the
option of board, lodging, or other facilities or intends to assist
workers to secure such lodging, this must be listed in the job order.
In addition, if the employer intends to make any wage deductions
related to such provision of board, lodging or other facilities, such
deductions must be disclosed in the job order. Several commenters
offered unqualified support for this provision. However, a coalition
representing agents and employers was concerned that the phrase or
intends to assist workers to secure such lodging was overly vague and
asked the Department to clarify what would qualify as assistance. This
commenter also noted that the proposed section did not require that the
intention to assist be listed in the job order. The Department does not
include as assistance an employer's simple provision of information,
such as providing workers coming from remote locations with a list of
facilities providing short-term leases, or a list of extended-stay
motels. However, in some cases, employers may reserve a block of rooms
for employees, negotiate a discounted rate on the workers' behalf, or
arrange to have housing provided at cost for its employees and such
activities would qualify as assistance. Any such assistance may make it
more feasible for a U.S. worker from outside the area of intended
employment to accept the job, and therefore it should be included in
the job order. In addition, while the requirement to disclose the
provision of such assistance was implicit in Sec. 655.18(k) of the
NPRM, in response to this commenter's suggestion the Final Rule has
been clarified to explicitly require the employer to disclose such
offer of assistance. The Final Rule regulatory text now requires the
disclosure of: the provision of board, lodging, or other facilities or
of assistance in securing such lodging. Finally, this commenter
requested that the Department add a definition of other facilities to
the definition section or to this section. The Department declines to
make such an addition and refers the commenter to 29 CFR 531.32, which
defines the term at length and has been construed and enforced by the
Department for several decades. The Department has concluded that it is
beneficial for workers, employers, agents, and the Wage and Hour
Division to ground its enforcement of H-2B program obligations in its
decades of experience enforcing the FLSA, and the decades of court
decisions interpreting the regulatory language we are adopting in these
regulations. Therefore, the Department notes throughout this preamble
where it is relying on FLSA principles to explain the meaning of the
requirements of the H-2B program that use similar language.
Nevertheless, the Department has clarified the meaning of the term
facilities by adding the parenthetical (including fringe benefits) to
the Final Rule. This clarification makes this section more parallel
with the requirement in Sec. 655.18(a)(1), which requires the job
order to offer U.S. workers no less than the same benefits, wages, and
working conditions as offered to H-2B workers. Because the term fringe
benefits is commonly used and understood, the Department believes this
will provide employers with greater clarification about their
obligation to disclose on the job order the benefits they will offer or
provide to workers.
An advocacy organization requested that the Department impose
additional requirements on employers who intend to provide rental
housing. This commenter suggested that in such cases, the job order
should specifically disclose the following: whether the worker will be
sharing the accommodations with other workers or tenants, and if so,
how many; the rent and security deposit, if any; a description of the
type of accommodations; information about utilities; and any other
pertinent information related to room and board. This commenter also
requested that the regulations specifically require that all rental
housing comply with State and local housing codes. The Department
acknowledges this commenter's concern, but declines to implement the
suggestion. There is no guarantee that an employer would have secured
housing for potential employees at the point of filing the job order,
which cannot be done less than 75 days before the date of need.
Requiring such disclosures would either result in speculation that
would undermine their purpose, or would force employers to secure
housing more than 2 months before workers arrived, potentially
resulting in unnecessary and burdensome costs. Furthermore, two of the
suggested disclosures--the cost of rent or security deposit and the
cost of utilities--are already covered under the Final Rule at Sec.
655.18(b)(10) if the employer will make deductions for them.
Responding to the Department's discussion of the application of
this section to employers operating under special procedures, a trade
association argues that no DOL regulation has ever suggested that
mobile housing is unworthy of deductions. The Department's long-
standing position is that facilities that are primarily for the benefit
or convenience of the employer will not be recognized as reasonable and
may not therefore be included in computing wages. See 29 CFR
531.3(d)(1). The Department maintains that housing provided by
employers with a need for a mobile workforce, such as those in the
carnival or forestry industries where workers are in an area for a
short period of time, need to be available to work immediately, and may
not be able to procure temporary housing easily, is primarily for the
employer's benefit and convenience.
One commenter from the reforestation industry wrote that the court
cases the Department cites in the proposal have nothing whatsoever to
do with the H-2B program or workers on an itinerary being paid wages
substantially in excess of the federal minimum wage. As discussed in
the preamble to Sec. 655.15(f), the Department has made an exception
for the carnival and reforestation industries, which use H-2B workers
in itinerant employment over large interstate areas. Without this
exception, these industries would be unable to readily comply with the
program's established processes. Having made this exception for these
industries, the Department asserts that the requirement that the
employer provide housing and transportation free of charge to the
employees is both reasonable and reflective of the true cost of doing
business for this type of work. It should also be noted that without
the ability and flexibility to move quickly and use mobile workforces,
these industries could not function.
An employer from the reforestation industry suggested that the
Final Rule require that housing for itinerant employees be selected by
the workers, and that workers be reimbursed at a standard daily housing
rate for the area of intended employment. The
[[Page 10068]]
Department declines to mandate such a practice. For the reasons stated
in this section, the Department's position is that housing for workers
in itinerant industries must be provided or paid for by the employer.
The Department has amended this section to require the disclosure
of any fringe benefits that will be provided. This change is consistent
with proposed Sec. 655.18(a), which required that the job order offer
to U.S. workers no less than the same benefits, wages, and working
conditions that the employer is offering, intends to offer, or will
provide to H-2B workers. No other comments were received on this
section.
i. Other changes. In addition to commenting on the contents of the
job order as proposed, several commenters suggested additional content
requirements.
An alliance of human rights organizations suggested that the job
order contain multiple explicit provisions. Many of the disclosures
suggested by the commenter were included in the proposed rule, such as
a list of costs charged to the worker (Sec. 655.18(f)) and educational
or experience requirements (Sec. 655.41(b)(3)). The commenter also
suggested that the job order contain information on the visa, a
statement prohibiting a foreign labor contractor from assessing fees, a
notice that the worker be provided 48 hours to review and consider any
changes in terms, a statement that changes to the terms may not be made
without specific consent of the worker, and a statement describing
worker protections under the Trafficking Victims Protection Act of
2000. The Department maintains that the information which employers are
required to include in the job order under Sec. 655.18 of the Final
Rule is necessary and sufficient to provide the worker with adequate
information to determine whether to accept the job opportunity, and
notes that the Department of State provides all H-2B workers with a
detailed worker rights card at the visa application stage.\7\ The
Department believes that these disclosures will ensure that adequate
information is available to H-2B workers and therefore does not accept
the commenters' suggestions.
---------------------------------------------------------------------------
\7\ The workers rights card is available at
https://travel.state.gov/pdf/Pamphlet-Order.pdf.
---------------------------------------------------------------------------
With respect to a proposal that workers be provided notice of the
changes to the job order, the Department notes that both the NPRM and
the Final Rule require an employer who wishes to change any of the
terms and conditions of employment listed in the job order, to submit
such a proposed change to the CO for approval. The employer may not
implement changes to the approved terms and conditions listed in the
job order without the approval by CO. Additionally, such changes must
be disclosed to all U.S. workers hired under the original job order, as
required by Sec. 655.35.
Finally, a coalition of worker advocacy organizations and several
other worker advocacy organizations suggested that the Department add a
provision to the regulations stating that, in the absence of a written
contract, the terms and conditions listed in the job order shall be the
work contract. The Department does not believe it is necessary to add
such a provision, as the courts will determine private parties'
contractual rights under state contract law. These commenters were
concerned, however, that the Department's reference to Garcia v. Frog
Island Seafood, Inc. (Frog Island), 644 F. Supp. 2d 696, 716-18
(E.D.N.C. 2009), in its rationale for the three-fourths hours
guarantee, 76 FR 15143, Mar. 18, 2011, implied that the Department
endorsed that court's view that the terms and conditions of H-2B job
orders are not enforceable under state contract law. The Department
wishes to clarify that it does not endorse this view, and was simply
referencing this decision as an example of one of several ways that
courts have viewed the enforceability of an hours guarantee in the H-2B
job order absent an explicit regulatory requirement. The Department
believes that the Frog Island court's holding regarding the
enforceability of the H-2B job order is limited to the 2008 Final Rule,
as the court's reasoning was based on the explicit lack of an hours
guarantee under that rule. See 644 F. Supp. 2d at 718; 73 FR 78024,
Dec. 18, 2008 (2008 Final Rule preamble explaining that the definition
of full-time did not constitute an actual obligation of the number of
hours that must be guaranteed each week). The reference to Frog Island
in the NPRM should not have been interpreted as the Department's view
of the enforceability of the three-fourths guarantee in this Final Rule
because this Final Rule explicitly mandates an hours guarantee.
oreover, to the extent the court in Frog Island also based its
decision on the premise that finding the employer responsible for
providing the 40 hours listed in the H-2B job order would effectively
negate at-will employment, see 644 F. Supp. 2d at 719, the Department
notes that it views the terms and conditions of the job order as
binding, regardless of workers' at-will employment status.
In addition to making the organizational changes discussed above,
the Final Rule will require employers to list in the job order the
following information that is essential for providing U.S. workers
sufficient information about the job opportunity (this information was
previously required to be included in the job order by a cross
reference to Sec. 655.41): the employer's name and contact information
(Sec. 655.18(b)(1)); a full description of the job opportunity (Sec.
655.18(b)(3)); the specific geographic area of intended employment
(Sec. 655.18(b)(4)); if applicable, a statement that overtime will be
available to the worker and the overtime wage offer(s) (Sec.
655.18(b)(6)); if applicable, a statement that on-the-job training will
be provided to the worker (Sec. 655.18(b)(7)); a statement that the
employer will use a single workweek as its standard for computing wages
due (Sec. 655.18(b)(8)); and instructions for inquiring about the job
opportunity or submitting applications, indications of availability,
and/or resumes to the appropriate SWA (Sec. 655.18 (b)(18)). This last
addition was included to ensure that applicants who learn of the job
opening through the electronic job registry are provided with the
opportunity to contact the SWA for more information or referral.
5. Sec. 655.19 Job Contractor Filing Requirements
This Final Rule amends Sec. 655.6 to provide for the limited
circumstances under which job contractors may continue to participate
in the H-2B program. However, their participation is still be subject
to the limitations provided in the CATA decision, in which the Court
invalidated and vacated 20 CFR 655.22(k) under the 2008 Final Rule
insofar as that provision permits the clients of job contractors to
hire H-2B workers without submitting an application to the Department.
In particular, the Court relied, as a basis for its determination, on
the DHS regulation at 8 CFR 214.2(h)(2)(i)(C), which provides that
"[i]f the beneficiary [i.e., the temporary, non-immigrant worker] will
perform nonagricultural services for, or receive training from, more
than one employer, each employer must file a separate petition with
USCIS as provided in the form instructions." The Court found that this
provision, when coupled with the DHS regulation at 8 CFR
214.2(h)(6)(iii)(A), which requires the petitioner to apply for a
temporary labor certification with the Department of Labor, prohibited
the Department's
[[Page 10069]]
existing practice of allowing only job contractors to file for labor
certifications. See CATA 2010 WL 3431761, at *16 (E.D. Pa. Aug. 30,
2010). Rather, the Court found that such provisions
mandate that (1) every employer must file a petition with DHS, and
(2) before doing so, the employer must also file a certification
application with DOL. By allowing certain employers not to file
certification applications, DOL's regulations unambiguously
contradict this mandate. Id. (emphasis added).
As a result of this order, we determined that we could no longer
accept H-2B labor certification applications from job contractors if
the job contractor's employer-clients did not also submit labor
certification applications. However, both the 2008 Final Rule and this
Final Rule only permit one H-2B labor certification application to be
filed for worksite(s) within one area of intended employment for each
job opportunity with an employer. Accordingly, both a job contractor
and employer-client each would not be able to file their own
application for a single job opportunity.
However, we recognized that it may be possible for a job contractor
and its employer-client to file a single application as a joint
employer. Joint employment is defined as where two or more employers
each have sufficient definitional indicia of employment to be
considered the employer of an employee, those employers may be
considered to jointly employ that employee. An employer in a joint
employment relationship with an employee may be considered a 'joint
employer' of that employee. See Sec. 655.4. That approach would be
consistent with both the CATA decision (which prohibits allowing only
the job contractor to file the application) and Sec. 655.20 under the
2008 Final Rule and Sec. 655.15 under this Final Rule (which prohibit
the filing of multiple applications for a single job opportunity).
Earlier this year, we issued guidance on our Web site which addresses
the requirement and procedures for filing and processing applications
for joint employers (which could include job contractors and their
employer-client(s)) under the H-2B program. See
https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#h2b. While such
guidance continues to remain valid, we are incorporating in this
section the key procedures and requirements relating to the submission
of the Application for Prevailing Wage Determination, the filing of the
Application for Temporary Employment Certification, placement of the
job order and conduct of recruitment, issuance of certification, and
submission of certification to USCIS.
In deciding whether to file as joint employers, the job contractor
and its employer-client should understand that employers are considered
to jointly employ an employee when they each, individually, have
sufficient definitional indicia of employment with respect to that
employee. As described in the definition of employee in 20 CFR 655.4,
some factors relevant to the determination of employment status
include, but are not limited to, the following: The right to control
the manner and means by which work is accomplished; the skill required
to perform the work; the source of the instrumentalities and tools for
accomplishing the work; the location of the work; discretion over when
and how long to work; and whether the work is part of the regular
business of the employer or employers. Whenever a job contractor and
its employer client file applications, each employer is responsible for
compliance with H-2B program assurances and obligations. In the event a
violation is determined to have occurred, either or both employers can
be found to be responsible for remedying the violation and attendant
penalties.
D. Assurances and Obligations
1. Sec. 655.20 Assurances and Obligations of H-2B Employers
Proposed Sec. 655.20 replaced existing Sec. 655.22 and contained
the employer obligations that WHD will enforce. The Department proposed
to modify, expand, and clarify current requirements to ensure that the
employment of H-2B workers will not adversely affect the wages and
working conditions of U.S. workers similarly employed. Requiring
compliance with the following conditions of employment is the most
effective way to meet this goal. As discussed in the preamble to Sec.
655.5, workers engaged in corresponding employment are entitled to the
same protections and benefits, set forth below, that are provided to H-
2B workers.
a. Rate of pay (Sec. 655.20(a)). In proposed Sec. 655.20(a) the
Department expanded the current Sec. 655.22(e). In addition to the
existing requirements that employers pay the offered wage during the
entire certification period and that the offered wage equal or exceed
the highest of the prevailing wage, the applicable Federal minimum
wage, the State minimum wage, and any local minimum wage, the
Department added the requirement that such wages be paid free and
clear. The proposed section also added requirements related to
productivity standards and payments made on a piece-rate basis, and
eliminated the current Sec. 655.22(g)(1) option of paying such wages
on a monthly basis. The Department received numerous comments on this
section that were deemed out of scope, as they concerned the
calculation of the prevailing wage.
The Department's proposed regulation required that the wages
offered in the job order must be at least equal to the prevailing wage
rate for the occupation in the area of employment, as set forth in
Sec. 655.10(b), or the appropriate Federal, State, or local minimum
wage, whichever is highest. If, during the course of the period
certified in the Application for Temporary Employment Certification,
the Federal, State or local minimum wage increases to a level higher
than the prevailing wage certified in the Application, then the
employer is obligated to pay that higher rate for the work performed in
that jurisdiction where the higher minimum wage applies.
A State Attorney General's office supported the obligation to pay
the State or local minimum wage where one is higher than the prevailing
wage or the Federal minimum wage, stating that this provision is
particularly important in industries in which employees are often
exempt from Federal wage and hour law. We concur with this assessment.
Upon consideration, we have amended the provision with respect to
productivity standards (Sec. 655.20(a)(3)) to reflect that it is
incumbent upon the employer to demonstrate that such productivity
standards are normal and usual for non-H-2B employers for the
occupation and area of intended employment. Unlike in the H-2A program,
the Department does not conduct prevailing practice surveys through the
SWAs, which would provide such information to enable a CO to make this
decision. If an employer wishes to provide productivity standards as a
condition of job retention, the burden of proof rests with that
employer to show that such productivity standards are normal and usual
for employers not employing H-2B workers. We have adopted the rest of
the proposed rule with minor clarifying edits for consistency.
b. Wages free and clear (Sec. 655.20(b)). In Sec. 655.20(b), the
Department proposed to require that wages be paid either in cash or
negotiable instrument payable at par, and that payment be made finally
and unconditionally and free and clear in accordance with WHD
regulations at
[[Page 10070]]
29 CFR part 531. Numerous commenters, including several advocacy
organizations and a state agency, wrote in support of this provision. A
foreign worker advocacy organization writing in favor of the provision
stated that in its experience employers too often try to impermissibly
shift costs of tools, recruiting, travel, and other costs which
impermissibly bring employees' wages below the minimum and prevailing
wage. This assurance clarifies the pre-existing obligation for both
employers and employees.
Only one commenter, a trade organization wrote in opposition to the
provision. However, this commenter misunderstood the proposal, writing
that the requirement to pay prevailing wages free and clear will expose
employers to the costs of local convenience travel (trips to Wal-Mart,
Western Union, laundry, etc.), uniforms, tools, meals, etc. While the
employer's obligation to pay for uniforms and tools is covered in the
Final Rule at Sec. 655.20(k), reasonable deductions for employer-
provided local travel that is for the employees' primary benefit and
meals, if disclosed on the job order, would generally be viewed as
permissible under Sec. 655.20(c).
c. Deductions (Sec. 655.20(c)). In proposed Sec. 655.20(c) the
Department sought to ensure payment of the offered wage by limiting
deductions which reduce wages to below the required rate. The proposed
section limited authorized deductions to those required by law, made
under a court order, that are for the reasonable cost or fair value of
board, lodging, or facilities furnished that primarily benefit the
employee, or that are amounts paid to third parties authorized by the
employee or a collective bargaining agreement. The proposed section
specifically provided that deductions not disclosed in the job order
are prohibited. The Department also specified deductions that would
never be permissible, including: Those for costs that are primarily for
the benefit of the employer; those not specified on the job order; kick
backs paid to the employer or an employer representative; and amounts
paid to third parties which are unauthorized, unlawful, or from which
the employer or its foreign labor contractor, recruiter, agent, or
affiliated person benefits to the extent such deductions reduce the
actual wage to below the required wage. The proposed section referred
to the FLSA and 29 CFR part 531 for further guidance.
Numerous advocacy groups, labor organizations, and individuals
commented in favor of the provision. One foreign worker advocacy
organization applauded the Department's proposal, writing the
provision's level of specificity is valuable and necessary to prevent
employers from taking advantage of vulnerable workers with little
understanding of what employers may lawfully deduct from their wages. A
labor organization wrote that it regularly finds that immigrant workers
are exploited by employers who confuse them as to their rate of pay,
overtime, taxes, and other deductions, and therefore enthusiastically
supported the provision. Two individuals misunderstood the provision as
allowing deductions that are primarily for the benefit of the employer
and requested that the Department explicitly prohibit such deductions.
The Department clarifies that a deduction for any cost that is
primarily for the benefit of the employer is never reasonable and
therefore never permitted under the Final Rule. Some examples of costs
that Department has long held to be primarily for the benefit of the
employer are: Tools of the trade and other materials and services
incidental to carrying on the employer's business; the cost of any
construction by and for the employer; the cost of uniforms (whether
purchased or rented) and of their laundering, where the nature of the
business requires the employee to wear a uniform; and transportation
charges where such transportation is an incident of and necessary to
the employment. This list is not an all-inclusive list of employer
business expenses.
A comment from a State Department of Labor expressed concern that
the permissibility of a deduction was still subjective and requested
that ETA provide SWAs with training and detailed written instructions
with criteria to use when evaluating deductions listed on a job order.
The Department believes that the guidance provided in this section is
sufficient, but will provide additional training and guidance to SWAs
as needed.
In addition, concerns were raised by a coalition representing
agents and employers and an industry group that the prohibition of
deductions constituted an overstepping of the Department's bounds by
importing the de facto deduction concept from the FLSA. One of these
commenters also cited the decision by the Fifth Circuit Court of
Appeals in Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393
(5th Cir. 2010), contending that this decision definitively resolved
whether the FLSA requires H-2B employers to reimburse certain employee
pre-employment business expenses, and that the Department is bound by
this decision. However, that decision concerned alleged FLSA violations
relating to employees' payment of transportation and visa fees during a
time period in which the court found that the Department did not have a
clear position as to whether employers were required to reimburse for
these fees. Decatur, 622 F.3d at 401-02, and n.9. It specifically
stated that the Department's subsequent clarification that these
expenses primarily benefited the employer and therefore could not bring
workers' wages below the FLSA minimum wage, as set forth in Field
Assistance Bulletin No. 2009-2 (August 2009, available at
https://www.dol.gov/ebsa/regs/fab2009-2.html), might be afforded due deference
in the future but would not apply retroactively to the allegations at
issue in that case. Id. at 402. The Department acknowledges that it is
bound by the Fifth Circuit's decision with respect to the time period
considered in that case, in the jurisdictions covered by the Fifth
Circuit, with regard to how such expenses are treated under the FLSA.
However, the Department does not interpret this decision to be the
ultimate determination on these issues, as suggested by this commenter,
and notes that the decision did not address what the proper deduction
analysis would be under newly promulgated regulations adopted under the
H-2B program. The Department believes that the concept of de facto
deductions initially developed under the FLSA is equally applicable to
deductions that bring H-2B workers' wages below the required wage, as
the payment of the prevailing wage is necessary to ensure that the
employment of foreign workers does not adversely affect the wages and
working conditions of similarly employed U.S. workers. To allow
deductions for business expenses, such as tools of the trade, would
undercut the prevailing wage concept and, as a result, harm U.S.
workers.
d. Job opportunity is full-time (Sec. 655.20(d)). In proposed
Sec. 655.20(d), the Department required that all job opportunities be
full-time temporary positions, consistent with existing language in
Sec. 655.22(h), and established full-time employment as at least 35
hours per week, an increase from the current level of 30 hours.
Additionally, consistent with the FLSA, the NPRM added the requirement
that the workweek be a fixed and regularly recurring period of 168
hours or seven consecutive 24-hour periods which may start on any day
or hour of the day. The Department received no comments regarding the
added language
[[Page 10071]]
addressing the workweek requirement; however, there were many comments
submitted by a variety of commenters expressing opinions about the
definition of full-time employment. The Department carefully considered
and responded to those comments in its discussion of Sec. 655.5,
Definition of Terms.
e. Job qualifications and requirements (Sec. 655.20(e)). Proposed
Sec. 655.20(e) clarified existing Sec. 655.22(h) by stating that each
job qualification and requirement listed in the job order must be
consistent with normal and accepted qualifications required by non-H-2B
employers for similar occupations in the area of intended employment.
Under the proposed compliance model, OFLC in collaboration with the SWA
would determine what is normal and accepted during the pre-
certification process. In addition, we proposed to provide the CO with
the authority to require the employer to substantiate any job
qualifications specified in the job order. The Department is retaining
this provision with amendments, as discussed below.
The Department received one comment on this additional language, in
which a coalition representing agents and employers requested that the
Department limit the CO's discretion to demand substantiation to those
cases in which he or she has objective and reliable documentation
showing that a requirement or qualification is unusual or rare. This
commenter asserted that this limitation would not place a further
burden on the CO and would limit the burden placed on employers. The
Department concludes that such a requirement would in fact place a
significant burden on the CO, who would have to do substantial research
to produce such documentation, while an employer would presumably have
documentation of the appropriateness of its own requirement or
qualification readily available. The Department therefore declines to
make this change.
In addition, the Department received comments raising concerns
regarding the Department's standard for what is normal and accepted
with respect to the employer's qualifications and requirements. Some
commenters expressed confusion between the use of the terms
qualification and requirement. These and other comments related to this
and related provisions are discussed in the preamble to paragraph (r)
of this section as well as Sec. 655.18(a)(2). However, in response to
these comments, the Department has amended this section to clarify,
consistent with a parallel requirement in 655.18(a)(2), that the
employer's job qualifications and requirements imposed on U.S. workers
must be no less favorable than the qualifications and requirements that
the employer is imposing or will impose on H-2B workers. In addition,
and in response to the confusion articulated by some commenters, we
have clarified that a qualification means a characteristic that is
necessary to the individual's ability to perform the job in question.
In contrast, a requirement means a term or condition of employment
which a worker is required to accept in order to obtain the job
opportunity.
This provision, as amended, enables us to continue our current
standard of review of the job qualifications and special requirements
by looking at what non-H-2B employers determine is normal and accepted
to be required to perform the duties of the job opportunity. The
purpose of this review is to avoid the consideration (and the
subsequent imposition) of requirements on the performance of the job
duties that would serve to limit the U.S. worker access to the
opportunity. OFLC has significant experience in conducting this review
and in making determinations based on a wide range of sources assessing
what is normal for a particular job, and employers will continue to be
held to an objective standard beyond their mere assertion that a
requirement is necessary. We will continue to look at a wide range of
available objective sources of such information, including but not
limited to O*NET and other job classification materials and the
experience of local treatment of requirements at the SWA level.
Ultimately, however, it is incumbent upon the employer to provide
sufficient justification for any requirement outside the standards for
the particular job opportunity.
Therefore, we are retaining this provision with the amendments
discussed above.
f. Three-fourths guarantee (Sec. 655.20(f)). In Sec. 655.20(f),
the NPRM proposed to require employers to guarantee to offer employment
for a total number of work hours equal to at least three-fourths of the
workdays of each 4-week period and, if the guarantee was not met, to
pay the worker what the worker would have earned if the employer had
offered the guaranteed number of days. The NPRM stated these 4-week
periods would begin the first workday after the worker's arrival at the
place of employment or the advertised contractual first date of need,
whichever is later, and would end on the expiration date specified in
the job order or in any extensions. The NPRM provided that a workday
would be based on the workday hours stated in the employer's job order,
and the 4-week period would be based on the employer's workweek, with
increases for the initial period and decreases for the last period on a
pro rata basis, depending on which day of the workweek the worker
starts or ceases work.
The NPRM proposed that if a worker failed or refused to work hours
offered by the employer, the employer could count any hours offered
consistent with the job order that a worker freely and without coercion
chose not to work, up to the maximum number of daily hours on the job
order, in the calculation of guaranteed hours. The NPRM also allowed
the employer to offer the worker more than the specified daily work
hours, but stated the employer may not require the employee to work
such hours or count them as offered if the employee chose not to work
the extra hours. However, the NPRM allowed the employer to include all
hours actually worked when determining whether the guarantee had been
met. Finally, the NPRM proposed, as detailed in 29 CFR 503.16(g), that
the CO can terminate the employer's obligations under the guarantee in
the event of fire, weather, or other Act of God that makes the
fulfillment of the job order impossible.
The NPRM specifically invited the public to suggest alternative
guarantee systems that may better serve the goals of the guarantee. In
particular, the Department sought comments on whether a 4-week
increment is the best period of time for measuring the three-fourths
guarantee or whether a shorter or longer time period would be more
appropriate.
Based upon all the comments received, the Department has decided to
retain the three-fourths guarantee, but to lengthen the increment over
which the guarantee is measured to 12 weeks, rather than just 4 weeks,
if the period of employment covered by the job order is 120 days or
more, and increase the increment of the guarantee to 6 weeks, if the
period of employment covered by the job order is less than 120 days.
The Department received numerous comments, from both employers and
employees, addressing whether to include a guarantee and whether a 4-
week increment is the appropriate period of time. Many employers
expressed concern about the guarantee. They were particularly concerned
about the impact of the weather on their ability to meet the guarantee.
For example, crab processing companies emphasized that unseasonably
cool weather, weather events such as
[[Page 10072]]
hurricanes, or unforeseen events like oil spills or health department
or conservation closures can make the harvesting and processing of
crabs impossible. Other employers--such as those in the forestry
industry--similarly emphasized that the 4-week period does not
adequately account for the impact of weather because many days can be
unworkable (because it is too hot, too dry, too wet, or too cold to
plant seedlings) and the hours cannot be made up within 4 weeks. Ski
resorts emphasized that they are dependent upon the amount and timing
of snowfall as well as temperatures, and golf clubs expressed similar
concerns about the impact of the weather. Employers also stated that
work hours may be unavailable for many other reasons beyond their
control, such as federal money for forestry work is unavailable,
landowners change their minds about planting, or the nursery does not
make seedlings available; the economy affects consumers' willingness to
travel for leisure; or a large group or event sponsor changes the
schedule or cancels a booking. Employers also emphasized that it is
difficult to predict with precision several months ahead of time
exactly what an employer's workforce needs will be throughout the
season, and requiring employers to pay wages when no work is performed
would cause financial ruin. Some employers focused, in particular, on
their difficulty in meeting the guarantee during slow months at the
beginning and end of the season.
One commenter presented a survey of 501 employers in which 34
percent of employers responded that the guarantee would severely affect
their bottom line, 26 percent were moderately concerned, and 40 percent
stated that it would not affect them. The survey showed that, for a
plurality of employers, workers consistently work more than 40 hours
per week; even those employers that expressed concern stated that the
guarantee would not present a problem during the busiest months of the
season, but would be a burden during the first and last months of the
season when they are ramping up or winding down. Many survey
respondents were prepared to guarantee a minimum workload over the
season, but not month to month.
Numerous other employer commenters similarly stated that if a
guarantee remains in the Final Rule, it should be spread over the
entire certification period, as it is in the H-2A regulations. They
noted that this would provide flexibility and enhance their ability to
meet the guarantee without cost, because often the loss of demand for
work in one period is shifted to another point in the season, but such
a guarantee would still deter egregious cases of employers misstating
their need for H-2B employees. Employers also suggested, in addition to
a clear Act of God exception, that there should be an exception for
man-made disasters such as an oil spill or controlled flooding. Some
also suggested that the rule should allow the Department to give
employers a short period of interim relief from the guarantee, when
weather or some other catastrophic event makes work temporarily
unavailable, rather than simply authorizing the termination of the job
order.
A number of employer commenters suggested that the guarantee should
be based upon pay for three-fourths of the hours, rather than three-
fourths of the hours, so that employers could take credit for any
overtime paid at time-and-a-half. They noted that, because agriculture
is exempt from overtime, H-2A employers do not have to pay an overtime
premium when employees work extra hours in some weeks. Other commenters
stated that the three-fourths guarantee is beyond the Department's
statutory authority, noting the differences between the H-2A and H-2B
statutory frameworks. Finally, some employers expressed concern about
how they could afford to pay the guarantee when the employee does not
or cannot work, seeming to suggest that employers are required to pay
the guarantee even if an employee voluntarily chooses not to work, or
that they were unaware of the alternative of seeking termination of the
job order.
Employees, in contrast, uniformly supported the requirement for a
guarantee, and many suggested strengthening the proposed guarantee. For
example, employee advocates stressed that the three-fourths guarantee
is important to prevent foreign workers from being lured into the
program with promises of far more hours of work than they will actually
receive. When workers do not receive the promised hours, they are
forced to resort to work that does not comply with the program in order
to survive, and this then impacts the job opportunities available to
U.S. workers. Further, where there are excess H-2B workers, employers
are able to exploit them out of their desperation for work, resulting
in an ability to undercut the wages of U.S. workers. Commenters
emphasized that the proposed guarantee would protect workers who
traveled in reliance on promises of work, who now may have to wait
weeks or months for the work to begin, because it would serve as a
barrier preventing employers from artificially increasing their stated
need for H-2B workers. One commenter with experience working with H-2B
workers in New Orleans described a situation in which the workers were
provided little or no work after traveling from India, and when they
complained they were threatened and many were fired. Employee
commenters noted that when they get very limited hours because the jobs
either do not start on the promised date or finish early, or have fewer
hours per week, they would have been better off staying in their home
country because they have to spend everything they earn to live on and
have nothing left to send home.
Employee advocates stated that applying the guarantee on a 4-week
basis (as opposed to over the length of the job order) prevents
employers from claiming artificially long seasons, in the hopes that
workers will quit prematurely at the end of the season and lose their
rights to the guarantee and transportation home, even if the reason was
that the employer had very little work available. The shorter increment
also protects U.S. workers because it prevents employers from using an
unrealistic early start date as a method of encouraging them to abandon
the job to seek alternative employment with more hours. The commenters
noted that employers could simply apply for fewer H-2B workers and
offer all workers more hours to minimize the impact of the requirement.
Although employee advocates uniformly supported the concept of a
guarantee, some advocates stressed that the three-fourths guarantee
overcompensates for the effects of weather. Employees were particularly
concerned about the guarantee being only three-fourths if the
definition of full-time remained at 35 hours, which they viewed as
double-counting for the effects of weather and which would result in
workers only being guaranteed 26 hours per week (105 hours per month).
Thus, while some employee commenters believed the three-fourths
guarantee to be a reasonable and narrowly-tailored means to prevent
abuses, other employee advocates suggested adopting a more protective
guarantee--100 percent, or 90 percent, or providing the guarantee on a
weekly basis. They emphasized that employees are required to pay 100
percent of their expenses, such as rent and medical fees. They also
noted that many H-2B industries are not affected by the weather to the
same degree as agricultural work; therefore, some advocates suggested
the guarantee should be higher than the three-fourths rule in the H-2A
program. At a minimum, they emphasized the
[[Page 10073]]
importance of having the guarantee at least every 4 weeks to prevent
employees from going through long periods without work or income.
Finally, employee advocates expressed concern about a broad Act of
God or impossibility exception to the rule and suggested that the
Department play a direct role in assisting in the transfer of temporary
foreign workers affected by such a job order termination to other
employers, and suggested adopting an additional recordkeeping
requirement, similar to the H-2A three-fourths guarantee recordkeeping
provision at Sec. 655.122(j)(3)), requiring employers to record the
reason a worker declined offered hours of work in order to prevent
employers from overstating the number of hours offered.
After carefully considering all the comments received, the
Department has decided to retain the three-fourths guarantee, but to
lengthen the increment over which the guarantee is measured to 12
weeks, rather than just 4 weeks, if the period of employment covered by
the job order is 120 days or more, and increase the increment over
which the guarantee is measured to 6 weeks rather than 4 weeks, if the
period of employment is less than 120 days. The Department believes
that this approach will retain the benefits of having the guarantee,
while offering employers the flexibility to spread the required hours
over a sufficiently long period of time such that the vagaries of the
weather or other events out of their control that affect their need for
labor do not prevent employers from fulfilling their guarantee.
oreover, as discussed in detail later with regard to Sec. 655.20(g),
the CO may relieve an employer from the three-fourths guarantee
requirement for time periods after an unforeseeable event outside the
employer's control occurs, such as fire, weather, or other Act of God.
When employers file applications for H-2B labor certifications,
they represent that they have a need for full-time workers during the
entire certification period. Therefore, it is important to the
integrity of the program, which is a capped visa program, to have a
methodology for ensuring that employers have fairly and accurately
estimated their temporary need. As explained in the NPRM, the guarantee
deters employers from misusing the program by overstating their need
for full-time, temporary workers, such as by carelessly calculating the
starting and ending dates of their temporary need, the hours of work
needed per week, or the total number of workers required to do the work
available. To the extent that employers more accurately describe the
amount of work available and the periods during which work is
available, it gives both U.S. and foreign workers a better chance to
realistically evaluate the desirability of the offered job. U.S.
workers will not be induced to abandon employment, to seek full-time
work elsewhere at the beginning of the season or near the end of the
season because the employer overstated the number of employees it
actually needed to ramp up or to wind down operations. Nor will U.S.
workers be induced to leave employment at the beginning of the season
or near the end of the season due to limited hours of work because the
employer misstated the months during which it reasonably could expect
to perform the particular type of work involved in that geographic
area. Not only will the guarantee result in U.S. and H-2B workers
actually working most of the hours promised in the job order, but it
also will make the capped H-2B visas more available to other employers
whose businesses need to use H-2B workers. Therefore, the Department
disagrees with those commenters who suggested the Department lacks the
authority to impose a guarantee. The guarantee is a necessary element
to ensure the integrity of the labor certification process, to ensure
that the availability of U.S. workers for full-time employment is
appropriately tested, to ensure that there is no adverse effect on U.S.
workers from the presence of H-2B workers who are desperate for work
because the work that was promised does not exist, and to ensure that
H-2B visas are available to employers who truly have a need for
temporary labor for the dates and for the numbers of employees stated.
The Department's recent experience in enforcing the H-2B
regulations demonstrates that its concerns about employers overstating
their need for workers are not unfounded, as do the numerous comments
from employees and their advocates who described countless private
cases and testimony demonstrating the existence of this problem. The
Department's investigations have revealed employers that stated on
their H-2B applications that they would provide 40 hours of work per
week when, in fact, their workers averaged far fewer hours of work,
especially at the beginning and/or end of the season. Indeed, in some
weeks the workers have not worked at all. In addition, there has been
testimony before Congress involving similar cases in which employers
have overstated the period of need and/or the number of hours for which
the workers are needed. For example, as the Department described in the
NPRM, H-2B workers testified at a hearing before the Domestic Policy
Subcommittee, House Committee on Oversight and Government Reform, on
April 23, 2009, that there were several weeks in which they were
offered no work; others testified that their actual weekly hours--and
hence their weekly earnings--were less than half of the amount they had
been promised in the job order. Daniel Angel Castellanos Contreras, a
Peruvian engineer, was promised 60 hours per week at $10-$15 per hour.
According to Mr. Contreras, "[t]he guarantee of 60 hours per week
became an average of only 20 to 30 hours per week--sometimes less. With
so little work at such low pay [$6.02 to $7.79 per hour] it was
impossible to even cover our expenses in New Orleans, let alone pay off
the debt we incurred to come to work and save money to send home." \8\
iguel Angel Jovel Lopez, a plumber and farmer from El Salvador, was
recruited to do demolition work in Louisiana with a guaranteed minimum
of 40 hours of work per week. Mr. Lopez testified, "[i]nstead of
starting work, however, I was dropped off at an apartment and left for
two weeks. Then I was told to attend a two week training course. I
waited three more weeks before working for one day on a private home
and then sitting for three more weeks." \9\ Testimony at the same
hearing by three attorneys who represent H-2B workers stated that these
witnesses' experiences were not aberrations but were typical. Hearing
on The H-2B Guestworker Program and Improving the Department of Labor's
Enforcement of the Rights of Guestworkers, 111th Cong. (Apr. 23, 2009).
---------------------------------------------------------------------------
\8\ Testimony of Daniel Angel Castellanos Contreras before the
House Committee on Oversight and Government Reform Domestic Policy
Subcommittee, 2, (2009, Apr. 23)
https://oversight.house.gov/images/stories/documents/20090423085101.pdf.
\9\ Testimony of Miguel Angel Jovel Lopez before the House
Committee on Oversight and Government Reform Domestic Policy
Subcommittee, 2. (2009, Apr. 23)
https://oversight.house.gov/images/stories/documents/20090423085606.pdf.
---------------------------------------------------------------------------
Furthermore, a 2010 report by the American University Washington
College of Law International Human Rights Law Clinic and the Centro de
los Derechos del Migrante, Inc. documented the prevalence of work
shortages for women working on H-2B visas in the Maryland crab
industry. The researchers found that several women interviewed spent
days and weeks without work when crabs were scarce. During this time
most continued to make rent
[[Page 10074]]
payments, and struggled to send money to family back in Mexico.\10\
---------------------------------------------------------------------------
\10\ American University Washington College of Law International
Human Rights Law Clinic and Centro de los Derechos del Migrante,
Inc. Picked Apart: The Hidden Struggles of Migrant Worker Women In
the Maryland Crab Industry.2, July 2010.
https://www.wcl.american.edu/clinical/documents/
20100714_auwcl_ihrlc_picked_apart.pdf?rd=1.
---------------------------------------------------------------------------
The Department has not adopted the suggestion of employers to
spread the three-fourths guarantee over the entire period covered by
the job order. Using the entire period of the job order would not
adequately protect the integrity of the program because it would not
measure whether an employer has appropriately estimated its need for
temporary workers. It would not prevent an employer from overstating
the beginning date of need and/or the ending date of need and then
making up for the lack of work in those two periods by offering
employees 100 percent of the advertised hours in the middle of the
certification period. Indeed the employer could offer employees more
than 100 percent of the advertised hours in the peak season and,
although they would not be required to work the excess hours, most
employees could reasonably be expected to do so in an effort to
maximize their earnings.
However, in order to meet the legitimate needs of employers for
adequate flexibility to respond to changes in climatic conditions (such
as too much or too little snow or rain, temperatures too high or too
low) as well as the impact of other events beyond the employer's
control (such as a major customer who cancels a large contract), the
Department has modified the increment of time for measuring the
guarantee by tripling it from 4 weeks to 12 weeks (if the period of
employment covered by the job order is at least 120 days) and
increasing the period by 2 weeks to 6 weeks (if the employment is less
than 120 days). The Department believes this provides sufficient
flexibility to employers, while continuing to deter employers from
requesting workers for 9 months, for example, when they really only
have a need for their services for 7 months. If an employer needs fewer
workers during the shoulder months than the peak months, it should not
attest to an inaccurate statement of need by requesting the full number
of workers for all the months. Rather, the proper approach it should
follow is to submit two applications with separate dates of need, so
that it engages in the required recruitment of U.S. workers at the
appropriate time when it actually needs the workers.
Finally, the Department has not adopted the suggestion of some
employers for a guarantee tied to pay rather than hours. The employers'
attestation relates to their need for a particular number of full-time
workers during a set period; thus, the attestation relates to the
amount of full-time work, not the amount of pay received. The
Department reminds employers that they may count toward the guarantee
hours that are offered but that the employee fails to work, up to the
maximum number of hours specified in the job order for a workday; thus,
they do not have to pay an employee who voluntarily chooses not to
work. Similarly, they may count all hours the employee actually works,
even if they are in excess of the daily hours specified in the job
order. Employers' comments addressing the Act of God exception are
addressed in Sec. 655.20(g).
The Department has not adopted the suggestion of many employee
advocates to impose a more protective guarantee. The Department does
not believe it would be appropriate to impose a 100 percent, 90
percent, or weekly guarantee. The three-fourths guarantee is a
reasonable deterrent to potential carelessness and a necessary
protection for workers, while still providing employers with
flexibility relating to the required hours, given that many common H-2B
occupations involve work that can be significantly affected by weather
conditions. Moreover, it is not just outdoor jobs such as landscaping
that are affected by weather. For example, indoor jobs such as
housekeeping and waiting on tables can be affected when a hurricane,
flood, unseasonably cool temperatures, or the lack of snow deters
customers from traveling to a resort location. The impact on business
of such weather effects may last for several weeks, although (as
employers recognized) they are likely to be able to make up for them in
other weeks of the season. Moreover, the Department understands that it
is difficult to predict with precision months in advance exactly how
many hours of work will be available, especially as the period of time
involved is shortened. Finally, the comment suggesting adding a
recordkeeping requirement related to the reason an employee declines
offered work is addressed in Sec. 655.20(i).
g. Impossibility of fulfillment (Sec. 655.20(g)). In proposed
Sec. 655.20(g), the Department added language to allow employers to
terminate a job order in certain narrowly-prescribed circumstances when
approved by the CO. In such an event, the employer would be required to
meet the three-fourths guarantee discussed in paragraph (f) of this
section based on the starting date listed in the job offer or first
workday after the arrival of the worker, whichever is later, and ending
on the job order termination date. The employer would also be required
to attempt to transfer the H-2B worker (to the extent permitted by DHS)
or worker in corresponding employment to another comparable job.
Actions employers could take include reviewing the electronic job
registry to locate other H-2B-certified employers in the area and
contacting any known H-2B employers, the SWA, or ETA for assistance in
placing workers. Absent such placement, the employer would have to
comply with the proposed transportation requirements in paragraph (j)
of this section.
The Department received numerous comments on this section, from the
Small Business Administration (SBA) Office of Advocacy, employers,
employer advocacy groups, and trade organizations, requesting that the
provision be expanded to cover manmade disasters. Many of these
commenters cited the recent Deepwater Horizon oil spill, which forced
many businesses to close unexpectedly. The Department views this
suggested expansion as wholly in line with the intent of the provision,
which acknowledged that circumstances beyond the control of the
employer or the worker can result in the need to terminate a worker's
employment before the expiration date of a job order. Therefore, the
Department has amended this provision in the Final Rule. The first
sentence of the paragraph now reads, "If, before the expiration date
specified in the job order, the services of the worker are no longer
required for reasons beyond the control of the employer due to fire,
weather, other Acts of God, or a similar unforeseeable man-made
catastrophic event (such as an oil spill or controlled flooding) that
is wholly outside the employer's control, that makes the fulfillment of
the job order impossible, the employer may terminate the job order with
the approval of the CO." No other changes were made to this section.
h. Frequency of pay (Sec. 655.20(h)). Proposed Sec. 655.20(h)
required that the employer indicate the frequency of pay in the job
order and that workers be paid at least every two weeks or according to
the prevailing practice in the area of intended employment, whichever
is more frequent. Further, it required that wages be paid when due.
Numerous worker advocacy organizations submitted comments
supporting this provision. One comment
[[Page 10075]]
stated that frequent pay is important for H-2B workers who often arrive
in the United States with little money and need prompt payment after
beginning work to be able to pay for their expenses without going into
debt. Requiring frequent pay also negates the ability of unscrupulous
lenders to take advantage of desperate workers who run out of money
before payday by extending high interest loans. Another comment stated
that this provision would allow regular access to funds and assist
workers to avoid being trapped in a work situation because of lack of
resources to leave an exploitative working situation.
One employer expressed general opposition to this requirement but
gave no reason explaining the opposition. Other employer comments
expressed a range of concerns.
One individual commented that the specific language in Sec.
655.20(h), or according to the prevailing practice in the area of
intended employment, is ambiguous. The commenter expressed concern that
the regulation provides no process for determining what prevailing
practice is and that area of intended employment has no rigid tangible
boundaries. This commenter did not provide any alternative suggestions.
The Department does not consider the regulation text ambiguous. The
concept of an area of intended employment is defined in the regulations
at Sec. 655.5 and has been used in the program since its inception.
While we do not conduct prevailing practice surveys in the H-2B program
at this time, we assume employers are aware of prevailing practices for
frequency of pay in their area.
One employer suggested that the Department permit employers to use
a monthly pay period provided that they give employees the option to
draw a percentage of wages earned in the middle of the month, as this
would effectively give twice-monthly pay periods to any employee who
exercised the option. The Department rejects this suggestion. The
requirement that workers be paid at least every 2 weeks was designed to
protect financially vulnerable workers. Allowing an employer to pay
less frequently than every two weeks would impose an undue burden on
workers who traditionally are paid low wages and may lack the means to
make their income stretch through a month until they get paid, and it
would force these workers to pursue the needless step of requesting
their earnings every month in the middle of the pay period.
One commenter suggested that the Department require employers to
pay wages in cash or require that wages be deposited directly into the
employee's bank account. The Department notes that the requirement that
payments be made either in cash or negotiable instrument payable at par
at Sec. 655.20(b) of the Final Rule will ensure that wages are paid
free and clear and in an accessible medium.
No other comments were received on this section. As such, the
Department adopts the provision as proposed.
i. Earnings statements (Sec. 655.20(i)). Proposed Sec. 655.20(i)
added requirements for the employer to maintain accurate records of
worker earnings and provide the worker an appropriate earnings
statement on or before each payday. The proposed paragraph also listed
the information that the employer must include in such a statement.
The Department received numerous comments in support of Sec.
655.20(i) from community-based organizations and worker advocacy
organizations. One comment from a worker advocacy organization stated
that earning statements will help workers promptly identify any
improper deductions or wage violations. This commenter noted that,
armed with such wage information, employees are better able to hold
employers accountable to wage requirements.
Some commenters expressed opposition to this provision, arguing
that requiring employers to provide earnings statements will create an
administrative burden and additional costs resulting from more
paperwork and additional recordkeeping. The Department believes that
any additional administrative burden resulting from this provision will
be outweighed by the importance of providing workers with this crucial
information, especially because an earnings statement provides workers
with an opportunity to quickly identify and resolve any anomalies with
the employer and hold employers accountable for proper payment.
One employer association expressed concern that before in the
phrase on or before each payday is vague. The comment proposed no
alternative language. The Department finds the language to clearly
indicate that so long as the earnings statement is provided no later
than the time payment is received there is no violation of this
provision.
One comment submitted by a worker advocacy group suggested the
Department also require that where a worker declines any offered hours
of work, employers record the reason why the hours were declined.
Similar to Sec. 655.122(j)(3) in the H-2A program, requiring an
employer to record the reasons why a worker declined work will support
the Department's enforcement activities related to the three-fourths
guarantee proposed in Sec. 655.20(f). The Department accepts this
suggestion and adds the following language to Sec. 655.20(i)(1) and 29
CFR 503.16(i)(1): "* * * if the number of hours worked by the worker
is less than the number of hours offered, the reason(s) the worker did
not work;".
Additionally, the Department has amended Sec. Sec.
655.16(i)(2)(iv), 655.20(i)(l) and 655.20(i)(2)(v) and 29 CFR
503.16(i)(l) to require employers to maintain records of any additions
made to a worker's wages and to include such information in the
earnings statements furnished to the worker. Such additions could
include performance bonuses, cash advances, or reimbursement for costs
incurred by the worker. This requirement is consistent with the
recordkeeping requirements under the FLSA in 29 CFR part 516. No other
changes were made to this section in the Final Rule.
j. Transportation and visa fees (Sec. 655.20(j)). The Department
proposed changes relating to transportation and visa costs in Sec.
655.20(j). In Sec. 655.20(j)(1)(i), the NPRM proposed to require an
employer to provide, pay for, or reimburse the worker in the first
workweek the cost of transportation and subsistence from the place from
which the worker has come to the place of employment. If the employer
advanced or provided transportation and subsistence costs to H-2B
workers, or it was the prevailing practice of non-H-2B employers to do
so, the NPRM proposed to require the employer to advance such costs or
provide the services to workers in corresponding employment traveling
to the worksite. The amount of the transportation payment was required
to be at least the most economical and reasonable common carrier charge
for the trip. Section 655.20(j)(1)(ii) of the NPRM proposed to require
the employer, at the end of the employment, to provide or pay for the
U.S. or foreign worker's return transportation and daily subsistence
from the place of employment to the place from which the worker
departed to work for the employer, if the worker has no immediate
subsequent approved H-2B employment. If the worker has been contracted
to work for a subsequent and certified employer, the last H-2B employer
to employ the worker would be required to provide or pay the U.S. or
foreign worker's return transportation. Therefore, prior employers
would not be obligated to pay for such return transportation costs. The
NPRM also proposed that all employer-provided transportation--
[[Page 10076]]
including transportation to and from the worksite, if provided--must
meet applicable safety, licensure, and insurance standards (Sec.
655.20(j)(1)(iii)). Furthermore, all transportation and subsistence
costs covered by the employer had to be disclosed in the job order
(Sec. 655.20(j)(1)(iv)). Finally, Sec. 655.20(j)(2) of the NPRM
proposed that employers would be required to pay or reimburse the
worker in the first workweek for the H-2B worker's visa, visa
processing, border crossing, and other related fees including those
fees mandated by the government (but not for passport expenses or other
charges primarily for the benefit of the workers). As discussed below,
a significant number of commenters addressed these proposed changes,
and the Department has made two changes to the Final Rule as a result.
Employers and their representatives generally opposed at least some
aspects of the proposal. For example, some employers asserted that
paying such fees would be too costly and that transportation costs
should be the responsibility of the employee or paid at the discretion
of the employer. In particular, some ski resorts emphasized the costs
they face because many of their ski instructors travel a significant
distance by air to remote resorts. Many employers were particularly
concerned with the requirement to pay transportation and subsistence
costs for U.S. workers recruited from outside the local commuting
distance, based upon their experience that U.S. workers have high rates
of turnover and rarely stay for the entire season. A number of
employers recounted their experience with the short periods worked by
U.S. applicants. For example, one commenter gave examples from various
employers who stated that, e.g., of 25 U.S. workers hired, only four
reported for work and only two stayed more than one week; the longest a
U.S. worker remained employed was one month; no U.S. worker has stayed
more than 2 days in ten to 15 years; in 13 seasons, no worker stayed
more than a few weeks; in 5 years, only one U.S. worker reported to
work and he lasted less than 2 weeks; and of the U.S. workers who
report for work, fewer than 10 percent stay through the season.
Employers expressed particular opposition to reimbursing what a
number of them labeled as disingenuous U.S. applicants who could
exploit the employer by applying for a job they had no intention of
performing simply to get the transportation and subsistence to a new
area. Having received a free trip, such employees would quit the job
and be able to look for full-time, year-round work with another
employer, because U.S. workers are not bound to work only for the H-2B
employer. Such applicants would result in large costs to the employer
with no return on their investment, and the employer could do nothing
to mitigate its risk. Many such employers and their representatives
suggested that it would be more appropriate to tie the reimbursement to
either full completion of, or partial completion of, the term of
employment. A number of them suggested adoption of the H-2A program
provision requiring that workers must complete at least 50 percent of
the work contract to be reimbursed for inbound transportation and
subsistence expenses; they stated that this would help to minimize the
risk that an employee could manipulate the system for free travel and
would ensure that the employer benefited from the employment before
disbursing the cost.
One commenter stated that the Department lacks the authority to
require reimbursement of travel expenses, especially with regard to
U.S. workers in corresponding employment, because the Internal Revenue
Service does not allow employees to deduct such travel to the job as a
business expense. Another commenter asserted that visa fees should be
the responsibility of the employee because State Department regulations
assign the cost to the foreigner. Finally, an employer suggested
requiring employers to reimburse only the amount necessary to protect
the FLSA minimum wage, but not the H-2B prevailing wage.
Employee advocates strongly supported the proposal and commended
the Department for it. Numerous advocates described why it is essential
for the employer to provide, pay for or reimburse transportation,
subsistence and visa-related expenses in the first workweek, in order
to ensure that workers are not forced to go into debt and borrow money
at exorbitant rates. They emphasized that, without timely
reimbursement, employees are more likely to tolerate abusive work
environments in order to be able to repay their loans, rather than risk
retaliatory termination. One commenter's survey of temporary foreign
workers indicated that debts from such pre-employment costs are the
main reason temporary foreign workers do not come forward to report
violations of the law. Another commenter emphasized that employers are
the primary beneficiaries of such expenditures, because they directly
profit from the mobility of a low-wage workforce. Commenters stated
that, if the costs of transportation and visa-related expenses are not
reimbursed, it effectively lowers the employees' wage rates below the
required wage, which causes adverse effects because it puts downward
pressure on the wages of similarly situated U.S. workers. And they
noted that it is important that U.S. workers are provided the same
benefit, both because the concept that there should be no preferential
treatment for foreign workers is fundamental to the INA, and because it
will make it possible for available U.S. workers to take jobs where the
transportation costs otherwise would be an insurmountable hurdle. They
stated that requiring transportation and subsistence reimbursement also
encourages employers to consider more carefully the number of workers
actually needed, making it less likely that employers will request more
workers than they need and making it more likely that they will make
more efforts to recruit U.S. workers.
Thus, these commenters believed that the proposed rule
requirements, and even stronger measures, were necessary in order to
make progress toward eliminating the history of abuses in the H-2B
program. Some employee advocates suggested expanding the proposed
regulation to clarify that inbound transportation includes travel
between the home community and the consular city as well as between the
consular city and the place of employment in the U.S., or to require
reimbursement for additional expenses, such as hotels while traveling
to the worksite or while waiting in the consular city for visa
processing. They suggested requiring employers to bear these expenses
up front, rather than reimbursing them, so that workers do not have to
borrow money to pay the fees. They also suggested clarifying that the
employer must pay for outbound transportation if the employer
terminates the employee without cause or the employee is constructively
discharged, such as where the employee leaves due to lack of work. A
union suggested incorporating an H-2A provision requiring employers to
provide free daily transportation to the worksite, noting that H-2B
workers often have no means to commute and are forced into dangerous
transportation arrangements, such as being packed into the open beds of
pick-up trucks or squeezed into vans in excessive numbers. The union
also recommended a requirement that such transportation comply with
applicable laws. As an alternative, the union suggested that employers
be required to state in the job order whether they will voluntarily
[[Page 10077]]
choose to provide such daily transportation to the jobsite, noting that
such transportation would be applicable to both H-2B workers and
domestic workers in corresponding employment. Another commenter
specifically supported the requirement to disclose all transportation
and subsistence costs in the job order.
After carefully considering the voluminous comments on this issue,
the Department has made two changes in the Final Rule. Section
655.120(j)(1)(i) of the Final Rule continues to require employers to
provide inbound transportation and subsistence to H-2B employees and to
U.S. employees who have traveled to take the position from such a
distance that they are not reasonably able to return to their residence
each day. However, the Final Rule provides that employers must arrange
and pay for the transportation and subsistence directly, advance at a
minimum, the most economical and reasonable common carrier cost, or
reimburse the worker's reasonable costs if the worker completes 50
percent of the period of employment covered by the job order if the
employer has not previously reimbursed such costs. The Final Rule
reminds employers that the FLSA imposes independent wage payment
obligations, where it applies. Section 655.20(j)(1)(ii) of the Final
Rule continues to require employers to provide return transportation
and subsistence from the place of employment; however, the obligation
attaches only if the worker completes the period of employment covered
by the job order or if the worker is dismissed from employment for any
reason before the end of the period. An employer is not required to
provide return transportation if separation is due to a worker's
voluntary abandonment. The Final Rule, like the NPRM, requires
employers to reimburse all visa, visa processing, border crossing and
other related fees in the first workweek.
The Department continues to believe that under the FLSA the
transportation, subsistence, and visa and related expenses for H-2B
workers are for the primary benefit of employers, as the Department
explained in Wage and Hour's Field Assistance Bulletin No. 2009-2 (Aug
21, 2009). The employer benefits because it obtains foreign workers
where the employer has demonstrated that there are not sufficient
qualified U.S. workers available to perform the work; the employer has
demonstrated that unavailability by engaging in prescribed recruiting
activities that do not yield sufficient U.S. workers. The H-2B workers,
on the other hand, only receive the right to work for a particular
employer, in a particular location, and for a temporary period of time;
if they leave that specific job, they generally must leave the country.
Transporting these H-2B workers from remote locations to the workplace
thus primarily benefits the employer who has sought authority to fill
its workforce needs by bringing in workers from foreign countries.
Similarly, because an H-2B worker's visa (including all the related
expenses, which vary by country, including the visa processing
interview fee and border crossing fee) is an incident of and necessary
to employment under the program, the employer is the primary
beneficiary of such expenses. The visa does not allow the employee to
find work in the U.S. generally, but rather restricts the worker to the
employer with an approved labor certification and to the particular
approved work described in the employer's application.
Therefore, the Final Rule adds a reminder to employers that the
FLSA applies independently of the H-2B requirements. As discussed
above, employers covered by the FLSA must pay such expenses to
nonexempt employees in the first workweek, to the level necessary to
meet the FLSA minimum wage (outside the Fifth Circuit). See, e.g.,
Arriaga v. Florida Pacific Farms, LLC, 305 F.3d 1228 (11th Cir. 2002);
orante-Navarro v. T&Y Pine Straw, Inc., 350 F.3d 1163 (11th Cir.
2003); Gaxiola v. Williams Seafood of Arapahoe, Inc., 2011 WL 806792
(E.D.N.C. 2011); Teoba v. Trugreen Landcare LLC, 2011 WL 573572
(W.D.N.Y. 2011); DeLeon-Granados v. Eller & Sons Trees, Inc., 581 F.
Supp. 2d 1295 (N.D. Ga. 2008); Rosales v. Hispanic Employee Leasing
Program, 2008 WL 363479 (W.D. Mich. 2008); Rivera v. Brickman Group,
2008 WL 81570 (E.D. Pa. 2008); contra Castellanos-Contreras v. Decatur
Hotels, LLC, 622 F.3d 393 (5th Cir. 2010). Payment sufficient to
satisfy the FLSA in the first workweek is also required because Sec.
655.20(z) of the Final Rule, like the current H-2B regulation,
specifically requires employers to comply with all applicable Federal,
State, and local employment-related laws. Furthermore, because U.S.
workers are entitled to receive at least the same terms and conditions
of employment as H-2B workers, in order to prevent adverse effects on
U.S. workers from the presence of foreign workers, the Final Rule
requires the same reimbursement for U.S. workers in corresponding
employment who are unable to return to their residence each workday,
such as those from another state who saw the position advertised in a
SWA posting or on the Department's electronic job registry. The
Department does not believe that the treatment of such expenses by the
State Department or the Internal Revenue Service controls how they are
categorized for these purposes. Rather, employers must simultaneously
comply with all the laws that are applicable, and must do so by
complying with the most protective standard. See Powell v. United
States Cartridge Co., 339 U.S. 497 (1950).
The Final Rule separately requires employers to reimburse these
inbound transportation and subsistence expenses, up to the offered wage
rate, if the employee completes 50 percent of the period of employment
covered by the job order. The Department believes this approach is
appropriate and adequately protects the interests of both U.S. and H-2B
workers. It takes account of the concerns expressed by numerous
employers that they would have to pay the inbound transportation and
subsistence costs of U.S. workers recruited pursuant to H-2B job orders
who do not remain on the job for more than a very brief period of time.
Additionally, the Final Rule requires reimbursement of outbound
transportation and subsistence if the worker completes the job order
period or if the employer dismisses the worker before the end of the
period of employment in the job order, even if the employee has
completed less than 50 percent of the period of employment covered by
the job order. This requirement uses language contained in the DHS
regulation at 8 CFR. 214.2(h)(6)(vi)(E), which states that employers
will be liable for return transportation costs if the employer
discharges the worker for any reason. See 8 U.S.C. 1184(c)(5)(A). For
example, if there is a constructive discharge, such as the employer's
failure to offer any work or sexual harassment that created an
untenable working situation, the requirement to pay outbound
transportation would apply. However, if separation from employment is
due to voluntary abandonment by an H-2B worker or a corresponding
worker, and the employer provides appropriate notification specified
under Sec. 655.20(y), the employer will not be responsible for
providing or paying for return transportation and subsistence expenses
of that worker.
This requirement to pay inbound transportation at the 50 percent
point and outbound transportation at the completion of the work period
is consistent with the rule under the H-2A visa program. Moreover, the
Final Rule
[[Page 10078]]
fulfills the Department's obligation to protect U.S. workers from
adverse effect due to the presence of temporary foreign workers. As
discussed above, under the FLSA, numerous courts have held in the
context of both H-2B and H-2A workers that the inbound and outbound
transportation costs associated with using such workers are an
inevitable and inescapable consequence of employers choosing to
participate in these visa programs. Moreover, the courts have held that
such transportation expenses are not ordinary living expenses, because
they have no substantial value to the employee independent of the job
and do not ordinarily arise in an employment relationship, unlike
normal daily home-to-work commuting costs. Therefore, the courts view
employers as the primary beneficiaries of such expenses under the FLSA;
in essence the courts have held that inbound and outbound
transportation are employer business expenses just like any other tool
of the trade. A similar analysis applies to the H-2B required wage. If
employers were permitted to shift their business expenses onto H-2B
workers, they would effectively be making a de facto deduction and
bringing the worker below the H-2B required wage, thereby risking
depression of the wages of U.S. workers in corresponding employment.
This regulatory requirement, therefore, ensures the integrity of the
full H-2B required wage, rather than just the FLSA minimum wage, over
the full term of employment; both H-2B workers and U.S. workers in
corresponding employment will receive the H-2B required wage they were
promised, as well as reimbursement for the reasonable transportation
and subsistence expenses that primarily benefit the employer, over the
full period of employment. To enhance this protection, the Final Rule
contains the additional requirement that, where a worker pays out of
pocket for inbound transportation and subsistence, the employer must
maintain records of the cost of transportation and subsistence incurred
by the worker, the amount reimbursed, and the date(s) of reimbursement.
The Department made two clarifying edits to this section in the
Final Rule. Paragraph (1)(ii) of this section has been amended to
clarify that the employer is required to provide or pay for the return
transportation and daily subsistence of a worker who has completed the
period of employment listed on the certified Application for Temporary
Employment Certification, regardless of any subsequent extensions. The
Final Rule continues to provide that if a worker has contracted with a
subsequent employer that has agreed to provide or pay for the worker's
transportation to the subsequent employer's worksite, the subsequent
employer must provide or pay for such expenses; otherwise, the employer
must provide or pay for that transportation and subsistence. Paragraph
(2) of this section has been amended to clarify that the employer need
not, but may, reimburse workers for expenses that are primarily for the
benefit of the employee.
The Department does not believe that any other change to Sec.
655.20(j) is necessary. The regulatory text already clarifies that
transportation must be reimbursed from the place from which the worker
has come to work for the employer to the place of employment;
therefore, the employer must pay for transportation from the employee's
home community to the consular city and then on to the worksite.
Similarly, the regulatory text already requires the employer to pay for
subsistence during that period, so if an overnight stay at a hotel in
the consular city is required while the employee is interviewing for
and obtaining a visa, that subsistence must be reimbursed. See Morales-
Arcadio v. Shannon Produce Farms, Inc., 2007 WL 2106188 (S.D. Ga.
2007). Finally, if an employer provides daily transportation to the
worksite, the regulation already requires both that the transportation
must comply with all applicable safety laws and that the employer must
disclose the fact that free transportation will be provided in the job
order.
k. Employer-provided items (Sec. 655.20(k)). The Department
proposed to add a new requirement under Sec. 655.20(k), consistent
with the requirement under the FLSA regulations at 29 CFR part 531,
that the employer provide to the worker without charge all tools,
supplies, and equipment necessary to perform the assigned duties. The
employer may not shift to the employee the burden to pay for damage to,
loss of, or normal wear and tear of, such items. This proposed
provision gives workers additional protections against improper
deductions for the employer's business expenses from required wages.
The Department received numerous comments on this provision, the
majority of which were supportive. Discussing the importance of the
requirement, one employee advocacy organization cited a worker
testimonial in which a former H-2B crab picker said the boss doesn't
give tools to use on the job. Instead, he sells the workers knives to
pick the crabmeat. He sold a worker a knife for $30, but they don't
have an option to not use it. They deduct this amount from the
paychecks.
Another organization referred to a study of H-2B crab pickers
working on Maryland's Eastern Shore which found that 54 percent of
workers interviewed had had deductions for tools taken from their
weekly paychecks. Numerous employers and employer organizations signed
on to a report, jointly published by two large industry groups, that
characterized the requirement as seeming unlikely to cause major
problems for employers enrolled in the program.
However, some commenters had objections to the proposed
requirement. One trade organization expressed unqualified opposition to
the proposal. Several employers and industry representatives expressed
concern that the provision was incompatible with those industries in
which employees customarily supply their own tools. Several of these
commenters noted that in certain industries employees have personal
preferences for their equipment and as a matter of course bring it with
them to the job site. One employer requested that the Department simply
state that any tools or equipment provided to domestic workers should
be provided to similarly-employed H-2B workers, and argued that the
requirement would unfairly favor H-2B workers by offering them a
benefit that was not legally extended to U.S. workers. This commenter
overlooked the fact that, like all of the provisions in Sec. 655.20,
this requirement applies to both H-2B workers and U.S. workers in
corresponding employment, and would therefore not disadvantage domestic
workers. As discussed above with respect to the disclosure requirement
in Sec. 655.18(g), section 3(m) of the FLSA prohibits employers from
making deductions for items that are primarily for the benefit of the
employer if such deductions reduce the employee's wage below the
Federal minimum wage. Therefore an employer that does not provide tools
but requires its employees to bring their own would already be required
under the FLSA to reimburse its employees for the difference between
the weekly wage minus the cost of equipment and the weekly minimum
wage. The proposed provision simply extends this protection to cover
the required H-2B offered wage, in order to protect the integrity of
the required H-2B wage rate and thereby avoid adverse effects on the
wages of U.S. workers. However, as discussed above with regard to
proposed Sec. 655.18(j), this requirement does not prohibit employees
from voluntarily choosing to
[[Page 10079]]
use their own specialized equipment; it simply requires employers to
make available to employees adequate and appropriate equipment.
No other substantive comments were received on this provision; the
Final Rule therefore retains the requirement as proposed.
l. Disclosure of the job order (Sec. 655.20(l)). Proposed Sec.
655.20(l) required that the employer provide a copy of the job order to
H-2B workers no later than the time of application for a visa and to
workers in corresponding employment no later than the first day of
work. The job order would contain information about the terms and
conditions of employment and employer obligations as provided in
proposed Sec. 655.18 and would have to be in a language understandable
to the workers. The Department received numerous comments in support of
this provision, and none in opposition to it.
One advocacy organization used the experience of an H-2B worker,
Yolanda, to illustrate the importance of proposed Sec. 655.20(l):
When Yolanda went to the Eastern Shore for what would be her
final year, she found that her wages were much different than what
the recruiter promised. Yolanda was promised $7 per hour, but earned
$5 instead. She was promised overtime, but never received it.
This commenter concluded:
Had Yolanda, or someone in a similar position, known about the
actual terms and conditions of employment, she could make an
informed decision as to whether employment in the U.S. was
worthwhile.
Yet many employee advocates urged the Department to go further in
the Final Rule. Several advocacy groups suggested that the Department
require written disclosure of the job order at the time of recruitment,
as required under the Migrant and Seasonal Agricultural Worker
Protection Act (MSPA), rather than when the worker applies for a visa
or, in the case of U.S. workers in corresponding employment, on the
first day of work. These commenters asserted that earlier disclosure
would allow potential H-2B workers to more fully consider their options
before committing to a U.S. employer. The Department notes that H-2B
employers that are subject to MSPA are bound by the requirements of
that Act, including disclosure of the appropriate job order at the time
of recruitment. The H-2B and MSPA programs are not analogous, however.
SPA workers are often recruited domestically shortly before the start
date of the job order, making the provision of the job order at the
time of recruitment both logical and practical. In the H-2B program, as
in the H-2A program, recruitment is often less directly related to the
work start date, making immediate disclosure of the job order less
necessary. It thus is more practical to require disclosure of the job
order at the time the worker applies for a visa, to be sure that
workers fully understand the terms and condition of their job offer
before they make a commitment to come to the United States. To clarify,
the time at which the worker applies for the visa means before the
worker has made any payment, whether to a recruiter or directly to the
consulate, to initiate the visa application process. The Department
maintains that worker notification is a vital component of worker
protection and program compliance, and believes that the proposed
requirement provides workers with sufficient notice of the terms and
conditions of the job so that they can make an informed decision.
Some of the same commenters requested that the Department amend
Sec. 655.20(l) to require that the job order be provided to workers in
their primary language, removing the qualifying phrase as necessary or
reasonable. The Department agrees that providing the terms and
conditions of employment to each worker in a language that she
understands is a key element of much-needed worker protection. However,
as the Department intends to broadly interpret the necessary or
reasonable qualification and apply the exemption only in those
situations where having the job order translated into a particular
language would place an undue burden on an employer without
significantly disadvantaging an H-2B or corresponding worker, it
declines to remove the qualifying language.
An industry group argued that this section was designed to
transform the job order into an employment contract. The purpose of the
disclosure is to provide workers with the terms and conditions of
employment and of employer obligations to strengthen worker protection
and promote program compliance. Furthermore, as discussed in the
preamble to Sec. 655.18, the Department views the terms and conditions
of the job order as binding, and requires employers to attest that they
will abide by the terms and conditions of the H-2B program. However,
the Department leaves it to the courts to determine private parties'
contractual rights under state contract law.
No other substantive comments were received on this provision; the
Final Rule therefore retains Sec. 655.20(l) as proposed.
m. Notice of worker rights (Sec. 655.20(m)). Proposed Sec.
655.20(m) required that the employer post a notice in English of worker
rights and protections in a conspicuous location and post the notice in
other appropriate languages if such translations are provided by the
Department. While the Department received numerous comments in support
of this provision, several commenters suggested amendments that they
felt would strengthen worker protections. Several advocacy groups
requested that the Department specify that the notice of worker rights
must instruct workers how to file a complaint with WHD. The poster,
which will be printed and provided by the Department, will state that
workers who believe their rights under the program have been violated
may file confidential complaints and will display the number for WHD's
toll-free help line.
Another advocacy organization suggested that the provision be
amended to require the employer to post the poster in the language of
any worker who is not fluent in English. The Department acknowledges
that the purpose of this section would be undermined if workers cannot
read the notice. However, the Department cannot guarantee that it will
have available translations of the notice in any given language, and
cannot require employers to display a translation that may not exist.
Translations will be made in response to demand; employers and
organizations that work with H-2B workers are encouraged to inform the
Department about the language needs of the H-2B worker population.
n. No unfair treatment (Sec. 655.20(n)). Proposed Sec. 655.20(n)
added new language on nondiscrimination and nonretaliation protections
that are fundamental to statutes that the Department enforces. Worker
rights cannot be secured unless there is protection from all forms of
intimidation or discrimination resulting from any person's attempt to
report or correct perceived violations of the H-2B provisions. As
provided in proposed 29 CFR 503.20, make-whole relief would be
available to victims of discrimination and retaliation under this
paragraph.
The Department received numerous comments in support of Sec.
655.20(n); among them were comments from worker advocacy organizations,
labor organizations, and a State Attorney General's office. One
comment, submitted by a coalition of human rights organizations, stated
support for Sec. 655.20(n) and noted that the provision will
contribute to the nation's battle against human rights abuses, abroad
and
[[Page 10080]]
at home. Another comment, submitted by a worker advocacy organization,
reinforced the importance of anti-retaliatory protections, stating that
over 100 workers surveyed in April 2009 reported across the board that
they would not come forward to report abuse--even when facing severe
labor exploitation. Ignacio Zaragoza, an H-2B temporary foreign worker
from Mexico, explained the following, "Guestworkers are afraid to
report abuse. I've known people in Mississippi that have even been
assaulted and didn't report it because they were so afraid of losing
everything--their job, their visa, everything. Guestworkers are really
afraid of retaliation."
Multiple comments suggested adding language to Sec. 655.20(n)(4),
which proposed providing protection from retaliation based on contact
or consultation with an employee of a legal assistance organization or
an attorney, to include contact with labor unions, worker centers, and
worker advocacy organizations. These commenters maintain that labor
unions, worker centers, and community organizations are often the first
point of contact for H-2B workers who have experienced violations and
who may be isolated or lack familiarity with the local community and
how to obtain redress or legal assistance. In support of the above
argument, one commenter cited to the NPRM where the Department stated
that because H-2B workers are not eligible for services from federally-
funded legal aid programs, most H-2B workers have no access to lawyers
or information about their legal rights. 76 FR 15143, Mar. 18, 2011. In
addition, a temporary foreign worker advocacy organization noted that
employers frequently retaliated against H-2B workers upon learning that
the H-2B workers had spoken with that organization regarding their
rights under the H-2B program. The Department agrees with these
commenters that proposed Sec. 655.20(n) fails to cover the majority of
first contacts between temporary foreign workers and those who are
regularly communicating directly with foreign workers helping them to
correct and/or report perceived violations of the H-2B provisions. The
commenters' suggested additions to Sec. 655.20(n) are fully consistent
with the intent of this anti-retaliation provision. The Department
recognizes that workers should be just as protected from retaliation if
they contact or consult with worker centers, community organizations,
or labor unions as they are if they contact or consult with attorneys
or legal assistance organizations. Changes to Sec. 655.20(n)(4) will
be reflected in the Final Rule as follows: "Consulted with a workers'
center, community organization, labor union, legal assistance program,
or an attorney on matters related to 8 U.S.C. 1184(c), 29 CFR part 503,
or this Subpart or any other Department regulation promulgated
thereunder;".
One comment submitted by a coalition of human rights organizations
suggested that the right to federally-funded legal services be
explicitly provided for H-2B workers. However, providing the right to
federally-funded legal services is beyond the Department's
jurisdiction. In addition, some comments referred to Sec. 655.20(n) as
protecting against retaliation from engaging in acts of worker
organizing. To clarify, the provision protects against discrimination
and retaliation for asserting rights specific to the H-2B program.
Workers' rights to join together, with or without a union, to improve
their wages and working conditions are protected under the National
Labor Relations Act and other similar State laws.
A labor union suggested that the Department provide an avenue for
H-2B workers to file oral complaints with the Department by telephone
or electronically regarding H-2B violations and all other federal labor
rights granted temporary workers. The Department already accepts
complaints through these means. Section 655.20(m) requires all H-2B
employers to display a notice of worker rights, which sets out the
rights and protections for H-2B workers and workers in corresponding
employment and informs workers how to file a complaint with WHD.
A similar comment suggested the Department create a mechanism for
H-2B workers who have returned to their home country or family members
who are currently in the home country and hearing about ongoing worker
abuse to file a complaint with DOL from their country of origin. To
clarify, any person may contact the WHD by phone at 1-866-4-USWAGE or
online at www.wagehour.dol.gov to request information about the H-2B
program or to file a complaint.
One comment, submitted by a State Attorney General's office,
suggested the Department clarify that Sec. 655.20(n) provides
protection to U.S. workers and H-2B workers alike. This commenter and a
temporary foreign worker advocacy group stressed the importance of
providing workers, especially H-2B workers who are particularly
vulnerable to retaliation, protection against employer retaliatory
acts, as well as the importance of encouraging workers to come forward
when there is a potential workplace violation. The Department
recognizes that H-2B workers can be particularly vulnerable to
retaliation and acknowledges the importance of assuring that H-2B
workers are protected against any unfair treatment and retaliation. The
Department therefore clarifies that Sec. 655.20(n) will apply equally
to H-2B workers and workers in corresponding employment.
The State Attorney General's office also sought clarification of
the phrase "related to 8 U.S.C. 1184(c)" found in Sec. 655.20(n)(1).
The commenter suggested the Department state that related complaints
need not specify any specific provision of law, and would also include
complaints of violations of related state and local laws. The
Department rejects this suggestion, as the anti-retaliation provision
applies only to the H-2B program. However, the Department notes that
Sec. 655.20(z) requires employers to abide by all other Federal,
State, and local employment-related laws, including any anti-
retaliation provisions therein.
Another comment submitted by a worker advocacy group encouraged the
Department to clarify that legal assistance sought in relation to the
terms and conditions of employment includes legal assistance relating
to employer-provided housing. If a worker sought legal assistance after
an employer charged for housing that was listed as free of charge in
the job order, this would be a protected act; however, a routine
landlord-tenant dispute may not fall under the protections of this
section.
o. Comply with the prohibitions against employees paying fees
(Sec. 655.20(o)). Proposed Sec. 655.20(o) prohibited employers and
their attorneys, agents, or employees from seeking or receiving payment
of any kind from workers for any activity related to obtaining H-2B
labor certification or employment. The Department received numerous
comments in support of this section from advocacy groups, labor
organizations, and an independent policy institute. However, a number
of these commenters took issue with the provision allowing employers
and their agents to receive reimbursement for passport fees. These
commenters argued that passport fees are not always for the primary
benefit of the employee, particularly where H-2B workers receive
passports that expire within 1 year of their issue date, and urged the
Department to qualify the exception to take such circumstances into
account. The Department is unaware of passports with such extremely
short validity
[[Page 10081]]
periods and with restrictions which would not allow the worker to use
the passport in ways unrelated to the H-2B employment. As such, the
Department declines to make the suggested change.
The Department also received comments from a legal network and an
independent policy institute expressing concern that the proposed
section did not protect workers from coercion by recruiters tenuously
affiliated with an employer or an employer's designated agent. These
commenters requested that the Department go beyond the requirement at
Sec. 655.20(p), which obligates employers to execute a written
contract with any third-party agents or recruiters prohibiting them
from seeking or receiving payment from prospective employees, and amend
Sec. 655.20(o) to make H-2B employers strictly liable for any
recruitment or placement fees charged by third parties. The Department
recognizes these commenters' concerns but must reject this request for
the reasons stated in the preamble under 29 CFR 503.20, Sanctions and
remedies, Liability for prohibited fees collected by foreign labor
recruiters and sub-contractors.
No other comments were received on this section, which is adopted
as proposed in the Final Rule.
p. Contracts with third parties to comply with prohibitions (Sec.
655.20(p)). In Sec. 655.20(p), the Department proposed to amend
existing Sec. 655.22(g)(2) to require that an employer that engages
any agent or recruiter must prohibit in a written contract the agent or
recruiter from seeking or receiving payments from prospective
employees.
The Department received numerous comments in support of this
proposal. However, some commenters requested that the Department go
further: One commenter requested that the contract include the full
contact information for the agent or recruiter. The Department declines
to require such information in the contract, but notes that the new
requirements at Sec. 655.9 of this Final Rule require disclosure of
the employer's agreements with any agent or recruiter whom it engages
or plans to engage in the international recruitment of H-2B workers, as
well as the identity and geographic location of any persons or entities
hired by or working for the recruiter and the agents or employees of
those persons and entities. The difference between Sec. 655.9, which
requires the employer to provide copies of such agreements to the
Department when an employer files its Application for Temporary
Employment Certification, and this provision's requirements is that the
requirements in this provision are of an ongoing nature. The employer
must always prohibit the seeking or collection of fees from prospective
employees in any contract with third parties whom the employer engages
to recruit international workers, and is required to provide a copy of
such existing agreements when the employer files its Application for
Temporary Employment Certification. For employers' convenience, and to
facilitate the processing of applications, the Final Rule contains the
exact language of the required contractual prohibition that must appear
in such agreements. Further guidance on how the Department interprets
the employer obligations in Sec. 655.20(o) and (p) regarding
prohibited fees can be found in Field Assistance Bulletin No. 2011-2
(May 2011, available at https://www.dol.gov/whd/FieldBulletins/fab2011_2.htm.
One comment submitted by an advocacy group informed the Department
that many recruiters engage local intermediaries in the recruitment
process and these recruiting subcontractors in turn charge fees. The
commenter suggested that in addition to stating that the recruiter will
not charge a fee, the contract must insist that the recruiter will
ensure that no subcontractor will charge fees and that no workers will
pay fees. The Department recognizes the complexities of recruiters
using subcontractor recruiters and has accounted for this in Sec.
655.20(p) by including the following language: "The employer must
contractually prohibit in writing any agent or recruiter (or any agent
or employee of such agent or recruiter) whom the employer engages,
either directly or indirectly * * *".
The specific language covers subcontractors. In addition, the
required contractual prohibition applies to the agents and employees of
the recruiting agent, and encompasses both direct and indirect fees. As
these requirements should sufficiently address the commenter's
concerns, the Department declines to adopt this suggestion.
A Member of Congress urged the Department to require that employers
publicly disclose all recruiters and sub-recruiters. In another comment
submitted by a community-based organization, an H-2B worker described
his experience with recruiters and lack of information regarding the
recruiter, citing having to pay very large fees to the recruiters in
his community, just for the opportunity to apply for a work visa and
later work in the United States. He explained that they generally do
not even know who the recruiter is working for.
Another comment provided the following example of common
recruitment violations: In January 2011, a group of 25 Mexican
nationals in the state of Guanajuato had been promised visas and six
months of work by a recruiter. The recruiter charged each of the
workers 2000 pesos to process the visa application. Unaware of the
legitimacy of the job offer, who the recruiter was, or whom he was
representing, the 25 Mexicans sent the money and their passports to the
address the "recruiter" provided. After several weeks of no response,
the workers inquired at the address given, but were told by the person
living there that the recruiter had died. The workers lost both their
money and their passports.
The Department agrees that such public disclosure is necessary and
has addressed the issue under Sec. 655.9. The Department will maintain
a publicly available list of agents and recruiters who are party to
such recruitment contracts, as well as a list of the identity and
location of any persons or entities hired by or working for the
recruiters to recruit H-2B workers for the H-2B job opportunities
offered by the employer.
q. Prohibition against preferential treatment of H-2B workers
(Sec. 655.20(q)). In Sec. 655.20(q) the Department proposed to
prohibit employers from providing better terms and conditions of
employment to H-2B workers than to U.S. workers. This provision is
identical to that found at Sec. 655.18(a)(1) of this Final Rule; a
discussion of comments received in response to the proposal can be
found in the preamble to that section. The Final Rule adopts the
proposal as written.
r. Non-discriminatory hiring practices Sec. 655.20(r). In Sec.
655.20(r) the Department proposed to retain the non-discriminatory
hiring provision contained in Sec. 655.22(c) of the 2008 Final Rule
and to clarify that the employer's obligation to hire U.S. workers
continues throughout the period described in proposed Sec. 655.20(t).
Under this provision, rejections of U.S. workers continue to be
permitted only for lawful, job-related reasons. An advocacy
organization representing low wage workers commented in support of the
proposed provision, stating that the provision helps the Department
fulfill its obligation to ensure that U.S. workers are not adversely
affected by the H-2B program. This commenter also advised the
Department to be aware of job order terms that may appear to be non-
discriminatory but have a discriminatory impact on U.S. workers, such
as requiring drug testing or
[[Page 10082]]
criminal background checks as a condition for employment. The
Department acknowledges the potential problem and directs the commenter
to Sec. 655.20(q), which specifies that job qualifications and
requirements imposed on U.S. workers must be no less favorable than the
qualifications and requirements that the employer is imposing or will
impose on H-2B workers. Thus, where an employer requires drug tests or
criminal background checks for U.S. workers and does not require the
same tests and background checks for H-2B workers, the employer has
violated this provision. Additionally, where an employer conducts
criminal background checks on prospective U.S. employees, in order to
be lawful and job-related, the employer's consideration of any arrest
or conviction history must be consistent with guidance from the Equal
Employment Opportunity Commission on employer consideration of arrest
and conviction history under Title VII of the Civil Rights Act of 1964.
See https://www.eeoc.gov/policy/docs/convict1.html; https://www.eeoc.gov/
policy/docs/arrest_records.html; https://www.eeoc.gov/laws/practices/
inquiries_arrest_conviction.cfm. Thus, employers may reject U.S.
workers solely for lawful, job-related reasons, and they must also
comply with all applicable employment-related laws, pursuant to Sec.
655.20(z). The Final Rule adopts the NPRM provision as proposed.
s. Recruitment requirements (Sec. 655.20(s)). The NPRM proposed
that the employer conduct required recruitment as described in proposed
Sec. Sec. 655.40-.46. No substantive comments were received concerning
employers' obligation to comply with recruitment requirements, and the
section is adopted in the Final Rule as proposed.
t. Continuing obligation to hire U.S. workers Sec. 655.20(t). In
proposed Sec. 655.20(t), the Department extended the period during
which the employer must hire qualified U.S. workers referred by the SWA
or who respond to recruitment to 3 days before the date of need or the
date the last H-2B worker departs for the workplace for the certified
job opportunity, whichever is later. In order to determine the
appropriate cutoff date for SWA referrals, the Department proposed that
the employer notify the SWA in writing if the last H-2B worker has not
departed by 3 days before the date of need and of the new departure
date as soon as available. The Department characterized as inadequate
the existing requirements under which an employer is under no
obligation to hire U.S. workers after submitting the recruitment
report, which could occur as early as 120 days before the first date of
need. U.S. applicants--particularly unemployed workers--applying for
the kinds of temporary positions typically offered by H-2B employers
are often unable to make informed decisions about jobs several months
in advance; it is far more likely that they are in need of a job
beginning far sooner. In fact, many of these applicants may not even be
searching for work as early as several months in advance and are
therefore unlikely to see SWA job orders in the 10 days they are posted
or the newspaper advertisements on the 2 days they are published in
accordance with the existing minimum recruitment requirements. This
segment of the labor force cannot afford to make plans around the
possibility of a temporary job several months in the future. The
current recruitment and hiring structure simply cannot be reconciled
with the Department's obligation to protect U.S. workers and ensure
that qualified U.S. applicants are unavailable for a job opportunity
before H-2B workers are hired.
The Department received many comments on this proposed
requirement--predominantly from the SBA Office of Advocacy, employers,
their advocates, and employer associations--asserting that accepting
U.S. applicants until 3 days before the date of need would be
unworkable for employers. Some of these commenters described this as
the most troubling provision in the NPRM. Some of these commenters
suggested that the Department instead modify existing Sec. 655.15(e)
to require the SWA to keep the job order posted for 30 days, while
others recommended changing the closing date from 3 days to 30 days or
60 days before the date of need.
The Department also received numerous comments in support of the
proposed provision from advocacy groups, policy institutes, and labor
organizations. However, some of these commenters felt that the
provision did not go far enough to protect the interests of U.S.
workers. Some commenters, including a labor organization, a legal
network, and a legal policy institute, requested that the Department
extend the obligation to hire qualified U.S. workers into the
certification period, either until 50 percent of the period has
elapsed, as in the H-2A program, or until only 2 weeks remain.
After extensive consideration of all comments and mindful of its
responsibilities to ensure that qualified, available U.S. workers are
not precluded from job opportunities, the Department has decided to
change the day through which employers must accept SWA referrals of
qualified U.S. applicants until 21 days before the date of need,
irrespective of the date of departure of the last H-2B worker. The
Department believes this reduction in the priority hiring period to 21
days before from 3 days before the date of need will allay a number of
employer concerns, and it takes into consideration the USCIS
requirement that H-2B workers not enter the United States until 10 days
before the date of need. Whereas employers expressed concern that the
proposed 3-day priority hiring cutoff opened up the possibility that a
U.S. applicant could displace an H-2B workers who has been recruited,
traveled to the consular's office, obtained a visa, or even begun
inbound transportation to the worksite, the 21-day provision gives
employers more certainty regarding the timing of and need for their
efforts to recruit H-2B workers. At the same time, the Department
believes that the 21-day requirement, which increases the priority
hiring period by as much as 3 months compared to the current rule, is
sufficient to protect the interests of U.S. workers. Further, the
Department notes that the extended recruitment period is not the only
provision of this Final Rule enhancing U.S. applicants' access to
vacancies: The number and breadth of recruitment vehicles in place
(i.e., contact of previous workers, a national job registry, a 15-day
job posting at worksites, among others) have also greatly expanded.
A number of employers, trade associations, and professional
associations expressed concern that a continuing obligation to accept
U.S. applicants could burden employers with additional expenses. They
argued that if an employer is compelled to hire a U.S. worker close to
the date of need, the employer might have to absorb the cost of
recruitment, travel, and housing that it had already arranged for
foreign workers. Employers are encouraged to delay recruitment of
foreign workers until it becomes evident that it will be necessary to
hire such workers. With regard to travel expenses, the Department
asserts that the additional time granted to employers in the Final Rule
will be sufficient to allow for the arrangement of inbound
transportation without employers having to bear any risk of last-minute
cancellations, pay premiums for refundable fares, or pay visa expenses
that are ultimately not needed. Housing arrangements should not present
an issue, as Sec. 655.20(q) requires an employer to offer U.S. workers
the same benefits that it is
[[Page 10083]]
offering, intends to offer, or will provide to H-2B workers. If an
employer intends to offer housing to H-2B workers, such housing must
also be offered to all U.S. applicants who live outside the area of
intended employment. Housing secured for workers can just as easily be
occupied by U.S. workers as by H-2B workers, or some combination of
U.S. and H-2B workers.
Many of the same commenters also worried that foreign workers no
longer needed would have wasted their time in committing to the job
opportunity and traveling to the United States, and that some might sue
for breach of contract. As discussed above, the new 21-day provision
will prevent H-2B workers from being dismissed after beginning travel
from their home to the consular office or even to the United States as
the obligation to hire U.S. workers now ends 11 days before USCIS
permits H-2B workers to be admitted to the country. Additionally, in
order to create appropriate expectations for potential H-2B workers,
when an employer recruits foreign workers, it should put them on notice
that the job opportunity will be available to U.S. workers until 21
days before the date of need; therefore, the job offer is conditional
upon there being no qualified and available U.S. workers to fill the
positions.
A number of employers, trade associations, and professional
associations commented about what they called disingenuous applicants,
e.g., U.S. workers who would be referred shortly before the date of
need, triggering an employer's obligation to hire them, but who would
then shirk their responsibilities or potentially abandon the job
altogether, leaving the employer with an unmet business need. These
commenters expressed concern that employers would be forced to reject
recruited foreign workers in favor of SWA-referred U.S. workers who
would quickly abandon employment, leaving employers understaffed and
unable to find replacement workers; several commenters asserted the
U.S. workers never show up for seasonal employment. The Department
believes the worker protections contained in this Final Rule will
encourage U.S. applicants hired to remain on the job. In addition,
provisions such as that found at Sec. 655.20(y) (Abandonment/
termination of employment) offer protection to employers from workers
who might accept the offer of employment but who subsequently abandon
the job, as Sec. 655.20(y) relieves the employer, under certain
circumstances, of the responsibilities to provide transportation and to
fulfill the three-quarter guarantee obligation.
Some employers, trade associations, and professional associations
expressed concern that the proposed structure would inhibit their
ability to plan for their seasons and commit to contracts. The
Department notes that regardless of the obligation to hire cutoff, the
H-2B employer has a high degree of certainty that it will have access
to workers, whether from within or outside the United States. Further,
the Final Rule's 21-day obligation to hire cutoff should provide
employers with ample time to identify foreign workers if they are, in
fact, needed and to initiate their travel without substantial
uncertainty. The purpose of this provision is to ensure that available
U.S. workers have a viable opportunity to apply for H-2B job
opportunities and to facilitate the employment of these workers. The
Department believes that the proposed provisions do not pose a
disadvantage to employers in terms of having certainty that positions
will be filled.
One employer noted that State laws requiring employers in some
industries to submit requests for background checks or drug testing for
their employees 30 to 45 days before the date of need would preclude
the hiring of U.S. workers 21 days before the date of need. A
background check or drug test required for employment in a State, if
listed in the job order, would be considered a bona fide job
requirement, as long as it was clearly disclosed in the job order and
recruitment materials. An applicant who submitted an application for
employment after a State-established deadline and was therefore unable
to undergo such an evaluation would be considered not qualified for
employment in that State. However, consistent with Sec. Sec.
655.18(a)(2) and 655.20(e), such a requirement must be disclosed in the
job order, and the employer would bear the responsibility of
demonstrating that it is bona fide and consistent with the normal and
accepted requirements imposed by non-H-2B employers in the same
occupation and area of intended employment. Furthermore, employers
cannot treat U.S. workers less favorably than foreign workers with
regard to start date; employers may not conduct such screening for H-2B
workers at a later date if the employer does not provide the same late
screening for U.S. workers who submit an application after a State-
established deadline.
Due to the modification of this provision in the Final Rule
allowing for a fixed, 21-day cut-off date for the priority hiring
rights of U.S. workers, and with the knowledge (as reported in the
comments discussed under Sec. 655.20(f) (three-fourths guarantee))
that many employers' workforce needs vary throughout the season and
they require fewer workers in slow months at the beginning and end of
the season, the Department wishes to remind employers about the
requirements of the three-fourths guarantee. Specifically, the
guarantee begins on the first workday after the arrival of the worker
at the place of employment or the advertised first date of need,
whichever is later. An employer cannot delay the three-fourths
guarantee by telling workers not to come to work on or after the
advertised first date of need because the employer does not have a need
for them at that time. Particularly for U.S. workers who are not
traveling to the place of employment, this means that when they present
themselves at the place of employment on the advertised first date of
need, the three-fourths guarantee is triggered, whether or not the
employer has sufficient full-time work for all of them to perform.
u. No strike or lockout (Sec. 655.20(u)). The Department proposed
in Sec. 655.20(u) to modify the no strike or lockout language in the
current rule to require employers to assure the Department that there
is no strike or lockout at the worksite for which the employer is
requesting H-2B certification, rather than solely in the positions
being filled by H-2B workers, which is the requirement under the
current regulations. If there is a strike or lockout at the worksite
when the employer requests H-2B workers, the CO may deny the H-2B
certification.
The Department received several comments from advocacy groups and
labor organizations in support of the proposed change. These groups
suggested that the change would provide a needed protection for U.S.
workers whose employers seek to circumvent the current regulatory
provisions by transferring workers to fill positions vacated by
striking workers. One labor organization that generally supported the
proposed regulation indicated that it believed the Department did not
go far enough because employers could still transfer U.S. workers from
one worksite to a second to fill positions vacated by striking workers,
then use H-2B workers to fill the vacancies at the first worksite. This
commenter suggested that if the Department would not extend the strike/
layoff prohibition to all employer worksites it should at least
consider expanding the prohibition to worksites operated by the
employer within a particular region or geographic proximity, for
example within a 500-
[[Page 10084]]
mile radius. The Department acknowledges the commenter's concern, and
while the Department rejects the proposal to expand the provision to
all employer locations and rejects the proposal to extend the
prohibition to all employer facilities within a 500-mile radius, the
Department has concluded that, in order to effectuate its intent in
expanding the no strike or lockout provision as proposed in the NPRM,
it will expand the provision to include all employer worksites within
the area of intended employment. Thus, the proposed language has been
modified in the Final Rule to further decrease the chances that an
unscrupulous employer will circumvent the regulatory requirement by
transferring U.S. workers to fill positions vacated by striking workers
and employing H-2B workers in the positions those U.S. workers vacated.
The Department believes that this extension will provide added
protection for workers whose employers have multiple locations within a
commuting distance where transferring employees among locations would
be relatively easy.
Several trade associations commented that the prohibition on
strikes/lockouts was too broad. One of these commenters was concerned
that the Department did not specify that the provision was not intended
to encompass annual layoffs that occur due to the end of the peak
season. The Department did not intend for Sec. 655.20(u) to include
employer layoffs; section Sec. 655.20(v) addresses employer layoffs.
Other commenters were concerned that a work stoppage as a result of
labor disputes could refer to commonly-occurring minor disagreements
and would effectively mean no employer in the country could use the
program. The Department maintains that the definition of strike is
sufficiently clear, and contends that this provision will not inhibit
the use of the program by a large number of employers.
Another commenter indicated that the ability of a CO to deny an
application due to a strike or a lockout might complicate the
application process and increase delays, unsuccessful applications, and
last-minute refusals of H-2B workers. The Department does not
anticipate that this will be a problem as long as employers do not seek
approval of an Application for Temporary Employment Certification while
there is a strike or lockout at the worksite.
v. No recent or future layoffs (Sec. 655.20(v)). Proposed Sec.
655.20(v) modified the dates of impermissible layoffs of U.S. workers,
extending the period during which an H-2B employer must not lay off any
similarly employed U.S. workers from 120 days after the date of need to
the end of the certification period. The Department also proposed
adding the requirement that H-2B workers must be laid off before any
U.S. worker in corresponding employment.
The Department received several comments that expressed support for
this revision. The Department received two comments that suggested the
period be extended to 180 days prior to the date of need, instead of
the current provision of 120 days prior to the date of need. One
commenter, a labor organization, suggested the 180-day period in order
to be consistent with one of its other proposed regulatory changes,
discussed in the preamble to Sec. 655.20(w). The Department did not
adopt the relevant portion of that suggested change, and therefore
declines to change this provision. One commenter asserted that this
change would correspond with a U.S. worker's eligibility for
unemployment benefits. Unemployment insurance eligibility varies by
State and can change due to economic conditions, while the 120-day
period in the layoff provision is tied to the seasonal nature of the
program. The Department maintains the 120-day period in this Final
Rule.
Several employers commented that the regulations should specify
that this provision is not intended to address annual layoffs that
occur due to the end of the peak season. The Department notes that the
provision specifically permits layoffs due to lawful, job-related
reasons provided that the employer performs all required recruitment
and contacts all former U.S. employees as indicated in Sec. 655.20(w).
Similarly, one commenter indicated that this provision would not allow
an employer who laid off workers due to a natural or manmade disaster
to request H-2B workers when cleanup work begins and the employer is
unable to find U.S. workers. The Department concludes that these
commenters' concerns are unfounded, as the provision specifically
permits layoffs due to lawful, job-related reasons such as the end of
the peak season or a natural or manmade disaster, as long as, if
applicable, the employer lays off H-2B workers first.
w. Contact with former U.S. employees (Sec. 655.20(w)). The
Department proposed to require employers to contact former U.S.
employees who worked for the employer in the occupation and at the
place of employment listed on the Application for Temporary Employment
Certification within the last year, including any U.S. employees who
were laid off within 120 days before the date of need. This expanded
the existing requirement that employers contact only former employees
who were laid off during the 120 days preceding the date of need. The
employer is not required to contact those who were dismissed for cause
or who abandoned the worksite. Note, however, that voluntary
abandonment is different from a constructive discharge, which occurs
when the "working conditions have become so intolerable that a
reasonable person in the employee's position would have felt compelled
to resign." Pennsylvania State Police v. Suders, 542 U.S. 129, 141
(2004).
All comments addressing this issue supported the change. One
advocacy organization that supported the change also expressed concern
about employers determining which workers they have terminated for
cause because there is no requirement that employers keep records of
the reasons why a person was dismissed. Though the regulations do not
specify a requirement to keep records of reasons for termination, many
employers keep such records as a matter of general business practice.
oreover, such a record would be useful if there were an investigation
to show that the termination was in fact for cause and not a layoff.
A labor organization proposed that the Department require employers
to contact those employees who quit after having their hours reduced by
25 percent or more during the 180-day period preceding the submission
of the Application for Temporary Employment Certification. The
Department reminds employers if qualified former employees apply during
the recruitment period they, like all qualified U.S. applicants, must
be offered employment. However, there is no definitive way to determine
the motivation behind an employee's resignation. The suggested
requirement would place an unnecessary burden on both employers seeking
to comply with the provision and Departmental employees seeking to
verify compliance. The Department therefore declines to make the
suggested change and maintains the proposed language in the Final Rule.
x. Area of intended employment and job opportunity (Sec.
655.20(x)). Proposed Sec. 655.20(x) modified existing Sec. 655.22(l)
by additionally prohibiting the employer from placing a worker in a job
opportunity not specified on the Application for Temporary Employment
Certification, clarifying that an H-2B worker is only permitted to work
in the job and in the location that OFLC approves unless the employer
obtains a new labor certification. No comments were received on this
section, and the
[[Page 10085]]
provision is adopted in the Final Rule without change.
y. Abandonment/termination of employment (Sec. 655.20(y)).
Proposed Sec. 655.20(y), which is largely consistent with the existing
notification requirement in Sec. 655.22(f), described the requirement
that employers notify OFLC and DHS within 2 days of the separation of
an H-2B worker or worker in corresponding employment if the separation
occurs before the end date certified on the Application for Temporary
Employment Certification. The section also deemed that an abandonment
or abscondment begins after a worker fails to report for work for 5
consecutive working days, and added language relieving the employer of
its outbound transportation requirements introduced in the NPRM under
Sec. 655.22(j) and 29 CFR 503.16(j) if separation is due to a worker's
voluntary abandonment. Additionally, the proposed section clarified
that if a worker voluntarily abandons employment or is terminated for
cause, an employer will not be required to guarantee three-quarters of
the work in the worker's final partial 6- or 12-week period, as
described in proposed Sec. 655.22(f) and 29 CFR 503.16(f).
A professional association asserted that an employer that fails to
provide notice as required should be relieved of its three-quarter
guarantee obligation if its notification was innocently or mistakenly
late. Similarly, a coalition representing agents and employers and a
trade association expressed concern that the Department's 2-day window
implies that an employer who waits until the third day to provide
notification would be in violation. It is not the Department's
intention in this preamble to determine whether hypothetical situations
would ultimately be charged as violations of this rule. Instead, the
Department reminds the public that WHD will determine violations of
this and other employer requirements after appropriate investigative
actions, using the clear criteria defining what constitutes a violation
found in 29 CFR 503.19.
A coalition representing agents and employers commented that the
Department should define precisely which day of a separation triggers
the start of the 2-day window; articulate what happens if the second
day falls on a Federal holiday; articulate what happens in the event
that the notification is sent within 2 days but transmission failures
delay the Department's receipt; provide specific notification
procedures including email addresses employers should use; and reduce
its fines to conform with those of DHS. The Department asserts that its
language in the proposed section provides employers clear guidance
regarding their notification obligations. This assertion is backed up
by the Department's enforcement experience of the almost identical
provision at existing Sec. 655.22(f); neither WHD nor employers have
expressed confusion regarding the notification requirements or
articulated concerns similar to the commenter's since the introduction
of the requirement in the 2008 Final Rule. Furthermore, the Department
notes that an identical provision in its H-2A regulations has not
resulted in confusion for H-2A employers, many of whom also participate
in the H-2B program. The Department advises employers to send
notification, either in hard copy or via email, using the contact
information they used to submit their Application for Temporary
Employment Certification, and to retain records in accordance with
documentation retention requirements outlined at 29 CFR 503.17.
Finally, the commenter is correct that the Department's penalties for
this violation are different from DHS fines. The notification
requirement serves different purposes for DHS and the Department, and
the Department believes it is fair and consistent to treat this
violation in the same way it treats other violations of employers' H-2B
obligations.
The same commenter also claimed that the proposed language is
unclear and that the Department should clarify that an employer is
relieved of its obligations under the three-quarter guarantee not only
in the event of a voluntary abandonment but also of a lawful
termination. The Department cites its final sentence in Sec. 655.20(y)
and 29 CFR 503.16(y) as unambiguous in relieving an employer from the
guarantee for both a voluntary abandonment and a termination for cause.
Two worker advocacy groups claimed that unscrupulous employers
could misuse the DHS notification as a threat to coerce workers, whose
immigration status is tied inextricably to the job, to endure abusive
work conditions. The Department emphasizes that the notification
requirements in Sec. 655.20(y) are not intended to be used as threats
against vulnerable foreign workers to keep them in abusive work
situations. Further, the Department cautions that coercing workers into
performing labor by threatening potential deportation or immigration
enforcement may violate anti-trafficking laws such as the William
Wilberforce Trafficking Victims Protection Act of 2008 (TVPRA), 18
U.S.C. 1584, 1589, among other laws. While the worker advocates argue
that the Final Rule should eliminate the DHS portion of the
notification and replace it with a requirement to notify WHD, the
Department reminds the public that DHS regulations already compel
employers to notify DHS of early separations by assisting the agency in
keeping track of foreign nationals in the United States. Both OFLC's
(which may share information with WHD) and DHS's awareness of early
separations are critical to program integrity, allowing the agencies to
appropriately monitor and audit employer actions. If not for proper
notification, employers with histories of frequent and unjustified
early dismissals of workers could continue to have an Application for
Temporary Employment Certification certified and an H-2B Petition
approved. In addition, the same two worker advocacy groups stated that
WHD should investigate and confirm the veracity of purported
terminations for cause to ensure that employers do not misuse this
provision to escape their outbound travel obligations and the three-
quarter guarantee. One worker advocacy group argued that retaliation
for workers asserting their rights should not be considered legitimate
cause for termination and suggested the Department require employers to
inform workers that they can quit abusive conditions and work for
another employer, provided the new employment is authorized. The
Department reminds the public that WHD, as part of its enforcement
practices, may in fact investigate conditions behind the early
termination of foreign workers to ensure that the dismissals were not
effected merely to relieve an employer of its outbound transportation
and three-quarter guarantee obligations. Further, Sec. 655.20(n)
already protects workers from a dismissal in retaliation for protected
activities.
Several comments related to the Department's language describing
abscondment. A private citizen and a coalition representing agents and
employers claimed there is an inconsistency between the proposed rule,
which considers abscondment to occur after 5 days, and some employer
personnel rules that purportedly set the threshold at 3 days. A worker
advocacy group argued that workers who fail to report for work due to
legitimate injury or illness should not be considered to have abandoned
employment. The Department maintains that the proposed language does
not intrude upon or supersede employer attendance policies. The
proposed requirement that an
[[Page 10086]]
employer provide appropriate notification if a worker fails to report
for 5 consecutive working days does not preclude an employer from
establishing a different standard for dismissing its workers. Further,
the Department did not intend the H-2B regulations to provide job
protection to workers in the case of illness or injury and considers
such determinations beyond its authority. The proposed rule leaves it
largely to employers to determine the worker behaviors that trigger a
dismissal for cause, beyond the protected activities described in Sec.
655.20(n) and the requirement in Sec. 655.20(z) that the employer
comply with all applicable employment-related laws.
z. Compliance with applicable laws (Sec. 655.20(z)). In proposed
Sec. 655.20(z), which requires H-2B employers to comply with all other
applicable Federal, State, and local employment laws, the Department
retained much of the language from the existing provision at Sec.
655.22(d) and added an explicit reference to the TVPRA. The Department
received comments from several worker advocacy organizations expressing
general support for referencing the Act, which prohibits employers from
holding or confiscating workers' immigration documents such as
passports or visas under certain circumstances. One worker advocacy
organization suggested the Department broaden the proposed section in
two ways: By including employers' attorneys and agents in the
prohibition and by expanding the documents employers are barred from
holding to incorporate deeds to a worker's auto, land and home. The
Department does not have the authority to include documents not
specified in the TVPRA at 18 U.S.C. 1592(a), such as the deeds to an H-
2B worker's auto, land, or home. However, the Department agrees that
the prohibition must include attorneys and agents in order to achieve
the intended worker protection. The Department has added appropriate
language to Sec. 655.20(z) of this Final Rule to reflect the change.
aa. Disclosure of foreign worker recruitment (Sec. 655.20(aa)).
The NPRM proposed to require the employer and its attorney and/or
agents to provide a copy of any agreements with an agent or recruiter
whom it engages or plans to engage in the international recruitment of
H-2B workers under this Application for Temporary Employment
Certification (proposed Sec. 655.9), at the time of filing the
application (proposed Sec. 655.15(a)). As explained in the preamble
under Sec. 655.9, this Final Rule adopts that provision as modified to
also include disclosure of persons and entities hired by or working for
the recruiter or agent, and any of their agents or employees, to
recruit prospective foreign workers for the H-2B job opportunities
offered by the employer. Therefore, the Department is adding this
obligation to the list of Assurances and Obligations in this Final
Rule, as it as a critical obligation that will significantly enhance
the recruitment process.
E. Processing of an Application for Temporary Employment Certification
1. Sec. 655.30 Processing of an Application and Job Order
In the NPRM, we proposed that, upon receipt of an Application for
Temporary Employment Certification and copy of the job order, the CO
will promptly conduct a comprehensive review. The CO's review of the
Application for Temporary Employment Certification, in most cases,\11\
will no longer entail a determination of temporary need following H-2B
Registration. Instead, as proposed, this aspect of the CO's review is
limited to verifying that the employer previously submitted a request
for and was granted H-2B Registration, and that the terms of the
Application for Temporary Employment Certification have not
significantly changed from those approved under the H-2B Registration.
---------------------------------------------------------------------------
\11\ As provided in the discussion of Sec. 655.11, each
employer filing an Application for Temporary Employment
Certification is required under the Final Rule to establish
temporary need through the registration process. However, in limited
circumstances where the employer has applied for a temporary labor
certification on an emergency basis under emergency procedures in
Sec. 655.17 without an approved H-2B Registration, the CO may be
required to also make a determination of temporary need.
---------------------------------------------------------------------------
The proposed rule also required the use of next day delivery
methods, including electronic mail, for any notice or request sent by
the CO requiring a response from the employer and the employer's
response to such a notice or request. This proposed section also
contained a long-standing program requirement that the employer's
response to the CO's notice or request must be sent by the due date or
the next business day if the due date falls on a Saturday, Sunday, or a
Federal holiday. The Final Rule adopts the language of the NPRM without
change.
One labor organization urged us to strictly scrutinize applications
requesting 10 or more workers to perform construction or construction-
type work to guard against unscrupulous employers' applications. While
we appreciate the commenter's concern, we do not believe that it is
necessary to strictly scrutinize only certain types of applications but
rather will continue to thoroughly review all applications.
Some commenters expressed concern that the H-2B program would be
more efficient and predictable if we were subject to more deadlines
governing our decision-making. We have set timeframes throughout these
regulations for our decision-making (e.g., the CO's issuance of Notices
of Deficiency and Notices of Acceptance) that are designed to ensure
application processing progresses efficiently without sacrificing
program integrity. Different applications require different periods of
time for review, depending on the quality and completeness of the
application. While we cannot set more specific timeframes that would
ensure appropriate adjudication of all applications, we will process
each application as quickly as possible.
2. Sec. 655.31 Notice of Deficiency
We proposed to require the CO to issue a formal Notice of
Deficiency where the CO determines that the Application for Temporary
Employment Certification and/or job order contains errors or
inaccuracies, or fails to comply with applicable regulatory and program
requirements. The proposed provision required the CO to issue the
Notice of Deficiency within 7 business days from the date on which the
Chicago NPC receives the employer's Application for Temporary
Employment Certification and job order.
As proposed, once the CO issues a Notice of Deficiency to the
employer, the CO will provide the SWA and the employer's attorney or
agent, if applicable, a copy of the notice. The Notice of Deficiency
would include the specific reason(s) why the Application for Temporary
Employment Certification and/or job order is deficient, identify the
type of modification necessary for the CO to issue a Notice of
Acceptance, and provide the employer with an opportunity to submit a
modified Application for Temporary Employment Certification and/or job
order within 10 business days from the date of the Notice of
Deficiency. The Notice of Deficiency would also inform the employer
that it may, alternatively, request administrative review before an
Administrative Law Judge (ALJ) within 10 business days of the date of
the Notice of Deficiency and instruct the employer how to file a
request for such review in accordance with the administrative review
provision under this subpart. Finally, the Notice of Deficiency would
inform the employer
[[Page 10087]]
that failing to timely submit a modified Application for Temporary
Employment Certification and/or job order, or request administrative
review, will cause the CO to deny that employer's Application for
Temporary Employment Certification. In the Final Rule, we have adopted
the proposed provisions without change.
Some commenters suggested limiting the CO to one Notice of
Deficiency, covering all deficiencies, while another suggested limiting
an employer to a certain number of Notices of Deficiency received
before restricting it from using the program in the future. We
understand that these commenters are interested in processing
efficiency, as are we. However, we have decided to retain the CO's
ability to issue multiple Notices of Deficiency, if necessary, to
provide the CO with the needed flexibility to work with employers
seeking to resolve deficiencies that are preventing acceptance of their
Application for Temporary Employment Certification. For example, there
are situations in which a response to a Notice of Deficiency raises
other issues that must be resolved, requiring the CO to request more
information. The CO must have the ability to address these situations.
Additionally, we do not believe that it would be appropriate to
restrict an employer from participating in the program in the future
based on its receipt of multiple Notices of Deficiency, as this result
would be unduly harsh, especially if the employer is new to the program
or committed unintentional errors when submitting its Application for
Temporary Employment Certification or job order.
3. Sec. 655.32 Submission of a Modified Application or Job Order
In the NPRM, we proposed to permit the CO to deny any Application
for Temporary Employment Certification where the employer neither
submits a modification nor requests a timely administrative review, and
that such a denial cannot be appealed. The proposed rule also required
the CO to deny an Application for Temporary Employment Certification if
the modification(s) made by the employer do not comply with the
requirements for certification in Sec. 655.50. A denial of a modified
Application for Temporary Employment Certification may be appealed.
Under the proposed rule, if the CO deems a modified application
acceptable, the CO issues a Notice of Acceptance and requires the SWA
to modify the job order in accordance with the accepted
modification(s), as necessary. In addition to requiring modification
before the acceptance of an Application for Temporary Employment
Certification, we proposed to permit the CO to require the employer to
modify a job order at any time before the final determination to grant
or deny the Application for Temporary Employment Certification if the
CO determines that the job order does not contain all the applicable
minimum benefits, wages, and working conditions. The proposed rule
required the CO to update the electronic job registry to reflect the
necessary modification(s) and to direct the SWA(s) in possession of the
job order to replace the job order in their active files with the
modified job order. The proposed rule also required the employer to
disclose the modified job order to all workers who were recruited under
the original job order or Application for Temporary Employment
Certification. The Final Rule adopts these provisions.
One commenter suggested that, if we decide to retain the CO's
ability to require post-acceptance modifications, we should provide
employers with an opportunity for immediate de novo hearings. As
discussed further in the larger discussion of administrative review
process contained in the Final Rule, we decline to add de novo hearings
in this post-acceptance certification model. Since the application will
be denied under Sec. 655.53, an employer will have the right of
appeal. We decline, however, to provide for a de novo hearing.
Some commenters opposed the CO having the ability to require
modifications post-acceptance, arguing the CO's ability to issue
unlimited modifications at any point in the process is inefficient for
both the CO and the employer and is contrary to the employer's interest
in finality. We have determined it is contrary to the integrity of the
H-2B program to limit the CO's ability to require modification(s) of a
job order, even after acceptance. In some cases, information may come
to the CO's attention after acceptance indicating that the job order
does not contain all the applicable minimum benefits, wages, and
working conditions that are required for certification. This provision
enables the CO to ensure that the job order meets all regulatory
requirements.
4. Sec. 655.33 Notice of Acceptance
We proposed to require the CO to issue a formal notice accepting
the employer's Application for Temporary Employment Certification for
processing. Specifically, we proposed that the CO would send a Notice
of Acceptance to the employer (and the employer's attorney or agent, if
applicable), with a copy to the SWA, within 7 business days from the
CO's receipt of the Application for Temporary Employment Certification
or modification, provided that the Application for Temporary Employment
Certification and job order meet all the program and regulatory
requirements.
As proposed, the Notice of Acceptance directs the SWA: (1) To place
the job order in intra- and interstate clearance, including (i)
circulating the job order to the SWAs in all other States listed on the
employer's Application for Temporary Employment Certification and job
order as anticipated worksites and (ii) to any States to which the CO
directs the SWA to circulate the job order; (2) to keep the job order
on its active file and continue to refer U.S. workers to the employer
until the end of the recruitment period defined in Sec. 655.40(c), as
well as transmit those instructions to all other SWAs to which it
circulates the job order; and (3) to circulate a copy of the job order
to certain labor organizations, where the job classification is
traditionally or customarily unionized.
As proposed, the Notice of Acceptance also directs the employer to
recruit U.S. workers in accordance with employer-conducted recruitment
provisions in Sec. Sec. 655.40-655.47, as well as to conduct any
additional recruitment the CO directs, consistent with Sec. 655.46,
within 14 calendar days from the date of the notice. The Notice of
Acceptance would inform the employer that such employer-conducted
recruitment is required in addition to SWA circulation of the job order
in intrastate and interstate clearance under Sec. 655.16. In addition,
the Notice of Acceptance would require the employer to submit a written
report of its recruitment efforts as specified in Sec. 655.48.
Under the proposed rule, the Notice of Acceptance would have also
advised the employer of its obligation to notify the SWA with which it
placed its job order if the last H-2B worker has not departed for the
place of employment by the third day preceding the employer's date of
need. This would have indicated to the SWA when to stop referring
potential U.S. workers to the employer.
We are adopting the proposed provisions on the Notice of Acceptance
content, with one modification. For consistency with an amendment made
to the employer's obligation to continue hiring qualified U.S. workers
in Sec. 655.20 until 21 days before the date of need, we have deleted
proposed paragraph (b)(3) of this section, which would have notified
the employer that it must inform the SWA(s) handling the job
[[Page 10088]]
order in writing if the last H-2B worker has not departed for the place
of employment by the third day preceding the employer's date of need.
Further discussion of this modified position may be found in the
discussion of an employer's assurances and obligations under Sec.
655.20.
Comments about the content of the Notice of Acceptance focused on
the recruitment instructions contained in the Notice. One commenter
suggested that we permit SWAs to circulate job orders nationwide and
put the job order on the Internet to broaden the reach of U.S. labor
market recruitment. In contrast, another commenter suggested that the
requirement for a SWA to place the job order in interstate clearance is
both unnecessary and burdensome, given the introduction of the
electronic job registry, the absence of supply States for non-
agricultural work, and the difficulty of coordinating processing among
multiple SWAs. We believe both the electronic job registry and the
interstate clearance process serve important, but distinct, purposes in
testing the U.S. labor market. The electronic job registry, available
to anyone with Internet access, accomplishes the objective of
disseminating job opportunity information to the widest U.S. audience
possible. Adding nationwide circulation to the SWAs' responsibilities
would duplicate the function of the electronic job registry,
unnecessarily burdening the SWAs. The interstate clearance process,
however, targets local labor markets that are most likely to have
available U.S. workers, so that those SWAs can make the job opportunity
information available to the interested, available, and qualified U.S.
workers in that particular local labor market. While there are not
traditional supply States for non-agricultural work, the CO may
identify States in which circulating the job order is likely to target
additional local markets with potentially available U.S. workers (e.g.,
designated areas of substantial unemployment or areas where mass
layoffs have occurred).
Some commenters discussed the community-based organization contact
requirement. While the Notice of Acceptance notifies the employer when
the CO has determined that such contact is appropriate to the
occupation and areas of intended employment, the community-based
organization contact requirement is an employer recruitment activity,
when appropriate, appearing in Sec. 655.45. Accordingly, we have
addressed these comments in the discussion of Sec. 655.45.
We received many comments on the proposals in this section that the
SWA circulate the job order to the applicable labor organizations and
in Sec. 655.44 that the employer contact the local union. While some
opposed the proposal that employers not party to a collective
bargaining agreement would be required to contact a labor organization,
others supported the return to this historic practice. Many commenters
expressed concern about an employer's ability to discern when and what
type of labor organization contact was required, finding the phrase,
where the occupation or industry is traditionally or customarily
unionized, vague. These commenters feared that using this language
meant employers and the CO would disagree about when labor organization
contact was required. Some suggested changing or removing this
language.
After reviewing the comments, we have decided to remove this
requirement from the employer's recruitment steps in Sec. 655.44, and
to retain the requirement that the SWA circulate the job order to the
applicable labor organizations under this section. We believe this
modification will eliminate duplicative efforts and resolve concerns
about an employer's ability to determine when and what type of labor
organization contact is required. The CO, in consultation with the SWA,
will make a determination about whether labor organization contact is
required and include specific directions to the SWA in the Notice of
Acceptance, as specified in paragraph (b)(6) of this section. Under the
Final Rule, an employer will neither have to determine when such
contact is required nor have to contact the local union; rather, the
Notice of Acceptance will notify the employer whether the CO has
directed the SWA to initiate such contact.
While the standard used for labor organization contact is based on
historical knowledge and practice,\12\ we are mindful of the fluidity
of unionized occupations and will gauge trends accordingly. As
discussed in the NPRM, unions have traditionally been recognized as a
reliable source of referrals of U.S. workers. Because the SWAs have
greater knowledge of the local labor markets, including labor
organizations, and have traditionally included labor organizations in
their efforts to match workers with job opportunities, the SWAs are in
the best position to identify whether there are local labor
organizations which cover the occupation and which local labor
organizations are most likely to refer qualified and available U.S.
workers for the job opportunity.
---------------------------------------------------------------------------
\12\ See, Employment and Training Guidance Letter 21-06, Change
1: Procedures for H-2B Certification of Temporary Non-Agricultural
Occupations. Attachment A at 7.
https://wdr.doleta.gov/directives/attach/TEGL/TEGL21-06c1a1.pdf.
See also, General Administration Letter 1-95: Procedures for Temporary
Labor Certification in Non-agricultural Occupations (December 31, 1999).
https://wdr.doleta.gov/directives/attach/GAL1-95_attach.pdf.
---------------------------------------------------------------------------
In addition to commenting on the return to this long-standing
program requirement, some commenters responded to our request for
suggestions on how to best determine the circumstances which would
trigger the requirement for contacting labor organizations. Some
commenters suggested we specifically identify certain industries and/or
occupations as customarily unionized and require contact with
organizations which represent workers in those occupations/industries.
Other commenters suggested that we and/or the SWAs work together with
labor organizations to develop a list of organizations and/or an email
listserv to be publicized for purposes of ensuring appropriate and
consistent application of the contact requirement. We appreciate the
suggestions for the circumstances or criteria for contacting labor
organizations. Specifically, we have taken under advisement the
suggestion that we develop a list of organizations for the uniform
application of the contact requirement. Some commenters noted the
fluidity of unionized occupations over time. We are also mindful that
unionization within industries, occupations, and areas of intended
employment is not uniform. Because of this lack of uniformity, we do
not think it is appropriate to base the contact requirement on a
specified industry or occupation. Rather than create a general rule in
the regulation, we think that a list of labor organizations to be
contacted must focus on specific occupations in specific areas of
intended employment and must be responsive to trends in the
marketplace. Therefore, we believe retaining the labor organization
contact requirement as proposed in paragraph (b)(5) of this section
will most appropriately include labor organizations in the U.S. labor
market test. We will notify the public when such a list is devised. We
will work closely with the SWAs to ensure a complete and appropriate
test of the labor market, including contacting the applicable labor
organizations, is made before approving an Application for Temporary
Employment Certification.
Some commenters offered suggestions about the particular entities
that should be contacted with respect to this requirement. These
suggestions included requiring contact with a specific federation of
labor
[[Page 10089]]
organizations, requiring contact with all unions within a State or with
jurisdiction over the area of intended employment or within an
equivalent geographic distance, or requiring contact with all unions
representing workers of a specific skill and wage level. As discussed
above, we think the contact requirement should be based on the
situation in the local labor market, not on an absolute rule about
which labor organizations to contact. We will work with the SWAs to
develop a flexible list tailored to local circumstances.
Finally, some commenters proposed that we require employers to
prove contact with labor organizations. As this Final Rule requires the
SWA, not the employer, to initiate contact with labor organizations as
a component of testing the U.S. labor market, the proof suggested by
these commenters is not necessary.
One labor and worker advocacy organization expressed general
support for the application process described in the proposed rule and
agreed with the provisions ensuring that only the final job order is
used and an employer may not commence recruitment until the CO accepts
the modified job order. Like the commenter, we believe the final,
approved version of the job order, containing the applicable minimum
benefits, wages, and working conditions, is essential to an appropriate
test of the U.S. labor market.
Some commenters expressed support for the regulations requiring
employers to submit a recruitment report, asserting that the
requirement makes it more difficult for unscrupulous employers to
bypass U.S. workers in favor of more vulnerable foreign workers. We
agree that the requirement adds accountability and supports program
integrity. Further discussion of the recruitment report provision can
be found in the discussion of Sec. 655.48.
5. Sec. 655.34 Electronic Job Registry
In the NPRM, we proposed posting employers' H-2B job orders,
including modifications and/or amendments approved by the CO, on an
electronic job registry to disseminate the job opportunities to the
widest audience possible. The electronic job registry was initially
created to accommodate the posting of H-2A job orders, but we proposed
to expand the electronic job registry to include H-2B job orders. As
proposed, the CO would post the job orders on the electronic job
registry after accepting an Application for Temporary Employment
Certification for the duration of the recruitment period, as provided
in Sec. 655.40(c). At the conclusion of the recruitment period, we
would maintain the job order on the electronic job registry in inactive
status, making the information available for a variety of purposes. In
the Final Rule, we have adopted the proposed provisions without change.
Many commenters supported the introduction of the electronic job
registry, viewing it as a means to increase the program's transparency
and improve U.S. worker awareness of and access to nonagricultural
jobs. Some also contended that the electronic job registry will
facilitate earlier and more frequent detection of program abuse.
Commenters supporting the introduction of the electronic job
registry suggested expanding electronic job registry postings to the
Application for Temporary Employment Certification, other job-offer-
related documents, and contracts between employers and foreign
recruiters to further improve transparency. However, other commenters
expressed concern about the volume and nature of information
potentially exposed in the job order posted on the electronic job
registry. These commenters contended that since employment contracts
typically incorporate employee handbooks and other documents by
reference, it would be difficult, if not impossible, to draft a
document that contains all material terms and conditions and that would
be appropriate to disclose, in its entirety, on the Internet. The
commenters argued that while an employer could submit detailed
information to the CO for review (e.g., employee contracts or
handbooks), making such information available for public viewing would
infringe on an employer's legitimate business interest in maintaining
the confidentiality of employment terms. Comments about transparency
and exposure concerns have been addressed in the larger discussion of
public disclosure of information under Sec. 655.63. Also, as outlined
further in the discussion of the job order content requirements, the
Final Rule details specific minimum content requirement for job orders,
sensitive to these concerns, which in turn affect the job order content
to be posted on the electronic job registry.
One commenter suggested that the job opportunity appear in the
electronic job registry until the end of the certification period,
rather than just the recruitment period. As articulated in the NPRM,
the purpose of posting job orders on the electronic job registry is to
serve as an effective, useable tool for alerting U.S. workers to jobs
for which employers are recruiting H-2B workers. These jobs are
accessible to the public through the Department's resources, including
its One-Stop Career Centers, and through a link to the electronic job
registry on the OFLC's Web site https://www.foreignlaborcert.doleta.gov/.
As a recruitment tool, we believe it
is appropriate for the job order to appear as active during the
recruitment period and to be placed in inactive status, but still
accessible, on the electronic job registry after the recruitment period
ends.
One commenter suggested we give H-2B workers access to the
electronic job registry so that they can find other H-2B employment, if
they are displaced (e.g., replaced by a U.S. worker) or experiencing
improper treatment. While our purpose in introducing the electronic job
registry is to alert U.S. workers of job opportunities, the electronic
job registry will be accessible via the Internet to anyone seeking
employment.
One commenter asserted that an Application for Temporary Employment
Certification involving two or more SWAs would result in the CO posting
the job order of each of the States on the electronic job registry,
potentially confusing applicants about the location of work sites and
terms and conditions of employment, such as requirements to withhold or
pay State income taxes. While a job order may be circulated among
multiple SWAs, only the job order placed with the initial SWA, which
identifies all work locations, will be posted on the electronic job
registry.
We also received a suggestion that we create a simple mechanism,
such as an email listserve, for notifying interested parties, such as
labor organizations who may have unemployed members seeking employment
in new areas, of job opportunities. While the Final Rule adopts the
electronic job registry provisions as proposed, we will also work with
the SWAs to devise procedures to further publicize the electronic job
registry.
6. Sec. 655.35 Amendments to an Application or Job Order
We proposed to permit an employer to request to amend its
Application for Temporary Employment Certification and/or job order to
increase the number of workers, to change the period of employment, or
to make other changes to the application, before the CO makes a final
determination to grant or deny the Application for Temporary Employment
Certification. The proposed rule would permit an employer to seek such
amendments only before certification, not after certification. As
discussed in the NPRM,
[[Page 10090]]
these provisions were proposed to provide clarity to employers and
workers alike of the limitations on and processes for amending an
Application for Temporary Employment Certification and the need to
inform any U.S. workers already recruited of the changed job
opportunity. We recognized that business is not static and employers
can face changed circumstances from varying sources--from climatic
conditions to cancelled contracts; we included these provisions to
provide some flexibility to enable employers to assess and respond to
such changes.
At the same time, we proposed certain limitations to ensure that
these job opportunities are not misrepresented or materially changed as
a result of such amendments. Specifically, as proposed, the employer
may request an amendment of the Application for Temporary Employment
Certification and/or job order to increase the number of workers
initially requested. However, we proposed limiting such amendments to
increase the number of workers to no more than 20 percent (50 percent
for employers requesting fewer than 10 workers) above the number
specified in the H-2B Registration.
In addition, we proposed to permit minor changes to the period of
employment at any time before the CO's final determination. However,
the NPRM stated such amendments to the period of employment may not
exceed 14 days and may not cause the total period to exceed 9 months,
except in the event of a demonstrated one-time occurrence. This
limitation to 14 days was designed to ensure that the employer had a
legitimate need before commencing the registration process and
accurately estimated its dates of need.
As proposed, the employer must request any amendment(s) to the
Application for Temporary Employment Certification and/or job order in
writing and any such amendment(s) will not be effective until approved
by the CO. After reviewing an employer's request to amend its
Application for Temporary Employment Certification and/or job order,
the CO will approve these changes if the CO determines the proposed
amendment(s) are justified and will not negatively affect the CO's
ability to make a timely labor certification determination, including
the ability to thoroughly test the labor market. Changes will not be
approved which affect the underlying job registration. Once the CO
approves an amendment to the Application for Temporary Employment
Certification and/or job order, the CO will submit to the SWA any
necessary change(s) to the job order and update the electronic job
registry to reflect the approved amendment(s). We have decided to adopt
this provision in the Final Rule, with the modifications discussed
below.
We received a few comments on this proposed provision. One
commenter noted that the following sentence appeared in the proposed
rule at paragraph (c) of this section, but not at paragraphs (a) or (b)
of this section: "In considering whether to approve the request, the
CO will determine whether the proposed amendment(s) are sufficiently
justified and must take into account the effect of the changes on the
underlying labor market test for the job opportunity." The commenter
expressed concern that employers requesting one type of amendment would
be required to justify their request to the satisfaction of the CO,
while employers requesting the other types of amendments would not be
required to justify their requests. We had no intention of applying
different standards and have modified the language of paragraphs (a)
and (b) of this section to include the sentence that appears in
paragraph (c) of this section.
Some commenters were suspicious of post-acceptance modification
requests, fearing that employers will use this provision as an
opportunity to move from their approved H-2B Registration period of
need or number of workers. We do not intend this provision to allow
employers to amend their applications beyond the parameters contained
in Sec. 655.12; rather, part of the CO's review will involve comparing
the requested amendments to the content of the approved H-2B
Registration. However, the Final Rule provision has been slightly
revised to clarify that an employer may not request a post-filing
amendment that would modify the number of workers beyond that which
would have been acceptable at the time of filing under Sec. 655.12.
Similarly, an employer will not be permitted to expand the period of
employment beyond 9 months. We expect the stated parameters, which
limit the extent of the change in number of workers or period of need
permitted, and the CO review process to control the frequency with
which post-acceptance and pre-certification job order amendments are
requested or approved and maintain the integrity of the H-2B
Registration process. One commenter expressed concern about the
resources used to update both the SWA's labor exchange system and the
electronic job registry to replace obsolete versions of the job order,
if the CO approves amendments. As discussed above, we believe the job
order posting on both the SWA's labor exchange system and electronic
job registry serve valuable purposes and must accurately reflect the
final job order contents, validating the use of resources.
We have not amended the provision to reflect the corresponding
change made to the registration provision that allows an employer to
adjust its date of need by up to 30 days without having to re-register.
Registration covers the entire period of need for up to 3 years. This
provision, by contrast, allows an employer to request a deviance of up
to 14 days from the previous year, allowing for up to 2 such deviations
from the initial dates provided in the registration, as long as the
deviations do not result in a total period of need exceeding 9 months.
F. Recruitment Requirements
We proposed to maintain and expand some of the requirements
relating to the recruitment of U.S. workers under the 2008 Final Rule.
These efforts included a requirement that the employer contact its
former U.S. workers; a requirement to contact labor organizations as
well as community-based organizations, if appropriate to the occupation
and area of intended employment; and a requirement to conduct
additional recruitment at the discretion of the CO.
We received a number of comments from individuals, labor
organizations, worker advocacy organizations, and coalitions expressing
support for the additional recruitment efforts as imperative to
ensuring the appropriate test of the labor market and providing U.S.
workers with appropriate access to these job opportunities. In
addition, we received comments from employers and industry
organizations expressing opposition to or concerns about the specific
recruitment efforts required in the NPRM. As discussed in more detail
below, except for the requirement under Sec. 655.44 that the employer
contact labor organizations where the occupation or industry is
customarily unionized, the Final Rule retains these recruitment
requirements as proposed or with amendments where noted.
1. Sec. 655.40 Employer-Conducted Recruitment
Unlike under the 2008 Final Rule, in the NPRM we proposed that the
employer conduct recruitment of U.S. workers after its Application for
Temporary Employment Certification is accepted for processing by the
CO. We received a number of comments on this proposal, most of them in
support.
Several commenters suggested that we take this requirement further
by requiring employers to conduct recruitment efforts comparable to
ones
[[Page 10091]]
that they normally use to recruit workers in corresponding employment
for the job opportunity. Although the Department's Final Rule includes
requirements which are aimed at approximating the recruitment efforts
typically used by employers outside the H-2B program, we are not able
to adopt this suggestion because we have no mechanism for ascertaining
those efforts or ensuring compliance. In addition, we believe that the
existing regulatory language gives the CO sufficient authority to order
any appropriate recruitment which will ensure that U.S. workers get
adequate access to these job opportunities.
We proposed that the employer conduct recruitment of U.S. workers
within 14 calendar days from the date of the Notice of Acceptance,
unless the CO provides different instructions to the employer in the
Notice of Acceptance, and that the employer must accept all qualified
U.S. applicants referred by the SWA until the third day before the
employer's date of need or the date the last H-2B worker departs for
employment, whichever is later. We are amending this requirement, as
described below.
We received a number of comments and alternatives for the duration
of the recruitment period. For example, several labor organizations and
worker advocates proposed that we extend the recruitment period until 3
days before the date of need, while one other labor organization
proposed to instead extend the duration for the posting of the job
order. Employers and industry commenters generally opposed a longer
recruitment period, but expressed willingness to accept a recruitment
period of either 30 days or ending 30 days before the date of need.
Most of these comments demonstrate a misunderstanding of the
proposal and the difference between the 14-day employer-conducted
recruitment period and the SWA referral period. As indicated above, we
proposed to require that employers complete specific recruitment steps
outlined in Sec. Sec. 655.42 through 655.46 within 14 days from the
date of the Notice of Acceptance. Separate from the employer-conducted
recruitment, the NPRM proposed to require the SWA, upon acceptance of
the job order and Application for Temporary Employment Certification by
the CO, to place the job order in interstate clearance and indicated
that we would post the job order to the electronic job registry.
Thereafter, we proposed to require employers to continue to accept all
qualified U.S. applicants referred for employment by the SWA or who
apply for the position directly with the employer until the third day
preceding the employer's date of need or the date the last H-2B worker
departs for employment, whichever is later. In order to further the
effectiveness of the longer referral period and ensure that U.S.
workers are notified of the job opportunities, we proposed that the job
order remain posted with the SWA for the duration of the referral
period or until the employer notifies the SWA that the last H-2B worker
has departed. This aspect of the proposal balanced the need to ensure
an adequate test of the labor market without requiring the employer to
incur any additional costs in conducting independent recruitment
efforts beyond the sources and the 14 days specified in the Notice of
Acceptance. As discussed more fully below, the Final Rule retains the
14-day recruitment period. After considering comments on this issue, we
have determined that the 14-day recruitment period provides an
appropriate timeframe for the employer to conduct the recruitment
described in Sec. Sec. 655.42 through 655.46, especially when combined
with the longer referral period discussed further below.
In addition, we proposed to require employers to report to the SWA
the actual date of departure of H-2B workers, if different from the
date that is 3 days before the date of need. However, for the reasons
discussion at Sec. 655.20(t), in the Final Rule employers will only be
required to hire qualified and available U.S. workers until 21 days
before the date of need. Employers are therefore relieved of the
obligation to report this information to the SWAs.
In the context of the proposal requiring employers to report to the
SWA the date of last departure of the last H-2B worker, we specifically
solicited comments on whether it should also require employers to
inform the Department of the actual number of H-2B workers hired under
the approved Application for Temporary Employment Certification, as
well as whether the H-2B workers were hired from a foreign country or
were already present in the U.S. We have determined to adopt a modified
version of this proposal. Based on comments received, we have
determined that the best approach to collecting this type of
information is to request the employer's information for the prior year
on the Application for Temporary Employment Certification. However, we
are not requiring that the employer engage in such reporting in the
context of conducting its recruitment efforts.
We received several comments supporting this proposal. One worker
advocacy organization espoused the importance of such a collection
based on its value to program integrity. Another commenter supporting
this proposal suggested that we implement a reporting requirement that
would be triggered at three specific points beginning during the
referral period and ending during the period of certified employment
(the first report would be at 30 days before the date of need, the
second 30 days into the period of employment and the third 30 days
before the end of the period of employment). This commenter expressed a
concern that we certify more H-2B positions than the employer
ultimately fills. Another commenter suggested that we should collect
the information about both the number of H-2B and the number of U.S.
workers actually hired. Another commenter, a worker advocacy
organization, suggested that we should collect the age and gender of H-
2B workers who are hired.
Our role in the H-2B program is to certify that the employer has a
need to fill a specific number of temporary positions for which the
employer is unable to find qualified and available U.S. workers. We do
not, however, have control over how many of those positions are
ultimately filled with H-2B workers nor the identity of those workers;
the names of alien beneficiaries are not captured on ETA Form 9142
since in most cases the identity of the workers is not known at that
time. We agree, however, that requiring employers to report the number
of H-2B and U.S. workers actually hired, and whether the H-2B workers
are hired from within the U.S. or from abroad, is in the interest of
overall H-2B program integrity and will assist the Department and other
Federal agencies with ascertaining the actual use of the program. This
is especially so given the limited number of visas available, because
an employer who significantly overstates its need for temporary workers
may preclude another employer with a bona fide temporary need from
getting visas for workers it equally needs. With respect to comments
that we should collect both the number of H-2B and the number of U.S.
workers actually hired, our regulations under Sec. 655.48 already
require the employer to report the disposition of each U.S. worker who
was referred or self-referred to the employer for employment. With
respect to the other commenters' suggestion that we collect the age and
gender of H-2B workers who are hired by the employer, the Paperwork
Reduction Act requires the Department to collect only such
[[Page 10092]]
information as is reasonably related to the administration of our
program; at this time we feel that requiring employers to report such
information would not be reasonably related to our administration of
the H-2B program. As discussed above, we have adopted the proposal to
collect the number of H-2B workers actually hired during the previous
year on the Application for Temporary Employment Certification.
The NPRM provided that employers are not required to conduct
employment interviews but that where the employer wishes to conduct
interviews with U.S. workers, it must do so by telephone or at a
location where workers can participate at little or no cost to the
workers. The Final Rule retains this requirement.
We received several comments supporting this proposal. One
commenter also suggested that we prohibit employers from interviewing
U.S. workers unless it also conducts interviews of H-2B workers.
Another commenter proposed that we require employers to promise to be
available for interviews during normal business hours throughout the
referral period. As indicated in the NPRM and retained in the Final
Rule, we have explicitly prohibited employers from offering
preferential treatment to H-2B workers, including any requirement to
interview for the job opportunity. In addition, both the NPRM and the
Final Rule seek to ensure that employers conduct a fair labor market
test by requiring employers that require interviews to conduct them by
phone or provide a procedure for the interviews to be conducted in the
location where the worker is being recruited so that the worker incurs
little or no cost. With respect to the commenters' suggestion that the
employer be required to be available to conduct interviews during
normal business hours, we are declining to adopt this suggestion as it
may unnecessarily infringe on the employer's business operations.
However, an employer who requires a U.S. worker to undergo an interview
must provide such worker with a reasonable opportunity to meet such a
requirement. The purpose of these requirements is to ensure that that
the employer does not use the interview process to the disadvantage of
U.S. workers. For all the reasons articulated above, we are retaining
this provision as proposed.
2. Sec. 655.41 Advertising Requirements
We proposed to retain the 2008 Final Rule requirement that all
employer advertisements contain terms and conditions of employment no
less favorable than those offered to the H-2B workers and reflect, at a
minimum, the terms and conditions contained in the job order. The NPRM
also required that all advertisements direct applicants to apply for
the job opportunity through the SWA. We have made revisions to this
provision to clarify which terms and conditions of employment contained
in job orders must be included in advertisements, and to clarify that
the employer must comply with but need not actually include the job
order assurances in advertisements.
We received a number of comments on this proposal. The majority of
commenters expressed strong support for extending job order
requirements to all recruitment, including the requirement to identify
when the employer is offering board, lodging or facilities. Other
commenters expressed concern that including all of the job order
requirements in advertisements may prove to be costly and burdensome,
particularly where it would result in lengthy and expensive newspaper
advertisements. Another commenter, referring to the H-2A program,
although supporting full disclosure, suggested that the job order
requirements often serve to discourage rather than encourage applicants
from pursuing the job opportunity due to the sheer length and
complexity of information required to be included. This commenter
suggested that we should require that a summary form be provided to the
applicants.
In considering the issues raised by commenters, we have amended
this section to ensure that all advertisements include, at a minimum,
the terms and conditions of employment necessary to apprise U.S.
workers of the job opportunity and have clarified that those terms and
conditions must conform to the job order assurances, required by the
amended Sec. 655.18(a), but need not contain those assurances.
Based on the commenter's suggestions and in order to ensure that
all recruitment complies with the requirements applicable to job
orders, we have amended the language of this section to clarify that
advertisements need not include the text of assurances applicable to
job orders, but that they must include the minimum terms and conditions
of employment. These minimum terms and conditions of employment include
a requirement that the employer make the appropriate disclosure when it
is offering or providing board, lodging or facilities, as well as
identify any deductions, if applicable, that will be applied to the
employee's pay for the provision of such accommodations. These minimum
content requirements will address industry concerns about the cost
inherent in placing potentially lengthy advertisements, while also
ensuring that entities disclose all necessary information to all
potential applicants. In addition, as a continuing practice in the
program, employers will be able to use abbreviations in the
advertisements so long as the abbreviation clearly and accurately
captures the underlying content requirement.
In order to assist employers to comply with these requirements, we
provide below specific language which is minimally sufficient to
apprise U.S. applicants of required items in the advertisement, and
which is intended to assist the employer in complying with such
requirements. In response to industry concerns over the potential
length and cost of advertising, the employer may also abbreviate some
of this language so long as the underlying guarantee can be clearly
understood by a prospective applicant. The employer may include the
following statements in its advertisements: 1. Transportation:
Transportation (including meals and, to the extent necessary, lodging)
to the place of employment will be provided, or its cost to workers
reimbursed, if the worker completes half the employment period. Return
transportation will be provided if the worker completes the employment
period or is dismissed early by the employer. 2. Three-fourths
guarantee: For certified periods of employment lasting fewer than 120
days: The employer guarantees to offer work for hours equal to at least
three-fourths of the workdays in each 6-week period of the total
employment period. For certified periods of employment lasting 120 days
or more: The employer guarantees to offer work for hours equal to at
least three-fourths of the workdays in each 12-week period of the total
employment period. 3. Tools, equipment and supplies: The employer will
provide workers at no charge all tools, supplies, and equipment
required to perform the job.
Another commenter expressed concern that some employers have a
legitimate need to keep the terms and conditions of employment
confidential. Although we recognize that some employers may wish for
more discretion in recruitment, our statutory mandate requires that the
employer be permitted to hire H-2B workers only in circumstances where
there are no qualified and available U.S. workers, and where the
employment of those H-2B workers does not have an adverse effect on the
wages and working conditions of U.S. workers. Therefore, in the context
of the H-2B program, an
[[Page 10093]]
employer must forego some of its preferences for its usual recruitment
practices in order to comply with our regulations.
As indicated above, we retained the requirement that all
recruitment conducted under this section and Sec. Sec. 655.42-655.46
comply with the prohibition on preferential treatment and also that
each job opportunity be bona fide as required by Sec. 655.18. Some
commenters objected to the bona fide job opportunity requirement
because it permits the CO to require the employer to substantiate any
job qualification or requirement contained in the job order. In
particular, one commenter was concerned that this requirement may
preclude the employers from conducting background checks.
Our longstanding policy on job qualifications and requirements has
been that they must be customary; i.e., they may not be used to
discourage applicants from applying for the job opportunity. Including
requirements that do not meet this standard would undermine a true test
of the labor market. The standard for employment of H-2B workers in the
U.S. is that there are no U.S. workers capable of performing such
service or labor who are available for employment. In accordance with
this standard, the regulations require as a condition of certification
that no qualified persons who are available to perform the job can be
found. For purposes of complying with this requirement, we have
clarified in Sec. 655.20(e) the meaning of qualifications and
requirements. A qualification means a characteristic that is necessary
to the individual's ability to perform the job in question. Such
characteristics include but are not limited to, the ability to use
specific equipment or any education or experience required for
performing a certain job task. A requirement on the other hand, means a
term or condition of employment which a worker is required to accept to
obtain or retain the job opportunity, e.g., the willingness to complete
the full period of employment or commute to and from the worksite.
This interpretation is consistent with program history, primarily
under the General Administration Letter 1-95,\13\ where the State
Employment Security Agencies (now SWAs) were specifically directed to
reject any restrictive job requirements. To the extent an employer has
requirements that are related to the U.S. workers' qualifications or
availability we will examine those in consultation with the SWAs to
determine whether they are normal. We recognize that background checks
are legitimately used in private industry and it is not our intent here
to preclude the employer from conducting such checks to the extent that
the employer applies the same criteria to both H-2B and U.S. workers.
However, where such job requirements are included in the recruitment
materials, we reserve the right to inquire further as to whether such
requirements are normal and accepted.
---------------------------------------------------------------------------
\13\ General Administration Letter 1-95, Procedures for H-2B
Temporary Labor Certification in Nonagricultural Occupations
(December 31, 1995).
---------------------------------------------------------------------------
Some comments addressed the proposal that employer-conducted
recruitment must direct all applicants to the SWA. Most commenters
supported this proposal, indicating that this requirement will enhance
the likelihood that workers will be fully apprised of the job
opportunities. A SWA expressed concern over the availability of funding
to perform the additional referral functions. We have retained this
requirement because we believe that allowing SWAs to apprise job
applicants of the terms and conditions of employment is an essential
aspect of ensuring an appropriate labor market test. However,
notwithstanding the many benefits of being referred to the job
opportunity by the SWA, U.S. workers may contact the employer directly
and the Final Rule requires that employers include their contact
information to enable such direct contact. With respect to the SWAs'
concerns regarding the availability of sufficient funding, we
anticipate that the enhanced role of the SWA and the additional duties
inherent in that role will be offset through the elimination of the
requirement to conduct employment verification activities.
3. Sec. 655.42 Newspaper Advertisements
We proposed to continue to require the employer to place two
advertisements in a newspaper of general circulation for the area of
intended employment that is appropriate to the occupation and the
workers likely to apply for the job opportunity and to permit the
employer to place the advertisement(s) in a language other than English
where the CO determines it appropriate. However, we proposed to
eliminate an employer's option to replace one of the newspaper
advertisements with an advertisement in a professional, trade, or
ethnic newspaper. Instead, we proposed to allow the CO the discretion
to require an employer to place such an advertisement in addition to
the required newspaper advertisements where such an advertisement is
appropriate for the particular occupation and area of employment. We
are retaining this provision as proposed with minor clarifying edits.
Several commenters agreed that we should continue to require
newspaper advertisements. Others disagreed. One commenter indicated
that newspaper advertisements are outdated as a recruitment source and
are increasingly unavailable due to an overall reduction in newspapers
with print editions. This commenter expressed regret that we did not
use this rulemaking as an opportunity to replace this requirement with
recruitment efforts that are more reflective of the current labor
market realities and the decline in newspaper subscriptions and
readership. A worker advocacy group suggested that eliminating
newspaper advertising will have a minimal impact on domestic worker
recruitment because very few U.S. workers search for jobs through
newspapers. This commenter recommended that the regulations instead
incorporate innovations which are now widely used by employers of
domestic workers to recruit new employees, such as web-based
advertising on job search sites and participation in job fairs. Another
commenter offered as an alternative to newspaper advertising the use of
road signs as more apt to appeal to workers typically employed in the
H-2B program. Industry commenters also noted the expense of placing
newspaper advertisements.
While several other commenters offered suggestions for
disseminating information about the job opportunity, they did not
indicate whether these alternatives should be considered in addition to
newspaper advertisements or instead of them. Consequently, these
suggestions are further discussed under Sec. 655.46. It is worth
noting, however, in response to commenters who suggested web-based
advertisements, this Final Rule requires the CO to post H-2B job orders
on the electronic job registry maintained by the Department in order to
widely disseminate the job opportunities.
After due consideration, we continue to believe that newspapers of
general circulation remain an important source for recruiting U.S.
workers because they are among the means most likely to reach the
broadest audiences, particularly those interested in positions
typically found in the H-2B program. Newspaper advertisements are also
recognized as information sources likely to generate informal, word of
mouth referrals. Although we do not dispute that available statistics
on subscriptions and readership favor a view that these
[[Page 10094]]
publications are in decline, we are not aware of any reliable means for
tracking how many persons have access to a single printed newspaper
before it is discarded, particularly due to their availability through
community organizations, centers, public libraries, and other venues
which provide important access to information for those seeking jobs.
As to one commenter's proposal to require the use of road signs, we
note that such a requirement would not offer appropriate substitution
for newspaper advertisements, would be costly to the employer, and
would be difficult to administer and enforce.
We received no comments on the proposal to prohibit substitution of
ads between newspapers and trade and ethnic publications. Therefore,
after considering alternatives to newspaper advertisements proposed by
commenters, we have determined that no single alternative method of
advertising uniformly applies to the variety of H-2B job opportunities
or is likely to reach as broad a potential audience. For that reason,
the Final Rule retains the proposed section in its entirety with a
clarifying edit that requires the employer that placed any
advertisement in a language other than English to retain the
translations of such advertisements, as required by Sec. 655.56.
4. Sec. 655.43 Contact With Former U.S. Employees
The NPRM proposed to require the employer to contact by mail or
other effective means its former U.S. workers who were employed by the
employer in the same occupation and the place of employment during the
previous year before the date of need listed in the Application for
Temporary Employment Certification. This proposal expanded the 2008
Final Rule requirement for contact with former U.S. workers who have
been laid off within 120 days of the employer's date of need. Under the
proposal, employers are not required to contact U.S. workers who
abandoned the worksite or who were terminated for cause. We have
retained the proposed requirement.
We received a number of comments from labor organizations and
worker advocates supporting the expanded requirement contained in the
proposal. Most of the comments focused on the importance of offering
access to these job opportunities to the greatest number of U.S.
workers, particularly during times of high unemployment. One commenter
endorsed the expanded requirement but indicated that the INA includes a
preference for U.S. workers which is unlimited. According to this
commenter, U.S. workers quit their jobs for a variety of reasons and
should not be disqualified in this fashion.
We agree with this commenter and for that reason the NPRM proposed
to limit the exception to the contact requirement only to workers who
were dismissed for cause or who abandoned the worksite. For purposes of
this provision, abandonment has the same meaning as it does in Sec.
655.20(y), i.e., a worker who fails to report for work at the regularly
scheduled time for 5 consecutive working days without the consent of
the employer.
The same commenter raised further concerns about an employer being
released from contact requirements where an employee was terminated for
cause, noting experience in the program where employers use termination
for cause or threat of termination as a means for retaliating against
workers who were dissatisfied with illegal treatment. Under the NPRM,
as well as this Final Rule, each employer must affirmatively attest
that it has not engaged in unfair treatment as defined in Sec.
655.20(n), i.e., that it has not retaliated against complaining
employees. Although this commenter proposes to require the employer to
contact all former workers regardless of why they left employment with
the employer, we have determined that such a requirement is overbroad
and not necessary to ensure an appropriate test of the labor market.
Another commenter suggested that we expand the window for
contacting former U.S. workers who have been laid off within 120 days
before the date of need to layoffs within 180 days before the date of
need. Because the provision as proposed and retained in the Final Rule
requires the employer to contact all its former U.S. workers who were
employed by the employer in the occupation at the place of employment
in the last year, expanding the requirement to contact those laid off
within 180 days will not have any effect, as those workers are already
included in the provision. Therefore, we are not accepting this
proposal.
A few commenters addressed the issue of protecting workers whose
hours have been reduced by the employer. One commenter suggested that
we redefine layoff to include a separation following a 25 percent
reduction in hours in a 180-day period preceding the employer's date of
need in order to expand the exposure of U.S. workers to the job
opportunity. As discussed in the preamble to Sec. 655.20(w), there is
no definitive way to determine whether a worker quit because of a
reduction in hours. The suggested requirement would place an
unnecessary burden both on employers seeking to comply with the
provision and Departmental employees seeking to verify compliance, and
we therefore do not accept this recommendation.
Finally, other commenters proposed that we require the employer to
contact laid off employees in accordance with the terms governing
recall for the duration of the recall period provided in the collective
bargaining agreement that covers the employees in the occupation and
area of intended employment. We have addressed this commenter's
concerns by proposing a requirement that the employer contact former
employees employed by the employer during the prior year. In addition,
the employer is separately obligated to comply with the terms and
conditions of the bargaining agreement, to the extent that the recall
provisions cover workers employed by the employer beyond the prior
year, pursuant to both the agreement and the requirement at Sec.
655.20(z).
Therefore, the Final Rule retains this provision as proposed.
5. Sec. 655.44 Contact With Labor Organizations
We proposed to require employers to formally contact local labor
organizations to inquire about the availability of U.S. workers to fill
the job opportunities for which the employer seeks to hire H-2B workers
where union representation is customary in the occupation or industry.
We have decided to remove this requirement.
We received a number of comments on the proposal to expand the
contact requirement with labor organizations beyond those employers who
are party to a collective bargaining agreement (CBA). Most labor
organizations and worker advocates expressed support for the proposed
requirement and offered suggestions to enhance it, i.e., by clarifying
when union contact is required. In addition, we received comments from
industry representatives and employers objecting to this requirement as
burdensome and unlikely to result in a greater number of legitimate
applicants who will meet the employers' temporary need for workers.
any commenters strongly objected to overall enhanced recruitment
requirements, as costly, burdensome, and unlikely to result in
legitimate applicants or ultimately meet the employers' need for
temporary labor. Some industry commenters indicated that the
customarily unionized standard was vague or ambiguous, and requested
clarification. Others objected to the application of the requirement to
[[Page 10095]]
employers who were not party to a CBA or who did not otherwise employ
unionized workers. One commenter also requested that we eliminate this
section in its entirety.
We agree that the provision should be deleted. We realize that this
requirement is duplicative of the activity undertaken by the SWAs in
Sec. 655.33, where the Notice of Acceptance will direct the SWAs to
circulate a copy of the job order to both the State Federation of Labor
in the States(s) in which work will be performed and to the local
unions representing employees in the same or substantially equivalent
job classification in the area of intended employment, where the
occupation or industry is traditionally or customarily unionized. For
this reason, we have decided to remove this requirement, but retain in
this Final Rule a mechanism by which labor organizations are still
contacted, increasing the exposure of such job opportunities to U.S.
workers while reducing the burden on the employer. For a more detailed
discussion about contacting labor organizations and the Department's
request for suggestions on how to best determine the circumstances
which would trigger the requirement for contacting labor organizations,
please see Sec. 655.33 above.
6. Sec. 655.45 Contact With Bargaining Representative and Posting
Requirements and Other Contact Requirements
The NPRM proposed to require employers that are party to a CBA to
provide written notice to the bargaining representative(s) of the
employer's employees in the job classification in the area of intended
employment. Where there is no bargaining representative of the
employer's employees, we proposed to require the employer to post a
notice to its employees of the job opportunities for at least 10
consecutive business days in at least two conspicuous locations at the
place of intended employment or in some other manner that provides
reasonable notification to all employees in the job classification and
area in which work will be performed by the H-2B workers. We requested
comments on the likelihood this requirement will result in finding
qualified and available applicants.
The majority of comments supported this proposal. Most of the
commenters indicated that keeping the bargaining representative
apprised of these job opportunities will likely result in the job
opportunities being available to U.S. workers. Most commenters
specifically supported the new alternative requirement that the
employer post notice of the job opportunity. A few commenters offered
suggestions for enhancing the requirement, one of them proposing that
the notice of the job opportunity be posted at each facility owned and
operated by the employer. A few commenters suggested that we extend the
duration of the posting. These suggestions ranged from requiring a
posting through the duration of the referral period to a recommendation
to increase the posting duration from 10 days to 14 days, or 30 days in
some instances.
After thorough consideration of these comments, we are unable to
accept the proposal which would require the posting of the notice at
each facility owned and operated by the employer, as this requirement
is overbroad both with respect to the burden on the employer and with
respect to the administrative feasibility of oversight and enforcement.
We have, however, adopted the other commenters' suggestion to extend
the duration of the posting from 10 to 15 consecutive business days.
This increase in duration will provide greater opportunity for the
employer's workers to learn of the job opportunity and enhance the
likelihood that unemployed U.S. workers will learn of the job
opportunity.
We also received comments opposing this proposal. Most of these
comments generally objected to the requirement to contact the
bargaining representative and indicated that the contacts will not
result in meaningful candidates for the job opportunities, some
indicating that most referred U.S. workers cannot be relied upon to
complete the duration of the certified period of employment. Other
commenters specifically objected to the posting requirement. One
employer association whose members are subject to special procedures
indicated infeasibility of complying with the requirement due to the
itinerant nature of their work.
The requirement to contact the bargaining representative(s) is
intended to ensure that each employer's existing U.S. workers receive
timely notice of the job opportunities, thereby increasing the
likelihood that those workers will apply for the available positions
for the subsequent temporary period of need and that other U.S.
workers, possibly including former workers, will be more likely to
learn of the job opportunities as well. The posting of the notice at
the employer's worksite, in lieu of formal contact with a
representative when one does not exist, is intended to ensure that all
of the employer's U.S. workers are afforded the same access to the job
opportunities for which the employer intends to hire H-2B workers. In
addition, the posting of the notice may result in the sharing of
information between the employer's unionized and nonunionized workers
and therefore result in more referrals and a greater pool of qualified
U.S. workers. With respect to one commenter's concern regarding the
ability of an itinerant employer to comply with the posting
requirement, we included in the NPRM and have retained in the Final
Rule a degree of flexibility for complying with this requirement;
specifically, the regulation includes the language "or in some other
manner that provides reasonable notification to all employees in the
job classification and area in which the work will be performed by the
H-2B workers." This permits the employer to devise an alternative
method for disseminating this information to the employer's employees,
such as posting the notice in the same manner and location as for other
notices, such as safety and health occupational notices, that the
employer is required by law to post. The Final Rule includes such
flexibility and provides that electronic posting, such as displaying
the notice prominently on any internal or external Web site that is
maintained by the employer and customarily used for notices to
employees about terms and conditions of employment, is sufficient to
meet this posting requirement as long as it otherwise meets the
requirements of this section. However, under this Final Rule, employers
who are subject to special procedures under the program will continue
to conduct recruitment activities in accordance with those procedures
unless or until such a time when these procedures are modified or
withdrawn by the Administrator, OFLC in accordance with the regulatory
requirements under Sec. 655.4, except to the extent that such
procedures are in direct conflict with these regulations.
For all of the reasons discussed above, we are retaining the
requirement that the employer contact the bargaining representative or
post a notice of the job opportunity and are extending the duration for
such posting from 10 to 15 business days.
In addition to requiring the employer to contact the bargaining
representative or post a notice of the job opportunity, the NPRM
included a proposal to, where appropriate, require the employer to
contact community-based organizations to disseminate the notice of the
job opportunity. Community-based organizations are an effective means
of reaching out to domestic workers interested in specific
[[Page 10096]]
occupations. ETA administers our nation's public exchange workforce
system through a series of One-Stop Career Centers. These One-Stop
Centers provide a wide range of employment and training services for
workers through job training and outreach programs such as job search
assistance, job referral and job placement services, and also provide
recruitment services to businesses seeking workers. Community-based
organizations with employment programs including workers who might be
interested in H-2B job opportunities have established relationships
with the One-Stop Career Center network. The One-Stop Center in or
closest to the area of intended employment will be, in most cases, the
designated point of contact the CO will give employers to use to
provide notice of the job opportunity. This provides the employer with
access not only to the community-based organization, but to a wider
range of services of assistance to its goal of meeting its workforce
needs. This contact is to be made when designated specifically by the
CO in the Notice of Acceptance, as appropriate to the job opportunity
and the area of intended employment. We have decided to retain this
provision as proposed with minor revisions.
We received several comments on this proposal. The majority of
commenters expressed strong support for the requirement that the
employer contact community-based organizations, indicating that these
organizations in many cases possess specialized knowledge of local
labor market conditions and practices, and are in the position to
assist with recruitment efforts, thus ensuring a complete test of the
labor market as well as assist the CO with identifying potential
problems with the offered terms and conditions of employment.
Commenters opposing this proposed requirement suggested that it
will not result in meaningful applicants for the job opportunity. We
note that, not unlike additional recruitment, contact with community-
based organizations is intended to broaden the pool of potential
applicants and assist the many unemployed U.S. workers with finding
meaningful job opportunities. These organizations are especially
valuable because they are likely to serve those workers in greatest
need of assistance in finding work, particularly with respect to H-2B
occupations that require little or no specialized knowledge. Although
we will not require each employer to make this type of contact, we have
determined that keeping this provision in the Final Rule will assist
with fulfilling the intent of the H-2B program and enhancing the
integrity of the labor market test. Therefore the Final Rule retains
the requirement that the employer, where ordered by the CO, contact
community-based organizations.
7. Sec. 655.46 Additional Employer-Conducted Recruitment
Where the CO determines that the employer-conducted recruitment,
described in Sec. Sec. 655.42 through 655.45, is not sufficient to
attract qualified U.S. workers, the proposed rule authorized the CO to
require the employer to engage in additional recruitment activities. In
addition to proposing that the CO require additional recruitment, we
solicited suggestions from the public on the recruitment means most
suitable for the CO to require. We also proposed that the CO would
specify the documentation or evidence that the employer must maintain
as proof it met the additional recruitment step(s). We are retaining
this provision as proposed with minor clarifying edits.
We received many comments on this proposal. The majority of
commenters expressed strong support for the proposal and indicated that
the additional recruitment requirement is particularly welcome in times
of high unemployment because it will ensure that U.S. workers have the
broadest exposure to these job opportunities. In contrast, several
other commenters objected to the proposal on the ground that it
provides the CO with potentially unfettered discretion to impose
additional requirements on employers; some requested clarification of
when the additional recruitment will take place.
We also invited comments on the proposed additional recruitment
methods, including examples of the types of recruitment typically
conducted in specific industries, occupations, or job classifications.
Several commenters provided suggestions for potential recruitment
sources such as the use of the employer's Web site, job search Web
sites (such as Craig's List or Monster.com), staffing agencies, and
other outreach efforts. Some commenters also suggested recruitment
efforts they use or have used in the past to recruit U.S. workers.
However, none of the commenters provided information about the types of
recruitment that are typically conducted in specific industries. We
thank the commenters for their input. Where appropriate, the CO will
draw upon these suggestions when making a determination about what
types of additional recruitment are appropriate. We have made a
clarifying edit in this section, adding the word additional to indicate
that CO-ordered efforts to contact community-based organizations and/or
One-Stop Career Centers are in addition to the requirements in
Sec. Sec. 655.16 and 655.45.
A few comments reflected confusion over the requirement, and
encouraged us to expand it beyond areas of substantial unemployment.
Others commenters requested that we revisit the requirement and
proposed alternatives for redefining an area of substantial
unemployment.
Our intention in requiring additional recruitment including, where
appropriate, in areas of substantial unemployment, is predicated on the
belief that more recruitment will result in more opportunities for U.S.
workers. In addition, we recognize that the increased rate of
innovation in the arena of technology, including its implications for
communication of information about job opportunities, is changing the
way many U.S. workers search for and find jobs. In part due to these
changes, the inclusion of this requirement is intended to allow the CO
flexibility to keep apace with the ever-changing labor market trends.
In response to comments about not limiting additional recruitment
only to job opportunities located in areas of substantial unemployment,
we agree that the recruitment sources the CO uses should go beyond just
the areas of substantial unemployment, which is why we only listed
areas of substantial unemployment as one example of an additional
source and why we solicited information about other available sources.
The requirement as proposed and retained is intended to provide the CO
with discretion to order additional positive recruitment whenever the
CO deems it to be appropriate. This discretion is also not an absolute
requirement but permits us to ensure the appropriateness and integrity
of the labor market test and determine the appropriate level of
recruitment based on the specific situation. The COs, with advice from
the SWAs which are familiar with local employment patterns and real-
time market conditions, are well-positioned to judge where additional
recruitment may or may not be required as well as the sources that
should be used by the employer to conduct such additional recruitment.
For example, it may be reasonable to require additional recruitment
for a job that requires little training or experience in an area of
substantial unemployment, since a larger group of available workers
would be qualified for the job. While the employer will be required to
conduct all the recruitment efforts required under this section and
Sec. Sec. 655.42-655.46 in certain circumstances, in other
[[Page 10097]]
circumstances, the CO may determine that such additional efforts are
unlikely to result in meaningful applications for the job opportunity.
In each instance, the CO, often in consultation with the SWAs, will
carefully weigh the projected benefits of additional recruitment to
potential U.S. applicants against the benefit the employer is seeking
through certification.
We also note that OIG's October 17, 2011 report recommended the
Department reassess the existing recruitment provisions that require
employers with itinerant positions subject to special procedures to
actively recruit only in the State of initial employment. While
recruitment requirements prior to this Final Rule did not necessarily
limit recruitment of workers to just one State, neither did those
provisions require recruitment outside the area of intended employment,
in most cases. This Final Rule expands required recruitment activity,
when appropriate for labor market test quality, to additional areas and
sources likely to result in U.S. worker applicants.
Although we recognize that some commenters may be concerned over
the discretion the CO has to order additional positive recruitment, as
discussed above, such discretion is necessary to permit the CO the
flexibility to ensure an adequate test of the labor market. However,
any additional positive recruitment will be conducted in addition to,
and occur within the same time period as the circulation of the job
order and the other mandatory employer-conducted recruitment described
above, and will not result in any delay in certification. While we may
not endorse a specific commercially-available publication or Web site,
the sources used by the CO will include, but will not be limited to:
additional print advertising; advertising on the employer's Web site or
another Web site; contact with additional community-based organizations
that have contact with potential worker populations; additional contact
with labor unions; contact with faith-based organizations; and radio
advertisements. When assessing the appropriateness of a particular
recruitment method, the CO will take into consideration all options at
her/his disposal, including relying on the SWA experience and expertise
with local labor markets, and where appropriate, will opt for the least
burdensome and costly method(s).
8. Sec. 655.47 Referrals of U.S. Workers
We proposed to require SWAs to refer for employment individuals who
have been informed of the details of the job opportunity and indicate
that they are qualified and will be available for employment. We also
eliminated the requirement that the SWAs conduct employment (I-9)
eligibility verification. We are retaining the provision as proposed in
part and revising the proposed provision in other part.
We received three comments on this proposal to eliminate the
requirement that the SWAs conduct employment (I-9) eligibility
verification. One commenter indicated a preference that the SWAs
continue to conduct employment eligibility verification, while another
supported its elimination. None of these commenters provided a
rationale for its opinion.
In light of limited resources, we have determined that the
requirement that SWAs conduct employment eligibility verification of
job applicants is duplicative of the employer's responsibility under
the INA. In addition, the INA provides that SWAs may, but are not
required to, conduct such verification for those job applicants they
refer to employers. DHS regulations permit employers to rely on the
employment eligibility verification voluntarily performed by a State
employment agency in certain limited circumstances.
We also received several comments regarding the proposal to require
SWAs to refer for employment individuals who have been informed of the
details of the job opportunity and who indicate that they are qualified
and will be available for employment. Some commenters, primarily worker
advocates and labor organizations, commended the Department for
ensuring that U.S. workers are provided with the opportunity to be
fully apprised of the job opportunity prior to being referred to the
employer. These commenters indicated that this will lead to greater
opportunities for U.S. workers as well as curb program abuse.
Other commenters focused more on the proposed role of the SWAs in
referring U.S. applicants to the employer. One commenter understood the
provision as proposed to require SWAs to inform prospective U.S.
workers of the details of the job opportunity and to screen them for
qualifications and availability. Other commenters, namely employer
associations and employers, expressed concern regarding this provision,
particularly in the context of the referral period proposed in the
NPRM, indicating that it will result in an increase of disingenuous
applicants or unqualified workers replacing available and qualified H-
2B workers that the employer already secured under an arduous process.
Two State agencies expressed some uncertainty over the scope of their
duties in the context of this proposal and their hope that we will
provide them with resources to conduct additional employee screenings
and referrals resulting from the new recruitment requirements.
As stated in the NPRM, it is our intention that the elimination of
the employment eligibility requirement will allow the SWAs to focus
their staff and resources on ensuring that U.S. workers who come to
them are apprised of job opportunities for which the employer seeks to
hire H-2B workers, which is one of the basic functions of the SWAs
under their foreign labor certification grants, and to ensure such
workers are qualified and available for the job opportunities. This
does not mean that every referral must be assisted by SWA staff to be
apprised of the job opportunity. To the contrary, many H-2B referrals
are not staff-assisted but are instead self-referrals and we have no
intention of interfering with the current processes established by most
SWAs to handle these job orders. However, to the extent that staff are
directly involved in a referral, we expect that the referrals made
would be only of qualified workers. We do not expect this to be an
additional burden on SWA staff.
Moreover, we do not presume that the judgment of the SWAs as to an
applicant's qualifications is irrebuttable or a complete substitute for
the employer's business judgment with respect to any candidate's
suitability for employment. However, to the extent that the employer
does not hire a SWA referral who was screened and assessed as
qualified, the employer will have a heightened burden to demonstrate to
us that the applicant was rejected only for lawful, job-related
reasons.
With respect to the comments expressing concerns over the ability
of the employer to rely on U.S. workers completing the duration of the
certified period of employment, the SWAs will be required to, as part
of the screening process, ascertain that the unemployed U.S. applicants
who request referral to the job opportunity are sufficiently informed
about the job opportunity, including the start and end dates of
employment and that they commit to accepting the job offer if extended
by the employer. However, as discussed under Sec. 655.57, in
recognition that some employers may nonetheless require relief in the
form of replacing U.S. workers who fail to show up or complete the
certified period of employment, we have developed a
[[Page 10098]]
redetermination process to accommodate these employers.
9. Sec. 655.48 Recruitment Report
Consistent with the requirements of the 2008 Final Rule, we
proposed to continue to require the employer to submit to the Chicago
NPC a signed recruitment report. Unlike the 2008 Final Rule, however,
we also proposed to require the employer to send the recruitment report
on a date specified by the CO in the Notice of Acceptance instead of at
the time of filing its Application for Temporary Employment
Certification. This change accommodates the proposed recruitment model
under which the employer does not begin its recruitment until directed
by the CO in the Notice of Acceptance. The proposed rule detailed the
information the employer is required to include in the recruitment
report, such as the recruitment steps undertaken and their results, as
well as other pertinent information. In addition, we proposed to
require the employer to update the recruitment report throughout the
referral period to ensure that the employer accounts for contact with
each prospective U.S. worker. The proposed rule does not require the
employer to submit the updated recruitment report but does require the
employer to retain it and make it available in the event of a post-
certification audit, a WHD or other Federal agency investigation, or
upon request by the CO. We are retaining the provision as proposed with
minor clarifying edits.
We received a number of comments offering strong support for the
requirement that employers document that they have conducted the
required recruitment efforts. One commenter suggested that we expand
the recruitment report and require the employer to list all U.S. and
foreign-born applicants for the job opportunity. The provision, as
proposed and retained, requires the employer to provide the name and
contact information of each U.S. worker who applied or was referred for
the job opportunity. This reporting allows us to ensure the employer
has met its obligation and to meet our responsibility to determine
whether there were insufficient U.S. workers who are qualified and
available to perform the job for which the employer seeks
certification. In addition, when WHD conducts an investigation, WHD may
contact U.S. workers listed in the report to verify the reasons given
by the employer as to why they were not hired, where applicable. While
we do not foreclose the possibility of expanding the content of the
recruitment report in the future, requiring that employers identify all
applicants, including foreign workers, would impose a heavy burden on
employers and is not necessary for carrying out our responsibilities
under the H-2B program.
Some commenters objected to the record-keeping requirements,
generally and as included in the proposed rule. Because these
objections are not specific to the recruitment report, we address them
in the discussion of document retention requirements. Other commenters
suggested that the recruitment report be made available to the public
so they may provide input to the CO on the contents before a Final
Determination is made on the Application for Temporary Employment
Certification. For the reasons discussed under Sec. 655.63, we are not
accepting this suggestion at this time. However, we continue to reserve
the right to post any documents received in connection with the
Application for Temporary Employment Certification and will redact
information accordingly. Therefore we are retaining this provision as
proposed with a minor clarifying edit that is consistent with
requirements under Sec. 655.43, indicating that, where applicable, the
employer's recruitment report must contain confirmation the employer
posted the job availability to all employees in the job classification
and area in which the work will be performed by the H-2B workers.
G. Labor Certification Determinations
1. Sec. 655.50 Determinations
We proposed to retain the same requirements under this provision as
proposed in the 2008 Final Rule. We are retaining this provision as
proposed with minor clarifying edits.
We received no comments on the substance of this provision.
However, we received a number of comments critical of our failure to
provide processing timeliness or a deadline for issuing a final
determination. One commenter referred to our past performance before
the attestation-based model in the 2008 Final Rule and argued that the
processing of applications under the pre-2008 Final Rule system
involved delays and that we have fallen short of our processing targets
even under the 2008 Final Rule. This commenter, along with others,
proposed that we commit to a deadline such as a return to the 60 days
discussed in the preamble of the 2008 Final Rule or 30 days.
Unlike the other programs we administer, the INA does not provide a
statutory deadline for processing H-2B applications. In order to
maximize integrity in the H-2B program it is imperative that we take
the time necessary to carefully review each application and to make
certain that each application we review represents a legitimate need
for temporary workers. We will be implementing a completely
reengineered program with a new registration process, new recruitment
requirements, and new obligations that must be reviewed. OFLC has no
baseline for these processes and therefore cannot predict at this time
the likely processing time parameters. While we anticipate that
registration, with its emphasis on the determination of temporary need,
will decrease application adjudication times, we cannot know to what
extent that additional process will streamline processing times.
However, as is our practice, we will make every effort to timely
process each application and to keep employers and other program users
apprised of current processing times.
In addition, we received a few comments requesting that third
parties be allowed to participate in the adjudication of a particular
Application for Temporary Employment Certification or the job order.
Some of these comments are related to the public availability of the
Application for Temporary Employment Certification and are discussed
elsewhere in this Final Rule.
Responsibility for the adjudication of each Application of
Temporary Employment Certification rests with the Secretary, who has
delegated that responsibility to OFLC. Historically, we have never
permitted third parties to participate in the adjudication of labor
certification decisions. Such involvement would create operational
difficulties that would make it impossible to process these
applications in a timely fashion. For that reason, we do not adopt the
commenters' suggestion. However, we would certainly accept, as we do
now, any information bearing on the application from any interested
party.
For the reasons discussed above, we are retaining this provision as
proposed with a minor clarifying edit to paragraph (b) of the
regulation that replaces "grant, partially grant or deny" with
"certify or deny." This clarification was based on our determination
that the word certify encompasses both determinations to certify or
partially certify an Application for Temporary Employment
Certification.
2. Sec. 655.51 Criteria for Certification
In the majority of cases, the certification determination will rest
on
[[Page 10099]]
a finding that the employer has a valid H-2B Registration and has
demonstrated full compliance with the requirements of this subpart. As
under the 2008 Final Rule, in ensuring that the employer meets its
recruitment obligations with respect to U.S. workers, the CO will treat
as available all those individuals who were rejected by the employer
for any reason other than a lawful, job-related reason. We are
retaining this provision as proposed with a minor clarifying edit.
We received only one comment specific to the proposed regulatory
provision. This commenter encouraged us to add a clause to the
certification criteria indicating that lawful job-related reasons for
rejecting U.S. workers do not include requirements which are applied to
U.S. workers but not to H-2B workers.
As discussed elsewhere in this Final Rule, these regulations
expressly prohibit an employer from offering preferential treatment to
H-2B workers. That obligation extends to all aspects of the H-2B
program, including recruitment and consideration of U.S. workers.
Although an employer may not reject U.S. workers based on requirements
that would not otherwise disqualify an H-2B worker, we do not believe
that a change in this particular provision is needed to clarify this
requirement.
Additionally, we proposed to clarify that we will not grant
certifications to employers that have failed to comply with one or more
sanctions or remedies imposed by final agency actions under the H-2B
program. We did not receive any comments on this proposal. Accordingly,
we are retaining this section as proposed except that we have clarified
that the employer must comply with criteria necessary to grant the
certification, rather than all program criteria. This clarification was
necessary, as the criteria for certification cannot reasonably
encompass the employer's future compliance, as contemplated by some of
the program requirements. Such compliance is addressed through post-
certification audits, integrity measures and enforcement activities.
3. Sec. 655.52 Approved Certification
We proposed that the CO use next day delivery methods, and
preferably, electronic mail, to send the Final Determination letter to
the employer. We are doing so in an effort to expedite the transmittal
of information and introduce efficiency and cost savings into the
application determination process. The proposed rule also provided that
the CO will send the approved certification to the employer, with a
copy to the employer's attorney or agent, if applicable. This is a
departure from the 2008 Final Rule. This change in procedure has
resulted from years of OFLC program experience evidencing complications
in the relationship between employers and their agents or attorneys.
Because the employer must attest to the assurances and obligations
contained in the Application for Temporary Employment Certification and
be ultimately responsible for upholding those assurances and
obligations, the employer should receive and maintain the original
approved certification. We are retaining this regulatory provision, as
proposed with one minor clarification.
We received only one comment of general approval about the proposal
to use next day delivery and no comments addressing the proposal to
send the approved certification to the employer.
For the reasons above, we are retaining the provisions as proposed
with one minor edit clarifying that when and if the Application for
Temporary Employment Certification is permitted to be filed
electronically, the employer must print, sign and retain the approved
temporary labor certification.
4. Sec. 655.53 Denied Certification
The NPRM proposed to retain the general provisions on denying
certifications from the 2008 Final Rule, except that we proposed that
the CO will send the Final Determination letter by means guaranteeing
next day delivery to the employer, with a copy to the employer's
attorney or agent. Under the proposal, the Final Determination letter
will continue to state the reason(s) that the certification was denied,
cite the relevant regulatory provisions and/or special procedures that
govern, and provide the applicant with information sufficient to appeal
the determination. We received no comments on this proposal and retain
the provision as proposed with a minor clarifying edit that electronic
mail is encompassed in means normally assuring next day delivery.
5. Sec. 655.54 Partial Certification
The NPRM proposed to retain the 2008 Final Rule provision
explicitly providing that the CO may issue a partial certification,
reducing either the period of need or the number of H-2B workers
requested, or both. The proposed rule clarified that the CO may reduce
the number of workers certified by subtracting the number of qualified
and available U.S. workers who have not been rejected for lawful job-
related reasons from the total number of workers requested. The Final
Rule retains this provision as proposed.
We received few comments on this proposal. The majority of
commenters supported the requirement that the employer not be permitted
to hire H-2B workers unless it has demonstrated that no qualified U.S.
workers are available. In addition, most commenters supported the
proposal that an employer must consider for employment and hire all
qualified and available U.S. workers who are referred to the employer
within the referral period.
Many industry commenters expressed concern over the need to have a
stable workforce throughout their certified period of need. One
commenter requested that we provide a re-certification process to allow
employers to hire H-2B workers when U.S. workers become unavailable.
These commenters expressed significant concerns over the viability of
their businesses if, after expending significant resources to hire H-2B
workers, those workers are displaced or not hired due to the
requirement that the employer hire each U.S. worker who is qualified
and available for employment and the U.S. workers hired do not report
for work or fail to complete the work contract period. We agree with
these commenters and have added a new Sec. 655.57 to address this
issue.
6. Sec. 655.55 Validity of Temporary Employment Certification
We proposed to retain the provision in the 2008 Final Rule that an
approved temporary labor certification is only valid for the period,
the number of H-2B positions, the area of intended employment, the job
classification and specific services or labor to be performed as
provided on the Application for Temporary Employment Certification.
While the proposed rule continued to prohibit the employer from
transferring the labor certification to another employer, we proposed
to allow the employer to transfer the approved labor certification to a
successor in interest in case of a merger or acquisition where the new
employer is willing to continue to employ the workers certified and
take on all of the legal obligations associated with the labor
certification. We are retaining this provision as proposed, with minor
clarifying edits.
Most commenters supported the proposal to limit the validity of the
labor certification as proposed. We received one comment suggesting
that the transfer to a successor in interest be limited to legally
documented mergers
[[Page 10100]]
or acquisitions. Another commenter indicated that the prohibition on
transfers will promote appropriate recruitment of U.S. workers and
prohibit employers from skirting program requirements.
Similar to the prohibition on transfers of an H-2B Registration, we
believe that limiting the validity of each certification to the
employer to which it was issued is essential to ensuring program
integrity. As we have stated elsewhere, we consider it our obligation
to protect a labor certification against being treated as a commodity;
limiting its use to the employer who applied for it achieves that
protection. Labor Certification for the Permanent Employment of Aliens
in the United States; Reducing the Incentives and Opportunities for
Fraud and Abuse and Enhancing Program Integrity; Final Rule, 72 FR
27904, 27918, May 17, 2007. As discussed in the preamble to the
proposed rule, we intend to limit transfers to the successor in
interest solely to legally documented business transactions such as
mergers or acquisitions, whereby the new owner assumes all obligations
and liabilities of the employer who originally obtained the
certification.
Therefore, we are retaining this provision as proposed except that
we have clarified that each temporary labor certification is valid for
the period approved on the Application for Temporary Employment
Certification, including any approved modifications.
7. Sec. 655.56 Document Retention Requirements of H-2B Employers
We proposed to add a section that delineates all of the document
retention requirements, including the period of time during which
documents must be retained. These retention requirements were included
solely under their individual sections under the 2008 Final Rule. The
document retention requirements apply to all employers who file an
Application for Temporary Employment Certification, regardless of
whether such applications have been certified, denied, or withdrawn.
The proposed provision outlines the documents that an employer must
retain. We are keeping this portion of the provision as proposed, with
a minor expansion to include any documents that must be retained by the
employer resulting from revisions in the Final Rule, as well as other
minor clarifying edits, including expressing what the NPRM already
implied, i.e., that the documents and records retained under this
section must be made available to the Department as well as other
Federal agencies in the event of an audit or investigation.
In addition, we proposed to require employers to make these
documents and records available to the Administrator, OFLC within 72
hours following a request. In response to comments, we have made
certain clarifying edits to this provision, but are retaining most of
the substantive aspects as proposed.
The majority of commenters supported this proposal because it
requires employers to document, rather than merely attest to,
compliance. One commenter expressed strong support for this requirement
and suggested that we expand it to include records on the amounts spent
by the employer for transportation, subsistence, visa fees, and other
costs which the employer is prohibited from shifting to its workers.
Another commenter requested the record keeping requirement be expanded
to include records about recruiting fees, including amounts and
recipients.
Some commenters objected to the requirement, as generally
unnecessary or burdensome in terms of cost and effort required by the
employer, while other commenters offered suggestions for enhancing or
curbing the requirements related to specific records such as payroll/
earning records. Where the substance of those comments is specific to a
particular provision in the proposed rule, we will address it there.
We agree with commenters supporting this proposal. The records that
the employer is required to retain are invaluable to ensuring program
integrity. We use them both in making current determinations, where
needed, and in evaluating any future Application for Temporary
Employment Certification. These records permit us to ensure that the
employer complied with the assurances and obligations of the H-2B labor
certification program. We believe that the proposed recordkeeping
requirement already encompasses the commenters' request to expand that
requirement to information about costs for subsistence, transportation,
visa fees, or recruiting fees. For example, under Sec. 655.20(i), an
employer is required to keep accurate and adequate records with respect
to the workers' earnings. This obligation encompasses records of the
amount of any and all deductions taken from the workers' wages and
additional payments to the worker. For clarity, as described below, we
added a new paragraph (c)(6) specifically addressing transportation and
subsistence. Furthermore, this section in paragraph (c)(9) requires the
employer to retain copies of all contracts with agents or recruiters,
which will provide additional information regarding payments involved
in these contracts. These records, which may be maintained
electronically, together with the requirement to keep accurate earning
statements, will assist us in determining whether the employer has paid
or provided for all other costs required in the H-2B employment.
Requiring additional documentation is unnecessary.
We disagree with the commenters who opposed the document retention
requirement. Document retention has been an integral part of the H-2B
program, and the proposed regulation is substantively similar to the
existing requirement under the 2008 Final Rule. Moreover, it is
essential to the performance of program integrity activities.
One commenter objected to the requirement that the employer make
such records available within a 72-hour period, indicating that the
requirement is burdensome, or impossible to comply with based on the
nature of the employer's business. This commenter further requested
clarification of when the timeframe starts and asked us to indicate
whether electronic records may be maintained. Other commenters offered
suggestions for the timeframe for document retention, one suggesting
that all records should be retained for a year after any H-2B
Registration expires and others proposing a period of time based on the
end of the job opportunity.
We revised paragraph (d) of this section to clarify that the
requirement to produce records within a 72-hour period is to produce
such records to the Administrator, WHD for enforcement purposes, rather
than Administrator, OFLC. When the Administrator, OFLC makes a request
to make records available, an employer must comply with the timeframes
in the provision governing the request, e.g., Request for Information,
Notice of Deficiency, Revocation or Debarment. Additionally, OFLC will
continue to include in the correspondence requesting records the
deadline by which they must be produced. This timeframe will correspond
to the regulatory requirement for the type of request. For example, in
an audit letter under Sec. 655.70, the CO will specify a date, not to
exceed 30 calendar days from the date of the audit letter, to provide a
response, including any documents which are requested in the audit
letter.
Finally, we received several comments addressing the 3-year
requirement for document retention. One commenter expressed support for
the 3-year retention requirement noting that the familiar requirement
will make compliance easy for employers. Another commenter opposed the
3-year retention
[[Page 10101]]
requirement for applications that have been withdrawn or denied. One
commenter indicated that the retention period should be 1 year after
the expiration of the H-2B registration, while another expressed
concerns that the 3-year retention requirement may permit an employer
with a 3-year certification to destroy records before the completion of
the job; this commenter suggested that employers be required to
maintain records and documents for at least 1 year after the completion
of the job. Finally a commenter suggested a longer retention
requirement of 5 years.
In response to these comments, we wish to clarify that employers
must maintain all records required in this section for the period of 3
years after the Application for Temporary Employment Certification is
adjudicated or from the date the CO receives a letter of withdrawal.
The Final Rule also includes a separate requirement in Sec. 655.11(i)
that the employer retain documents pertaining to the H-2B Registration
for a 3-year period after the end of the validity of the H-2B
Registration. We have concluded that the two document retention
requirements taken together adequately address the need to document
compliance with program requirements. In addition, the regulatory
scheme does not allow that records be destroyed until the certified
period of employment has concluded. Although we recognize that the
employer may have a temporary need based on a one-time occurrence which
lasts up to 3 years, the Department will not grant a 3-year
certification but will require the employer to file additional
Applications for Temporary Employment Certification and conduct a labor
market test where the period of employment exceeds 9 months. Each
application filed by the employer will trigger a new document retention
requirement and therefore ensure that records are available to assist
the Department in ascertaining compliance with all program
requirements. The Department believes, however, that a longer
requirement such as the suggested 5 years is not necessary to ensure
program integrity and would be inconsistent with document retention
requirements in other labor certification programs. Finally, the
Department disagrees with a commenter who opposed the 3-year retention
requirement for withdrawn or denied applications. Based on our program
experience, we have concluded that requiring all employers to retain
this information will bolster program integrity and aid in the
enforcement of program obligations, particularly since many employers
are repeat filers in the H-2B program. For these reasons we are
retaining the 3-year retention period, as proposed.
To reflect changes made to Sec. 655.20, we have added a new
subparagraph (c)(6) to this section to require employers to retain
records of reimbursement of transportation and subsistence costs
incurred by the worker. Additionally, in response to comments and
changes made to Sec. 655.9, we have made edits to subparagraph (c)(9)
of this section to indicate that the retention of written contracts
with agents or recruiters must also include the list of the identities
and locations of persons hired by or working for the recruiter and
their agents or employees.
Finally, the provision in the Final Rule also reminds the employer
that if and when the Application for Temporary Employment Certification
and the H-2B Registration are permitted to be filed electronically, the
employer must print, sign, and retain each adjudicated Application for
Temporary Employment Certification and the H-2B Registration including
any approved modifications, amendments, or extensions.
8. Sec. 655.57 Determinations Based on the Unavailability of U.S.
Workers
As discussed earlier in this preamble, several commenters expressed
significant concerns over the viability of their businesses if, after
expending significant resources to hire H-2B workers, those workers are
displaced or not hired due to the requirement that the employer hire
each U.S. worker who is qualified and available for employment and the
U.S. workers hired do not report for work or fail to complete the work
contract period. Specifically, one commenter requested that we provide
a re-certification process to allow employers to hire H-2B workers when
U.S. workers become unavailable. We agree with these commenters and
have added this provision to provide an option to employers to address
their workforce needs in the continuing absence of U.S. workers.
Under the Final Rule, as under the NPRM, an employer is required to
hire all qualified and available U.S. workers who are referred to it by
the SWA during the referral period specified in Sec. 655.40(c). Where
the employer's request for H-2B workers is reduced by the number of
qualified and available U.S. workers or denied because the employer has
hired U.S. workers for all of the positions it seeks to fill and the
U.S. worker(s) subsequently become unavailable, the employer has the
option to voluntarily contact the SWA for additional referrals of U.S.
workers. While this is not a requirement, the SWA may be able to
provide the employer with replacement workers without an additional
request to the CO. However, we recognize that there are circumstances
where an employer's U.S. workers fail to report to work or quit before
the end of the certified period of employment, and it is at times not
viable for an employer to seek additional workers from the SWA. We have
determined that it is prudent to provide an avenue for relief for those
employers. In the event that some or all of the employer's U.S. workers
become unavailable, we are adopting a regulation similar to that in the
H-2A program which provides the CO with the authority to issue a
redetermination based on the unavailability of U.S. workers, upon a
timely and proper request by the employer. Under this added section,
the employer must make a written request directly to the CO for a new
determination by electronic mail or other appropriate means, such as a
private courier. The request must be accompanied by a signed statement
confirming the employer's assertion and providing reasons for the
nonavailability (e.g., information regarding the departure of the
workers after one day, the fact they never showed up for work on the
first day.). If the employer has not previously provided notification
of abandonment or termination of a U.S. worker under 655.20(y), the
employer will be required to include in the signed statement the name
and contact information for each U.S. worker who has become
unavailable. Before granting the employer's request, the CO will
contact the SWA in an attempt to locate qualified replacement workers
who are available or are likely to become available for the job
opportunity. If no such workers are found, the CO will grant the
employer's request for a new determination. The employer may appeal a
denial of its request under the administrative appeal process in Sec.
655.61. For these reasons, we are adding this new section, Request for
determination based on unavailability of U.S. workers, to address the
concerns raised by commenters.
H. Post Certification Activities
1. Sec. 655.60 Extensions
In the proposed rule, we identified instances when an employer will
have a reasonable need for an extension of the time period that was not
foreseen at the time the employer originally filed
[[Page 10102]]
the Application for Temporary Employment Certification. This provision
provides flexibility to the employer in the event of such circumstances
while maintaining the integrity of the certification and the
determination of temporary need.
We proposed that the employer make its request to the CO in writing
and submit documentation showing that the extension is needed and that
the employer could not have reasonably foreseen the need. Extensions
would be available only to employers whose original certified period of
employment is less than the maximum period allowable in this subpart
and under DHS H-2B regulations. Extensions differ from amendments to
the period of need because extensions are requested after
certification, while amendments are requested before certification.
Extensions will only be granted if the employer demonstrates that the
need for the extension arose from unforeseeable circumstances, such as
weather conditions or other factors beyond the control of the employer
(including unforeseen changes in market conditions). We have decided to
keep this provision as proposed, with a few edits to remove redundancy
related to the maximum period allowable through extension and employer
obligations and otherwise clarify the provision.
A comment received from a labor organization suggested that the
words reasonably unforeseeable, when referring to changes in market
conditions, should replace unforeseeable. We have determined that
adding the term reasonably would not confer any additional clarity as
it is the CO who determines whether the employer has provided a
sufficient reason for the extension based on the facts of the specific
case and evidence presented.
2. Sec. 655.61 Administrative Review
The Administrative Review provision in the NPRM was substantially
the same as the 2008 Final Rule, with a proposed adjustment in the
timeframe from 5 to 7 business days each for the submission of the
appeal file by the CO, the submission of a brief by the CO's counsel,
and the issuance of a decision by BALCA. We are adopting the provision
of the NPRM without change in this Final Rule.
Two commenters recommended that we provide de novo review in the
administrative review process. As proposed in the NPRM, a request for
administrative review may contain only legal arguments and such
evidence as was actually submitted to the CO before the date the
determination was issued. By contrast, de novo review would permit the
parties to add additional information for the BALCA to consider beyond
what was actually submitted to the CO. After considering this issue, we
decline to change the administrative process to provide de novo review.
Given that an employer is provided with multiple opportunities to
submit information and respond to the CO at each step of the labor
certification adjudication process, record review provides employers
with a fair and efficient process to appeal the CO's determinations. De
novo review, if anything, provides employers with less of an incentive
to submit the required information or documentation when requested.
Additionally, establishing de novo proceedings would further lengthen
the adjudication process and require additional resources that may
produce a backlog in H-2B appeals. Furthermore, the regulations have
limited BALCA review to the record considered by the CO for the past 18
months without any problems, and we believe continuing with this
process is unlikely to cause problems in the future, for the reasons
mentioned previously.
One of these commenters also recommended that the rule require us
to include all information relating to a particular matter in the
administrative file. The commenter stated that placing all material
relating to a particular matter in the administrative file as a matter
of course would enhance public perception of the fairness of the
process and would likely produce better outcomes on the merits. The CO
already includes in the administrative file any documents that it
receives from the employer and third parties that pertain to the
adjudication of the certification. Therefore, we do not believe that it
is necessary to add to the regulatory language a requirement that the
CO include in the administrative file all information that any party
states is related to particular matter in the administrative file.
This commenter also requested modification of the rule to establish
that appellate proceedings are adversary proceedings for the purposes
of the Equal Access of Justice Act (EAJA). However, Federal courts have
recognized the EAJA is a waiver of the sovereign's traditional immunity
from claims for attorneys' fees and therefore must be construed
strictly in favor of the U.S. Ruckelshaus v. Sierra Club, 463 U.S. 680,
103 S.Ct. 3274 (1983); Fidelity Construction Co. v. United States, 700
F.2d 1378, 1385 (Fed. Cir. 1983). In Smedberg Mach. & Tool, Inc. v.
Donovan, 730 F.2d 1089 (7th Cir. 1984), the court specifically found
that labor certification review proceedings are not adversary
adjudication for the purposes of the EAJA. While the Smedberg decision
dealt with the administrative review process for the permanent labor
certification program, it is just as applicable to the H-2B program.
The court found that unless an agency hearing is statutorily mandated,
the EAJA does not provide for the award of attorney fees to the
prevailing party. See Smedberg, 730 F.2d at 1092. Because the INA does
not mandate an agency hearing for the granting or denial of H-2B labor
certifications, EAJA does not provide for attorneys fee awards to
plaintiffs who prevail in those proceedings. Therefore, we decline to
establish an H-2B appeal is an adversary proceeding.
We received a comment about the provision which increased the time
for the CO to assemble and submit the appeal file in Sec. 655.61(b)
from 5 business days to 7 business days. The commenter recommended that
the rule require the submission within 3 business days. However, 3
business days is not, in many cases, enough time to assemble, review
and submit an appeal file, particularly when coupled with the CO's
continuing responsibility to adjudicate other pending applications
within a short timeframe and to prepare appeal files for other cases on
appeal. Furthermore, 7 business days is an administratively efficient
timeframe, consistent with similar deadlines for the Chicago NPC in our
other labor certification programs. Therefore, we decline to change the
deadline to assemble and submit the appeal file to 3 days and instead
maintain the 7 business day deadline proposed.
One commenter recommended that we establish procedures which would
allow for intervention by workers and/or organizations of workers to
participate in ALJ hearings. For the reasons provided in the general
discussion of integrity measures later in this preamble, we decline to
accept this suggestion.
3. Sec. 655.62 Withdrawal of an Application for Temporary Employment
Certification
Under the proposed rule, an employer may withdraw an Application
for Temporary Employment Certification before it is adjudicated. We are
retaining this provision as proposed with one clarifying edit. We
received one comment on the withdrawal provision. This commenter
encouraged us to adopt additional language providing that if an
employer withdraws a pending H-2B Application for Temporary Employment
Certification, any U.S. workers hired or
[[Page 10103]]
in corresponding employment must still receive the benefits and
protections provided under that Application for Temporary Employment
Certification. We decline to accept this suggestion, as we do not have
the authority to enforce the benefits and protections provided under an
Application for Temporary Employment Certification if there is no final
determination. Presumably, an employer can withdraw its application the
day after submission, at which point no recruitment has begun. Hence,
we distinguish between a request to withdraw an Application for
Temporary Employment Certification before adjudication, where the
employer makes a decision not to participate in the program and is
likely to have not completed the recruitment process, and a request to
withdraw an adjudicated, i.e. certified (full or partial) or denied,
Application for Temporary Employment Certification where the employer
has already initiated the recruitment process on which the CO based the
determination. Where the CO has already made a final decision on an
employer's Application for Temporary Employment Certification,
regardless of whether it is denied or certified, and where the employer
requests withdrawal after such adjudication, we have maintained as
proposed, within the integrity measures of both 29 part 503 and this
subpart, that the employer is bound by the assurances and obligations
of the Application for Temporary Employment Certification to any U.S.
worker hired or any corresponding workers under the positions listed in
the Application for Temporary Employment Certification. Therefore, we
are retaining this provision with one clarifying change. Although
implied in the NPRM, we have included language in the regulations to
clarify that a withdrawal of an Application for Temporary Employment
Certification must be requested in writing.
4. Sec. 655.63 Public Disclosure
This proposed section codifies our practice of maintaining, apart
from the electronic job registry, an electronic database accessible to
the public containing information on all employers that apply for H-2B
labor certifications. The database will continue to include information
such as the number of workers the employer requests on an application,
the date an application is filed, and the final disposition of an
application. The continued accessibility of such information will
increase the transparency of the H-2B program and process and provide
information to those currently seeking such information from the
Department through FOIA requests.
The comments that were received in regard to public disclosure were
requests that we include additional information or documentation. These
comments are addressed below.
We received several suggestions as to the types of documents that
should be posted on the OFLC Web site or electronic job registry. One
labor organization requested that all information received from an
employer seeking registration in the H-2B program be placed on an
online database, in order to facilitate private enforcement of the
regulations. An advocacy group also stated that program integrity would
be better served by expanding the database to include all of the
materials that the NPC receives from employers. While we are committed
to transparency, we have determined that there are several reasons why
it may not be appropriate or feasible to disclose every document to the
public. Again, many of the documents now required to be submitted under
the Final Rule may contain privileged information, which for legitimate
reasons cannot be disclosed to a third party. In addition, the amount
of time it would take OFLC staff to appropriately redact and upload all
documentation is beyond OFLC's capabilities at this time. That being
said, we reserve the right to post, as appropriate, any documents
pertaining to an Application for Temporary Employment Certification in
order to align with the government's goal to be as open and transparent
as possible.
Another advocacy group specified different types of information and
documentation that should be included within the public disclosure such
as: the type of work, the prevailing wage, the beginning and the ending
dates of employment, and if housing is provided, then location of the
housing. An additional concern was the timeliness of disclosure, so as
to allow workers and advocates to participate in the administrative
review processes. Much of the information listed by the commenter is
contained within the Application for Temporary Employment Certification
and/or the job order, which is already disclosed through the electronic
job registry. We decline to accept the suggestion that documents
related to pre-certification review such as agreements with agents and/
or recruitment reports, or administrative actions such as audits should
be posted before a determination is made by the CO and/or an ALJ to
give the public time to review the documents and provide information.
In addition to causing delays in processing, such information if
disseminated during the administrative process could undermine the
integrity of the certification and appeal processes. There are
mechanisms for relaying information regarding an H-2B job opportunity
or an employer application; such information may be relayed in a
complaint lodged through the Job Service Complaint System, or may be
provided to the Administrator, OFLC and/or CO at any time. Employers
filing applications are also reminded that where the employer or its
agent/attorney is found to have provided false information on the
Application for Temporary Employment Certification, the application may
be subject to revocation, and that person or entity may be subject to
debarment or additional penalties, as appropriate.
Several commenters also recommended that we create a searchable
database with all enforcement actions. OFLC already maintains a
publically available list of debarred entities on its Web site, and WHD
also maintains a list of enforcement actions in closed cases, which
include the violations, on its Web. As stated above, we continue to be
open to transparency and potentially developing a process to make
additional information, such as final determinations, publically
available. However, we do not believe that it would be appropriate to
disclose information on pending enforcement actions, as doing so may
undermine the integrity of the audit, investigation, or adjudication
process. Therefore, we decline to adopt the commenter's proposal.
Another commenter recommended that ETA and WHD file an annual
public report about their enforcement actions. The commenter is
concerned that without such public reporting the public will have
little idea whether the changes to the rule are making a difference. We
decline to adopt this requirement in this Final Rule, as such
information is already available to the public. As stated above, OFLC
already maintains a publically available list of debarred entities on
its Web site, and WHD also maintains a list of enforcement actions in
closed cases, which include the violations, on its Web site.
Several commenters recommended that additional information and
documentation should be included on the electronic job registry, in
order to provide potential workers with a better sense of the job
opportunity and employer. Some wanted us to include ETA Forms and other
job-offer-related documents, while others wanted us to go as far as
including contracts between
[[Page 10104]]
employers and foreign recruiters. Other commenters expressed concern
about the type and amount of information that could become public via
the electronic job registry. These commenters asserted that employers
have a legitimate business interest in maintaining the confidentiality
of employment terms. At this time we have decided not to include any
additional information to the electronic job registry other than what
was proposed under Sec. 655.34.
Many commenters requested that the H-2B Registration be included as
part of the public disclosure process. These commenters contend that
such transparency would permit public monitoring compliance with
regulatory requirements. For example, members of the general public
could bring to light evidence that an employer misrepresented its
actual need or the employer's need materially changed after the
employer received a multi-year H-2B Registration. The types of
information that these commenters wanted incorporated under our public
disclosure are: employer names, worksite addresses, number of H-2B
workers each employer is seeking to employ, the industries in which
each employer operates, indication of the employer's application stage
(e.g. registration or application), while others wanted on-going public
disclosure of an employer's certified payrolls demonstrating compliance
with the minimum wage requirements of the H-2B program. Though we
understand why the public may want to see the H-2B Registration and the
specific information listed above, at this time because the
registration process is one by which employers may demonstrate their
ability to participate in the H-2B program and does not provide an
explicit right to access H-2B workers, we decline to make it part of
our public disclosure.
I. Integrity Measures
Proposed Sec. Sec. 655.70 through 655.73 have been grouped
together under the heading Integrity Measures, describing those actions
we propose to take to ensure that an Application for Temporary
Employment Certification filed with the Department in fact complies
with the requirements of this subpart.
Several commenters suggested that we establish procedures to allow
for workers and organizations of workers to intervene and participate
in the audit, revocation, and debarment processes. We find that such
procedures would be administratively infeasible and inefficient and
would cause numerous delays in the adjudication process. For example,
under this proposal, we would have to identify which workers and/or
organizations of workers should receive notice and should be allowed to
intervene. Processing delays would be exacerbated by the fact that once
identified, we would have to provide additional time and resources to
notify the parties and provide them with the opportunity to prepare and
present their information, regardless of whether they have any specific
interest or information about the particular proceedings at hand.
Workers and worker advocates continue to have the opportunity to
contact the OFLC or WHD with any findings or concerns that they have
about a particular employer or certification, even without a formal
notice and intervention process in place. For these reasons, we are not
adding procedures to allow workers and organizations of workers to
participate in the audit, revocation, and debarment processes.
1. Sec. 655.70 Audits
This proposed section outlined the process under which OFLC would
conduct audits of adjudicated applications. The proposed provisions
were similar to the 2008 Final Rule. The Final Rule retains this
provision as proposed with one clarifying edit.
Our regulatory mandate to ensure that qualified workers in the U.S.
are not available and that the foreign workers' employment will not
adversely affect wages and working conditions of similarly employed
U.S. workers serves as the basis for our authority to audit adjudicated
applications, even if the employer's application is ultimately
withdrawn after adjudication or denied. Adjudicated applications
include those that have been certified, denied, or withdrawn after
certification. There is real value in auditing denied applications
because they could be used to establish a record of employer non-
compliance with program requirements and because the information they
contain assists us in determining whether we need to further
investigate or debar an employer or its agent or attorney.
Under the proposed rule, OFLC had the discretion to choose which
Applications for Temporary Employment Certification will be audited,
including selecting applications using a random assignment method. When
an Application for Temporary Employment Certification is selected for
audit, the CO will send a letter to the employer and, if appropriate,
its attorney or agent, listing the documentation the employer must
submit and the date by which the documentation must be sent to the CO.
The NPRM also provided that an employer's failure to comply with
the audit process may result in the revocation of its certification or
in debarment, under proposed Sec. Sec. 655.72 and 655.73, or require
assisted recruitment in future filings of an Application for Temporary
Employment Certification, under Sec. 655.71. The CO may provide any
findings made or documents received in the course of the audit to DHS
or other enforcement agencies, as well as WHD. The CO may also refer
any findings that an employer discriminated against a qualified U.S.
worker to the Department of Justice, Civil Rights Division, and Office
of Special Counsel for Unfair Immigration Related Employment Practices.
We received many comments on this provision. The comments were
equally divided between those that opposed post-adjudication audits and
those that believed that audits are an effective tool to enhance
integrity and successfully root out bad actors.
Most comments supported OFLC's ability to audit, though one
individual had concerns about the discretion that OFLC has under the
NPRM to choose which employer that is audited. OFLC audits both
employers about which it has information suggesting that the employer
may have violated one or more provisions of the application and
employers selected either randomly or by industry or other area of
concern for quality assurance purposes. We do not believe that it is
appropriate to limit our discretion as to which applications may be
audited, as such a limitation could reduce the effectiveness of the
integrity measures in the H-2B program.
Several commenters brought up the issue of allowing others to
intervene in the OFLC audit process. As stated above in the general
discussion of the integrity measures, we have decided that such
procedures would be administratively infeasible and inefficient and
would cause numerous delays in the adjudication process.
A comment submitted by several employer advocacy groups recommended
that the post-adjudication audit procedure be eliminated as unnecessary
and duplicative. They argued that post-adjudication audits are
appropriate in the attestation-based certification model; however,
there is no justification for them under the compliance model. These
groups also stated that the incorporation of ETA's audit procedure
coupled with WHD enforcement cannot be justified at a time when Federal
funding resources are extremely limited. We disagree with
[[Page 10105]]
these commenters. We have a duty to use the tools and resources in our
power to protect all workers in the U.S. By creating multiple checks
and balances within the H-2B program, and allowing both ETA and WHD the
ability to ensure compliance, we are meeting our goal of ensuring the
protection of workers as well as keeping employers accountable.
One commenter wanted to be sure that all findings made by OFLC and
all documents provided during an audit would be provided to DHS or
other enforcement agencies. We work very closely with our sister
agencies in all aspects of the H-2B program and will continue to do so.
But we have come to recognize that providing documentation before the
determination of an audit may result in unnecessary confusion and cause
unwarranted delays, costs, or penalties to an employer. In addition,
this commenter requested that we share information submitted in
response to an audit or action for revocation or debarment with the
SWA, so that the SWA can provide any relevant information to promote
informed DOL decisions. As previously discussed, we have decided that
incorporating such procedures could cause numerous delays in the
adjudication process. A worker advocacy group suggested that any person
should be able to request that the CO audit a particular employer. We
reiterate that workers and worker advocates always have had the
opportunity to contact us with any information or concerns that they
have about a particular employer or certification, and they will
continue to have that opportunity, even without a formal notice and
intervention process in place. We cannot, however, commit to auditing
every employer about which we receive a complaint or information. We
will evaluate all information and complaints we receive to determine
whether an audit is appropriate.
This same commenter requested that the provisions of 29 CFR 503.6
and 503.7 be incorporated into the audit section under this subpart.
However, though this subpart and 29 CFR part 503 in many instances
parallel each other, there are many provisions in one part that, based
on the different roles of OFLC and WHD, may not be deemed appropriate
for the other. For example, one of the provisions in 29 CFR 503.6
(Waiver of rights prohibited) provides that a person may not seek to
have an H-2B worker, a worker in corresponding employment, or any other
person's rights waived. This provision is not necessarily applicable to
the audits requirements under the post-adjudication audit section,
where OFLC is auditing the employer's application. It is highly
unlikely that the documentation provided or requested in an audit would
provide evidence of any waiver of a worker's rights. Under 29 CFR 503.7
(Investigation authority of the Secretary) WHD has assumed the
authority delegated to the Secretary under 8 U.S.C. 1184(c)(14)(B). WHD
is the primary agency within the Department for investigating employer
compliance with the requirements of the H-2A and H-2B programs. WHD has
the necessary expertise and knowledge to enforce and investigate the
various regulatory provisions. Requiring OFLC to have duplicative
investigative authority under the audit provision would not be the best
use of the Department's resources. For the reasons stated above, we are
retaining the substance of this provision as proposed, except for
several clarifying edits. We clarified that the Audit Letter will
advise the employer of its obligation to fully comply with the audit
process and included a consistency change in the last sentence of
paragraph (c) by replacing the word additional with the word
supplemental.
2. Sec. 655.71 CO-Ordered Assisted Recruitment
The proposed rule permitted OFLC to determine that a violation that
does not warrant debarment has occurred and, as a result, to require an
employer to participate in assisted recruitment. This provision also
applied to those employers that due to either program inexperience or
confusion, have made mistakes in their Application for Temporary
Employment Certification that indicate a need for further assistance
from OFLC.
Under this provision the CO will notify the employer (and its
attorney or agent, if applicable) in writing of the requirement to
participate in assisted recruitment for any future filed Application
for Temporary Employment Certification for a period of up to 2 years.
The assisted recruitment will be at the discretion of the CO, and
determined on the unique circumstances of the employer.
The assisted recruitment may consist of, but is not limited to,
requiring the employer to conduct additional recruitment, reviewing the
employer's advertisements before posting and directing the employer
where such advertisements are to be placed and for how long, requesting
and reviewing copies of all advertisements after they have been posted,
and requiring the employer to submit proof of contact with past U.S.
workers, and proof of SWA referrals of U.S. workers. If an employer
fails to comply with the requirements of this section, the employer's
application will be denied and the employer may be debarred from future
program participation under Sec. 655.73.
We also invited comments and suggestions of industry-specific
recruitment and advertising sources to be used by the CO in
administering assisted recruitment in the H-2B program under this
section. We are retaining the proposed provision with one change. While
we received no suggestions about industry-specific recruitment sources,
the comments did indicate general support for allowing the CO to order
assisted recruitment as a means of helping an employer rectify
recruitment problems before more severe administrative actions are
pursued. One individual stated that the COs should refrain from
inserting themselves into the employer-attorney/agent relationship and
should only notify the employer of the need to participate in assisted
recruitment. We disagree with this commenter. An employer has the right
under the regulations to seek the advice and assistance of an attorney
or agent. We know of no reason why we should limit the areas in which
the employer can seek that advice and assistance.
Having considered comments on this proposal, we are retaining this
provision in its entirety with one edit in paragraph (d), where we
clarify that the employer's failure to comply must be material in
nature.
3. Sec. 655.72 Revocation
Under this section, OFLC can revoke an approved temporary labor
certification under certain conditions, including where there is fraud
or willful misrepresentation of a material fact in the application
process or a substantial failure to comply with the terms and
conditions of the certification. The 2008 Final Rule did not include a
similar revocation provision. We are adopting the provisions of the
NPRM without change in this Final Rule.
Many commenters expressed general approval of the new revocation
provision as an important enforcement technique. Commenters also
submitted comments on specific provisions of this section.
Several of these commenters discussed the bases for revocation in
paragraph (a) of this section. The basis generating the most comments
is paragraph (a)(2), which lists a substantial failure to comply with
the terms and conditions of the certification as a basis for revocation
and defines a substantial failure as a willful failure to comply.
Several worker advocacy
[[Page 10106]]
organizations stated the willful standard is too high. Many of these
organizations suggested an intentional standard, instead. Several
stated an intentional standard would be consistent with the Job Service
Complaint System and with the MSPA. One organization noted that the
courts have provided considerable interpretation of the intentional
standard under MSPA, so use of the intentional standard would enhance
the standard's clarity. Another worker advocacy organization proposed a
new eight-part definition for substantial failure that included failure
to provide wages, benefits or acceptable working conditions; violations
of H-2B regulations; and violations of other laws.
We elect to maintain the willful standard. The reason for
maintaining this standard is discussed in more depth at 29 CFR 503.19
(Violations) of the WHD preamble.
A labor organization suggested that all of an employer's existing
labor certifications be revoked if one is revoked, because the employer
has been found to be untrustworthy. While we recognize that an employer
would be undermining the integrity of the labor certification program
if it meets any of the bases for revocation set forth in this section,
we are retaining the language as proposed in the NPRM, because we do
not believe that violations relating to a particular certification
should not necessarily be imputed to an employer's other
certifications. We recognize the serious impact that a revocation would
have on employers and H-2B workers alike and do not believe that it
should be applied to certifications for which there has been no finding
of employer culpability.
However, we acknowledge that in some situations, the Administrator,
OFLC, may revoke all of an employer's existing labor certifications
where the underlying violation applies to all of the employer's
certifications. For instance, if the Administrator, OFLC finds that the
employer meets either the basis for revocation in paragraph (a)(3) of
this section (failure to cooperate with a Department investigation or
with a Department official performing an investigation, inspection,
audit, or law enforcement function) or in paragraph (a)(4) of this
section (failure to comply with sanctions or remedies imposed by WHD or
with decisions or orders of the Secretary with respect to the H-2B
program), this finding could provide a basis for revoking any and all
of the employer's existing labor certifications. Additionally, where we
find violations of paragraphs (a)(1) or (a)(2) of this section affect
all of the employer's certifications, such as where an employer
misrepresents its legal status, we also may revoke all of that
employer's certifications. Lastly, where an employer's certification
has been revoked, we certainly would take a more careful look at the
employer's other certifications to determine if similar violations
exist that would warrant their revocation.
Representing the opposite perspective, one coalition of employers
expressed concern about the effect of revocation on businesses and
concern that revocation may be too frequent under the bases proposed in
the NPRM. The coalition wants us to clarify that revocation is an
extreme penalty for egregious violations. This commenter also suggested
that we consider the totality of the circumstances, not just the
potential bases listed in paragraph (a) of this section, when
considering whether or not to revoke a temporary labor certification.
We cannot say how often revocation will occur under the Final Rule,
because a similar provision did not exist in the 2008 Final Rule or
before. We recognize the seriousness of revocation as a remedy;
accordingly, the bases for revocation in paragraph (a) reflect
violations that significantly undermine the integrity of the H-2B
program. We intend to use the authority to revoke only when an
employer's actions warrant such a severe consequence. We do not intend
to revoke certifications if an employer commits minor mistakes.
Several worker advocacy organizations also submitted comments on
paragraph (b) of this section, which details the procedures for
revocation. Three organizations suggested that the rules should provide
for notice to employees of revocation proceedings and for intervention
by employees in revocation proceedings. One organization suggested
giving notice of revocation to entities listed as potential recruitment
sources, such as former employees. We have decided not to add
procedures for employee or third party notification and intervention to
the revocation section for the reasons set forth in the Integrity
easures preamble at Sec. Sec. 655.70-655.73.
4. Sec. 655.73 Debarment
The NPRM proposed to revise the existing debarment provision to
strengthen the enforcement of H-2B labor certification requirements and
to clarify the bases for a debarment. It also proposed that WHD have
debarment authority independent of OFLC. The Final Rule adopts these
provisions with minor changes.
A number of commenters had concerns about the willfulness standard
that would apply not only to debarment, but also to the assessment of
violations and other remedies. However, many of the comments were based
on a misunderstanding of what a willful violation entailed. The
violations discussion at 29 CFR 503.19 of the WHD preamble discusses
the willfulness standard. As explained in that section, we will judge
all violations by the willfulness standard and will not debar for
minor, unintentional violations.
a. Debarment of an employer. A labor union encouraged us to extend
debarment to the individual principals of a company or legal entity to
foreclose the ability of these individuals to reconstitute under
another business entity. Although we do not have the authority to
routinely seek debarment of entities that are not listed on the ETA
Form 9142, in appropriate circumstances, we may pierce the corporate
veil in order to more effectively remedy the violations found.
b. Debarment of an agent or attorney. As discussed under Sec.
655.8, the NPRM raised explicit concerns about the role of agents in
the program, and whether their presence and participation have
contributed to problems with program compliance, such as the passing on
of prohibited costs to employees. These concerns were so significant
that we solicited comments on whether to continue to permit the
representation of employers by agents in the H-2B program. As discussed
in the preamble discussion of Sec. 655.8, we have decided to continue
to allow agents to represent employers. However, as the NPRM also
explained, if we were to continue to accept applications from agents,
additional requirements might need to be applied to strengthen program
integrity and we solicited comments on this issue as well.
Several employers and employer organizations responded by
acknowledging that bad actors exist in the H-2B program, and urging us
to use our enforcement authority to pursue fraud involving agents
rather than prohibiting the legitimate work of agents in preparing and
filing H-2B applications on behalf of employers. In addition, several
worker advocacy organizations' comments expressed concern about
violations committed by agents and attorneys, and encouraged us to take
stronger actions to prevent such abuses, primarily by holding employers
strictly liable for the actions of their agents. We are unable to do
that for the reasons discussed in the preamble discussion at 29 CFR
503.20.
[[Page 10107]]
As a number of both employer and worker advocacy organizations
noted, the Department's statistics show that in FY 2010, 86 percent of
employers filed H-2B applications using an agent. These agents are
intimately familiar with the H-2B program requirements. As commenters
affirmed, agents have a high level of program knowledge and help guide
employers through the process. The agents and attorneys who file
applications on behalf of employers certify under penalty of perjury on
the ETA Form 9142 Application for Temporary Employment Certification
that everything on the application is true and correct. However, where,
for example, a bad actor agent passes on prohibited fees to workers in
violation of the prohibition on collecting such fees in Sec. 655.20(o)
and 29 CFR 503.16(o) while affirming that everything on the application
is true and correct, including the employer's declaration that its
agents and/or attorneys have not sought or received prohibited fees,
the agent is not currently held accountable for such a violation absent
a link to an employer violation.
In addition, Sec. 655.20(p) and 29 CFR 503.16(p) require an
employer to contractually prohibit an agent or recruiter from seeking
or receiving payments from prospective employees. This creates a
loophole, under which an employer may contractually prohibit the
attorney or agent (and agents and employees) from collecting prohibited
fees, yet the attorney or agent independently charges the workers for
prohibited fees. In this situation, the employer will not be debarred
for the independent violation of the agent or attorney because the
employer has not committed any violation. A coalition of worker
advocacy organizations pointed out that the proposed regulations
"continue the Department's efforts to eliminate the pernicious
practice of foreign workers paying substantial fees to recruiters to
obtain H-2B jobs. While the proposed changes are praiseworthy, they are
not sufficient to curb these abuses and may actually help relieve
employers of responsibility for such charges."
In light of the concerns expressed in the NPRM and the comments
received, we have decided to strengthen program integrity in the Final
Rule by applying debarment to independent violations by attorneys and
agents, recognizing that agents and attorneys should be held
accountable for their own independent willful violations of the H-2B
program, separate from an employer's violation. Language to this effect
has been added to the OFLC and WHD debarment provisions at Sec.
655.73(b) and 29 CFR 503.24(b), as well as the WHD sanctions and
remedies section, as discussed further in the preamble at 29 CFR
503.20. These enhanced compliance measures apply only to the agents and
attorneys who are signatories on the ETA Form 9142, as these agents and
attorneys have become directly involved with the H-2B program and have
made attestations to the Department.
A coalition of agents and employers suggested that we provide
guidance on how we would apply the reckless disregard standard to
agents and attorneys and the extent to which agents and attorneys must
intrude into the details of the employer's business to avoid showing
reckless disregard for the truthfulness of the agent's or attorney's
representations or for whether their conduct satisfies the required
conditions. We do not intend to make attorneys or agents strictly
liable for debarrable offenses committed by their employer clients, nor
do we intend to debar attorneys who obtain privileged information
during the course of representation about their client's violations or
whose clients disregard their legal advice and commit willful
violations. We will be sensitive to the facts and circumstances in each
particular instance, and when considering whether an attorney or agent
has participated in an employer's violation; we will seek to debar only
those attorneys or agents who work in collusion with their employer-
clients to either willfully misrepresent material facts or willfully
and substantially fail to comply with the regulations. Similarly, where
employers have colluded with their agents or attorneys to commit
willful violations, we will consider debarment of the employer as well.
We did not propose in the NPRM to debar recruiters who are not
agent or attorney signatories to the ETA Form 9142. However, several
commenters specifically recommended that we maintain a public list of
debarred recruiters. Since recruiters are not subject to debarment
unless they are signatories to the ETA Form 9142, we will not maintain
a list of debarred recruiters. However, both OFLC and WHD already
publicly post a list of employers, agents, or attorneys that have been
debarred under all of the labor certification programs and to the
extent that a recruiter might also be debarred, the recruiter would
also appear on the list.
Another commenter requested that we report debarred attorneys to
State bar associations. We note that there is nothing in the
regulations that restricts us from making such a report. Where
circumstances warrant, we may decide to report debarred attorneys to
State bar associations using the information provided in the ETA Form
9142 which provides a field for the attorney's State bar association
number and State of the highest court where the attorney is in good
standing. However, we note that these fields are limited to only one
State bar association. Therefore, while we may be able to notify the
State bar association listed on the ETA Form 9142, there may be other
State bar associations unknown to us, of which the attorney is a member
that we are unable to notify. However, as stated in 20 CFR 655.73(h)
and 29 CFR 503.24(e), copies of all final debarment decisions will be
forwarded to DHS and DOS promptly.
c. Period of debarment. The NPRM proposed that the Administrator,
OFLC may not debar an employer, attorney, or agent for less than 1 year
nor more than 5 years from the date of the final debarment decision.
The Final Rule adopts this provision as proposed. One commenter stated
that increasing the maximum debarment period to 5 years based on what
could be a single innocent act could result in a disproportionate and
overly harsh penalty. In addition, a trade association questioned why a
debarment period of up to 5 years was included in the NPRM,
recommending that we adopt the-up- to-3-year debarment maximum rule
from the current H-2A regulations or at least articulate why a more
extreme penalty is justified under the H-2B program. On the other hand,
several commenters suggested that the Department remove the 5-year cap
and impose debarment for up to 10 years, or in some cases permanent
debarment, on repeat violators.
The 1- to 5-year range for the period of debarment is consistent
with the H-2B enforcement provisions in the INA, and we believe that it
is appropriate to apply the same standard in our regulations. 8 U.S.C.
1184(c)(14)(A)(ii). We do not intend to debar employers, attorneys, or
agents who make minor, unintentional mistakes in complying with the
program, but rather those who commit a willful misrepresentation of a
material fact, or a substantial failure to meet the terms and
conditions, in the H-2B Registration, Application for Temporary
Employment Certification, or H-2B Petition. Additionally, just because
the Administrator, OFLC has the authority to debar a party for up to 5
years does not mean that would be the result for all debarment
determinations, as the Administrator, OFLC retains the discretion to
determine the appropriate
[[Page 10108]]
period of debarment based on the severity of the violation.
d. Violations. The NPRM proposed that a single act, as opposed to a
pattern or practice of such actions, would be sufficient to merit
debarment. A labor union noted that the proposed regulation text,
stating at Sec. 655.73(f)(12) and 29 CFR 503.24(a)(10) that a single
heinous act showing such flagrant disregard for the law that future
compliance with program requirements cannot be reasonably expected
implies that a single violation in one of the eleven categories listed
before the single act language is insufficient for debarment. The
commenter noted that this implication was at odds with our stated
intent to make any of the listed acts sufficient for debarment. The
commenter suggested that the regulation establish that failure to
comply with any representation, requirement, or offer in the
registration, application, or job order would warrant per se debarment.
By contrast, a professional organization took issue with debarment for
a single act, rather than a pattern or practice of repeat violations,
where there was no evidence of fraud or misrepresentation.
We agree that the single heinous act language is potentially
confusing. We did not intend to suggest that a single violation falling
into one of the other 13 listed categories of violations may not be
sufficient for debarment. Thus, we have added language in the Final
Rule text at Sec. 655.73 and 29 CFR 503.24 making one or more acts of
commission or omission debarrable for all of the listed violations, and
have revised Sec. 655.73(f)(12) and 29 CFR 503.24(a)(10) to encompass
any other act as opposed to a single heinous act. As discussed in the
preamble discussion of 29 CFR 503.19, which explains the standard that
applies to all H-2B debarment actions, any act or omission would have
to be willful to warrant debarment.
A State attorney general recommended that we add failure to
cooperate in State and local investigations to the grounds for
debarment. It is beyond our jurisdiction and the scope of our
responsibilities under the H-2B program to evaluate whether an entity
cooperated with a State or local investigation and to penalize the
entity for failing to so.
A coalition of worker advocacy organizations and several additional
worker advocacy organizations encouraged us to add to the non-
exhaustive list of debarrable offenses the failure to disclose a
recruiter's identity under the requirement proposed in Sec. 655.9, the
use of a debarred recruiter, and the failure of an employer to report
recruiter violations to OFLC and WHD. The NPRM did not propose
violations for employer use of a debarred recruiter, nor did it propose
a reporting requirement for recruiter violations known to the employer
but not to us. Further, as the list of debarrable offenses is
explicitly non-exhaustive, we decline to add non-compliance with Sec.
655.9 to the list. However, we are adding obligations under Sec. 655.9
to the list of employer assurances and obligations in Sec. 655.20 and
29 CFR 503.16 to clarify that we view employer (and its agent or
attorney, as applicable) disclosure of foreign worker recruitment by an
agent or recruiter as a critical obligation. We will pursue enforcement
where employers (and their agents or attorneys, as applicable) commit
willful violations of this provision.
A labor union expressed concern about employer misclassification of
immigrant workers as independent contractors, and suggested that we add
to the list of debarrable offenses the misclassification of H-2B
workers or corresponding U.S. employees as independent contractors.
Although the misclassification of workers as independent contractors is
a matter WHD might pursue as it relates to its enforcement authority
under statutes such as the Fair Labor Standards Act, this type of
misclassification has not been characterized as a violation of the H-2B
regulations, where an employer is explicitly seeking permission to hire
foreign workers as employees. Therefore, it would not be appropriate to
add to the list of debarrable offenses.
e. Debarment procedure. A worker advocacy organization commented
that the debarment timeline should allow debarment to take place before
employers are able to recruit and hire workers for the next season, to
ensure that employers who violate worker protection laws are removed
before the next recruitment cycle. However, the debarment timeline
varies greatly depending on the timing of when violations are
discovered through OFLC audits, WHD targeted investigations, or WHD
investigations initiated by complaints. In other words, there is no one
time within a season when a debarment proceeding might be initiated.
Additionally, various factors affect the timing of an investigation
that may lead to debarment, including the complexity of the case and
the number of violations involved. Parties subject to debarment also
have the right to appeal the debarment decision. Thus, we cannot ensure
any particular timing for the debarment process.
f. Concurrent debarment jurisdiction. Several commenters objected
to WHD's concurrent debarment authority. These comments are fully
discussed in the concurrent actions section at 29 CFR 503.21 of the WHD
preamble.
g. Interagency communication. A commenter recommended amending the
proposed rule to require us to share information about problem entities
with other departments and agencies that administer U.S. visa programs
to prevent the offender from refocusing its efforts on possible
alternative visa programs outside of our jurisdiction. Also, the
commenter recommended that in more serious cases we should permanently
debar the entity and refer the entity to the Department of Justice for
prosecution. Similarly, another commenter recommended that the
regulations require the provision of regular notices to other agencies
about investigations and enforcement actions that we have taken against
employers for possible or adjudicated violations of Department-
administered visa programs and that we should ask other departments and
agencies, i.e., DOS, USCIS, and ICE, to provide similar notices to us.
We decline to make these recommended changes to the regulation text.
Paragraph (h) of this section already provides that copies of final
debarment decisions will be forwarded to DHS and DOS promptly. Clearly,
where it is warranted, we will notify additional agencies, such as DOJ,
of the violations, but we do not believe that it is necessary for the
regulation to provide that as an additional requirement. Also, we do
not believe that it is appropriate to provide regular notices to other
agencies, or require such agencies to notify us, of pending enforcement
actions and investigations of possible violations because that
information is of little practical use until these actions have been
concluded and a final determination has been issued. Finally, for the
reasons discussed above, we do not believe that permanent debarment is
appropriate but rather have determined that the 5-year maximum period
is consistent with the H-2B enforcement provisions under the INA.
h. Additional penalties for debarred employers. Two commenters
requested that the regulations add discontinuation of job services to
the list of sanctions of debarred employers. Because discontinuation of
services under the employment service system, along with other
sanctions for non-compliant H-2B employers, is already governed at
Sec. 658.500 subpart F of this part, we do not believe that it is
necessary to make any change to the regulations in this subpart to
reflect that provision. Additional remedies offered by commenters that
would apply to all
[[Page 10109]]
non-compliant employers, including those that are debarred, are
discussed in the preamble discussion of the sanctions and remedies at
29 CFR 503.20.
III. Addition of 29 CFR Part 503
Effective January 18, 2009, pursuant to INA section 214(c)(14)(B),
DHS transferred to the Secretary enforcement authority for the
provisions in section 214(c)(14)(A)(i) of the INA which govern
petitions to admit H-2B workers. The 2008 Final Rule contains the
regulatory provisions governing ETA's processing of the employer's
Application for Temporary Employment Certification and the WHD's
enforcement responsibilities in ensuring that the employer has not
willfully misrepresented a material fact or substantially failed to
meet a condition of such application.
The Department carefully reviewed the 2008 Final Rule and proposed
substantive changes to both the certification and enforcement processes
to enhance protection of U.S. and H-2B workers.
The proposed rule added a new part, 29 CFR part 503, to further
define and clarify the protections for workers. This proposal and the
proposed changes in 20 CFR part 655, Subpart A added workers in
corresponding employment to the protected worker group, imposed
additional recruitment obligations and employer obligations for laid
off U.S. workers, and increased wage protections for H-2B workers and
workers in corresponding employment. Additionally, the Department
proposed to enhance the WHD's enforcement role in administrative
proceedings following a WHD investigation, such as by allowing WHD to
pursue debarment rather than simply recommending to ETA that it debar
an employer as occurs under current Sec. 655.65(h).
To ensure consistency and clear delineation of responsibilities
between Departmental agencies implementing and enforcing H-2B
provisions, this new Part 503 was written in close collaboration with
ETA and is being published concurrently with ETA's Final Rule in 20 CFR
part 655, Subpart A to amend the employer certification process. Some
editorial changes have been made to the text of the proposed
regulations, for clarity and to improve readability. Those changes are
not intended to alter the meaning or intent of the regulations and are
not further discussed in this preamble. A discussion of the comments
received on the proposal and substantive changes made by the Department
are discussed at length below.
A. General Provisions and Definitions
Proposed Sec. Sec. 503.0 through 503.8 provided general background
information about the H-2B program and its operation. Proposed Sec.
503.1 and Sec. 503.2 are similar to the existing regulations at 20 CFR
655.1 and 655.2. Proposed Sec. 503.3 described how the Department will
coordinate both internally and with other agencies. One commenter
expressed concerns that the provision at Sec. 503.3 did not provide
specific information on where to file a complaint. The Department
considers the guidance provided in Sec. 503.7 to be sufficient notice
to potential complainants.
Sections 503.0, 503.1, 503.2, and 503.3 are adopted in the Final
Rule as proposed.
1. Sec. 503.4 Definition of Terms
Under this section of the NPRM, the proposed definitions were
identical to those contained in proposed 20 CFR part 655, Subpart A,
except that this section contained only those definitions applicable to
this part. The preamble to 20 CFR part 655, Subpart A contains the
relevant discussion of comments received on and changes made to those
definitions. For the reasons discussed there, the Final Rule makes
identical conforming changes in this section.
2. Sec. 503.5 Temporary Need
Under this proposed section, the provision regarding temporary need
was identical to the requirements set forth in proposed 20 CFR 655.6;
the preamble to that section includes a full discussion of the comments
received in response to the proposed provisions. The Final Rule adopts
the provision as proposed.
3. Sec. 503.6 Waiver of Rights Prohibited
The Department proposed in Sec. 503.6 to add new language that
would prohibit any employer from seeking to have workers waive or
modify any rights granted them under these regulations. The proposed
paragraph would have, with limited exceptions, voided any agreement
purporting to waive or modify such rights. The proposed language was
consistent with similar prohibitions against waiver of rights under
other laws, such as the Family and Medical Leave Act, see 29 CFR
825.220(d), and the H-2A program, see 29 CFR 501.5. The Department
received several comments concerning this proposed addition, all of
which supported the change. One advocacy group cited the vulnerability
of the H-2B workers as a reason for needing this provision. One union
mentioned concerns that without the provision unscrupulous employers
might attempt to use waivers to gut the program. The Department has
retained the section as proposed in the Final Rule.
4. Sec. 503.7 Investigation Authority of Secretary
In Sec. 503.7 of the NPRM, the Department proposed to retain the
current authority established under 20 CFR 655.50, affirming WHD's
authority to investigate employer compliance with these regulations and
WHD's obligation to protect the confidentiality of complainants. This
proposed section also discussed the reporting of violations. No
comments were received on this section; the proposed language has been
maintained in the Final Rule.
5. Sec. 503.8 Accuracy of Information, Statements, Data
Under this proposed section, making false representations to the
government would make an entity subject to penalties, including a fine
of up to $250,000 and/or up to 5 years in prison. A few commenters
expressly supported this provision, stating that the inclusion of this
provision makes it clear to employer that there are serious
consequences for criminal acts. The proposed language has been
maintained in the Final Rule.
B. Enforcement Provisions
1. Sec. 503.15 Enforcement
In order to ensure that U.S. workers are not adversely affected by
the employment of H-2B workers, the NPRM proposed expanding the type of
workers entitled to protection by WHD enforcement to workers in
corresponding employment, as defined under 20 CFR 655.5. Comments
regarding corresponding employment are discussed fully in that section.
The NPRM proposed to continue WHD enforcement for H-2B workers and U.S.
workers improperly rejected, laid off, or displaced. Labor unions
supported WHD's proposed enforcement, with one commenting that giving
U.S. workers this means of redress is critical to effectuating the
Secretary of Labor's mandate to ensure that the certification and
employment of H-2B aliens does not harm similarly-situated U.S.
workers, and asserting that it also prevents U.S. workers being
employed alongside H-2B aliens who might otherwise receive greater pay,
benefits, and protection from abuse through the H-2B program than their
domestic counterparts enjoy. Similarly, a State Attorney General's
office strongly supported the Department's strengthened efforts to
protect
[[Page 10110]]
workers--U.S. workers as well as H-2B workers laboring along side them.
A trade association expressed its concern that the proposed
investigation and enforcement regulations in this Part would only be
complaint-driven, i.e., that WHD would only investigate where there
were complaints from foreign workers, which would potentially overlook
violations because foreign workers may be reluctant to file complaints.
However, WHD investigates complaints filed by both foreign and U.S.
workers affected by the H-2B program, as well as concerns raised by
other federal agencies, such as USCIS, regarding particular employers
and agents. WHD also conducts targeted or directed investigations of H-
2B employers to evaluate program compliance.
An individual stakeholder questioned the avenue for filing a
complaint alleging non-compliance with the H-2B program. Complaints may
be filed by calling WHD at 866-4US-WAGE or by contacting a local WHD
office. Contact information for local offices is available online at
https://www.dol.gov/whd/america2.htm.
Several agents and employer organizations contended that the
Department's proposed enforcement authority over H-2B program
compliance exceeded its statutory authority, as delegated by DHS. Based
on the enforcement authority outlined in the preamble under 20 CFR
655.2 and the addition of 29 CFR part 503, and the detailed discussion
of the Department's enforcement authority in the 2008 Final Rule in
response to similar comments, 73 FR78020, 78043-44 (debarment) 78046-47
(civil monetary penalties and remedies), Dec. 19, 2008, the Department
has concluded that it is authorized to conduct the enforcement
activities described in this Final Rule.
2. Sec. 503.16 Assurances and Obligations of H-2B Employers
The provisions proposed in this section were identical to those
proposed in 20 CFR 655.20, with the exception of the additional
obligation in proposed paragraph (aa) (Cooperation with investigators)
requiring employers to cooperate in any administrative or enforcement
proceeding. No comments were received on that paragraph and the
provision is adopted in the Final Rule as paragraph (bb). Proposed
paragraph Sec. 503.16(aa) is redesignated as Sec. 503.16(bb) in the
final rule. Proposed paragraph (aa), paragraph (bb) in the Final Rule
matches the language of a new provision at 20 CFR 655.20(aa), which is
consistent with 20 CFR 655.9 of the proposed rule and this Final Rule,
requiring an employer to provide with its Application for Temporary
Employment Certification copies of agreements with foreign labor
contractors and recruiters (see discussion of 20 CFR 655.9 in this
preamble). The Department carefully reviewed all comments concerning
employer assurances and obligations (a) through (z), a full discussion
of which is included in the preamble to 20 CFR 655.20. Identical
conforming changes are made in this Final Rule section as are made
there, for the reasons discussed in that preamble.
3. Sec. 503.17 Documentation Retention Requirements of H-2B Employers
In Sec. 503.17 the Department proposed to consolidate the document
retention requirements previously found throughout 20 CFR 655, subpart
A. These requirements are similar to those in 20 CFR 655.56, with minor
differences related to OFLC's and WHD's separate interests. A coalition
representing agents and employers commented in support of this
proposal, noting that most employers are already familiar with their
obligation to keep documents for three years to comply with the FLSA.
However one employer stated that the documentation provision was
complex and demanding for the employer. As stated in the preamble to
the proposed rule, this section does not require employers to create
any new documents but simply to preserve those documents that are
already required for applying for participation in the H-2B program,
and therefore should not place any further burden on employers. A
commenter representing the outdoor entertainment industry indicated
that it would be difficult to comply with the 72-hour availability
requirement and urged the Department to allow retention and provision
of required documents in electronic format. This request was repeated
by an employer advocacy group. The Department recognizes these
commenters' concern and reminds them that under the FLSA employers who
maintain records at a central recordkeeping office, other than in the
place(s) of employment, are required to make records available within
72 hours following notice from WHD. See 29 CFR 516.7. This provision,
which has been in place for decades, has not created undue burden for
employers; as many H-2B employers are likely covered by the FLSA, this
provision results in no additional burden. A full discussion of the use
of electronic records can be found in the preamble to 20 CFR 655.56.
A commenter stated that a retention period of 3 years was
insufficient and expressed concern that in the case of a 3-year
certification, the employer could destroy records before completion of
the job. Another comment included a recommendation that records be
retained for 5 years in case of an investigation for criminal fraud.
The Department has decided that a 3-year record retention requirement
is adequate for its civil enforcement purposes.
Finally, a number of comments included recommendations that
employers be required to retain records of the visa, subsistence,
transportation, and recruitment costs, including the amount, by whom
and to whom they were paid and the time of payment. The Department
considers the general requirement that employers retain documents and
records to prove compliance with the regulations to be sufficient for
its enforcement purposes. Further discussion of recordkeeping
provisions is included in the preamble of 20 CFR 655, subpart A. The
proposed provision is adopted without change.
4. Sec. 503.18 Validity of Temporary Labor Certification
In Sec. 503.18 the Department proposed to include clarifying edits
to this section (which corresponds to existing 20 CFR 655.34 (a) and
(b)), providing the time frame and scope for which an Application for
Temporary Employment Certification is valid. A discussion of comments
received on this section can be found in the preamble to 20 CFR 655.55.
The proposed provision is adopted without change.
5. Sec. 503.19 Violations
The NPRM proposed retention of the willfulness standard for the
assessment of violations, monetary remedies, and civil money penalties,
as well as determinations concerning revocation and debarment. As
discussed below, comments from employers, agents, industry
organizations, labor unions, and worker advocacy organizations
reflected a significant amount of confusion about the standards by
which violations are determined under the H-2B program, as well as
whether the standards apply equally to revocation, debarment, monetary
or other remedies, and civil money penalties. After briefly summarizing
the comments received, the Department will attempt to clarify for the
benefit of all affected parties the basis for the continued use of a
willfulness standard for determining whether a violation has occurred,
regardless of whether the violation results in revocation imposed by
OFLC pursuant to 20 CFR 655.72, debarment imposed by OFLC pursuant to
20 CFR 655.73 or WHD pursuant to Sec. 503.24,
[[Page 10111]]
monetary or other remedies assessed by WHD pursuant to Sec. 503.20,
and/or civil money penalties assessed by WHD pursuant to Sec. 503.23.
Several worker advocacy organizations stated the willful standard
is too high. Many of these organizations suggested an intentional
standard, instead. Several stated an intentional standard would be
consistent with the Job Service Complaint System and with the Migrant
and Seasonal Agricultural Worker Protection Act. One organization noted
that the courts have provided considerable interpretation of the
intentional standard under MSPA, so use of the intentional standard
would enhance the standard's clarity. Another worker advocacy
organization proposed a new eight-part definition for substantial
failure.
Conversely, several employers, employer coalitions, and trade
associations commented that the substantial failure standard was too
low, believing this standard would lead the Department to debar for
unintentional, negligent failures or technical violations, as opposed
to knowing failures. In addition, several agents and employer
organizations wanted the Department to clarify that it views the
punishments of revocation and debarment as extreme penalties for
egregious violations rather than routine remedies, indistinguishable
from back pay and civil money penalties.
In light of the numerous comments suggesting what commenters
believed to be the adoption of essentially a higher or lower standard
than the standard currently in place, the Department wishes to clarify
that violations under these regulations, both in the 2008 Final Rule
and in the 2011 NPRM, have been defined to be consistent with the INA's
provisions regarding violations for H-2B workers. Specifically, INA
section 214(c)(14)(A), 8 U.S.C. 1184(c)(14)(A), sets forth two
potential violations under the H-2B program: (1) "a substantial
failure to meet any of the conditions of the petition" and (2) "a
willful misrepresentation of a material fact in such petition." The
INA further defines a substantial failure to be a "willful failure to
comply * * * that constitutes a significant deviation from the terms
and conditions of a petition." 8 U.S.C. 1184(c)(14)(D). The H-2B
Petition includes the approved Application for Temporary Employment
Certification. See Sec. 503.4; 20 CFR Sec. 655.5. Therefore, it is
the Department's view that non-willful violations are not cognizable
under the H-2B program, and that it is not appropriate for the
Department to select a lower standard for determining H-2B violations.
Thus, in this Final Rule, the basis for determining violations has
not changed since the 2008 Final Rule, and continues to be either a
misrepresentation of material fact or a substantial failure to comply
with terms and conditions, both of which continue to be willful. See 20
CFR 655.72(a)(1) & (2) (revocation), 20 CFR 655.73(a)(1)-(3) (OFLC
debarment), Sec. 503.19(a)(1) & (2) (WHD violations, which lead to
remedies, civil monetary penalties, and/or debarment). To determine
whether a violation is willful, the Department will consider whether
the employer, attorney, or agent knows its statement is false or that
its conduct is in violation, or shows reckless disregard for the
truthfulness of its representation or for whether its conduct satisfies
the required conditions. See 20 CFR 655.73(d), Sec. 503.19(b). This is
consistent with the longstanding definition of willfulness. See
cLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988); see also Trans
World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985). Further,
tracking the INA language, a substantial failure continues to be
defined as willful as well as a significant deviation from the terms or
conditions of a petition. 20 CFR 655.72(a)(2), 20 CFR 655.73(a)(2),
Sec. 503.19(a)(2). OFLC revocation and debarment are tied to the
definitions in 20 CFR 655.73(d) and (e), which explain how to determine
willfulness and how to determine whether a substantial violation is a
significant deviation; these provisions mirror the definitions for WHD
violations in Sec. 503.19(b) and (c).
A labor union that approved of the willfulness standard and
recognized that it encompasses reckless disregard suggested that the
Department impute willfulness where there are multiple, non-willful
violations because such repeated violations evidence reckless
disregard. Rather than imputing willfulness, when the Department
encounters violations that do not rise to the level of willfulness, it
puts the party on notice regarding future compliance and will consider
subsequent violations committed with the knowledge that such acts or
omissions violate H-2B program requirements to be willful.
The NPRM also proposed an additional change in the description of
violations in Sec. 503.19. Unlike the definition of violations in the
2008 Final Rule, which only mentioned employer violations specifically,
the proposed definition of violations does not specify a violator, thus
encompassing violations committed by an employer, attorney and/or
agent. After receiving no comments, the Department is adopting this
provision of the NPRM without change in the Final Rule.
6. Sec. 503.20 Sanctions and Remedies--General
The NPRM proposed that the Department continue to pursue
essentially the same remedies upon a WHD determination that a violation
has occurred, including but not limited to payment of back wages,
recovery of prohibited fees paid or impermissible deductions,
enforcement of the provisions of the job order, assessment of CMPs,
make-whole relief for victims of discrimination, and reinstatement and
make-whole relief for U.S. workers who were improperly denied
employment. The NPRM also proposed to give WHD independent debarment
authority, concurrent with ETA's debarment authority. Comments
regarding WHD's debarment authority are discussed under Sec. 503.21.
Sanctions and remedies in general. In general, worker advocacy
organizations favored the enforcement measures proposed in the NPRM,
noting that the H-2B program has been plagued by wage and hour
violations, fraudulent applications for non-existent jobs, race and
gender discrimination and human trafficking. Worker advocacy
organizations commented that debarment, revocation, civil money
penalties, and traditional remedies such as payment of back wages and
impermissible fees and deductions, as well as reinstatement for workers
improperly rejected for employment, were important tools to encourage
compliance. One worker advocacy organization proposed that the
Department should allow workers who have been subjected to H-2B
violations and who live outside the United States to participate in
related investigations or proceedings, recover any damages, and be
recommended for visas for this purpose. The Department does not
prohibit such participation by workers who may have returned to their
home country, and it often distributes back wages to workers who have
experienced violations and have returned to their home countries. Where
appropriate given the circumstances in any given investigation or
proceeding, the Department might seek a means for the worker to travel
to the U.S. to participate in such proceedings.
Liability for prohibited fees collected by foreign labor recruiters
and sub-contractors. A coalition of worker advocacy organizations,
several additional worker advocacy organizations, and a federation of
national and international labor unions explained that although the
NPRM took important steps toward reducing exploitative foreign labor
recruiting
[[Page 10112]]
practices by prohibiting the collection of transportation, visa,
recruiting, and other fees from workers, these prohibitions would be
unenforceable as a practical matter unless the Department held
employers strictly liable for such charges levied on workers by the
employer's recruiters, agents, or sub-contracted recruiters and agents.
These commenters cited instances where employers were insulated from
liability for unlawful fee-charging because the employers obtained
assurances from their agents that fees were not being charged, noting
that the NPRM would similarly shield employers from liability for
prohibited fees charged by recruiters where an employer complied with
the provision requiring it to contractually prohibit agents from
seeking or receiving payments from workers. In addition, these
commenters noted that exploitative practices, which leave H-2B workers
in significant pre-employment debt, are often left unchecked because
most of the local recruiters who charge these fees are beyond the
direct regulatory reach of the Department and it is difficult for
workers to bring actions against recruiters operating overseas due to
issues of personal jurisdiction, solvency, cost and collectability.
As the preamble to the 2008 Final Rule emphasized, 73 FR 78037, the
Department is adamant that recruitment of foreign workers is an expense
to be borne by the employer and not by the foreign worker. Examples of
exploitation of foreign workers, who in some instances have been
required to give recruiters thousands of dollars to secure a job, have
been widely reported in the comments received by the Department and
elsewhere. The Department is concerned about the exploitation of
workers who have heavily indebted themselves to secure a place in the
H-2B program, and believes that such exploitation may adversely affect
the wages and working conditions of U.S. workers by creating conditions
akin to indentured servitude, driving down wages and working conditions
for all workers, foreign and domestic.
The Department believes that requiring employers to incur the costs
of recruitment is reasonable, even when taking place in a foreign
country. However, the Department recognizes that an employer's ability
to control the actions of agents and sub-contractors across
international borders is constrained, just as the Department's ability
to enforce regulations across international borders is constrained. As
discussed in the preamble to 20 CFR 655.20 (p), the Department is
requiring that the employer, as a condition of applying for temporary
labor certification for H-2B workers, contractually forbid any foreign
labor contractor or recruiter (or any agent or employee of such agent
or recruiter) whom the employer engages in international recruitment of
H-2B workers to seek or receive payments from prospective employees.
The Department will attempt to ensure the bona fides of such contracts
and will work together with DHS, whose regulations also generally
preclude the approval of an H-2B Petition and provide for denial or
revocation if the employer knows or has reason to know that the worker
has paid, or has agreed to pay, fees to a recruiter, facilitator,
agent, and similar employment service as a condition of an offer or
maintaining condition of H-2B employment. See 8 CFR 214.2(h)(6)(i)(B).
As explained in WHD Field Assistance Bulletin No. 2011-2, any fee that
facilitates an employee obtaining the visa in order to be able to work
for that employer will be considered a recruitment fee, which must be
borne by the H-2B employer. In addition, although employees may
voluntarily pay some fees to independent third-party facilitators for
services such as assisting the employee to access the Internet or in
dealing with DOS, such fees may be paid by employees only if they are
not made a condition of access to the job opportunity. When employers
use recruiters, and in particular when they impose the contractual
prohibition on collecting prohibited fees, they must make it abundantly
clear that the recruiter and its agents or employees are not to receive
remuneration from the foreign worker recruited in exchange for access
to a job opportunity or in exchange for having that worker maintain
that job opportunity. For example, evidence showing that the employer
paid the recruiter no fee or an extraordinarily low fee, or continued
to use a recruiter about whom the employer had received credible
complaints, could be an indication that the contractual prohibition was
not bona fide. In addition, where the Department determines that
workers have paid these fees and the employer cannot demonstrate the
requisite bona fide contractual prohibitions, the Department will
require the employer to reimburse the workers in the amount of these
prohibited fees. However, where an employer has complied in good faith
with this provision and has contractually prohibited the collection of
prohibited fees from workers, there is no willful violation. Thus, the
Final Rule does not impose strict liability on employers for the
collection of prohibited fees from workers by others.
Agent and attorney liability. For the reasons stated in the
discussion under Debarment of Agents and Attorneys in 20 CFR 655.73,
this Final Rule holds agent and attorney signatories to the Form 9142
liable for their independent willful violations of the H-2B program,
separate from an employer's violation. As noted earlier, the Final Rule
adopts the language proposed in Sec. 503.19 that: "A willful
misrepresentation of a material fact or a willful failure to meet the
required terms and conditions occurs when the employer, attorney, or
agent knows its statement is false or that its conduct is in violation,
or shows reckless disregard for the truthfulness of its representation
or for whether its conduct satisfies the required conditions." The
Final Rule also adopts the language proposed in Sec. 503.20(a) that
WHD can seek appropriate relief for any violation defined in Sec.
503.19, including recovery of prohibited recruitment fees. Clarifying
language has been added to Sec. 503.20(b) to reflect that remedies
will be sought directly from the employer or its successor, or from the
employer's agent or attorney, where appropriate. For example, it would
be appropriate to seek reimbursement of prohibited fees to affected
workers from an attorney or agent, as opposed to an employer, where the
employer has contractually prohibited the attorney or agent from
collecting such fees yet the agent or attorney does so, despite the
employer having affirmed on the Application for Temporary Employment
Certification that everything in the application is true and correct,
including the employer's attestation that "[t]he employer and its
attorney, agents and/or employees have not sought or received payment
of any kind from the H-2B worker for any activity related to obtaining
temporary labor certification, including but not limited to payment of
the employer's attorney or agent fees, application fees, or recruitment
costs." On the other hand, it would not be appropriate to hold the
attorney or agent liable for unpaid wages when an employer fails to pay
the required wage during the period of the application where the
attorney or agent was uninvolved in such a violation.
Make-whole relief. A coalition representing agents and employers
requested that the Department clarify the meaning of make-whole relief
in this provision. Specifically, these commenters were concerned that
make-whole relief would include compensatory damages for injuries
beyond those that occur because of acts
[[Page 10113]]
or omissions related to violations of the terms and conditions of the
H-2B program, as these damages would typically be available in a civil
court action but employers would be disadvantaged if the Department
imposed them in informal administrative proceedings. These commenters
suggested that make-whole relief be deleted if the Department did not
provide a clearer definition.
These commenters' concerns are unfounded. The Department intended
make-whole relief to be limited to its traditional meaning, which is
that the party subjected to the violation is restored to the position,
both economically and in terms of employment status, that he or she
would have occupied had the violation never taken place. Make-whole
relief includes equitable and monetary relief such as reinstatement,
hiring, front pay, reimbursement of monies illegally demanded or
withheld, or the provision of specific relief such as the cash value of
transportation or subsistence payments which the employer was required
to, but failed to provide, in addition to the recovery of back wages,
where appropriate. Nothing in the regulations allows recovery for
injuries or losses in addition to actual damages and equitable relief.
Therefore, the Department has decided to retain make-whole relief as
one of the types of remedies available when a violation has been found,
without further specification.
A federation of national and international labor unions suggested
that the Department include a new subsection under this provision
clarifying that "[i]n any proceeding concerning unpaid wages or make
whole relief, any monetary remedy will be determined based on the
actual number of hours worked by similarly situated employees or the
three-fourths guarantee described in 20 CFR 655.20(f), whichever is
greater." The Department agrees that this statement accurately
summarizes how such monetary remedies are calculated under this
section. However, just as the Department believed it unnecessary to
further define make-whole relief with respect to compensatory damages,
it has determined that it is not necessary to add the suggested
language to this section because these concepts and comparators are
already encompassed under make-whole relief and are reflected in Sec.
503.23(b) and (c), which explain that the civil money penalty for such
violations is the difference between what should have been paid or
earned and the amount that was actually paid.
Finally, a State Attorney General commented specifically regarding
the importance of providing remedies for unlawful retaliation,
particularly so that H-2B workers who are vulnerable to retaliation
will have adequate protection when making meritorious complaints about
workplace violations. This Attorney General's Office noted that,
because reinstatement is a critical component of make-whole relief and
may not be possible if the employer is debarred or chooses not to use
the H-2B program in the future, the Department might wish to adopt a
provision similar to a recent amendment to the New York labor law that
provides up to $10,000 in liquidated damages for each instance of
unlawful retaliation. While the Department appreciates the utility of
this suggestion, liquidated damages are not consistent with make-whole
relief for actual damages. However, as this Attorney General's Office
further suggested, the Department wishes to clarify that make-whole
relief for unlawful retaliation and discrimination may include front
pay (such as for the duration of the work remaining in the job order)
where reinstatement is not possible.
Additional comments regarding sanctions and remedies. A legal
organization suggested that the Department should encourage the
reporting of non-compliant employers by offering a reward to employee
whistleblowers equal to a portion of the fines collected from the non-
compliant employers. The Department does not believe authority exists
to offer rewards to whistleblowers under the enforcement authority that
has been delegated by DHS. This commenter also suggested that non-
compliant employers be required to register for and use E-Verify. It is
unclear how E-Verify is relevant to violations of these H-2B
regulations, and mandating the use of E-Verify by employers is beyond
the Department's jurisdiction.
7. Sec. 503.21 Concurrent Actions
The NPRM proposed that OFLC and WHD would have concurrent
jurisdiction to impose a debarment remedy under 20 CFR 655.73 and under
Sec. 503.24, while recognizing the differing roles and
responsibilities of each agency under the program, as set forth in
Sec. 503.1. The cross-reference in Sec. 503.3(c) proposed the
safeguard that a specific violation for which debarment is sought will
be cited in a single debarment proceeding, and that OFLC and WHD would
coordinate their activities to achieve this result. This will ensure
streamlined adjudications and that an employer will not face two
debarment proceedings for a specific violation. The Department is
adopting the provisions as proposed without change.
Numerous labor unions, worker advocacy organizations, and a
congressman welcomed WHD's independent debarment authority. On the
other hand, a coalition representing agents and employers, employer
associations, and a legal association opposed the Department's proposal
to grant debarment authority to WHD. They primarily contended that
allowing both agencies to exercise debarment authority would likely
result in inefficient and duplicative actions. However, as noted
earlier, the NPRM proposed a safeguard that requires coordination
rather than duplicative debarment proceedings.
The coalition representing agents and employers felt that OFLC
should continue to have exclusive debarment authority because OFLC has
greater familiarity with the nature and extent of employer violations
in the application and recruitment process, and would therefore be
better equipped to determine whether a violation warranted this type of
punishment. This comment ignores the fact that employers and the
Department have important roles and obligations during both the H-2B
application and recruitment process and during the validity of the job
order, when employers must comply with critical assurances and program
obligations. While OFLC has more expertise in the application and
recruitment process, and will retain specific authority to debar for
failure to comply with the Notice of Deficiency and assisted
recruitment processes, WHD has extensive expertise in conducting
workplace investigations under numerous statutes, and has been
enforcing H-2B program violations since the 2008 Final Rule became
effective on January 18, 2009.
Providing WHD with the ability to order debarment, along with or in
lieu of other remedies, will streamline and simplify the administrative
process, and eliminate unnecessary bureaucracy by removing extra steps.
Under the 2008 Final Rule, WHD conducts investigations of H-2B
employers, and may assess back wages, civil money penalties, and other
remedies, which the employer has the right to challenge
administratively. However, under the 2008 Final Rule, WHD cannot order
debarment, no matter how egregious the violations, and instead must
take the extra step of recommending that OFLC issue a Notice of
Debarment based on the exact same facts, which then have to be
litigated again. Contrary to the commenters' assertions, allowing WHD
[[Page 10114]]
to impose debarment along with the other remedies it can already impose
in a single proceeding will simplify and speed up this duplicative
enforcement process, and result in less bureaucracy for employers who
have received a debarment determination. Instead, administrative
hearings and appeals of back wage and civil money penalties, which the
WHD already handles, will now be consolidated with challenges to
debarment actions based on the same facts, so that an employer need
only litigate one case and file one appeal rather than two. This means
that both matters can be resolved more expeditiously. Moreover, WHD has
extensive debarment experience under regulations implementing other
programs, such as H-1B, the Davis-Bacon Act, and the Service Contract
Act. See, e.g., 29 CFR 5.12.
The commenters opposing WHD's debarment authority also argued that
WHD's debarment process was not as fair as OFLC's because WHD's process
does not include a 30-day rebuttal period. These commenters were
concerned that WHD might make a determination about a violation and
initiate debarment proceedings before employers had an opportunity to
provide critical information relating to the alleged violation. This
concern is misplaced, however, and may reflect a lack of familiarity
with how WHD conducts investigations and reaches a determination about
whether violations have occurred and which remedies are appropriate.
During the course of an investigation, WHD contacts and interviews both
the employer and workers. WHD investigators discuss potential
violations with the employer and, when requested, with his or her legal
representative, providing the employer ample notice and an opportunity
to provide any information relevant to WHD's final determination.
Rather than a formal, 30-day rebuttal period, employers have numerous
opportunities during the course of a WHD investigation and during a
final conference to provide critical information regarding violations
that may lead to debarment.
Finally, an employer association opposed the Department's proposal
to grant WHD debarment authority because it believed it would make it
easier for the Department to remove employers from the program without
impartial review by an independent review panel or judge. However, the
NPRM specifically included procedural protections for parties subject
to WHD debarment proceedings, including notice of debarment, the right
to a hearing before an Administrative Law Judge (ALJ), the right to
seek judicial review of an ALJ's decision by the Administrative Review
Board (ARB). See Subpart C, Administrative Proceedings.
8. Sec. 503.22 Representation of the Secretary
The NPRM proposed to continue to have the Solicitor of Labor
represent the Administrator, WHD and the Secretary in all
administrative hearings under 8 U.S.C. 1184(c)(14) and these
regulations. After receiving no comments, the Department is adopting
this provision of the NPRM without change in the Final Rule.
9. Sec. 503.23 Civil Money Penalty Assessment
The NPRM proposed a civil money penalty (CMP) assessment scheme
similar to the CMP assessment contained in the 2008 Final Rule, with
additional and clarifying language specifying that WHD may find a
separate violation for each failure to pay an individual worker
properly or to honor the terms or conditions of the worker's
employment, as long as the violation meets the willfulness standard
and/or substantial failure standard in Sec. 503.19. Similar to the
CMPs in the 2008 Final Rule, the proposed CMP assessments set CMPs at
the amount of back wages owed for violations related to wages and
impermissible deductions or prohibited fees, and at the amount that
would have been earned but for an illegal layoff or failure to hire, up
to $10,000 per violation. The NPRM also proposed to retain the catch-
all CMP provision for any other violation that meets the standards in
Sec. 503.19, and set forth the factors WHD will consider in
determining the level of penalties to assess for all violations but
wage violations.
A coalition representing agents and employers was concerned that
the NPRM blurred the lines between back pay remedies and civil money
penalties. Specifically, these commenters questioned whether the CMPs
that are set at the amount of unpaid wages (Sec. 503.23(b) and (c))
were treated as back wages or as a penalty payable to the U.S. Treasury
rather than to the employee or applicant. As indicated in the NPRM,
unpaid wages, including the recovery of wages owed for work performed,
prohibited fees paid or impermissible deductions from pay, or recovery
of wages due for improperly placing workers in areas of employment or
in occupations other than those identified on the Application for
Temporary Employment Certification, are recoverable as monetary
remedies under Sec. 503.20. These monetary remedies serve to make
workers whole based on the violations to which they have been
subjected. By contrast, the CMP provision, Sec. 503.23, represents a
penalty for non-compliance, and is payable to WHD for deposit with the
Treasury.
These commenters also noted that the CMP assessment provision is
confusing because Sec. 503.23(b) and (c) suggest a formulaic means to
determine a CMP (i.e., the CMP is equal to the wages owed, up to a
maximum of $10,000 per violation), whereas Sec. 503.23(e) sets forth
the factors WHD will consider in determining the level of CMPs to
assess, yet the NPRM states that these factors apply to both Sec.
503.23(c) and (d). The Department agrees that this is confusing, and is
an unintentional holdover from the 2008 Final Rule, which contained the
same language. Therefore, in this Final Rule, the reference to Sec.
503.23(c) is deleted, in order to clarify that, as the commenters
pointed out, Sec. 503.23(b) and (c) use a fixed CMP amount and the
factors set forth in Sec. 503.23(e) apply only to the catch-all
provision in Sec. 503.23(d).
An individual U.S. worker felt that the Department should not limit
CMPs to a $10,000 maximum, and should instead impose treble damages
payable to the worker and a fine covering the costs of the Department's
investigation and enforcement. The maximum CMP amount is set at $10,000
in order to be consistent with the statutory limit under 8 U.S.C.
1184(c)(14)(A), the statutory enforcement authority delegated to WHD by
DHS. As stated earlier, the Department does not believe this
enforcement authority permits liquidated damages.
10. Sec. 503.24 Debarment
The NPRM's proposal to provide WHD with independent debarment
authority is discussed under Sec. 503.21. For the reasons stated under
Debarment of Agents and Attorneys in 20 CFR 655.73, the Final Rule
allows WHD to seek debarment of agents and attorneys for their own
independent violations, and Sec. 503.24(b) has been amended to that
effect. Comments received regarding debarment that apply equally to
OFLC and WHD are also discussed in the OFLC preamble discussion of
debarment (20 CFR 655.73). With respect to the comments received from
several worker advocacy organizations suggesting that the Department
establish procedures to allow for workers and organizations of workers
to intervene in and participate in WHD's debarment process, the
Department has concluded that the Final Rule will not adopt additional
procedures mandating that it
[[Page 10115]]
provide workers a right to intervene and participate in every case, for
the reasons stated in OFLC's preamble under Integrity Measures (20 CFR
655.70-655.73). In addition to that discussion, which applies to both
OFLC and WHD proceedings, WHD further notes that workers already
participate in WHD investigations, which involve interviews with
workers regarding program compliance. It is WHD's practice to provide
notice to the individual complainants and their designated
representatives and/or any third-party complainants when WHD completes
an investigation by providing them a copy of the WHD Determination
Letter. To further protect their interests, workers can seek, and have
sought, intervention upon appeal to an Administrative Law Judge. See 20
CFR 18.10(c) and (d).
11. Sec. 503.25 Failure To Cooperate With Investigators
The NPRM defined and expanded the penalties for failure to
cooperate with a WHD investigation, noting the federal criminal laws
prohibiting interference with federal officers in the course of
official duties and permitting WHD to recommend revocation to OFLC and/
or initiate debarment proceedings. Several worker advocacy
organizations commended the Department for making it clear to employers
that they may face serious consequences for certain violations of the
regulations. The Department is adopting this provision of the NPRM
without change in the Final Rule.
12. Sec. 503.26 Civil Money Penalties--Payment and Collection
The NPRM proposed revised language instructing employers how to
submit payment to WHD. After receiving no comments, the Department is
adopting this provision of the NPRM without change in the Final Rule.
C. Administrative Proceedings
The NPRM proposed few changes to the administrative proceedings
from the 2008 Final Rule. These minor changes were intended to bring
clarity to the administrative proceedings that govern H-2B hearings,
and to achieve general consistency with the procedural requirements
applicable to H-2A proceedings. The Department received no comments on
the particular provisions proposed in subpart C of the NPRM. However,
upon further internal review, the Department concluded that additional
minor changes were necessary to make clear that the procedures
contained in this subpart apply to any party or entity subject to the
Administrator, WHD's determination to assess a civil money penalty, to
debar, or to impose other appropriate administrative remedies,
including for the recovery of monetary relief--not just the employer.
Therefore, in the Final Rule, in Sec. Sec. 503.41, 503.42, 503.43, and
503.50, the term employer is replaced with the term party or
recipient(s) of the notice. The Department intends the terms party or
recipient(s) of the notice to include the employer, agent, or attorney,
as appropriate. These changes correct internal inconsistencies in the
provisions proposed in this subpart of the NPRM, and will make these
provisions consistent with the language used in 20 CFR 655.73(g) (OFLC
debarment procedure).
The Department received numerous comments from worker advocacy
organizations suggesting that workers should be provided notice of
administrative actions and a right to intervene, as workers possess
valuable information relevant to these proceedings such as the
appropriateness of job qualifications and the assessment of unlawful
recruitment fees. Similarly, an individual stakeholder, commented that
employers are afforded procedures for seeking review of the
Department's determinations, yet such procedures are not provided for
workers.
The importance of worker communication with WHD by filing
complaints, participating in investigations, and serving as witnesses
in administrative or judicial proceedings cannot be understated; it is
essential in carrying out WHD's enforcement obligations. However, the
Department has concluded that the Final Rule will not adopt additional
procedures mandating that it provide workers notice of administrative
actions and a right to intervene in every case, for the reasons stated
in OFLC's preamble under Integrity Measures (20 CFR 655.70-655.73),
which also apply to WHD's administrative actions. Further, as noted
under Sec. 503.24, workers already participate in WHD investigations,
which involve interviews with workers regarding program compliance. It
is WHD's practice to provide notice to the individual complainants and
their designated representatives and/or any third-party complainants
when WHD completes an investigation by providing them a copy of the WHD
Determination Letter. To further protect their interests, workers can
seek, and have sought, intervention upon appeal to an Administrative
Law Judge. See 20 CFR 18.10(c) and (d). Thus, the Department is
adopting the provisions of this Subpart of the NPRM without further
change in the Final Rule.
IV. Administrative Information
A. Executive Orders 12866 and 13563
Under Executive Order (E.O.) 12866 and E.O. 13563, the Department
must determine whether a regulatory action is significant and,
therefore, subject to the requirements of the E.O. and to review by the
OMB. Section 3(f) of the E.O. defines an economically significant
regulatory action as an action that is likely to result in a rule that:
(1) Has an annual effect on the economy of $100 million or more, or
adversely and materially affects a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local or tribal governments or communities (also referred to as
economically significant); (2) creates serious inconsistency or
otherwise interferes with an action taken or planned by another agency;
(3) materially alters the budgetary impacts of entitlement grants, user
fees, or loan programs, or the rights and obligations of recipients
thereof; or (4) raises novel legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in the E.O.
The Department has determined that this rule is an economically
significant regulatory action under section 3(f)(1) of E.O. 12866. This
regulation would have an annual effect on the economy of $100 million
or more; however, it would not adversely affect the economy or any
sector thereof, productivity, competition, jobs, the environment, or
public health or safety in a material way. The Department also has
determined that this rule is a significant regulatory action under sec.
3(f)(4) of E.O. 12866. Accordingly, OMB has reviewed this rule.
1. Need for Regulation
The Department has determined for a variety of reasons that a new
rulemaking effort is necessary for the H-2B program. The Department
believes that the practical ramifications of the 2008 Final Rule (e.g.,
streamlining the H-2B process to defer many determinations of program
compliance until after an application has been adjudicated,
inadequately protecting U.S. workers who may be paid less than H-2B
workers performing the same jobs, failing to ensure the integrity of
the program by not requiring employers to guarantee U.S. and H-2B
employees work for any number of weeks during the period of the job
order) have undermined the program's intended
[[Page 10116]]
protection of both U.S. and foreign workers.
For these reasons the Department is promulgating the changes
contained in the Final Rule.
2. Alternatives
The Department has considered a number of alternatives: (1) To
promulgate the policy changes contained in this rule; (2) to take no
action, that is, to leave the 2008 Final Rule intact; and (3) to
consider a number of other options discussed in more detail below. We
believe that this rule retains the best features of the 2008 Final Rule
and adopts additional provisions to best achieve the Department's
policy objectives, consistent with its mandate under the H-2B program.
The Department considered alternatives to a number of program
provisions. First, the Department considered another alternative to the
definition of full-time work: a 40-hour threshold instead of the 35-
hour level proposed and actually implemented in this Final Rule. As
discussed in detail in the preamble to proposed 20 CFR 655.5, the
Department established a 35-hour minimum as the definition of full-time
employment because it more accurately reflects full-time employment
expectations when coupled with the obligation for the employer to
accurately disclose the hours of work that will be offered each week,
and is consistent with other existing Department standards and
practices in the industries that currently use the H-2B program to
obtain workers.
Second, this rule included a three-fourths guarantee requirement,
with the Final Rule requiring that the guarantee be measured based on
12-week periods (if the period of the job order is 120 or more days)
and 6 weeks (if the period of the job order is less than 120 days). The
Department considered using 4-week periods, as proposed, and also
considered retaining the language of the H-2A requirement, under which
employers must guarantee to offer the worker employment for a total
number of work hours equal to at least three-fourths of the workdays of
the total length of the contract. The Department rejected this
alternative because, while this would provide workers with significant
protection, it would not be sufficient to discourage the submission of
imprecise dates of need and/or imprecise numbers of employees needed
and would therefore fail to protect U.S. and H-2B workers from periods
of unforeseen underemployment.
The Department believes that the rule, which calculates the hours
of employment offered in 12-week and 6-week periods, better ensures
that workers' commitment to a particular employer will result in real
jobs that meet their reasonable expectations. We do not believe this
Final Rule will create any additional financial burden on employers who
have accurately represented their period of need and number of
employees needed, and will provide an additional incentive for
applicants to correctly state all of their needs on the H-2B
Registration and the Application for Temporary Employment
Certification.
Third, the Department considered omitting the registration of H-2B
employers and instead retaining the current practice for the
adjudication of the employer's temporary need and the labor market
analysis to occur simultaneously. While this might be more advantageous
for employers new to the program, it delays the vast majority of
employers that are recurring users with relatively stable dates of need
and that would benefit from separate adjudication of need and adequacy
of recruitment. Moreover, employers and potential workers benefit from
a recruitment process close in time to the actual date of need which a
registration process, by pre-determining temporary need, expressly
permits. Therefore, the Department rejected the alternative of
simultaneous adjudication because it undercuts the Secretary's
fulfillment of her obligations under the program.
Fourth, the Final Rule provides that employers may arrange and pay
for workers' transportation and subsistence from the place from which
the worker has come to the place of employment directly, advance at a
minimum, the most economical and reasonable common carrier cost, or
reimburse the worker's reasonable costs if the worker completes 50
percent of the period of employment covered by the job order if the
employer has not previously reimbursed such costs. The Final Rule
continues to require employers to provide return transportation and
subsistence from the place of employment; however, the obligation
attaches only if the worker completes the period of employment covered
by the job order or if the worker is dismissed from employment for any
reason before the end of the period. In addition, the Final Rule
continues to provide that if a worker has contracted with a subsequent
employer that has agreed to provide or pay for the worker's
transportation to the subsequent employer's worksite, the subsequent
employer must provide or pay for such expenses; otherwise, if this
agreement is not made, the employer must provide or pay for that
transportation and subsistence. The Final Rule reminds employers that
the FLSA imposes independent wage payment obligations, where it
applies. The Department considered requiring employers to reimburse the
worker in the first workweek any cost of transportation and
subsistence, as proposed, but rejected this alternative in response to
commenter concerns.
Finally, the proposed rule required the employers to extend offers
of employment to qualified U.S. workers referred by the SWAs until 3
days before the date of need or the date of departure of the last H-2B
worker, whichever is later. In consideration of commenter concerns, and
to taking into consideration USCIS regulations governing the arrival of
H-2B workers, the Department has modified this requirement. In the
Final Rule, employers are required to accept SWA referrals of qualified
U.S. applicants until 21 days before the date of need, irrespective of
the date of departure of the last H-2B worker.
3. Economic Analysis
The Department derives its estimates by comparing the baseline,
that is, the program benefits and costs under the 2008 Final Rule,
against the benefits and costs associated with the implementation of
the provisions in this Final Rule. The benefits and costs of the
provisions of this Final Rule are estimated as incremental impacts
relative to the baseline. Thus, benefits and costs attributable to the
2008 Final Rule are not considered as benefits and costs of this Final
Rule. We explain how the actions of workers, employers, and government
agencies resulting from the Final Rule are linked to the expected
benefits and costs.
The Department sought to quantify and monetize the benefits and
costs of this Final Rule where feasible. Where we were unable to
quantify benefits and costs--for example, due to data limitations--we
describe them qualitatively. The analysis covers 10 years (2012 through
2021) to ensure it captures major benefits and costs that accrue over
time.\14\ We have sought to present benefits and costs both
undiscounted and discounted at 7 percent and 3 percent.
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\14\ For the purposes of the cost-benefit analysis, the 10-year
period starts on July 1, 2012.
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In addition, the Department provides an assessment of transfer
payments associated with certain provisions of the
[[Page 10117]]
rule.\15\ Transfer payments, as defined by OMB Circular A-4, are
payments from one group to another that do not affect total resources
available to society. Transfer payments are associated with a
distributional effect, but do not result in additional benefits or
costs to society. The rule would alter the transfer patterns and
increase the transfers from employers to workers. The primary
recipients of transfer payments reflected in this analysis are U.S.
workers and H-2B workers. The primary payors of transfer payments
reflected in this analysis are H-2B employers, and under the rule,
those employers who choose to participate are likely to be those that
have the greatest need to access the H-2B program. When summarizing the
benefits or costs of specific provisions of this rule, we present the
10-year averages to reflect the typical annual effect.
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\15\ The specific provisions associated with transfer payments
are: wages paid to corresponding U.S. workers, payments for
transportation, subsistence, and lodging for travel to and from the
place of employment, and visa-related fees.
---------------------------------------------------------------------------
The inputs used to calculate the costs of this rule are described
below.
a. Number of H-2B Workers
The Department estimates that from FY 2000-2007, there were an
average of 185,879 \16\ H-2B workers requested per year and 154,281 H-
2B positions certified. Because the number of H-2B visas is statutorily
limited, only some portion of these certified positions were ultimately
filled by foreign workers.
---------------------------------------------------------------------------
\16\ Office of Foreign Labor Certification, Public Disclosure
Data.
---------------------------------------------------------------------------
The number of visas available in any given year in the H-2B program
is 66,000, assuming no statutory changes in the number of visas
available. Some costs, such as travel, subsistence, visa and border
crossing, and reproducing the job order apply to these 66,000 workers.
Employment in the H-2B program represents a very small fraction of the
total employment in the U.S. economy, both overall and in the
industries represented in this program. The H-2B program's annual cap
of 66,000 visas issued per year (33,000 allocated semi-annually)
represents approximately 0.05 percent of total nonfarm employment in
the U.S. economy (129.8 million).\17\ The number of visas per year does
not fully capture the number of H-2B workers in the U.S. at any given
time as there are exceptions to the H-2B cap; additionally, a
nonimmigrant's H-2B classification may be extended for qualifying
employment for a total stay of up to 3 years without being counted
against the cap. The Department assumes that half of all H-2B workers
entering the United States (33,000) in any year stay at least 1
additional year, and half of those workers (16,500) will stay a third
year, for a total of 115,500 H-2B workers employed at any given time.
This suggests that 57 percent of H-2B workers (66,000/115,500) are new
entrants in a given year. Extending the analysis to the 115,500 H-2B
workers we estimate are in the country at any given time, the number of
H-2B workers represents approximately 0.09 percent of total nonfarm
employment.
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\17\ U.S. Bureau of Labor Statistics (BLS). 2011. Employees on
nonfarm payrolls by major industry sector, 1961 to date. Available
at ftp://ftp.bls.gov/pub/suppl/empsit.ceseeb1.txt.
---------------------------------------------------------------------------
According to H-2B program data for FY 2007-2009, the average annual
numbers of H-2B positions certified in the top five industries were as
follows:
Landscaping Services--78,027
Janitorial Services--30,902
Construction--30,242
Food Services and Drinking Places--22,948
Amusement, Gambling, and Recreation--14,041
These numbers overestimate the number of actual H-2B workers, as
the number of positions certified exceeds the number of H-2B workers in
the country at a given time.
The Department estimates the number of H-2B workers in these
industries based on the number of positions certified by dividing
115,500 H-2B workers (66,000 plus 33,000 staying one additional year
plus 16,500 staying a third year) by the 236,706 positions certified
per year on average during FY 2007-2009. This produces a scalar of 48.8
percent. Applying this scalar to the number of positions certified
suggests that the number of H-2B workers in the top five industries is:
Landscaping Services--38,073
Janitorial Services--15,079
Construction--14,756
Food Services and Drinking Places--11,197
Amusement, Gambling, and Recreation--6,851
These employment numbers represent the following percentages of the
total employment in each of these industries: \18\
---------------------------------------------------------------------------
\18\ U.S. Census Bureau. 2007. 2007 Economic Census. Available
at https://www.census.gov/econ/census07/.
Landscaping Services--6.5 percent (38,073/589,698)
Janitorial Services--1.6 percent (15,079/933,245)
Construction--0.2 percent (14,756/7,265,648)
Food Services and Drinking Places--0.1 percent (11,197/9,617,597)
Amusement, Gambling, and Recreation--0.5 percent (6,851/1,506,120)
As these data illustrate, the H-2B program represents a small
fraction of the total employment even in each of the top five
industries in which H-2B workers are found.
b. Number of Affected Employers
The Department estimates that from FY 2000-2007, an average of
6,425 unique employers applied for H-2B workers, and of these, an
average of 5,298 were granted certifications. Several of the Final
Rule's provisions (the requirement for employers to translate the job
order from English to a language understood by the foreign workers, and
payment of visa and visa-related fees) will predominantly or only apply
to employers that ultimately employ H-2B workers. As there is no
available source of data on the number of H-2B employer applicants who
ultimately employ H-2B workers, the Department uses the ratio of
estimated H-2B workers in the country at a given time (115,500) to the
number of positions certified in an average year (154,281) to derive a
scale factor of 74.9 percent. Multiplying the average number of unique
certified H-2B employer applicants from FY2000-2007 (5,298) by the
scale factor (74.9) suggests that there are 3,966 unique certified H-2B
employer applicants who ultimately employ H-2B workers.
c. Number of Corresponding Workers
Several provisions of the Final Rule extend to workers in
corresponding employment, defined as those non-H-2B workers who perform
work for an H-2B employer, where such work is substantially the same as
the work included in the job order, or is substantially the same as
other work performed by H-2B workers. Corresponding workers are U.S.
workers employed by the same employer performing the substantially the
same tasks at the same location as the H-2B workers, and they are
entitled to at least the same terms and conditions of employment as the
H-2B workers. Corresponding workers might be temporary or permanent;
that is, they could be employed under the same job order as the H-2B
workers for the same period of employment, or they could have been
employed prior to the H-2B workers, and might remain after the H-2B
workers leave. However, the Final Rule excludes two categories of
workers from the definition of corresponding employment. Corresponding
workers are entitled to the same wages and benefits that the employer
provides to H-2B workers, including the three-fourths guarantee, during
the period covered by the job order. The
[[Page 10118]]
corresponding workers would also be eligible for the same
transportation and subsistence payments as the H-2B workers if they
travel a long distance to reach the job site and cannot reasonably
return to their residence each workday. In addition, as a result of the
enhanced recruiting in this rule, including the new electronic job
registry, certain costs may be avoided as employers are able to find
U.S. workers in lieu of some H-2B workers. The Department believes that
the costs associated with hiring a new U.S. worker would be lower than
the costs associated with hiring an H-2B worker brought to the U.S.
from abroad, as the costs of visa and border crossing fees to be paid
for by the employer will be avoided and travel costs may likely be less
(or zero for workers who are able to return to their residence each
day).
There are no reliable data sources on the number of corresponding
workers at work sites for which H-2B workers are requested or the
hourly wages of those workers. The Department does not collect data
regarding what we have defined as corresponding employees, and
therefore cannot identify the numbers of workers to whom the
obligations would apply.\19\ The Department extensively examined
alternative data sources that might be used to accurately estimate the
number of corresponding workers. First, in the proposed rule, the
Department asked the public to propose possible sources of data or
information on the number of corresponding workers at work sites for
which H-2B workers were requested and the current hourly wage of those
corresponding workers. The Department reviewed comments received in
response to this request, but unfortunately, no data were provided by
commenters. Perhaps the most interesting qualitative feedback from
comments was the apparent dichotomy in perceptions of the issue of
corresponding workers. Some commenters indicated there would be no
corresponding workers whose wages were affected by this rule: they
hired H-2B workers because they could not find corresponding U.S.
workers willing to do the job. At the opposite end of the spectrum were
commenters who asserted that many, if not most, of their permanent
employees might require wage increases as a result of this rule.
However, at least some of the latter comments reflected a potential
misunderstanding of the rule; most commenters who made such assertions
were misguided in their assumption that any activity performed by any
worker that is also performed by H-2B workers would make those workers
corresponding.\20\
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\19\ The Department only recently began asking employers (in a
non-required field) to state on an H-2B Application for Temporary
Employment Certification the number of full-time equivalent
employees that they employ. Further, the Department does not have
this information from concluded investigations.
\20\ Comments by the SBA, for example, (ETA-2011-0001-0438)
stated that in some industries (e.g., landscaping, restaurants),
supervisors and H-2B workers might sometimes perform the same task
(e.g., a landscaping supervisor might mow lawns if someone calls in
sick; a supervisor at a small restaurant might help clear tables
during busy times). Therefore, as explained in the preamble, the
commenters mistakenly believed that because the H-2B worker and the
supervisor "perform the same work," they are corresponding
employees, and the firm must pay the H-2B worker the same wage rate
as the supervisor, which then means all other workers must be paid
the same as the H-2B worker.
---------------------------------------------------------------------------
Second, the Department asked its WHD field staff to provide
information they might have on the number of corresponding workers
employed by H-2B employers based on the data gathered during
investigations. The number of U.S. workers similarly employed varies
widely among the companies investigated, ranging from 0 to 310. No data
on the number of H-2B workers was collected, though, so it is
impossible to compare the pattern of employment of U.S. and H-2B
workers. Because such data gathering was not the principal goal of the
investigation, the data provided are the result of chance and what the
investigator happened to record, rather than a systematic collection of
worker counts relevant to the estimation of corresponding employment.
Furthermore, the results of only 36 investigations were available.
Finally, they did not represent a random sample of H-2B employers, but
just that subset of employers that the Department had some reason to
investigate.
Third, the Department reviewed a random sample of 225 certified and
partially certified applications from FY2010 submitted by employers in
response to Request for Information (RFIs) during the application
process. While the 2011 version of ETA Form 9142 includes an optional
item on the number of non-family full-time equivalent employees, that
number includes all employees and not only the employees in
corresponding employment. (See also the instructions to the Form 9142,
which inform the employer to "[e]nter the number of full-time
equivalent (FTE) workers the employer employs.") Moreover, even if
this number accounted for the number of corresponding employees, none
of the applications in the random sample used the 2011 version of the
form. Of the 225 applications reviewed, two applications gave the
current number of employees as part of the other information submitted.
Additionally, DOL examined data in 34 payroll tables that were provided
to supplement the application. The payroll tables reported data by
month for at least 1 year from 2007 to 2010 and included information
such as the total number of workers, hours worked, and earnings for all
workers performing work covered by the job order. These workers were
broken down into categories for permanent workers (those already
employed and performing the certified job) and for temporary workers
(both H-2B workers and corresponding workers who responded to the job
order). The Department divided the total payroll by the total hours
worked across the two categories of workers to estimate an average
hourly wage per permanent and temporary worker. The Department compared
the total number of workers in months where permanent workers were paid
more than and less than temporary employees for those months in which
both were employed.
The Department found 7,548 temporary and 10,310 permanent worker-
months (defined as one worker, whether full- or part-time, employed one
month) in the 34 payroll tables examined. Of these, permanent employees
were paid more than temporary employees in 9,007 worker-months, and
were paid less than temporary employees in 1,303 worker months. This
suggests the rule would have no impact on wages for 87 percent of
permanent workers (9,007/10,310). Conversely, 13 percent of permanent
workers (1,303/10,310), were paid less than temporary employees and
would receive an increase in wages as a result of the rule. Calculating
the ratio of 1,303 permanent worker-months to 7,548 temporary worker-
months when permanent workers are paid less than temporary workers
suggests that for every temporary worker-month, there are 0.17 worker-
months where the permanent worker wage is less than the temporary
worker wage. Extrapolating this ratio based on the Department's
estimate that there are a total of 115,500 H-2B employees at any given
time, this suggests that 19,939 permanent workers (115,500 x 0.17)
would be eligible for pay raises due to the rule.
The Department also calculated the percentage difference in the
corresponding and temporary worker wages in months where temporary
workers were paid more. On average, corresponding workers earning less
than temporary employees would need their wages to be increased 4.5
percent to match temporary worker wages.
[[Page 10119]]
For several reasons, however, the Department did not believe it was
appropriate to use the data in the payroll tables to extrapolate to the
entire universe of H-2B employers. First, because of the selective way
in which these payroll records were collected by the Department, the
distribution of occupations represented in the payroll tables is not
representative of the distribution of occupations in H-2B applications.
The 34 payroll tables examined by the Department included the following
occupations:
Nonfarm Animal Caretakers (12 payroll tables)
Landscaping and Groundskeeping Workers (four payroll tables)
aids and Housekeeping Cleaners (four payroll tables)
Cooks (two payroll tables)
Waiters and Waitresses (two payroll tables)
Forest and Conservation Workers (two payroll tables)
Dishwashers (one payroll table)
Dining Room and Cafeteria Attendants and Bartender Helpers (one
payroll table)
Separating, Filtering, Clarifying, Precipitating, and Still Machine
Setters, Operators, and Tenders (one payroll table)
Food Cooking Machine Operators and Tenders (one payroll table)
Floor Sanders and Finishers (one payroll table)
Production Workers, All Other (one payroll table)
Receptionists and Information Clerks (one payroll table)
Grounds Maintenance Workers, All Other (one payroll table)
The four payroll tables for landscaping and groundskeeping workers
made up only 12 percent of the payroll tables, while applications for
these workers comprised 35 percent of FY 2010 applications. Conversely,
the 12 payroll tables from nonfarm animal caretakers made up 35 percent
of the payroll tables in our sample, while applications for such
workers made up only 6 percent of the FY 2010 applications.
Second, the total number of payroll tables or payroll records
provided to the Department was very small. We found only 34 payroll
tables in 225 randomly selected applications. Furthermore, payroll
records in H-2B applications are provided in specific response to an
RFI or in the course of a post-adjudication audit. In both instances
the primary purpose of these records is to demonstrate compliance with
program requirements, usually either to demonstrate proactively that
the need for workers is a temporary need, or to demonstrate
retroactively compliance with the wage obligation. Because payroll
tables were submitted in response to an RFI rather than as a matter of
routine in the application process, it is not clear that the data in
the limited number of payroll tables for a given occupation are
representative of all workers within that occupation in the H-2B
program. Something triggered the RFI, presumably some indication that
the need for temporary workers was not apparent, and therefore these
applications are not representative of the 85 percent of applications
that did not require a payroll table.
Third, the payroll wage information in these tables is provided at
the group level, and the Department is unable to estimate how many
individual corresponding workers are paid less than temporary workers
in any given month. The payroll tables only allow a gross estimate of
whether corresponding or temporary workers were paid more, on average,
in a given month. Because wages would only increase for those U.S.
workers currently making less than the prevailing wage, this
information is necessary to determine the effect the rule would have on
workers in corresponding employment. Finally, the Department has no
data regarding the number of employees who would fall under the two
exclusions in the definition of corresponding employment.
The Department, therefore, cannot confidently rely upon the payroll
tables alone and has no other statistically valid data to quantify the
total number of corresponding workers or the number that would be
eligible for a wage increase to match the H-2B workers. Nevertheless,
the Department believes that the payroll tables show that the impact of
the corresponding employment provision would be relatively limited,
both as to the number of corresponding workers who would be paid more
and as to the amount their wages would increase.
Based upon all the information available to us, including the
payroll tables, the anecdotal evidence in the comments, and the
Department's enforcement experience, the Department has attempted to
quantify the impact of the corresponding employment provision. We note
that the 2008 Final Rule already protects U.S. workers hired in
response to the required recruitment, including those U.S. workers who
were laid off within 120 days of the date of need and offered
reemployment. Therefore, this rule will have no impact on their wages.
This Final Rule simply extends the same protection to other employees
performing substantially the same work included in the job order or
substantially the same work that is actually performed by the H-2B
workers. Based in particular upon the numerous employer commenters who
asserted that they were unable to find U.S. workers to perform the
types of jobs typically encompassed within their job orders, the
Department believes that a reasonable estimate is that H-2B workers
make up 75% to 90% of the workers in the particular job and location
covered by a job order; we assume, therefore, that 10% to 25% of the
workers will be U.S. workers newly covered by the rule's wage
requirement. This assumption does not discount at all for the fact, as
noted above, that some of these U.S. workers already are covered by the
prevailing wage requirement or could be covered by one of the two
exclusions from the definition of corresponding employment. Carrying
forward with our estimate that there are a total of 115,500 H-2B
workers employed at any given time, we thus estimate that there will be
between 12,833 (if 90% are H-2B workers) and 38,500 (if 75% are H-2B
workers) U.S. workers newly covered by the corresponding employment
provision.
d. Wages Used in the Analysis
The Department updated the wage and benefit costs under the
proposed rule by incorporating the most recent OES wage data available
from BLS, and its most recent estimate of the ratio of fringe benefit
costs to wages, 30.4 percent.\21\
---------------------------------------------------------------------------
\21\ U.S. Bureau of Labor Statistics (BLS). 2011a. Employer
Costs for Employee Compensation news release text. June 8, 2011.
Available at https://www.bls.gov/news.release/ecec.nr0.htm (Accessed
July 12, 2011).
---------------------------------------------------------------------------
To represent the hourly compensation rate for an administrative
assistant/executive secretary, the Department used the median hourly
wage ($22.06) for SOC 43-6011 (Executive Secretaries and Executive
Administrative Assistants).\22\ The hourly compensation rate for a
human resources manager is the median hourly wage of $47.68 for SOC 11-
3121 (Human Resources Managers).\23\ Both wage rates were multiplied by
1.304 to account for private-sector employee benefits.
---------------------------------------------------------------------------
\22\ U.S. Bureau of Labor Statistics (BLS). 2011b. Occupational
Employment and Wages, May 2010--43-6011 Executive Secretaries and
Executive Administrative Assistants. Available at
https://www.bls.gov/oes/current/oes436011.htm (Accessed June 3, 2011).
\23\ U.S. Bureau of Labor Statistics (BLS). 2011c. Occupational
Employment and Wages, May 2010--11-3121 Human Resources Managers.
Available at https://www.bls.gov/oes/current/oes113121.htm (Accessed
July 12, 2011).
---------------------------------------------------------------------------
For registry development and maintenance activities, the proposed
rule used fully loaded rates based on an Independent Government Cost
Estimate
[[Page 10120]]
(IGCE) produced by OFLC,\24\ which are inclusive of direct labor and
overhead costs for each labor category.\25\ Because the BLS data used
to update other wages does not include overhead costs, the Department
updated these wage estimates using the Producer Price Index (PPI) for
software publishers producing application software to inflate the
loaded wage rates for each labor category from 2010 (average annual
PPI, 96.8) to 2011 (average of first five months' PPIs, 97.0).
---------------------------------------------------------------------------
\24\ OFLC. 2010. Independent Government Cost Estimates.
\25\ The Department would not typically use a wage that included
overhead costs, but here the Department uses the services of a
contractor to develop the registry, and therefore the fully loaded
wage is more reflective of costs.
---------------------------------------------------------------------------
The 2011 wages used in the analysis are summarized in Table 3.
Table 3--Wages Used in the Analysis
----------------------------------------------------------------------------------------------------------------
Loaded wage PPI adjusted
Occupation Hourly wage \[a]\ wage \[b]\
----------------------------------------------------------------------------------------------------------------
Administrative Assistant........................................ $22 $29 ..............
HR Manager...................................................... 48 62 N/A
Program Manager................................................. N/A 138 $139
Computer Systems Analyst II..................................... N/A 92 92
Computer Systems Analyst III.................................... N/A 110 110
Computer Programmer III......................................... N/A 90 90
Computer Programmer IV.......................................... N/A 108 108
Computer Programmer Manager..................................... N/A 124 124
Data Architect.................................................. N/A 105 105
Web Designer.................................................... N/A 125 125
Database Analyst................................................ N/A 78 78
Technical Writer II............................................. N/A 85 85
Help Desk Support Analyst....................................... N/A 55 55
Production Support Manager...................................... N/A 126 126
----------------------------------------------------------------------------------------------------------------
\[a]\ Accounts for 30.4 percent fringe.
\[b]\ Multiplied by ratio of 2011 PPI to 2010 PPI (97.0/96.8).
N/A: Not Applicable.
Sources: BLS, 2011a; BLS, 2011b; BLS, 2011c; BLS, 2011d; BLS, 2011e.
e. H-2B Employment in the Territory of Guam
This Final Rule applies to H-2B employers in the Territory of Guam
only in that it requires them to obtain prevailing wage determinations
in accordance with the process defined at 20 CFR 655.10. To the extent
that this process incorporates the new methodology defined in the
January 2011 prevailing wage rule, it is possible that some H-2B
employers in Guam will experience an increase in their H-2B prevailing
wages. The Department expects that the H-2B employers in Guam working
on Federally-funded construction projects subject to the Davis-Bacon
and Related Acts (DBRA) are already paying the Davis-Bacon Act
prevailing wage for the classification of work performed and that such
employers may not experience an increase in the wage levels they are
required to pay. Employers performing work ancillary or unrelated to
DBRA projects, and therefore paying a wage potentially lower than the
Davis-Bacon Act prevailing wage, may receive increased prevailing wage
determinations under this Final Rule. However, because the H-2B program
in Guam is administered and enforced by the Governor of Guam, or the
Governor's designated representative, the Department is unable to
quantify the effect of this provision on H-2B employers in Guam due to
a lack of data.
4. Subject-by-Subject Analysis
The Department's analysis below considers the expected impacts of
the Final Rule provisions against the baseline (i.e., the 2008 Final
Rule). The sections detail the costs of provisions that provide
additional benefits for H-2B and/or workers in corresponding
employment, expand efforts to recruit U.S. workers, enhance
transparency and worker protections, and reduce the administrative
burden on SWAs.
a. Three-Fourths Guarantee
Under the Proposed Rule, the Department specified that employers
guarantee to offer hours of employment equal to at least three-fourths
of the certified work days during the job order period, and that they
use successive 4-week periods to measure the three-fourths guarantee.
The use of 4-week periods was proposed (as opposed to measuring the
three-fourths guarantee over the course of the entire period of need as
in the H-2A program) in order to ensure that work is offered during the
entire certified period of employment. The Department received comments
from employers expressing concern that they are unable to predict the
exact timing and flow of tasks by H-2B workers, particularly at the
beginning and end of the period of certification, and that they need
more scheduling flexibility due to unexpected events such as extreme
weather or catastrophic man-made events. Acknowledging these
commenters' concerns, the Department lengthened the calculation period
from 4 weeks to 12 weeks for job orders lasting at least 120 days and 6
weeks for job orders lasting less than 120 days. In order to ensure
that the capped H-2B visas are appropriately made available to
employers based upon their actual need for workers, and to ensure that
U.S. workers can realistically evaluate the job opportunity, the
Department maintains that employers should accurately state their
beginning and end dates of need and the number of H-2B workers needed.
To the extent that employers submit Applications for Temporary
Employment Certification accurately reflecting their needs, the three-
fourths guarantee provision should not represent a cost to employers,
particularly given the extended 12-week and 6-week periods over which
to calculate the guarantee.
b. Application of H-2B Wages to Corresponding Workers
There are two cohorts of corresponding workers: (1) The U.S.
workers hired in the recruitment process and (2) other U.S. workers who
work for the employer and who perform
[[Page 10121]]
the substantially the same work as the H-2B workers, other than those
that fall under one of the two exclusions in the definition. The former
are part of the baseline for purposes of the wage obligation, as
employers have always been required to pay U.S. workers recruited under
the H-2B program the same prevailing wage that H-2B workers get. Of the
latter group of corresponding workers, some will already be paid a wage
equal to or exceeding the H-2B prevailing wage so their wages represent
no additional cost to the employer. Those who are currently paid less
than the H-2B prevailing wage will have to be paid at a higher rate,
with the additional cost to the employer equal to the difference
between the former wage and the H-2B wage.
As discussed above, the Department was unable to identify a
reliable source of data providing the number of corresponding workers
at work sites for which H-2B workers are requested or the hourly wages
of those workers. Nevertheless, the Department has attempted to
quantify the impacts associated with this provision. All increases in
wages paid to corresponding workers under this provision represent a
transfer from participating employers to U.S. workers.
In the absence of reliable data, the Department believes it is
reasonable to assume that H-2B workers make up 75 to 90 percent of the
workers in a particular job and location covered by the job-order, with
the remaining 10 to 25 percent of workers being corresponding workers
newly covered by the rule's wage requirement. When these rates are
applied to our estimate of the total number of H-2B workers (115,500)
employed at any given time, we estimate that the number of
corresponding workers newly covered by the corresponding employment
provision will be between 12,833 and 38,500. This is an overestimate of
the rule's impact, since some of the employees included in the 10-25
percent proportion of corresponding workers are those hired in response
to required recruitment and are therefore already covered by the
existing regulation, and some employees will fall within one of the two
exclusions under the definition.
The prevailing wage calculation represents a typical worker's wage
for a given type of work. Since the prevailing wage calculation is
based on the current wages received by all workers in the occupation
and area of intended employment, it is reasonable to assume that 50
percent of the corresponding workforce earns a wage that is equal to or
greater than the calculated prevailing wage. Conversely, it would be
reasonable to assume that 50 percent of the workers in corresponding
employment earn less than the prevailing wage and would have their
wages increased as a result of the Final Rule. Applying this rate to
our estimate of the number of workers covered by the corresponding
employment provision would mean that the number of newly-covered
workers is between 6,417 and 19,250.
We also believe it is reasonable to assume that the typical hourly
wage increase for the newly-covered U.S. workers will be less than the
average increase for H-2B workers resulting from the Wage Rule. This
reflects our expectation that a majority of the newly-covered
corresponding workers are currently earning close to the new H-2B
prevailing wage (which represents the mathematical mean wage for the
occupation in the area of intended employment). These corresponding
workers, who would already be part of an employer's staff in
occupations for which a certification is being sought, have likely
experienced some wage growth during their tenure with the employer;
therefore, their wage increase should be significantly less than the
hourly wage increase for the H-2B workers in that occupations.
We also expect that few corresponding workers are likely to receive
a wage increase that is close to or greater than the weighted average
hourly increase for H-2B workers. This small number of incumbent
employees would likely be limited to those hired shortly before an
employer applied for an H-2B Temporary Employment Certification.
Because they would not have had sufficient tenure to experience any
wage growth, their hourly wage increase may be equivalent to the
average wage increases provided to H-2B workers under the Wage Rule.
Therefore, we believe that U.S. workers' wage increases will be
largely distributed between the previous H-2B prevailing wage and the
new prevailing wage. Using the weighted average hourly wage increase
for H-2B workers to approximate an upper bound for the increase in
corresponding workers' wages, we assume that the wage increases for
newly-covered workers will be distributed between three hourly-wage
intervals: 30 percent of the newly-covered corresponding workers will
receive an average hourly wage increase of $1.00; 15 percent will
receive a wage increase of $3.00 per hour; and, 5 percent will receive
an average hourly increase of $5.00, which encompasses the weighted
average hourly wage increase for H-2B workers from the Wage Rule.
Finally, we estimate that these workers in corresponding employment
will have their wages increased for 1,365 hours of work. This assumes
that every H-2B employer is certified for the maximum period of
employment of nine months (39 weeks), and that every corresponding
worker averages 35 hours of work per week for each of the 39 weeks.
This is an upper-bound estimate since it is based upon every employer
voluntarily providing in excess of the number of hours of work required
by the three-fourths guarantee for the maximum number of weeks that can
be certified.
Therefore, based on all the assumptions noted above, we estimate
the total annual transfer incurred due to the increase in wages for
newly-covered workers in corresponding employment ranges from $17.5
million to $52.6 million. See Table 4.
Also, based on our review of available information on the
characteristics of industries employing H-2B workers, there will be
natural limit on the number of corresponding workers whose wages might
be affected by the revised rule. The Department found that the two
industries that most commonly employ H-2B workers are landscaping
services and janitorial services.
Establishments in these industries tend to be small: Approximately
7 percent of janitorial service and 3 percent of landscaping
establishments have more than 50 year-round employees; and, 86 percent
of janitorial services and 91 percent of landscaping establishments
have fewer than 20 year-round employees. Therefore, we believe that a
majority of H-2B employers are small-sized firms whose workforces are
comprised predominately of H-2B workers.
This assertion is consistent with employer comments on the proposed
rule that firms hire H-2B workers primarily because they find it
difficult to fill those positions with U.S. workers. This is also
consistent with the fact that 20 percent in janitorial services and 30
percent in landscaping do not even operate year-round. Taken in total,
the small size of a typical H-2B employer would place limits on the
number of potential corresponding workers.
Finally, to the extent that firms in landscaping and janitorial
services incur increased payroll costs, those increased costs are
unlikely to have a significant aggregate impact. U.S. Bureau of
Economic Analysis (BEA) input-output analysis of the economy
demonstrates that the demand for "Services to Buildings and
Dwellings" (the sector in
[[Page 10122]]
which janitorial and landscaping services are classified) is highly
diffused throughout the economy.
BEA calculates Direct Requirements tables that indicate the dollar
amount of input from each industry necessary to produce one dollar of a
specified industry's output. These results show that building services
account for a relatively negligible proportion of production costs: Of
428 sectors, building services account of less than $0.01 for each
dollar of output in 414 sectors, and less than $0.005 for each dollar
of output in 343 sectors. The largest users of these services tend to
be retail trade, government and educational facilities, hotels,
entertainment and similar sectors. In other words, these services do
not impact industrial productivity or the production of commodities
that will result in large impacts that ripple throughout the economy.
To further place this in perspective, Services to Buildings and
Dwellings, upon which this characterization is based includes more than
just the janitorial and landscaping service industries. The estimated
53,173 H-2B workers hired by these industries account for only 3.1
percent of employment in the Services to Buildings and Dwellings
sector, even including impacts through corresponding employee
provisions (described above as limited), and are only a small fraction
of the already small direct requirements figures for this sector.
Therefore, based on the characteristics of industries that use H-2B
workers, only a relatively small fraction of employees and firms in
those industries likely will be affected by corresponding worker
provisions.
However, because the Department does not have data on the number of
corresponding workers or their wages relative to prevailing wages, it
cannot project firm-level impacts to those firms that do have permanent
corresponding workers. Standard labor economic models suggest that an
increase in the cost of employing U.S. workers in corresponding
employment would reduce the demand for their labor. Because employers
cannot replace U.S. workers laid off 120 days before the date of need
or through the period of certification with H-2B workers, the
Department concludes that there would be no short-term reduction in the
employment of corresponding workers among participating employers. In
the long-run, however, these firms might be reluctant to hire
additional permanent staff. The extent to which such unemployment
effects might result from the prevailing wage provision will be a
function of: The number of permanent staff requiring wage increases;
the underlying demand for the product or service provided by the firm
during off-peak periods; and the firm's ability to substitute for labor
to meet that off-peak demand for its products or services. First, the
fewer the number of permanent staff receiving wage increases, then the
smaller the increase in the cost of producing the good or service.
Second, the demand for labor services is a "derived demand." That is,
if the product or service provided has few substitutes, purchasers
would prefer to pay a higher price rather than do without the product.
Third, some goods and services are more difficult to produce than
others by substituting equipment or other inputs for labor services. In
summary, if increased wages result in a small overall cost increase,
demand for the product is inelastic, and there are few suitable
substitutes for labor in production, then unemployment effects are
likely to be relatively small.
Table 4--Cost of Corresponding Worker Wages
----------------------------------------------------------------------------------------------------------------
Percent
Hourly wage increase corresponding Corresponding Total cost
employees employees
----------------------------------------------------------------------------------------------------------------
H2B Workers 90% of Occupation at Firm
----------------------------------------------------------------------------------------------------------------
$0.00........................................................... 50 6,417 $0
1.00............................................................ 30 3,850 5,255,250
3.00............................................................ 15 1,925 7,882,875
5.00............................................................ 5 642 4,379,375
-----------------------------------------------
Total....................................................... 100 12,833 17,517,500
----------------------------------------------------------------------------------------------------------------
H2B Workers 75% of Occupation at Firm
----------------------------------------------------------------------------------------------------------------
$0.00........................................................... 50 19,250 $0
$1.00........................................................... 30 11,550 15,765,750
$3.00........................................................... 15 5,775 23,648,625
$5.00........................................................... 5 1,925 13,138,125
-----------------------------------------------
Total....................................................... 100 38,500 52,552,500
----------------------------------------------------------------------------------------------------------------
Source: DOL assumptions.
c. Transportation to and From the Place of Employment for H-2B Workers
The Final Rule requires H-2B employers to provide workers--both H-
2B workers and those in corresponding employment who are unable to
return to their permanent residences--with transportation and daily
subsistence to the place of employment from the place from which the
worker has come to work for the employer, whether in the U.S. or
abroad, if the worker completes 50 percent of the period of the job
order. The employer must also pay for or provide the worker with return
transportation and daily subsistence from the place of employment to
the place from which the worker, disregarding intervening employment,
departed to work for the employer if the worker completes the period of
the job order or is dismissed early. The impacts of requiring H-2B
employers to pay for employees' transportation and subsistence
represent transfers from H-2B employers to workers because they
represent distributional effects, not a change in society's
resources.\26\
---------------------------------------------------------------------------
\26\ For the purpose of this analysis, H-2B workers are
considered temporary residents of the United States.
---------------------------------------------------------------------------
To estimate the transfer related to transportation, the Department
first
[[Page 10123]]
calculated the average number of certified H-2B positions per year
during FY 2007-2009 from the ten most common countries of origin, along
with each country's proportion of this total.\27\ These figures,
presented in Table 5, are used to create weighted averages of travel
costs in the analysis below.
---------------------------------------------------------------------------
\27\ U.S. Department of Homeland Security (DHS). 2009. Yearbook
of Immigration Statistics. Available at
https://www.dhs.gov/files/statistics/publications/yearbook.shtm (Accessed June 12, 2011).
Table 5--Number of Certified H-2B Workers by Country of Origin, FY 2007-
2009
------------------------------------------------------------------------
Positions Percent of
Country certified total
------------------------------------------------------------------------
exico........................................ 134,226 75.6
Jamaica....................................... 17,068 9.6
Guatemala..................................... 6,530 3.7
Philippines................................... 4,963 2.8
Romania....................................... 3,251 1.8
South Africa.................................. 3,239 1.8
UK............................................ 2,511 1.4
Canada........................................ 2,371 1.3
Israel........................................ 1,784 1.0
Australia..................................... 1,577 0.9
-------------------------
Total....................................... 177,520 100.0
------------------------------------------------------------------------
Source: H-2B Program Data and DHS, 2009.
The Department received a comment from a worker advocacy
organization requesting clarification that inbound and outbound
transportation costs include the expenses incurred between their home
community and the consular city, and between the consular city and the
place of employment in the United States. In response, the Department
confirms that this is the intent of the rule. Therefore, in this
section the Department accounts for a cost not clearly accounted for in
the proposed rule: The cost of travel from the worker's home to the
consular city to obtain a visa. As in the proposed rule, the Department
also accounts for travel from the consular city to the place of
employment (assumed to be St. Louis, MO for the purpose of cost
estimation). Where these costs were given in foreign currency, the
Department converted them to U.S. dollars using exchange rates
effective July 11, 2011.\28\
---------------------------------------------------------------------------
\28\ Exchange rates sourced from Google's currency converter. If
no exchange rate is mentioned, then costs were provided in U.S.
dollars.
---------------------------------------------------------------------------
Transportation costs were calculated by adding two components: the
estimated cost of a bus or ferry trip from a regional city \29\ to the
consular city to obtain a visa, and the estimated cost of a trip from
the consular city to St. Louis. Workers from Mexico and Canada (77
percent of the total) are assumed to travel by bus; workers from all
other countries, by air. In response to the proposed rule, an employer
representative submitted a comment expressing concern that the travel
expenses underestimated the cost of airfare.\30\ The Department
reviewed air transport costs, found that some have risen significantly
since the NPRM was published, and revised them accordingly. The
increases are likely attributable to a combination of increased fuel
costs and decreases in passenger capacity. The same commenter expressed
concern that the proposed rule's requirement that employers continue
hiring U.S. workers up to 3 days before the listed job start date means
that employers will need to pay a premium for refundable tickets.
Because this Final Rule changed the last day an employer must hire U.S.
applicants to 21 days before the date of need, employers will not have
to pay a premium for refundable fares. This analysis, therefore,
includes only the cost for non-refundable tickets.
---------------------------------------------------------------------------
\29\ Where possible, we used a selection of cities to represent
travel from different regions of the country.
\30\ ETA-2011-0001-0456.
---------------------------------------------------------------------------
The revised travel cost estimates are presented in Table 6. The
Department estimated the roundtrip transportation costs by doubling the
weighted average one-way cost (for a roundtrip travel cost of $929),
then multiplying by the annual number of H-2B workers entering the U.S.
(66,000). The Department estimates average annual transfer payments
associated with transportation expenditures to be approximately $61.3
million. This estimate is an increase of approximately $23.5 million
over the Proposed Rule estimate of $37.8 million. The addition of
travel costs from the worker's hometown to the consular city accounts
for approximately $2.9 million (12 percent) of this increase and the
overall increase in average airfares accounts for $20.6 million (88
percent). It is not possible for the Department to determine how much
of the cost of transportation the employer is already paying, however,
in order to secure the workers or because of the employer's obligations
under the FLSA. (Under the FLSA, the majority of H-2B employers are
required to pay for the proportion of inbound and outbound
transportation costs that would otherwise bring a worker's earnings
below the minimum wage in the first and last workweeks of employment.)
To the extent that this does already occur, this transportation
transfer is an upper-bound estimate. The Department also believes we
have over-estimated this transfer for the additional reason that
inbound transportation is only due for workers who complete 50 percent
of the job order and outbound transportation is due only for those who
complete the full job order or are dismissed early.
Table 6--Cost of Travel for H-2B Workers
------------------------------------------------------------------------
Item Value
------------------------------------------------------------------------
New entrants per Year................................... 66,000
exico:
One way travel (bus)--Hometown to Monterrey \31\.... $50
One way travel (bus)--Monterrey to Juarez \32\...... $83
One way travel (bus)--El Paso to St. Louis \33\..... $214
---------------
Total one way travel............................ $347
Jamaica:
One way travel (bus)--Hometown to Kingston \34\..... $3
One way travel (air)--Kingston to St. Louis \35\.... $499
---------------
Total one way travel............................ $502
Guatemala:
One way travel (bus)--Hometown to Guatemala City $4
\36\...............................................
One way travel (air)--Guatemala City to St. Louis $490
\37\...............................................
---------------
Total one way travel............................ $594
[[Page 10124]]
Philippines:
One way travel (ferry)--Hometown to Manila \37\..... $41
One way travel (air)--Manila to St. Louis \37\...... $1,083
---------------
Total one way travel............................ $1,124
Romania:
One way travel (bus)--Hometown to Bucharest \38\.... $21
One way travel (air)--Bucharest to St. Louis \37\... $1,388
---------------
Total one way travel............................ $1,409
South Africa:
One way travel (bus)--Hometown to Pretoria \39\..... $41
One way travel (bus)--Pretoria to O.R. Tambo $17
International Airport (ORTIA) \39\.................
One way travel (air)--ORTIA to St. Louis \37\....... $1,391
---------------
Total one way travel............................ $1,449
United Kingdom:
One way travel (bus or rail)--Hometown to London $32
\40\...............................................
One way travel (air)--London to St. Louis \37\...... $1,111
---------------
Total one way travel............................ $1,143
Canada:
One way travel (air)--Hometown to Ottawa \41\....... $175
One way travel (bus)--Ottawa to St. Louis \35\...... $178
---------------
Total one way travel............................ $353
Israel:
One way travel (bus)--Hometown to Tel Aviv \42\..... $11
One way travel (air)--Tel Aviv to St. Louis \37\.... $1,176
---------------
Total one way travel............................ $1,187
Australia:
One way travel (bus)--Hometown to Canberra \43\..... $92
One way travel (air)--Canberra to St. Louis \37\.... $2,064
---------------
Total one way travel............................ $2,156
All:
One way travel--Weighted average.................... $465
Roundtrip travel--Weighted average.................. $929
---------------
Total Travel Costs--H2B Workers................. $61,328,243
------------------------------------------------------------------------
d. Transportation to and From the Place of Employment for Corresponding
Workers
---------------------------------------------------------------------------
\31\ Omnibus de M[eacute]xico. 2011. Venta en L[iacute]nea.
Available at https://www.odm.com.mx/ (Accessed July 22, 2011).
Averages cost of a bus ticket to Monterrey from: Tampico (473
pesos), Actopan (680 pesos); and Ac[aacute]mbaro (585 pesos).
Converted from pesos to US dollars at the rate of 0.0861 pesos per
dollar for an average cost of $50.
\32\ Omnibus de M[eacute]xico. 2011. Venta en L[iacute]nea.
Available at https://www.odm.com.mx/ (Accessed July 22, 2011). The
cost of a bus ticket from Monterrey to Ciudad Juarez is 970 pesos,
converted from pesos to US dollars at the rate of 0.0861 pesos per
dollar for a cost of $83.
\33\ Greyhound. 2011. Tickets. Available at
https://www.greyhound.com/farefinder/step1.aspx (Accessed July 8, 2011).
\34\ Jamaica Guide. 2011. Getting around. Available at
https://jamaica-guide.info/getting.around/buses/ (Accessed July 11, 2011).
\35\ Orbitz. 2011. Home Page. Available at https://www.orbitz.com/ (Accessed July 22, 2011).
\36\ Virtual Tourist. 2011. Guatemala City Transportation.
Available at
https://www.virtualtourist.com/travel/Caribbean_and_Central_America/Guatemala/
Departamento_de_Guatemala/Guatemala_City-1671108/
Transportation-Guatemala_City-TG-C-1.html (Accessed July 10, 2011).
\37\ Lonely Planet. 2011a. Ferry travel in the Philippines.
Available at https://www.lonelyplanet.com/philippines/transport/getting-around
(Accessed July 10, 2011).
\38\ Mersul Trenulior. 2011. Mersul Trenulior. Available at
https://www.mersultrenurilor.ro (Accessed July 8, 2011).
\39\ Computicket. 2011. Computicket Home Page. Available at
https://www.computicket.com/web/bus_tickets/ (Accessed July 22,
2011).
\40\ Megabus. 2011. Megabus UK Home Page. Available at https://
uk.megabus.com/default.aspxhttp\:uk.megabus.com (Accessed July 10,
2011) and Raileasy. 2011. Raileasy Home Page. Available at
https://www.raileasy.co.uk/ (Accessed July 10, 2011); average of the cost of
a bus ticket from three cities in England to London (GBP 15) and a
train from Northern Ireland to London (GBP 50); Converted at the
rate of 1.36 GBP per USD for an average of $32.
\41\ Air Canada. 2011. Air Canada Home Page. Available at
https://www.aircanada.com (Accessed July 10, 2011).
\42\ Wikitravel. 2011. Bus travel in Israel. Available at
https://wikitravel.org/en/Bus_travel_in_Israel (Accessed July 10, 2011).
\43\ Greyhound Australia. 2011. Greyhound Australia Home Page.
Available at htttp://www.greyhound.com.au (Accessed July 11, 2011).
---------------------------------------------------------------------------
The proposed rule did not address inbound and outbound
transportation to and from the place of employment for corresponding
workers who are unable to return daily to their permanent residences.
The Department estimates an approximate unit cost for each traveling
corresponding worker by taking the average of the cost of a bus ticket
to St. Louis from Fort Wayne, IN ($91), Pittsburgh, PA ($138), Omaha,
NE ($93), Nashville, TN ($86), and Palmdale, CA ($233).\44\ Averaging
the cost of travel from these five cities results in an average one way
cost of $128.20, and a round trip cost of $256.40 (see Table 7).
---------------------------------------------------------------------------
\44\ Greyhound. 2011. Tickets. Available at
https://www.greyhound.com/farefinder/step1.aspx (Accessed July 8, 2011).
[[Page 10125]]
Table 7--Unit Costs of Corresponding Worker Travel
------------------------------------------------------------------------
One way travel to St. Louis Cost
------------------------------------------------------------------------
Fort Wayne, IN............................................... $91
Pittsburgh, PA............................................... 138
Omaha, NE.................................................... 93
Nashville, TN................................................ 86
Palmdale, CA................................................. 233
One way travel--Average...................................... 128
Roundtrip travel............................................. 256
------------------------------------------------------------------------
Source: Greyhound, 2011.
Some employers have expressed concern that the rule's provision
that employers reimburse workers for transportation costs will lead to
workers quitting soon after the start date and thus in effect receiving
a free trip to the city of their employment. The Department has
addressed this concern with a provision that workers are not reimbursed
for inbound travel until they work for half of the job order work
period, and they do not receive outbound travel unless they complete
the work period or are dismissed early. Therefore, this estimate also
is an upper-bound estimate for these reasons as well. Because the
Department has no basis for estimating the number of workers in
corresponding employment who will travel to the job from such a
distance that they are unable to return daily to their permanent
residence, or to estimate what percentage of them will remain on the
job through at least half or all of the job order period, we are unable
to further estimate the total transfer involved.
e. Subsistence Payments
We estimated the transfer related to subsistence payments by
multiplying the annual cap set for the number of H-2B workers generally
entering the U.S. (66,000) by the subsistence per diem ($10.64), and
the roundtrip travel time for the top ten H-2B countries (4 days). In
the Proposed Rule the Department estimated a weighted average roundtrip
travel time of 1.055 days, but in response to a comment from a workers'
advocacy organization the Department has increased this estimate to
account for workers' travel to the consular city to obtain a visa. The
roundtrip travel time now includes 3 days to account for travel from
the worker's home town to the consular city and from the consular city
to the place of employment, and 1 day to account for the workers'
transportation back to their home country. Multiplying by 66,000 new
entrants per year and the subsistence per diem of $10.64 results in
average annual transfers associated with the subsistence per diem of
approximately $2.8 million (see Table 8). Again, this is an upper-bound
estimate because the inbound subsistence reimbursement only is due for
workers who complete 50 percent of the period of the job order and
outbound subsistence is due only for those who complete the full job
order period or are dismissed early.
Table 8--Cost of Subsistence Payments
------------------------------------------------------------------------
Cost component Value
------------------------------------------------------------------------
New entrants per year...................................... 66,000
Subsistence Per Diem....................................... $11
One way travel days--Inbound............................... 3
One way travel days--Outbound.............................. 1
Roundtrip travel days...................................... 4
Total annual subsistence costs--H2B workers............ $2,808,960
------------------------------------------------------------------------
This provision applies not only to H-2B workers, but also to
workers in corresponding employment on H-2B worksites who are recruited
from a distance at which the workers cannot reasonably return to their
residence within the same workday. Assuming that each worker can reach
the place of employment within 1 day and thus would be reimbursed for a
total of 2 roundtrip travel days at a rate of $10.64 per day, each
corresponding worker would receive $21.28 in subsistence payments. The
Department was unable to identify adequate data to estimate the number
of corresponding workers who are unable to return to their residence
daily or, as a consequence, the percent of corresponding workers
requiring payment of subsistence costs; thus the total cost of this
transfer could not be estimated.
f. Lodging for H-2B Workers
The Department received a comment from a workers' advocacy
organization requesting clarification that inbound and outbound
transportation costs include the expenses incurred between their home
community and the consular city and between the consular city and the
place of employment in the U.S. The Department clarifies that the
proposed rule considered any expenses incurred between a worker's
hometown and the consular city to be within the scope of inbound
transportation and subsistence costs, and therefore includes an
additional cost not accounted for in the proposed rule: lodging costs
while H-2B workers travel from their hometown to the consular city to
wait to obtain a visa and from there to the place of employment. The
Department estimates that H-2B workers will spend an average of two
nights in an inexpensive hostel-style accommodation and that the costs
of those stays in consular cities of the ten most common countries of
origin are as follows: Monterrey, $11; Kingston, $13; Guatemala City,
$14; Manila, $7; Bucharest, $11; Pretoria, $19; London, $22; Ottawa,
$30; Tel Aviv, $22; and Canberra, $26.\45\ Using the number of
certified H-2B workers from the top ten countries of origin, we
calculate a weighted average of $11.99 for one night's stay, and $23.98
for two nights' stay. Multiplying by the 66,000 new entrants per year
suggests total transfers associated with travel lodging of $1.6 million
per year (see Table 9). This cost would not apply to U.S. workers.
---------------------------------------------------------------------------
\45\ Lonely Planet. 2011b. Hotels & Hostels Search. Available at
https://hotels.lonelyplanet.com/ (Accessed July 12, 2011).
Table 9--Cost of Lodging for H-2B Workers
------------------------------------------------------------------------
Cost component Value
------------------------------------------------------------------------
New entrants per year................................... 66,000
Nights in Hostel........................................ 2
------------------------------------------------------------------------
City Lodging cost
------------------------------------------------------------------------
onterrey............................................... $11
Kingston................................................ 13
Guatemala City.......................................... 14
anila.................................................. 7
Bucharest............................................... 11
Pretoria................................................ 19
London.................................................. 22
Ottawa.................................................. 30
Tel Aviv................................................ 22
Canberra................................................ 26
Weighted Average--One Night............................. 12
Weighted Average--Two Nights............................ 24
Total Cost of Lodging................................... 1,582,673
------------------------------------------------------------------------
Source: Lonely Planet, 2011b.
g. Visa and Consular Fees
Under the 2008 Final Rule, visa-related fees--including fees
required by the Department of State for scheduling and/or conducting an
interview at the consular post--may be paid by the temporary worker.
This Final Rule, however, requires employers to pay visa fees and
associated consular expenses. Requiring employers to bear the full cost
of their decision to hire foreign workers is a necessary step toward
preventing the exploitation of foreign workers with its concomitant
adverse effect on U.S. workers. As explained in the Preamble,
government-mandated fees such as these are integral to the employer's
choice to use the H-2B program to bring temporary foreign workers into
the United States.
The reimbursement by employers of visa application fees and fees
for scheduling and/or conducting an
[[Page 10126]]
interview at the consular post is a transfer from employers to H-2B
workers. The Department estimates the total cost of these expenses by
adding the cost of an H-2B visa and any applicable appointment and
reciprocity fees. The H-2B visa fee is $150 in all of the ten most
common countries of origin except Canada, where citizens traveling to
the U.S. for temporary employment do not need a visa,\46\ resulting in
a weighted average visa fee of $148. The same countries charge the
following appointment fees: Mexico ($0),\47\ Jamaica ($10),\48\
Guatemala ($12),\49\ Philippines ($10),\50\ Romania ($11),\51\ South
Africa ($0),\52\ the U.K. ($0),\53\ Canada ($0),\54\ Israel ($22),\55\
and Australia ($105),\56\ for a weighted average appointment fee of
$3.05. Additionally, South Africa and Australia charge reciprocity fees
of $85 and $105, respectively, resulting in a weighted average of
$2.48.\57\ Multiplying the weighted average visa cost, appointment fee,
and reciprocity fee by the 66,000 H-2B workers entering the U.S.
annually results in an annual average transfer of visa-related fees
from H-2B employers to H-2B workers of $10.1 million (see Table 10).
Again, this is an upper-bound estimate because many H-2B employers
already are paying these fees in order to ensure compliance with the
FLSA's minimum wage requirements.
---------------------------------------------------------------------------
\46\ U.S. Department of State. 2011a. Citizens of Canada,
Bermuda and Mexico--When is a Visa Required? Available at
https://travel.state.gov/visa/temp/without/without_1260.html (Accessed July
22, 2011).
\47\ Consulate General of the United States--Monterrey--Mexico.
2011. Temporary worker. Available at
https://monterrey.usconsulate.gov/work_visa.html (Accessed July 22, 2011).
\48\ The U.S. Visa Information Service in Jamaica. 2011. How the
Online System Works. Available at https://www.usvisa-jamaica.com/jam/
(Accessed July 22, 2011).
\49\ Embassy of the United States--Guatemala. 2011. Application
Process. Available at
https://guatemala.usembassy.gov/niv_how_to_apply.html#appointment
(Accessed July 22, 2011).
\50\ Embassy of the United States--Manila--Philippines. 2011.
Visa PointTM--The Online Visa Information and Appointment
System. Available at https://manila.usembassy.gov/wwwhvpnt.html
(Accessed July 22, 2011).
\51\ Embassy of the United States--Bucharest--Romania. 2011. Non
Immigrant Visas. Available at
https://romania.usembassy.gov/visas/visa_application_process.html
(Accessed July 22, 2011).
\52\ The U.S. Visa Information Service in South Africa. 2011.
Fee Payment Options. Available at
https://usvisa-info.com/en-ZA/selfservice/us_fee_payment_options
(Accessed July 22, 2011).
\53\ Embassy of the United States--London--U.K. 2011. MRV
Application Fee. Available at https://london.usembassy.gov/fee.html
(Accessed July 22, 2011).
\54\ U.S. Department of State. 2011a. Citizens of Canada,
Bermuda and Mexico--When is a Visa Required? Available at
https://travel.state.gov/visa/temp/without/without_1260.html
(Accessed July 22, 2011).
\55\ VisaPoint--Tel Aviv--Jerusalem. 2011. Create New Login.
Available at
https://visainfo.us-visaservices.com/Forms/CreateGroupUser.aspx
(Accessed July 22, 2011).
\56\ Embassy of the United States--Canberra--Australia. 2011.
Nonimmigrant Visas. Available at
https://canberra.usembassy.gov/niv_fees.html (Accessed July 22, 2011).
\57\ U.S. Department of State. 2011b. Reciprocity by Country.
Available at https://travel.state.gov/visa/fees/fees_3272.html
(Accessed July 22, 2011).
Table 10--Cost of Visa and Consular Fees
------------------------------------------------------------------------
Cost component Value
------------------------------------------------------------------------
New Entrants per Year................................... 66,000
Visa Application Fee:
Mexico................................................ $150
Jamaica............................................... 150
Guatemala............................................. 150
Philippines........................................... 150
Romania............................................... 150
South Africa.......................................... 150
UK.................................................... 150
Canada................................................ 0
Israel................................................ 150
Australia............................................. 150
Weighted Average Visa Fee............................. 148
H2B Visa--Total Costs................................. 9,767,773
Appointment Fee:
Mexico................................................ 0
Jamaica............................................... 10
Guatemala............................................. 12
Philippines........................................... 10
Romania............................................... 11
South Africa.......................................... 0
UK.................................................... 0
Canada................................................ 0
Israel................................................ 22
Australia............................................. 105
Weighted Average Appointment Fee...................... 3
Appointment Fee--Total Costs.......................... 201,439
Reciprocity Fee:
Mexico................................................ 0
Jamaica............................................... 0
Guatemala............................................. 0
Philippines........................................... 0
Romania............................................... 0
South Africa.......................................... 85
UK.................................................... 0
Canada................................................ 0
Israel................................................ 0
Australia............................................. 105
Weighted Average Reciprocity Fee...................... 2
Reciprocity Fee--Total Costs.......................... 163,922
Total Costs:
Total Visa and Consular Fees.......................... 10,133,134
------------------------------------------------------------------------
Sources: Given in text.
h. Enhanced U.S. Worker Referral Period
The Final Rule ensures that U.S. workers are provided with better
access to H-2B job opportunities by requiring employers to continue to
hire any qualified and available U.S. worker referred to them from the
SWA until 21 days before the date of need, representing an increase in
the recruitment period compared to the baseline. The rule also
introduces expanded recruitment provisions, including requiring
employers to notify their current workforce of the job opportunity and
contact their former U.S. employees from the previous year. The
enhanced recruitment period and activities improve the information
exchange between employers, SWAs, the public and workers about job
availability, increasing the likelihood that U.S. workers will be hired
for those jobs.
The benefits to U.S. workers also apply to sections "i" through
"k" below, which discuss additional provisions aimed at further
improving the recruitment of U.S. workers.
The extension of the referral period in this Final Rule will likely
result in more U.S. workers applying for these jobs, requiring more SWA
staff time to process additional referrals. The Department does not
have estimates of the additional number of U.S. applicants, and thus is
unable to estimate the costs to SWAs associated with this provision.
The Department believes that hiring a U.S. worker will cost
employers less than hiring an H-2B worker, as transportation and
subsistence expenses will likely be reduced, if not avoided entirely.
The cost of visa fees will be entirely avoided if U.S. workers are
hired. Because the Department has not identified appropriate data to
estimate any increase in the number of U.S. workers that might be hired
as a result of the Final Rule's enhanced recruitment, it is unable to
estimate total cost savings. Likewise, the enhanced recruitment period
along with more extensive recruitment activities and a number of
program changes that should make these job opportunities more desirable
should generate an increased number of local referrals for whom no
transportation or subsistence costs will be incurred. Since the number
of such workers cannot be estimated with precision, these cost saving
are not factored into this analysis however we are confident the actual
overall costs to employers for transportation and subsistence will be
lower than the estimates provided here.
i. Additional Recruitment Directed by the CO
Under the Final Rule, an employer may be directed by the CO to
conduct additional recruitment if the CO has determined that there may
be qualified
[[Page 10127]]
U.S. workers available, particularly when the job opportunity is
located in an area of substantial unemployment. This provision applies
to all employer applicants regardless of whether they ultimately employ
H-2B workers. Therefore, the Department estimates costs using the
average number of unique employer applicants for FY 2000-2007 (6,425),
rather than the average number of employer applicants that ultimately
hire H-2B workers (4,810). The Department conservatively estimates that
50 percent of these employer applicants (3,213) will be directed by the
CO to conduct additional recruitment.
In response to the NPRM, the Department received a comment from an
employer expressing concern that the NPRM understated the cost of
placing a newspaper advertisement that would capture all the
requirements of proposed 20 CFR 655.41. The Department reexamined its
original estimate ($25.09), agrees that it was too low, and has updated
the original calculation. While the cost estimate has increased, it
does not reflect any additional advertising requirements beyond those
proposed. The higher estimate is rather a more accurate reflection of
the cost of an advertisement of sufficient length to include the
required information and assurances contained in 20 CFR 655.41. The
Department also updated the mix of newspapers used in the analysis to
better represent different sized communities in areas in which a
significant number of H-2B positions were certified in FY 2009.\58\
---------------------------------------------------------------------------
\58\ The calculation in the NPRM included classified advertising
rates from five newspapers (Augusta Chronicle, Huntsville Times, Los
Alamos Monitor, San Diego Union-Tribune, and Advertiser Times in
Detroit) not included in this final analysis and one newspaper that
is included (Austin Chronicle).
---------------------------------------------------------------------------
To estimate the cost of a newspaper advertisement, we calculated
the cost of placing a classified advertisement in the following
newspapers: Virginia-Pilot ($725),\59\ Austin Chronicle ($120),\60\
Gainesville Sun ($337),\61\ Plaquemines (LA) Gazette ($50),\62\ Aspen
Times ($513),\63\ and Branson Tri-Lakes News ($144),\64\ for an average
cost of $315. Employers may use other means of recruiting, such as
listings on Monster.com ($375) \65\ and Career Builder ($419).\66\
Because so many newspapers include posting of the advertisement on
their Web sites and/or Career Builder in the cost of the print
advertisement, we based the estimate on the cost of newspaper
recruiting. Multiplying the number of unique employer applicants who
will be directed to conduct additional recruitment by the average cost
of a newspaper advertisement ($315) results in a total cost for
newspaper ads of $1.01 million.
---------------------------------------------------------------------------
\59\ https://selfserve.pilotezads.com/vp-adportal/classified/index.html.
\60\ Austin Chronicle. 2011. Place an Ad. Available at
https://ssl.austinchronicle.com/gyrobase/PlaceAd (Accessed August 1, 2011).
\61\ https://gainesvillesun.adperfect.com/.
\62\ https://plaqueminesgazette.com/?page_id=118).
\63\ https://classifieds.swiftcom.com/webentry/url/consumer/c_category.html.
\64\ Data collected by phone interview with a member of
classified staff, August 12, 2011.
\65\ Monster.com. 2011. Job Postings Inventory. Available at
https://hiring.monster.com/indexProspect.Redux.aspx (Accessed August
8, 2011).
\66\ CareerBuilder. 2011. Job Posting. Available at
https://www.careerbuilder.com/JobPoster/ECommerce/
CartOrderSummary.aspx?cblid=epjobbtn&sc_cmp2=JP_HP_PostJobButton&sslRedirectCnt=1
(Accessed August 9, 2011).
---------------------------------------------------------------------------
The Department estimates that no more than 10 percent of employer
applicants (i.e., 20 percent of those directed to conduct additional
recruiting) will need to translate the advertisement in order to
recruit workers whose primary language is not English. The Department
calculated translation costs by creating a weighted average based on
U.S. Census data on the top five non-English languages spoken in the
home \67\ and the cost of translating a one-page document from English
to Spanish ($25.50), Chinese ($28.50), Tagalog ($28.50), French
($25.50), and Vietnamese ($28.50), for a weighted average cost of
$25.88.\68\ Multiplying the number of employers performing translation
(643) by the weighted average translation cost results in total
translation costs of $16,627.
---------------------------------------------------------------------------
\67\ U.S. Census Bureau. 2008. Population: Ancestry, Language
Spoken At Home--Table 53: Languages Spoken at Home by Language.
Available at
https://www.census.gov/compendia/statab/cats/population/
ancestry_language_spoken_at_home.html (Accessed August 3, 2011).
\68\ LanguageScape. 2011. How it Works--Cost Calculator.
Available at https://www.languagescape.com/how_works_1.asp
(Accessed June 7, 2011).
---------------------------------------------------------------------------
To account for labor costs in posting additional ads, the
Department multiplied the estimated number of unique employer
applicants required to conduct additional recruiting (3,213) by the
estimated time required to post the advertisement (0.08 hours, or 5
minutes) and the loaded hourly compensation rate of an administrative
assistant/executive secretary ($28.77). The result, $0.01 million, was
added to the average annual cost of CO-directed recruiting activities
for a total of approximately $1.1 million (see Table 11).
Table 11--Cost of Additional Recruiting
------------------------------------------------------------------------
Cost component Value
------------------------------------------------------------------------
Number of unique H-2B employer applicants............ 6,425
Percent directed to conduct additional recruiting.... 50%
Employer applicants conducting additional recruiting. 3,213
Newspaper Advertisement:
Newspaper advertisement--Unit cost............... $315
Total Cost of Newspaper Ad....................... $1,011,274
Translating Newspaper Advertisement:
Percent workers needing translation.............. 10%
Employers performing translation................. 643
English to Spanish Translation................... $26
English to Chinese Translation................... $29
English to Tagalog Translation................... $29
English to French Translation.................... $26
English to Vietnamese Translation................ $29
Weighted Average Translation Cost................ $26
Total Cost of Translation........................ $16,627
Labor to Post Newspaper Ad:
Time to post advertisement....................... 0.08
Administrative Assistant hourly wage w/fringe.... $29
Administrative Assistant labor per ad............ $2
Total Cost of Labor to Post Newspaper Ad......... $7,701
[[Page 10128]]
Total Cost:
Total Cost of Additional Recruiting.............. $1,035,601
------------------------------------------------------------------------
Sources: BLS, 2011a; BLS, 2011b; U.S. Census, 2008; LanguageScape, 2011;
Branson Tri-Lake News; Aspen Times; Austin Chronicle; Gainesville Sun;
Plaquemines Gazette; Virginia-Pilot.
It is possible that employers will incur costs from interviewing
applicants who are referred to H-2B employers by the additional
recruiting activities. However, the Department is unable to quantify
the impact.
j. Cost of Contacting Labor Organizations
The analysis performed for the Proposed Rule included a cost for
employers to contact the local union to locate qualified U.S. workers
when seeking to fill positions in occupations and industries that are
traditionally unionized. Under this Final Rule, union notification is
the responsibility of the SWA, and no costs to employers are included.
k. Electronic Job Registry
Under the Final Rule, the Department will post and maintain
employers' H-2B job orders, including modifications approved by the CO,
in a national and publicly accessible electronic job registry. The
electronic job registry will serve as a public repository of H-2B job
orders for the duration of the referral period. The job orders will be
posted in the registry by the CO upon the acceptance of each submitted
Application for Temporary Employment Certification. The posting of the
job orders will not require any additional effort on the part of H-2B
employers or SWAs.
i. Benefits
The electronic job registry will improve the visibility of H-2B
jobs to U.S. workers. In conjunction with the longer referral period
under the Final Rule, the electronic job registry will expand the
availability of information about these jobs to U.S. workers, and
therefore improve their employment opportunities. In addition, the
establishment of an electronic job registry will provide greater
transparency of the Department's administration of the H-2B program to
the public, members of Congress, and other stakeholders. Transferring
these job orders into electronic records for the electronic job
registry will result in a more complete, real-time record of job
opportunities for which H-2B workers are sought. Employers seeking
temporary workers, in turn, will likely experience an increase in job
applications from U.S. workers, and thus may not incur the additional
expenses of hiring H-2B workers. The Department, however, is not able
to estimate the increase in job applications resulting from the
electronic job registry, and thus is unable to quantify this benefit.
ii. Costs
The establishment of an electronic job registry in this Final Rule
represents increased maintenance costs to the Department. The
Department has reduced its cost estimates from the proposed rule as it
can rely on design and development resources already used in
implementing the H-2A job registry. The Department estimates that first
year costs will be 25 percent of the first year costs under the H-2A
program (25 percent of $561,365, or $140,341) and that subsequent year
costs will be 10 percent of the costs under the H-2A program (10
percent of $464,341, or $46,434). Using the loaded hourly rate for all
relevant labor categories ($1,238) suggests that 113 labor hours will
be required in the first year, and 38 labor hours will be required in
subsequent years (see Table 12).
Table 12--Cost of Electronic Job Registry
------------------------------------------------------------------------
Cost component Value
------------------------------------------------------------------------
Sum of All Labor Category Loaded Wages..................... $1,238
Registry development and maintenance hours--Year 1......... 113
Registry maintenance hours--Year 2-10...................... 38
Cost to DOL to Maintain Job Registry--Year 1............... $140,341
Cost to DOL to Maintain Job Registry--Year 2-10............ $46,434
------------------------------------------------------------------------
l. Disclosure of Job Order
The Final Rule requires an employer to provide a copy of the job
order to H-2B workers outside of the United States no later than the
time at which the worker applies for the visa, and to a worker in
corresponding employment no later than the day that work starts. For H-
2B workers changing employment from one certified H-2B employer to
another, the copy must be provided no later than the time the
subsequent H-2B employer makes an offer of employment. The job order
must be translated to a language understood by the worker.
We estimate two cost components for the disclosure of job orders:
The cost of reproducing the document containing the terms and
conditions of employment, and the cost of translation.
The cost of reproducing job orders does not apply to employers of
reforestation workers because the Migrant and Seasonal Agricultural
Worker Protection Act already requires these employers to make this
disclosure in a language common to the worker. According to H-2B
program data for FY 2000-2007, 88.3 percent of H-2B workers work in an
industry other than reforestation, suggesting that the job order will
need to be reproduced for 102,012 (88.3 percent of 115,500) H-2B
workers. We estimate the cost of reproducing the terms and conditions
document by multiplying the number of affected H-2B workers (102,012)
by the number of pages to be photocopied (three) and by the cost per
photocopy ($0.12). The Department estimates average annual costs of
reproducing the document containing the terms and conditions of
employment to be approximately $0.04 million (see Table 13).
For the cost of translation, we assume the provision will impact
only employers who are hiring H-2B workers. Therefore, the Department
uses its estimate of the number of certified employer applicants who
ultimately hire H-2B workers in this calculation. This suggests that
translation costs potentially apply to 3,966 H-2B employers. The
Department estimates that 83.9 percent of H-2B workers from the top ten
countries of origin do not speak English,\69\ so approximately 3,328 H-
2B employers will need to translate their job orders. The Department
assumes that an employer hires all of its H-2B workers from a country
or set of countries that speak the same foreign language; thus, only
one translation is
[[Page 10129]]
necessary per employer needing translation. The Department has updated
its estimates of the cost of translating a three-page document into
English from languages spoken in the top ten countries of origin as
follows: English to Tagalog, $76.50; English to Hebrew/Arabic, $76.50;
English to Romanian, $72.00; and English to Spanish, $67.50.\70\ Using
the percentage of entrants from the top ten countries of origin
produces a weighted average translation cost of $68.00 per job order.
ultiplying the number of H-2B employers who will need to translate the
job order (3,328) by the weighted average cost of translation ($68)
suggests translation costs will total $0.2 million (see Table 13).
---------------------------------------------------------------------------
\69\ U.S. Department of Homeland Security (DHS). 2009. Yearbook
of Immigration Statistics. Available at
https://www.dhs.gov/files/statistics/publications/yearbook.shtm
(Accessed June 12, 2011).
\70\ LanguageScape. 2011. How it Works--Cost Calculator.
Available at https://www.languagescape.com/how_works_1.asp
(Accessed June 7, 2011).
---------------------------------------------------------------------------
Summing the costs of reproducing and translating the job order
results in total costs related to disclosure of the job order of $0.3
million (see Table 13).
Table 13--Cost of Disclosure of Job Order
------------------------------------------------------------------------
Cost component Value
------------------------------------------------------------------------
Reproducing Job Order:
H2B workers...................................... 115,500
Percent workers not in reforestation............. 88.3%
Affected workers................................. 102,012
Pages to be photocopied.......................... 3
Cost per page.................................... $0.12
Cost per job order............................... $0.36
Total Cost of Reproducing Document............... $36,724
Translating Job Order:
Scaled number of unique certified H-2B employers. 3,966
Percent workers needing translation.............. 83.9%
Employers performing translation................. 3,328
English to Tagalog--3 page document, 3 day $77
delivery........................................
English to Hebrew/Arabic--3 page document, 3 day $77
delivery........................................
English to Romanian--3 page document, 3 day $72
delivery........................................
English to Spanish--3 page document, 3 day $68
delivery........................................
Weighted average translation cost................ $68
Total Translation Cost........................... $226,337
Total Cost:
Total Cost of Disclosure of Job Order............ $263,061
------------------------------------------------------------------------
Sources: DHS, 2009; LanguageScape, 2011.
m. Elimination of Attestation-Based Model
The 2008 Final Rule used an attestation-based model: employers
conducted the required recruitment before submitting an Application for
Temporary Employment Certification and, based on the results of that
effort, applied for certification from the Department for a number of
foreign workers to fill the remaining openings. Employers simply
attested that they had undertaken the necessary activities and made the
required assurances to workers. The Department has determined that this
attestation-based model does not provide sufficient protection to
workers. In eliminating the attestation-based model, the recruitment
process under this rule now occurs after the Application for Temporary
Certification is filed so that employers have to demonstrate--and not
merely attest--that they have performed an adequate test of the labor
market. Therefore, the primary effect of eliminating the attestation
based-model is to change the timing of recruitment rather than a change
in substantive requirements.
The return to a certification model in which employers demonstrate
compliance with program obligations before certification will improve
worker protections and reduce various costs for several different
stakeholders. Greater compliance will provide improved administration
of the program, conserving government resources at both the State and
Federal level. In addition, employers will be subject to fewer requests
for additional information and denials of Applications, decreasing the
time and expense of responding to these Department actions. Finally, it
will result in the intangible benefit of increased H-2B visa
availability to those employers who have conducted bona fide
recruitment around an actual date of need. The Department, however, is
not able to estimate the economic impacts of these several effects and
is therefore unable to quantify the related benefits.
The elimination of the attestation-based model will impose minimal
costs on employers because they will not be required to produce new
documents, but only to supplement their recruitment report with
additional information (including the additional recruitment conducted,
means of posting the job opportunity, contact with former U.S. workers,
and contact with labor organizations where the occupation is
customarily unionized).
We estimated two costs for the elimination of the attestation-based
model: The material cost of reproducing and mailing the documents, and
the associated labor cost. The Department estimated material cost equal
to $2,023, calculated by multiplying the scaled number of H-2B
employers (3,966) by the estimated additional number of pages that must
be submitted (three) and the additional postage required to ship those
pages ($0.17). Estimated labor cost of $9,087 was calculated by
multiplying the scaled number of H-2B employers (3,966) by the time
needed to reproduce and mail the documents (0.08 hours, or 5 minutes)
and the hourly labor compensation of an administrative assistant/
executive secretary ($28.77). Summing these two components results in
incremental costs of $11,531 per year associated with the elimination
of the attestation-based model (see Table 14).
[[Page 10130]]
Table 14--Cost of Elimination of Attestation-Based Model
------------------------------------------------------------------------
Cost component Value
------------------------------------------------------------------------
Postage Costs:
Scaled number of unique certified H-2B employers. 3,966
Additional pages to submit....................... 3
Additional postage............................... $0.17
Total Postage Costs.............................. $2,023
Labor Costs to Photocopy and Mail Documents:
Scaled number of unique certified H-2B employers. 3,966
Labor time to photocopy and mail documents 0.08
(hours).........................................
Administrative Assistant hourly wage with fringe. $29
Total Labor Costs to Photocopy and Mail Documents $9,508
Total Cost:
Total Costs of Elimination of Attestation-Based $11,531
Model...........................................
------------------------------------------------------------------------
Sources: BLS, 2011a; BLS, 2011b.
n. Document Retention
Under the Final Rule, H-2B employers must retain documentation in
addition to that required by the 2008 Final Rule. The Department
assumes that each H-2B employer will purchase a filing cabinet at a
cost of $49.99 \71\ (an increase of the proposed rule estimate of
$21.99) in which to store the additional documents starting in the
first year of the rule. To obtain the cost of storing documents, we
multiply the scaled number of H-2B employers (6,425) by the cost per
file cabinet for a total one-time cost of $0.3 million (see Table 15).
This cost is likely an overestimate, since the 2008 Final Rule also
required document retention and many employers who already use the H-2B
program will already have bought a file cabinet to store the documents
they must retain under that rule.
---------------------------------------------------------------------------
\71\ Prices at Stapes, the source cited in the proposed rule,
have risen to $69.99. The current price is for a similar item at a
lower price. OfficeMax. 2011. Vertical File Cabinets. Available at
https://www.officemax.com/office-furniture/file-cabinets-accessories/
vertical-file-
cabinets?history=utozftma%7CcategoryId%7E10001%5EcategoryName%7EOffic
e%2BFurniture%5EparentCategoryID%7Ecategory--
root%5EprodPage%7E25%5Eregion%7E1%40porkedzu%7CcategoryId%7E40%5Ecate
goryName%7EFile%2BCabinets%2B%2526%2BAccessories%5EparentCategoryID%7
Ecat--
10001%5EprodPage%7E25%5Eregion%7E1%5Erefine%7E1%40wih8mfsy%7CprodPage
%7E15%5Erefine%7E1%5Eregion%7E1%5EcategoryName%7Evertical-file-
cabinets%5EcategoryId%7E91%5EparentCategoryID%7Ecat--
40&view=list&position=1&prodPage=15&sort=Price+%28Low-High%29
(Accessed July 11, 2011).
Table 15--Cost of Document Retention
------------------------------------------------------------------------
Cost component Value
------------------------------------------------------------------------
Scaled number of unique certified H-2B employers........... 6,425
Filing cabinet............................................. $50
Total Document Retention Costs............................. $321,186
------------------------------------------------------------------------
Source: OfficeMax, 2011.
o. Departure Time Determination
The Proposed Rule would have required employers to notify the local
SWA of the time at which the last H-2B worker departs for the place of
employment, if the last worker has not departed for the work site at
least 3 days before the date of need. Under the Final Rule, the
obligation to hire U.S. workers will end 21 days before the date of
need and the employer is not required to provide any notice to the
local SWA, thus eliminating the costs associated with this proposed
provision.
p. SWA Administrative Burden
Under this Final Rule, SWAs will see both additions to and
reductions from its current, baseline workload. Additional
responsibilities that the SWAs will take on include contacting labor
organizations to inform them about a job opportunity when the
occupation or industry is customarily unionized, and accepting and
processing a likely higher number of U.S. applicants during the newly
extended recruitment period. The Department, however, does not have
reliable data to measure these increased activities and is therefore
unable to provide an estimate of any increased workload.
In contrast, SWAs will no longer be responsible for conducting
employment eligibility verification activities. These activities
include completion of Form I-9 and vetting of application documents by
SWA personnel.
Under the 2008 Final Rule, SWAs are required to complete Form I-9
for applicants who are referred through the SWA to non-agricultural job
orders, and inspect and verify the employment eligibility documents
furnished by the applicants. Under this Final Rule SWAs will no longer
be required to complete this process, resulting in cost savings. Due to
a lack of data on the number of SWA referrals, we are not able to
quantify this benefit.
q. Read and Understand the Rule
During the first year that the Final Rule will be in effect, H-2B
employer applicants will need to learn about the new processes and
requirements. We estimate the cost to read and understand the rule by
multiplying the average number of unique H-2B employer applicants in FY
2000-2007 (6,425) by the time required to read the new rule and
associated educational and outreach materials (3 hours), and the loaded
hourly wage of a human resources manager ($62.17). In the first year of
the rule, this amounts to approximately $1.2 million in labor costs
(see Table 16).
Table 16--Cost To Read and Understand Rule
------------------------------------------------------------------------
Cost component Value
------------------------------------------------------------------------
Number of unique H-2B employer applicants.................. 6,425
Time to read rule and materials............................ 3
HR Manager hourly wage..................................... $62
Total Cost to Read and Understand Rule..................... $1,198,418
------------------------------------------------------------------------
Sources: BLS, 2011a; BLS, 2011c.
r. Job Posting Requirement
The Final Rule requires employers applying for H-2B certification
to post a notice of the job opportunity in two conspicuous locations at
the place of anticipated employment (when there is no union
representative) for at least 15 consecutive days. This provision
entails additional reproduction costs. To obtain the total cost
incurred due to the job posting requirement, we multiplied the
[[Page 10131]]
average number of unique H-2B employer applicants FY 2000-2007 (6,425)
by the cost per photocopy ($0.12) and the number of postings per place
of employment (2), which amounts to $1,542 per year (see Table 17).
Table 17--Cost of Job Posting Requirement
------------------------------------------------------------------------
Cost component Value
------------------------------------------------------------------------
Number of unique H-2B employer applicants.................. 6,425
Job Postings per Website................................... 2
Cost per photocopy......................................... $0.12
Total Cost to Post Job Opportunity......................... $1,542
------------------------------------------------------------------------
s. Workers' Rights Poster
In addition, the Final Rule requires employers to post and maintain
in a conspicuous location at the place of employment a poster provided
by the Secretary which sets out the rights and protections for workers.
The poster must be in English and, to the extent necessary and as
provided by the Secretary, foreign language(s) common to a significant
portion of the workers if they are not fluent in English. To estimate
the cost of producing workers' rights posters, we multiply the
estimated number of H-2B employers (6,425) by the cost of downloading
and printing the poster ($0.12). In total, the cost of producing
workers' rights posters is $771 per year (see Table 18). If an employer
needs to download and print additional versions of the poster in
languages other than English, this would result in increased costs.
Table 18--Cost of Workers' Rights Poster
------------------------------------------------------------------------
Cost component Value
------------------------------------------------------------------------
Number of unique certified H-2B employers.................. 6,425
Cost per Poster............................................ $0.12
Total Cost of Workers' Rights Poster....................... $771
------------------------------------------------------------------------
5. Summary of Cost-Benefit Analysis
Table 19 presents a summary of the costs associated with this Final
Rule. Because of data limitations on the number of corresponding
workers and U.S. workers expected to fill positions currently held by
H-2B workers, the Department was not able to monetize any costs of the
rule that would arise as a result of deadweight losses associated with
higher employment costs under the Final Rule. However, because the size
of the H-2B program is limited, the Department expects that any
deadweight loss would be small.
The monetized costs displayed are the yearly summations of the
calculations described above. The total undiscounted costs of the rule
in Years 1-10 are expected to total approximately $15.2 million.
Table 19--Total Costs--Undiscounted
----------------------------------------------------------------------------------------------------------------
Cost component Year 1 costs Year 2-10 costs Year 1-10 costs
----------------------------------------------------------------------------------------------------------------
Transfers:
Corresponding Workers' Wages--90 Percent.............. $17,517,500 $17,517,500 $17,517,500
Corresponding Workers' Wages--75 percent.............. 52,552,500 52,552,500 525,525,000
Transportation........................................ 61,328,243 61,328,243 613,282,432
Subsistence........................................... 2,808,960 2,808,960 28,089,600
Lodging............................................... 1,582,673 1,582,673 15,826,727
Visa and Border Crossing Fees......................... 10,133,134 10,133,134 101,331,343
Total Transfers--Low.................................. 93,370,510 93,370,510 933,705,103
Total Transfers--High................................. 128,405,510 128,405,510 1,284,055,103
Annual Costs to Employers:
Additional Recruiting................................. 1,035,601 1,035,601 10,356,014
Disclosure of Job Order............................... 263,061 263,061 2,630,608
Elimination of Attestation-Based Model................ 11,531 11,531 115,307
Post Job Opportunity.................................. 1,542 1,542 15,420
Workers Rights Poster................................. 771 771 7,710
Total Annual Costs to Employers....................... 1,312,506 1,312,506 13,125,058
First Year Costs to Employers:
Read and Understand Rule.............................. 1,198,418 0 1,198,418
Document Retention.................................... 321,186 0 321,186
Total First Year Costs to Employers................... 1,519,603 0 1,519,603
First Year Costs to Government:
Electronic Job Registry............................... 140,341 46,434 558,248
Enhanced U.S. Worker Referral Period.................. Not Estimated Not Estimated Not Estimated
Total First Year Costs to Government.................. 140,341 46,434 558,248
Total Costs:
Total Costs & Transfers--Low.......................... 96,342,961 94,729,450 948,908,012
Total Costs & Transfers--High......................... 131,377,961 129,764,450 1,299,258,012
Total Transfers--Low.................................. 93,370,510 93,370,510 933,705,103
Total Transfers--High................................. 128,405,510 128,405,510 1,284,055,103
Total Costs........................................... 2,972,451 1,358,940 15,202,910
----------------------------------------------------------------------------------------------------------------
Note: Totals may not sum due to rounding.
Summing the present value of the costs in Years 1-10 results in
total discounted costs over 10 years of $10.3 million to $12.8 million
(with 7 percent and 3 percent discounting, respectively) (see Table
20).
[[Page 10132]]
Table 20--Total Costs--Sum of Present Values
------------------------------------------------------------------------
Cost component Year 1-10 costs
------------------------------------------------------------------------
Present Value--7%:
Total Costs & Transfers--Low........................ 623,222,403
Total Costs & Transfers--High....................... 853,195,468
Total Transfers--Low................................ 612,892,890
Total Transfers--High............................... 842,865,955
Total Costs......................................... 10,329,513
Present Value--3%:
Total Costs & Transfers--Low........................ 786,046,544
Total Costs and Transfers--High..................... 1,076,197,666
Total Transfers--Low................................ 773,271,254
Total Transfers--High............................... 1,063,422,377
Total Costs......................................... 12,775,290
------------------------------------------------------------------------
Note: Totals may not sum due to rounding.
Because the Department was not able to monetize any benefits for
this Final Rule due to the lack of adequate data, the monetized costs
exceed the monetized benefits both at a 7 percent and a 3 percent
discount rate.
The Department was unable to identify data to provide monetary
estimates of several important benefits to society, including increased
employment opportunities for U.S. workers and enhancement of worker
protections for U.S. and H-2B workers. These important benefits result
from the following provisions of this Final Rule: transportation to and
from the place of employment, payment of visa and consular fees, the
enhanced U.S. worker referral period, additional recruiting directed by
the CO, the electronic job registry, the job posting requirement, and
enhanced integrity and enforcement provisions. Because the enhanced
referral period extends the time during which jobs are available to
U.S. workers, it increases the likelihood that U.S. workers are hired
for those jobs. In addition, the electronic job registry will improve
the visibility of H-2B jobs to U.S. workers and enhance their
employment opportunities. In addition, the establishment of a
electronic job registry will provide greater transparency with respect
to the Department's administration of the H-2B program to the public,
members of Congress, and other stakeholders. These benefits, however,
are difficult to quantify due to data limitations.
Several unquantifiable benefits result in the form of cost savings.
As more U.S. workers are hired as a result of this Final Rule,
employers will avoid visa and consular fees for positions that might
have otherwise been filled with H-2B workers; it is also likely that
transportation costs will be lower. Under the 2008 Final Rule, SWAs are
required to complete Form I-9 for non-agricultural job orders, and
inspect and verify the employment eligibility documents furnished by
the applicants. Under this Final Rule, SWAs will no longer be required
to complete this process, resulting in cost savings to SWAs. We were
not able to quantify these cost savings due to a lack of data regarding
the number of I-9 verifications SWAs have been performing for H-2B
referrals.
After considering both the quantitative and qualitative impacts of
this Final Rule, the Department has concluded that the societal
benefits of the rule justify the societal costs.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980, as amended (RFA), requires
agencies to prepare regulatory flexibility analyses and make them
available for public comment when proposing regulations that will have
a significant economic impact on a substantial number of small
entities. 5 U.S.C. 603. If the rule is not expected to have a
significant economic impact on a substantial number of small entities,
the RFA allows an agency to certify such, in lieu of preparing an
analysis. See 5 U.S.C. 605. For the reasons explained in this section,
the Department believes this rule is not likely to have a significant
impact on a substantial number of small entities and, therefore, a
Final Regulatory Flexibility Analysis (FRFA) is not required by the
RFA. However, in the interest of transparency we have prepared the
following FRFA to assess the impact of this regulation on small
entities, as defined by the applicable Small Business Administration
(SBA) size standards. The Chief Counsel for Advocacy of the Small
Business Administration was notified of a draft of this rule upon
submission of the rule to OMB under E.O. 12866, as amended,
"Regulatory Planning and Review" (58 FR 51735, Oct. 4, 1993; 67 FR
9385, Feb. 28, 2002; 72 FR 2763, Jan. 23, 2007).
1. Statement of the Need for, and Objectives of, the Rule
The Department seeks to help employers meet their legitimate short-
term temporary labor needs where and when there are no available U.S.
workers and to increase worker protections and strengthen program
integrity under the H-2B labor certification program. The legal basis
for the rule is the Department's authority, as delegated from DHS under
8 U.S.C. 1184(c) and its regulations at 8 CFR 214.2(h)(6), to grant
temporary labor certifications under the H-2B program.
The Department has determined for a variety of reasons that a new
rulemaking effort is necessary for the H-2B program. The Department
believes that the practical ramifications of the 2008 Final Rule (e.g.,
streamlining the H-2B process to defer many determinations of program
compliance until after an application has been adjudicated,
inadequately protecting U.S. workers who may be paid less than H-2B
workers performing the same jobs, failing to ensure the integrity of
the program by not requiring employers to guarantee U.S. and H-2B
employees work for any number of weeks during the period of the job
order) have undermined the program's intended protection of both U.S.
and foreign workers.
The protections in this rule are essential to meet the regulatory
mandate to prevent adverse effect on wages and working conditions for
U.S. workers, including measures to ensure greater access to jobs for
U.S. workers through enhanced recruitment in order to satisfy the
statutory requirement that certifications be granted only if no U.S.
workers are available.
Additionally, the rule seeks to help employers meet legitimate
short-term temporary labor needs where and when there are no available
U.S. workers. As the program has evolved, stakeholders in diverse
industries throughout the country repeatedly have expressed concerns
that some employers were inappropriately using H-2B workers for job
opportunities that were permanent, thereby denying U.S. workers the
opportunity for long-term employment. These employers' actions are to
the detriment of other employers with a legitimate temporary need that
are ultimately denied access to the program due to the annual cap on
available visas. By preventing employers with a long-term permanent
need from participating in the H-2B program, the Department would
provide employers with genuine unmet temporary needs with a greater
opportunity to participate in the program.
For these reasons the Department is promulgating the changes
contained in the Final Rule.
2. Comments Filed by the Chief Counsel for Advocacy of the Small
Business Administration and Significant Issues Raised by the Public to
the Proposed Rule, the Department's Response, and Changes Made as a
Result of the Comments
The Department received and carefully considered written comments
[[Page 10133]]
to the proposed rule submitted by the Chief Counsel for Advocacy of the
SBA (Advocacy), along with written comments and significant regulatory
alternatives from small businesses and their representatives. We also
considered feedback gathered during an April 26, 2011 roundtable
discussion conducted by the SBA which included Department
representatives, small businesses, and the SBA itself. A brief summary
of significant comments and Department responses follows, but because
the concerns of Advocacy and small businesses were largely similar to
those expressed by the wider universe of all employers, the preceding
preamble sections contain far more extensive responses and
explanations.
Advocacy stated that the economic impact calculated in the IRFA was
underestimated because it failed to account for higher wages that
employers may have to pay resulting from a separate rule published by
the Department on January 13, 2011 changing the way H-2B prevailing
wages are determined. Further, Advocacy believed that the IRFA also
underestimated the proportion of small businesses that would be
impacted. An employer association commented that in order to accurately
assess the proposed rule's impact to small businesses, the Department
could have conducted a survey to identify the number of small
businesses affected and the number in each of the industry sectors that
commonly uses the H-2B program.
In response to Advocacy's assertions, the Department notes that it
accounted for the full cost impact of the January 2011 prevailing wage
Final Rule in that rule's FRFA. Regarding this rule's IRFA calculation
of the proportion of small businesses affected, the Department
evaluated the economic impact across 1.1 million employers, which
represents all small businesses (according to the SBA's definition of a
small entity) within the five most common industries using the H-2B
program. In calculating the impact of this rule, the Department used
this universe of small businesses to be consistent with SBA guidance
(see A Guide for Government Agencies: How to Comply with the RFA, Small
Business Administration, at 20: "the substantiality of the number of
businesses affected should be determined on an industry-specific basis
and/or the number of small businesses overall.") and because any of
those small employers could request certification for H-2B workers. In
the Application for Temporary Employment Certification, the Department
only recently added a non-mandatory field asking for annual dollar
revenue and therefore cannot determine how many H-2B employers
typically are small businesses. The Department did not conduct its own
small business surveys as an employer association suggested because
doing so would have required an extended clearance process under the
Paperwork Reduction Act, a process that would have been impossible to
fulfill given the time constraints. Instead, we relied on other, more
expeditious methods to estimate data. However, even if all 6,980
employers that receive H-2B certifications in an average year were, in
fact, small businesses, this Final Rule would not impact a substantial
number of small entities because it would only affect less than 1
percent of all small businesses.
An employer association also commented that proposed provisions
would remove most temporary labor supply services from H-2B program
eligibility, and that the IRFA failed to account for the lost revenue
to these U.S. businesses. While the NPRM proposed to eliminate all job
contractors from participating in the H-2B program, the Final Rule
allows job contractors to continue to participate in the program only
if they are able to demonstrate through documentation their own one-
time occurrence or seasonal need, and not that of their employer-
clients. The Department recognizes that while providing necessary
protections to U.S. workers, this rulemaking may also result in some
small businesses receiving fewer, or no, temporary labor
certifications. However, in typical years, demand for H-2B visas
exceeds the program's annual statutory cap of 66,000, meaning that
other small businesses will benefit from the opportunity to have their
H-2B petitions approved. The Department was unable to accurately
project the monetary losses and benefits of scarce visas transitioning
from some employers, and even industries, to others.
Though this rulemaking will not impose a significant economic
burden on a substantial number of small businesses, the Department did
make a number of changes to the proposed rule that should alleviate
many of the concerns Advocacy expressed and that were expressed in the
comments received from other small business employers. For instance,
Advocacy, other employers, and their representatives articulated the
difficulty of fulfilling the three-fourths guarantee in 4-week
increments given unpredictability of the weather, acts of God, and acts
of man. As explained further in the preamble to 20 CFR 655.20(f) and
(g), the Department responded by extending the length of the three-
fourths guarantee calculation period to 12 weeks (for job orders that
last 120 days or longer, which is the vast majority of job orders) and
to 6 weeks (for job orders lasting less than 120 days). We also added
catastrophic man-made events such as oil spills or controlled flooding
to the proposed list of triggers that employers could use to request
cancellation of job orders, send workers home, and relief from
obligations such as the three-fourths guarantee. Though Advocacy
describes as a burden the small business employer's requirement to
inform the CO in a timely manner after a catastrophic event, the
Department maintains that it is a relatively low threshold to meet in
order to seek termination of the job order.
Small business owners who participated in Advocacy's roundtable
discussion were most concerned about the proposed requirement that
employers continue to accept SWA referrals of U.S. applicants until 3
days before the date of need or the time of the last H-2B worker's
departure, whichever is later. The provision also required employers to
inform the SWA if the last H-2B worker had not departed by 3 days
before the start of the job order, and to notify the SWA of the new
departure date when available so the SWA would know when to stop
referring qualified U.S. workers. The concerns of the roundtable
participants were consistent with comments submitted by many other
businesses in response to these proposed changes. Some small businesses
called the provision unworkable and claimed it would disrupt their
hiring and training plans. As explained more in depth in the preamble
to 20 CFR 655.20(t), the Department believes the current recruitment
period--a 10-day window that occurs up to 4 months before the date of
need--is far too short and takes place too far in advance of the job
order's start date for U.S. applicants to realistically be able to
apply. As such, the existing 10-day recruitment period compromises the
Department's regulatory mandate to grant H-2B certifications only after
ensuring that no qualified U.S. workers are available. However, based
upon the comments from small businesses and Advocacy about the
potential burdens of this provision, this Final Rule has been changed.
The referral period has been reduced so that it ends 21 days before the
date of need. Additionally, employers are no longer obligated to
continue accepting U.S. applicants after
[[Page 10134]]
that point, a change that eliminates the related SWA notification
requirements.
Advocacy expressed its belief that the IRFA underestimated its
members' exposure to inbound travel expenses, asserting that the price
premium on tickets purchased close to the date of need and the cost of
transporting U.S. workers represent significant burdens to employers
and were not accounted for in the original cost estimates. Because this
Final Rule changed the last day an employer must hire U.S. applicants
to 21 days before the date of need, the Department does not calculate
the extra cost of refundable fares. The FRFA responds to Advocacy's
request to account for the transportation of corresponding workers and
estimates a per ticket cost to and from the workplace. Moreover, as
discussed in the preamble to 20 CFR 655.20(j), this Final Rule also
responds to small business concerns about U.S. worker travel by
providing that employers may require workers to complete 50 percent of
the period of employment before reimbursing the reasonable costs of
inbound travel and subsistence if the employer has not already paid for
or reimbursed such costs. Further, employers will be required to pay
the costs of outbound transportation only for workers who complete the
job order period of employment or are dismissed early. And to the
extent that employers do hire qualified U.S. applicants responding to
national job registry postings and requiring inbound travel, this FRFA
estimates that the costs of their travel expenses would be a fraction
of those for foreign workers. In addition, hiring these U.S. workers
would not require employers to pay the visa or consular expenses
related to bringing in workers from foreign countries.
Advocacy cited comments from small businesses that use the H-2B
program expressing concern that the new, potentially higher wage rates
under the recently changed prevailing wage determination process will
interact with the proposed rule's corresponding employment provision,
forcing employers to raise payroll across their entire workforce. For
example, small landscape companies worried that temporarily assigning
to a landscaping supervisor the duties of a landscape laborer who has
called in sick would require all laborers to be paid the supervisor's
higher wage rate. As discussed in more depth in the preamble to 20 CFR
655.5, this landscape example and other similar examples in the
employer comments represent a misunderstanding of what the definition
of corresponding employment requires: Corresponding workers who perform
substantially the same work specified in the job order or substantially
the same work that H-2B workers actually perform are entitled to at
least the same wage rate as the H-2B workers. Employers are not
required to apply corresponding employment in the other direction and,
in this example, pay laborers the same wage paid to the supervisors.
Advocacy also articulated small businesses' recommendation that the
Department reconsider the corresponding worker provision because it may
impose too great a cost on small H-2B employers. After carefully
considering Advocacy's comments and other comments submitted separately
from small businesses, the definition of corresponding employment was
retained with modifications (also fully discussed in the preamble to 20
CFR 655.5) because it is a critical component in the Department's
mandate to protect similarly employed U.S. workers from adverse impacts
of the H-2B program; however, the Department did modify the definition
to clarify that occasional, insignificant instances of overlapping job
duties would not transform a U.S. worker employed in one job into
someone in corresponding employment with an H-2B worker employed in
another job.
Advocacy also challenged the IRFA's lack of data which prevented
the Department from calculating the effects of corresponding
employment. Similarly, an employer association commented that the
Department could have conducted its own corresponding employment survey
to solve any gaps in data. Both organizations stated that the
Department could have used an assumed value of 50 percent to estimate
the ratio of corresponding workers to H-2B workers, purportedly similar
to an estimate used elsewhere in the IRFA. The Department appreciates
the proffered solutions and notes that the proposed rule requested that
the public suggest data sources we could use to estimate corresponding
employment. No such sources were ultimately provided. However, pursuing
a statistically valid survey would not only have been prohibitively
time-consuming given the Department's time constraints, but also would
have required a lengthy clearance process under the Paperwork Reduction
Act. The 50 percent estimate found in the IRFA was used in a different
context and would have been an inappropriate and misguided way to
estimate the ratio of corresponding workers to H-2B workers. In
reality, the prevalence of corresponding workers spans a very wide
range among businesses: Most comments from employers indicated that
employers use H-2B workers to fill most if not all of their needs;
other businesses commented that they hire very few H-2B workers as a
way to supplement a wider staff only during a seasonal peak. The
Department attempted to use its own data from a random sample of 225
applications to estimate the number of corresponding employees, but as
explained in the Executive Order 12866 section, there were too few
files that contained employee data to be statistically reliable, and
those few files that did contain a breakdown of the numbers of H-2B and
U.S. workers were not from a representative pool of the industries that
participate in the H-2B program. Further, the 34 of the 225 files that
contained payroll data were not a random subset, because the data was
provided in response to an RFI or an audit rather than as a routine
part of the application process. Nevertheless, the Department attempted
to quantify the impact associated with this provision by estimating
that 50 percent of incumbent corresponding workers in a given industry
earn less than the prevailing wage and would have their wages increased
as a result of the Final Rule. Department believes the cost of
providing H-2B prevailing wages to corresponding workers will likely
not be the undue burden that small businesses fear, because the
prevailing wage calculation is representative of a typical worker's
wage for a given type of work in a particular area. Since this
calculation uses the current wages received by corresponding U.S.
workers, many, if not most, of the non-H-2B workers will already be
making at least the required prevailing wage rate, and therefore, small
business employers will not be obligated to increase the wages of such
workers. The Department's estimate assumed that workers in
corresponding employment would receive a range of wage increases. The
Department's estimate further assumed that all U.S. workers in
corresponding employment would work 35 hours per week for 39 weeks (the
maximum allowable certification period) in order to determine an upper-
bound estimate. Therefore, the Department believes it has been
responsive to commenter concerns with the cost of the corresponding
employment provision.
Finally, small business participants who attended the SBA
roundtable discussion expressed concerns regarding the proposed
bifurcation of the certification process into registration and
application processes. As Advocacy summarized in its written comments
to the proposed rule, small businesses
[[Page 10135]]
were concerned that the bifurcated process creates many complicated
layers of review by federal and state officials, which may add delays,
requests for information and overall administrative paperwork. A
complete discussion of the new process can be found at the preamble to
20 CFR 655.11. In summary, the Department believes that OFLC and
employers will recognize administrative efficiencies once registration
is introduced and the assessment of temporary need is adjudicated
separately from and in advance of the determination of U.S. worker
availability. In many cases, the determination of temporary need will
be required only once every 3 years, which will reduce RFIs that may
happen annually under the existing application process, reducing the
burden on employers and clearing the way for a more efficient
adjudication of Applications for Temporary Employment Certification and
more effective recruitment of U.S. workers closer to the date of need.
On behalf of SBA's small business members, Advocacy recommended that
the Department reconsider the bifurcated registration and application
processes and retain the current attestation-based system. As explained
in both the NPRM and in RFA Section 1, above, the current application
process does not provide adequate worker protections that are essential
for the Department to meet its regulatory mandates of ensuring that
foreign workers may be employed only if qualified U.S. workers are not
available and that the hiring of H-2B workers will not adversely affect
the wages and working conditions of similarly employed U.S. workers.
3. Description and Estimate of the Number of Small Entities to Which
the Rule Will Apply Definition of a Small Business
A small entity is one that is independently owned and operated and
that is not dominant in its field of operation. The definition of small
business varies from industry to industry to properly reflect industry
size differences. An agency must either use the SBA definition for a
small entity or establish an alternative definition for the industry.
The Department has conducted a small entity impact analysis on small
businesses in the five industries with the largest number of H-2B
workers and for which data were available, as mentioned in the
Executive Order 12866 analysis: Landscaping Services; Janitorial
Services (includes housekeeping services); Food Services and Drinking
Places; Amusement, Gambling, and Recreation; and Construction. These
top five industries accounted for almost 75 percent of the total number
of H-2B job opportunities certified during FY 2007-
2009.72 73 One industry, Forest Services, made the initial
top five list but is not included in this analysis because the only
data available for forestry also include various agriculture, fishing,
and hunting activities. Relevant data for Forestry only were not
available.
---------------------------------------------------------------------------
\72\ According to H-2B program data, the average annual number
of firms (of all sizes) and H-2B workers certified for these
industries during FY2007-2009 were as follows: Landscaping Services,
Firms--2,754, Workers--78,027; Janitorial Services, Firms--788,
Workers--30,902; Food Services and Drinking Places, Firms--851,
Workers--22,948; Amusement, Gambling, and Recreation, Firms--227,
Workers--14,041; and Construction, Firms--860, Workers--30,242.
\73\ As explained above, the distribution of certified job
opportunities might not perfectly reflect the distribution of H-2B
workers; however, it serves as a valuable proxy for the purposes of
this analysis.
---------------------------------------------------------------------------
We have adopted the Small Business Administration (SBA) small
business size standard for each of the five industries, which is a firm
with annual revenues equal to or less than the following:
Landscaping Services, $7 million;
Janitorial Services, $16.5 million;
Construction, $20.7 million; 74 75
---------------------------------------------------------------------------
\74\ U.S. Small Business Administration (SBA). 2010. Table of
Small Business Size Standards Matched to North American Industry
Classification System Codes (effective November 5, 2010). Available
at https://www.sba.gov/content/table-small-business-size-standards.
\75\ The SBA small business size standards for construction
range from $7 million (land subdivision) to $33.5 million (general
building and heavy construction). However, because employers
representing all types of construction businesses may apply for
certification to employ H-2B workers, the Department used an average
of $20.7 million as the size standard for construction.
---------------------------------------------------------------------------
Food Services and Drinking Places, $7 million; and
Amusement, Gambling, and Recreation, $7 million.
In order to convert the SBA's revenue-based definitions to
employment size-class based definitions that can be used in conjunction
with U.S. Census's Statistics of U.S. Businesses data,\76\ the
Department calculated average revenue per firm by employment size class
for the top five industries, and found the largest employment size
class for which average revenue per firm was below the SBA's size
standard. This method obtained the following employment size-class
based definitions (see Table 18):
---------------------------------------------------------------------------
\76\ U.S. Census Bureau. 2007. Statistics of U.S. Businesses.
Available at https://www.census.gov/econ/susb/data/susb2007.html.
While 2008 data were available at the time of this analysis, 2007 is
the most recent year with revenue data included.
Landscaping Services, 499 employees;
Janitorial Services, 499 employees;
Construction, 99 employees;
Food Services and Drinking Places, 99 employees; and
Amusement, Gambling, and Recreation, 499 employees.
Employers seeking to participate in the H-2B program come from
virtually all segments of the economy; those participating businesses
make up a small portion of the industries they represent as well as of
the national economy overall. A Guide for Government Agencies: How to
Comply with the RFA, Small Business Administration, at 20 ("the
substantiality of the number of businesses affected should be
determined on an industry-specific basis and/or the number of small
businesses overall"). Accordingly, the Department believes that the
rule will not impact a substantial number of small entities in a
particular industry or segment of the economy.
Employment in the H-2B program represents a very small fraction of
the total employment in the U.S. economy, both overall and in the
industries represented in the H-2B program. The H-2B program is capped
at 66,000 visas issued per year, and the Department estimates that at
any given time there are 115,500 H-2B workers in the country (66,000
plus 33,000 who return in the second year and 16,500 who return in the
third year). This represents approximately 0.09 percent of total
nonfarm employment in the U.S. economy (129.8 million).\77\ As
described in the Executive Order 12866 analysis, the average annual
number of H-2B workers in the top five industries is small in absolute
terms and relative to total employment in that occupation.
---------------------------------------------------------------------------
\77\ U.S. Bureau of Labor Statistics (BLS). 2011. Employees on
nonfarm payrolls by major industry sector, 1961 to date. Available
at ftp://ftp.bls.gov/pub/suppl/empsit.ceseeb1.txt.
Landscaping Services: 38,073 H-2B workers; 6.5 percent of occupation
Janitorial Services: 15,079 H-2B workers; 1.6 percent of occupation
Construction: 14,756 H-2B workers; 0.2 percent of occupation
Food Services and Drinking Places: 11,197 H-2B workers; 0.1 percent
of occupation
Amusement, Gambling, and Recreation: 6,851 H-2B workers; 0.5 percent
of occupation
The Department receives an average of 8,717 applications from 6,425
unique employer applicants annually. An average of 6,980 of those
applications results in petitions for H-2B workers that are approved by
DHS, of which 5,298 are from unique employer applicants. Even if all
6,980 applications were filed by unique small entities, all of which
were in the top five
[[Page 10136]]
industries, the percentage of small entities authorized to employ
temporary non-agricultural workers will be less than 1 percent of the
total number of small entities in these industries.\78\ Based on this
analysis, the Department estimates that the rule will impact less than
1 percent of the total number of small businesses. A detailed industry-
by-industry analysis is provided below.
---------------------------------------------------------------------------
\78\ The total number of firms classified as small entities in
these industries is as follows: Landscaping Services, 63,210;
Janitorial Services, 45,495; Food Services and Drinking Places,
293,373; Amusement, Gambling, and Recreation, 43,726; and
Construction, 689,040.
---------------------------------------------------------------------------
Regarding the Territory of Guam, this Final Rule applies to H-2B
employers there only in that it requires them to obtain prevailing wage
determinations in accordance with the process defined at 20 CFR 655.10.
To the extent that this process incorporates the new methodology
defined in the January 2011 prevailing wage rule, it is possible that
some H-2B employers in Guam will experience an increase in their H-2B
prevailing wages. The Department expects that the H-2B employers in
Guam working on Federally funded construction projects subject to the
Davis-Bacon and Related Acts (DBRA) are already paying the Davis-Bacon
Act prevailing wage for the classification of work performed and that
such employers may not experience an increase in the wage levels they
are required to pay. Employers performing work ancillary or unrelated
to DBRA projects, and therefore paying a wage potentially lower than
the Davis-Bacon Act prevailing wage, may receive increased prevailing
wage determinations under this Final Rule. However, because the H-2B
program in Guam is administered and enforced by the Governor of Guam,
or the Governor's designated representative, the Department is unable
to quantify the effect of this provision on H-2B employers in Guam due
to a lack of data.
4. Projected Reporting, Recordkeeping, and Other Compliance
Requirements of the Rule
The Department estimated the incremental costs for small businesses
from the baseline. For this rule, the baseline is the 2008 Final
Rule.\79\ This analysis reflects the incremental cost of this rule as
it adds to the requirements in the 2008 Final Rule. Using available
data, we have estimated the costs of the payment of transportation and
subsistence to workers, visa and consular fees, corresponding
employment, the disclosure of job orders, additional recruiting
directed by the CO, the time required to read and review the Final
Rule, and other impacts.
---------------------------------------------------------------------------
\79\ The Department published a revised final rule modifying the
methodology by which prevailing wage rates are calculated for the H-
2B program. 76 FR 3452, Jan. 10, 2011, 76 FR 45667, August 1, 2011.
However, because that final rule is limited to the prevailing wage
rate issue, the baseline for this rule remains the non-prevailing
wage rate provisions of the 2008 Final Rule.
---------------------------------------------------------------------------
To examine the impact of this rule on small entities, the
Department evaluates the impact of the incremental costs on a
hypothetical small entity of average size, in terms of the total number
of both U.S. and foreign workers, in each industry if it were to fill
50 percent of its workforce with H-2B workers. There are no available
data to estimate the breakdown of the workforce into U.S. and foreign
workers. Based on the U.S. Census' Statistics of U.S. Businesses data,
the total number of workers (including both U.S. and foreign workers)
for this hypothetical small business is as follows \80\: Landscaping
Services, 5.3 employees; Janitorial Services, 10.9 employees;
Construction, 6.2 employees; Food Services and Drinking Places, 11.5
employees; and Amusement, Gambling, and Recreation, 13.9 employees.
---------------------------------------------------------------------------
\80\ U.S. Census Bureau. 2007. Statistics of U.S. Businesses.
Available at https://www.census.gov/econ/susb/data/susb2007.html.
Compare to data obtained from H-2B program data for FY 2007-2009,
which indicated that the average annual number of firms (of all
sizes) and H-2B workers certified for these industries during FY
2007-2009 were as follows: Landscaping Services, Firms--2,754,
Workers--78,027, an average of 28 workers per firm; Janitorial
Services, Firms--788, Workers--30,902, an average of 39 workers per
firm; Food Services and Drinking Places, Firms--851, Workers--
22,948, and average of 27 workers per firm; Amusement, Gambling, and
Recreation, Firms--227, Workers--14,041, an average of 62 workers
per firm; and Construction, Firms--860, Workers--30,242, an average
of 35 workers per firm.
---------------------------------------------------------------------------
These data do not distinguish between U.S. workers and foreign
workers. For the purposes of producing a cost estimate, the Department
assumes that 50 percent of these employees are H-2B workers, suggesting
the total number of H-2B workers for the hypothetical small business is
as follows: Landscaping Services, 2.7 H-2B employees; Janitorial
Services, 5.5 H-2B employees; Construction, 3.1 H-2B employees; Food
Services and Drinking Places, 5.7 H-2B employees; and Amusement,
Gambling, and Recreation, 7.0 H-2B employees.
Also using U.S. Census \81\ data, we derived the annual revenues
per small firm for each of the top five industries by dividing total
revenue by total employment. The Department estimates that small
businesses in the top five industries have the following annual
revenues:
---------------------------------------------------------------------------
\81\ U.S. Census Bureau. 2007. Statistics of U.S. Businesses.
Available at https://www.census.gov/econ/susb/data/susb2007.html.
---------------------------------------------------------------------------
Landscaping Services, $0.5 million;
Janitorial Services, $0.4 million;
Construction, $1.3 million;
Food Services and Drinking Places, $0.5 million; and
Amusement, Gambling, and Recreation, $0.8 million.
These key small business data are summarized in Table 21.
Table 21--Profile of Small Firms in the Top Five H-2B Industries
----------------------------------------------------------------------------------------------------------------
Size Size Average H-
standards standards Average 2B Average
Industry in in number Small firms employees employees revenue per
millions of of per small per small small firm
dollars employees firm firm
----------------------------------------------------------------------------------------------------------------
Landscaping Services.............. $7.0 499 91,483 5.3 2.7 $517,105
Janitorial Services............... 16.5 499 50,061 10.9 5.5 425,693
Food Services and Drinking Places. 7.0 99 415,225 11.5 5.7 516,055
Amusement, Gambling, and 7.0 499 65,979 13.9 7.0 846,948
Recreation.......................
Construction \[a]\................ 20.7 99 791,396 6.2 3.1 1,292,201
----------------------------------------------------------------------------------------------------------------
\[a]\ Average of Construction Size Standards.
Sources: SBA, 2011; U.S. Census, 2007.
Several provisions of the rule extend to workers in corresponding
employment, defined in the rule as those non-H-2B workers who perform
substantially the same work included in the job order or substantially
the same
[[Page 10137]]
work performed by H-2B workers, with two exceptions for employees that
meet certain criteria. These provisions include the application of H-2B
wages to workers in corresponding employment, the three-fourths
guarantee, transportation and subsistence payments for workers who
cannot reasonably return to their residence each workday and who
complete the required portion of the job order period, and the
disclosure of the job order. As discussed in the Executive Order 12866
analysis, although there is no statistically valid data available, the
Department has estimated the number of corresponding employees for
purposes of estimating the cost of the increased wages due based upon
this provision.
The following sections present the impacts that this rule is
estimated to have on a small business that chooses to hire H-2B
workers, including impacts on the application of H-2B wages to workers
in corresponding employment, transportation and subsistence costs,
visa-related and consular fees, disclosure of job orders, additional
recruiting that may be directed by the CO, reading and reviewing the
new processes and requirements, and other impacts. Note that the costs
estimated below are not costs to all small businesses or to the average
small business in an industry, but rather are the expected value of the
cost to any given H-2B employer that is a small business. Most small
businesses in the relevant industry do not hire H-2B workers and,
therefore, incur no cost burden from the rule. The costs estimated
apply only to the relatively small number of firms that are expected to
hire H-2B workers. In the estimates below, the hypothetical firm that
chooses to hire H-2B workers is assumed to be of the average total
employment and revenue size for small businesses in its industry.
a. Three-fourths Guarantee
Under the proposed rule, the Department specified that employers
guarantee to offer hours of employment equal to at least three-fourths
of the work days during the job order period, and that they use
successive 4-week periods to measure the three-fourths guarantee. The
use of 4-week periods was proposed (instead of measuring the three-
fourths guarantee over the course of the entire time period of need as
in the H-2A program) in order to ensure that work is offered during the
entire certified period of employment. The Department received comments
from Advocacy, an employer association, and small businesses expressing
concern that they are unable to predict the exact timing and flows of
tasks by H-2B workers, particularly at the beginning and end of the
period of employment, and that they need more scheduling flexibility
due to unexpected events such as extreme weather or catastrophic man-
made events. Acknowledging these commenters' concerns, the Department
lengthened the calculation period from 4 weeks to 12 weeks for job
orders lasting at least 120 days and to 6 weeks for job orders lasting
less than 120 days. In order to ensure that the capped H-2B visas are
appropriately made available to employers based upon their actual need
for workers, and to ensure that U.S. workers can realistically evaluate
the job opportunity, the Department maintains that employers should
accurately state their beginning and end dates of need and the number
of H-2B workers needed. To the extent that employers, including small
businesses, submit Applications for Temporary Employment Certification
accurately reflecting their needs, the three-fourths guarantee should
not represent a cost to employers, particularly given the extended 12-
week and 6-week periods over which to calculate the guarantee.
b. Application of H-2B Wages to Corresponding Workers
The rule requires that workers in corresponding employment be paid
at least the same wages paid to foreign workers under the H-2B program.
However, while the Department has not identified a reliable source of
data to estimate the number of workers in corresponding employment at
work sites on which H-2B workers are requested or the hourly wages of
those workers, the Department has attempted to quantify the impacts
associated with this provision. The Department believes that H-2B
workers will make up 75 to 90 percent of the workers in a particular
job and location covered by the job order, with the remaining 10 to 25
percent of the workers being corresponding employees newly covered by
the wage requirements. This 10 to 25 percent figure is an overestimate
of the Final Rule's impact since some of the employees included in this
proportion of corresponding workers are those hired in response to the
required recruitment and are therefore already covered by the existing
regulation, and some workers will be excluded by the two new
exceptions. Since the required H-2B wage is an average wage that
generally prevails among existing workers in the occupation in the area
of employment, we also estimate that half of the corresponding workers
will already be earning a wage at least equal to the H-2B wage, and
thus will not require wage increases. Finally, we estimate that the 50
percent of remaining corresponding workers who are eligible for wage
increases will be normally distributed at wage levels between the mean
wage level and the previous H-2B prevailing wage.
Table 22 shows the average estimated costs of increased wages for
corresponding workers at a typical small business in each of the five
most common H-2B industries. For each H-2B worker, the corresponding
employment requirement will result in an estimated increase in
corresponding worker wages of between $152 (assuming H-2B workers
comprise 90 percent of a firm's employees in the job order occupation)
and $455 (assuming H-2B workers comprise 75 percent of those employees)
per firm.
Table 22--Costs for Corresponding Worker Wages at Small Firms
--------------------------------------------------------------------------------------------------------------------------------------------------------
Food
Firm with services Amusement,
Hourly wage increase Percent one H-2B Landscaping Janitorial and gambling, Construction
worker services services drinking and
places recreation
--------------------------------------------------------------------------------------------------------------------------------------------------------
H-2B Workers per Small Firm
--------------------------------------------------------------------------------------------------------------------------------------------------------
N/A......................................................... N/A 1.0 2.7 5.5 5.7 7.0 3.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
H-2B Workers 90 Percent of Occupation at Firm
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Corresponding Workers per Small Firm in Each Category:
--------------------------------------------------------------------------------------------------------------------------------------------------------
$0.00................................................... 50 0.06 0.15 0.30 0.32 0.39 0.17
[[Page 10138]]
$1.00................................................... 30 0.03 0.09 0.18 0.19 0.23 0.10
$3.00................................................... 15 0.02 0.04 0.09 0.10 0.12 0.05
$5.00................................................... 5 0.01 0.01 0.03 0.03 0.04 0.02
-------------------------------------------------------------------------------------------
Total............................................... 100 0.11 0.30 0.61 0.64 0.77 0.35
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost per Firm:
--------------------------------------------------------------------------------------------------------------------------------------------------------
$0.00................................................... 50 $0 $0 $0 $0 $0 $0
$1.00................................................... 30 46 121 249 261 317 142
$3.00................................................... 15 68 182 373 391 475 213
$5.00................................................... 5 38 101 207 217 264 118
-------------------------------------------------------------------------------------------
Total............................................... 100 152 404 830 869 1,056 473
--------------------------------------------------------------------------------------------------------------------------------------------------------
H-2B Workers 75 Percent of Occupation at Firm
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Corresponding Workers per Small Firm in Each Category:
--------------------------------------------------------------------------------------------------------------------------------------------------------
$0.00................................................... 50 0.17 0.44 0.91 0.96 1.16 0.52
$1.00................................................... 30 0.10 0.27 0.55 0.57 0.70 0.31
$3.00................................................... 15 0.05 0.13 0.27 0.29 0.35 0.16
$5.00................................................... 5 0.02 0.04 0.09 0.10 0.12 0.05
-------------------------------------------------------------------------------------------
Total............................................... 100 0.33 0.89 1.82 1.91 2.32 1.04
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost per Firm:
--------------------------------------------------------------------------------------------------------------------------------------------------------
$0.00................................................... 50 $0 $0 $0 $0 $0 $0
$1.00................................................... 30 137 364 747 782 951 426
$3.00................................................... 15 205 546 1,120 1,173 1,426 639
$5.00................................................... 5 114 303 622 652 792 355
-------------------------------------------------------------------------------------------
Total............................................... 100 455 1,212 1,489 2,607 3,169 1,419
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: DOL Estimate.
c. Transportation To and From the Place of Employment for H-2B Workers
The rule requires H-2B employers to provide H-2B workers with
transportation to and from the place of employment. In general,
transportation costs are calculated by first estimating the cost of a
bus trip from a regional city to the consular city to obtain a visa.
Then we estimate the cost of the trip from the consular city to St.
Louis. In the case of the 77 percent of H-2B workers who come to the
U.S. from Mexico and Canada, we assume this is a bus trip. For
employees from other countries, we assume this trip is by air.
We estimate the weighted average roundtrip travel cost per employee
to be approximately $929 per H-2B worker, as detailed in the Executive
Order 12866 analysis section titled "Transportation to and from the
Place of Employment for H-2B Workers." This increase from the estimate
included in the IRFA is due to two factors. First, a bus or ferry fare
was added to account for an H-2B worker's trip from their home to a
consular city to obtain a visa. Second, since publication of the NPRM,
air fares have increased substantially, attributable to a combination
of market condition such as increased fuel costs, anticipated increases
in demand for workers from improving economic conditions, and reduced
passenger capacity. (Because this Final Rule changed the last day an
employer must hire U.S. applicants to 21 days before the date of need,
the Department does not account for the extra cost of refundable
fares.) We then multiplied the weighted average roundtrip travel cost
per employee by the number of H-2B workers per average small entity and
the probability that the worker is a new entrant to the country (57
percent).\82\ For a hypothetical small firm with one employee, the
annual average roundtrip transportation cost is $531. The total annual
average roundtrip transportation costs incurred by the average small
employer in the top five industries are listed in Table 23.
---------------------------------------------------------------------------
\82\ The H-2B program is capped at 66,000 new visas per year. We
estimate the probability that the worker is a new entrant by
dividing 66,000 by the total number of H-2B workers (115,500), which
includes both new entrants and H-2B workers who entered in the
previous 2 years. We assume that 33,000 of the 66,000 workers stay
one additional year and 16,500 workers stay two additional years,
for a total of 115,500 H-2B workers in any given year.
Table 23--Travel Costs for H-2B Workers at Small Firms
------------------------------------------------------------------------
Transportation
Industry cost
------------------------------------------------------------------------
Firm with One H-2B Employee............................. $531
Landscaping Services.................................... 1,415
Janitorial Services..................................... 2,905
Food Services and Drinking Places....................... 3,043
Amusement, Gambling, and Recreation..................... 3,698
Construction............................................ 1,656
------------------------------------------------------------------------
Sources: Given in text.
We do not know the extent to which employers are currently paying
for this cost in order to secure these workers or to comply with their
obligations under the FLSA. To the extent that some employers are
already paying for inbound and outbound transportation, these
calculations represent upper-
[[Page 10139]]
bound estimates. These are also upper-bound estimates because workers
are entitled to reimbursement of inbound transportation expenses only
if they complete 50 percent of the job order period; moreover, they are
entitled to outbound transportation expenses only if they complete the
entire job order or are dismissed early.
d. Transportation To and From the Place of Employment for Corresponding
Workers
The rule requires H-2B employers to provide workers in
corresponding employment unable to return each day to their permanent
residence with transportation to the place of employment if they
complete at least half the period of the job order and from the place
of employment if they complete the full period of the job order.
However, there is no basis for estimating what percentage of the
workers in corresponding employment will be new employees coming from
outside the commuting area who will continue to work for at least half
or all of the job order period. Therefore, while the Department is
unable to estimate the number of corresponding workers at a given small
firm who would receive reimbursement, the Department estimates an
approximate unit cost for each traveling corresponding worker by taking
the average of the cost of a bus ticket to St. Louis from Fort Wayne,
IN ($91); Pittsburgh, PA ($138); Omaha, NE ($93); Nashville, TN ($86);
and Palmdale, CA ($233). Averaging the cost of travel from these five
cities results in an average one way cost of $128.20, and a round trip
cost of $256.40 (see Table 24) representing a transfer from employers
to H-2B workers. The inbound transportation costs would be incurred
only for those workers who fulfill the required portion of the
certified period of employment; the outbound transportation costs would
only be incurred for those who work until the end of the certified
period of employment or who are dismissed early by the employer.
Table 24--Cost of Corresponding Worker Travel for Small Firms
------------------------------------------------------------------------
One way travel to St. Louis Cost
------------------------------------------------------------------------
Fort Wayne, IN............................................. $91
Pittsburgh, PA............................................. 138
Omaha, NE.................................................. 93
Nashville, TN.............................................. 86
Palmdale, CA............................................... 233
One way travel--Average.................................... 128
Roundtrip travel........................................... 256
------------------------------------------------------------------------
Source: Greyhound, 2011.
e. Subsistence Payments
As discussed in the E.O. 12866 analysis, we estimated the per-
worker cost of subsistence by multiplying the subsistence per diem
($10.64) by the number of roundtrip travel days (4 days) by the
probability that the worker is a new entrant to the country (57
percent). The length of time for an H-2B worker to complete round-trip
travel reflects an increase from the proposed rule and was made in
response to a comment from a worker advocacy organization. The estimate
was increased to account for 2 days to obtain the visa (travel time
from the home town and time spent in the consular city), 1 day to
travel from the consular city to the place of employment, and 1 day of
outbound transportation back to the worker's home country. We estimate
the average annual cost of subsistence to be $24.32 ($10.64 x 4 x 0.57)
per H-2B worker. The total annual average subsistence costs incurred by
the average small employer in the top five industries are presented in
Table 23.
This provision applies not only to H-2B workers, but also to
workers in corresponding employment on H-2B worksites who are recruited
from a distance at which the workers cannot reasonably return to their
residence within the same workday. While we were unable to identify
adequate data to estimate the number of corresponding workers who would
travel to the job from outside the reasonable commuting area and be
eligible to receive compensation for subsistence, the Department
assumes that it would take 1 travel day to travel from one city in the
U.S. to another, and 1 day to return. Thus each corresponding worker
would receive $21.28 in subsistence payments (see Table 25). Both of
these estimates are upper-bound estimates, as the inbound subsistence
would be incurred only for workers who fulfill the required portion of
the certification period, and outbound subsistence would only be
incurred for those who work until the end of the job order or who are
dismissed by the employer.
Table 25--Cost of Subsistence Payments for Workers at Small Firms
------------------------------------------------------------------------
Cost component Value
------------------------------------------------------------------------
Subsistence Per Diem....................................... $11
Weighted Average Roundtrip Travel Days--H-2B Workers....... $4
Firm with One H-2B Employee................................ $24
Landscaping Services....................................... $65
Janitorial Services........................................ $133
Food Services and Drinking Places.......................... $139
Amusement, Gambling, and Recreation........................ $169
Construction............................................... $76
Roundtrip Travel Days--Corresponding Workers............... 2
Roundtrip Subsistence per Corresponding Worker............. $21
------------------------------------------------------------------------
f. Lodging for H-2B Workers En Route to the Place of Employment
In response to a comment from a worker advocacy organization, the
Department includes a cost in the FRFA not accounted for in the
proposed rule: lodging costs while H-2B workers travel from their
hometown to the consular city to obtain a visa and from there to the
place of employment. This change does not reflect any additional
obligation since the publication of the NPRM, but clarifies the Final
Rule's intent that lodging expenses incurred between a worker's
hometown and consular city are part of inbound transportation and
subsistence costs. The Department estimates that H-2B workers will
spend an average of two nights in an inexpensive hostel-style
accommodation. The Department estimates the nightly cost of this stay
in common consular cities of the top ten countries of origin as
follows: Monterrey, $11; Kingston, $13; Guatemala City, $14; Manila,
$7; Bucharest, $11; Pretoria, $19; London, $22; Ottawa, $30; Tel Aviv,
$22; and Canberra, $26.\83\ Using the number of certified H-2B workers
from the top ten countries of origin, we calculated a weighted average
of $11.99 for one night's stay, and $23.98 for two nights' stay. We
then multiplied the weighted average lodging cost per employee by the
number of H-2B workers per average small entity and the probability
that the worker is a new entrant to the country (57 percent). For a
hypothetical small firm with one employee, the annual average lodging
cost is $13.70 (.57 x $23.98). The total annual average lodging costs
incurred by the average small employer in the top five industries are
presented in Table 26.
---------------------------------------------------------------------------
\83\ Lonely Planet. 2011b. Hotels & Hostels Search. Available at
https://hotels.lonelyplanet.com/ (Accessed July 12, 2011).
[[Page 10140]]
Table 26--Cost of Lodging for H-2B Workers at Small Firms
------------------------------------------------------------------------
Cost component Value
------------------------------------------------------------------------
Firm with One H-2B Employee................................ $14
Landscaping Services....................................... 37
Janitorial Services........................................ 75
Food Services and Drinking Places.......................... 79
Amusement, Gambling, and Recreation........................ 95
Construction............................................... 43
------------------------------------------------------------------------
Source: Lonely Planet, 2011b.
g. Visa-Related and Consular Fees
Under the 2008 Final Rule, visa fees are permitted to be paid by
the temporary worker. This Final Rule, however, requires visa fees and
related fees to be paid by the employer. Requiring employers to bear
the full cost of hiring foreign workers is a necessary step toward
preventing the exploitation of foreign workers with its concomitant
adverse effect on domestic workers.
The Department estimated the cost of visa fees by adding the
weighted average visa cost per H-2B worker ($148),\84\ weighted average
appointment fee ($3.05), and the weighted average reciprocity fee
($2.48), then multiplying by the average number of H-2B employees in
small entities in each of the top five industries and the probability
that the worker is a new entrant to the country (57 percent, or 66,000/
115,500). The total annual average visa fee and related costs incurred
by the average small employer in the top five industries are listed in
Table 27. Again, to the extent that some employers may already be
paying these fees in order to ensure their compliance with the FLSA,
this represents an upper-bound estimate. Similarly, to the extent that
our estimate that 57 percent of H-2B workers are new is conservative,
our estimate of visa and consular fees is an upper-bound estimate.\85\
---------------------------------------------------------------------------
\84\ U.S. Department of State. 2010. Nonimmigrant Visa
Application Fees to Increase June 4. Available at
https://www.state.gov/r/pa/prs/ps/2010/05/142155.htm. The visa fee of $150
went into effect on June 4, 2010.
\85\ The Department is confident that 66,000 new workers enter
the country under H-2B visas each year; it has less information
concerning the number of H-2B workers that remain in the U.S. for
more than one year. To the extent that more than 67 percent of each
year's cohort remains in the U.S. for a second and third year, then
the Department has overestimated the percent of H-2B workers that
are new, and we have overestimated visa and consular fees.
Table 27--Cost of Visa and Consular Fees for H-2B Workers at Small Firms
------------------------------------------------------------------------
Cost component Value
------------------------------------------------------------------------
Firm with One H-2B Employee................................ $88
Landscaping Services....................................... 234
Janitorial Services........................................ 480
Food Services and Drinking Places.......................... 503
Amusement, Gambling, and Recreation........................ 611
Construction............................................... 274
------------------------------------------------------------------------
Source: U.S. Department of State, 2010.
h. Additional Recruiting Directed by the Certifying Officer
Under the Final Rule, the CO may direct an employer to conduct
additional recruitment if the CO has determined that there may be
qualified U.S. workers available, particularly where the job
opportunity is located in an area of substantial unemployment. There is
no such provision in the 2008 Final Rule.
In response to an employer comment expressing concern that the NPRM
understated the cost of running a newspaper advertisement that would
capture all the requirements contained in 20 CFR 655.41, the Department
updated the original calculation in the NPRM. The higher estimated cost
does not reflect any additional advertising requirement beyond those in
20 CFR 655.41, but is rather is a more accurate reflection of the cost
of an advertisement that includes the required information.
We estimate the cost of this requirement by multiplying the average
cost of a newspaper advertisement ($315) by 0.5 based on our estimate
that 50 percent of H-2B employer applicants can be expected to be
directed by the CO to conduct additional recruitment for a total cost
of $157 ($315 x 0.50) per employer.\86\ We also added the cost for 10
percent of employer applicants to translate the advertisement into a
language other than English at an average cost of $2.59 ($25.88 x 0.1),
and labor cost to post the advertisement. The latter cost was
calculated by multiplying the estimated time required to post the
advertisement (0.08 hours, or 5 minutes) by the scaled hourly
compensation rate of an administrative assistant/executive secretary
($28.77) and our estimate that 50 percent of H-2B employers can be
expected to be directed by the CO to conduct additional recruiting for
a total labor cost of $1.20 (0.08 x $28.77 x 0.50) per employer
applicant. Thus, the total annual cost of CO-directed recruiting is
estimated to be $161.18 ($157 + $2.59 + $1.20) per employer (see Table
28).
---------------------------------------------------------------------------
\86\ To obtain the average cost of a newspaper advertisement, we
averaged the rates for a model H-2B advertisement in the following
newspapers: Branson Tri-Lakes News, Aspen Times, Austin Chronicle,
Gainesville Sun, the Plaquemines Gazette, and Virginia Pilot. These
newspapers were chosen because they are located in areas in which a
significant number of H-2B positions were certified in FY 2009.
Other means of recruiting are possible under this rule (such as
listings on Monster.com and Career Builder), but they may be more
costly, while other recruiting means (such as contacting community-
based organizations) may be less costly.
Table 28--Cost of Additional Recruiting for Small Firms
------------------------------------------------------------------------
Cost component Value
------------------------------------------------------------------------
Percent directed to conduct additional recruiting.... 50%
Newspaper Advertisement:
Percent translating advertisement................ 10%
Newspaper advertisement--Unit cost............... $315
Average cost of newspaper advertisement.......... $157
Translating Newspaper Advertisement:
Translation--Weighted Average Cost............... $26
Average cost of newspaper advertisement.......... $3
Labor to Post Newspaper Ad:
Time to post advertisement....................... 0.05
Administrative Assistant hourly wage w/fringe.... $29
Administrative Assistant labor per ad............ $2
Average cost of labor to post ad................. $1
Total Cost:
[[Page 10141]]
Total Cost of Additional Recruiting per Firm..... $161
------------------------------------------------------------------------
Sources: BLS, 2011a; BLS, 2011b.
It is possible that there will be additional costs incurred by
small employers due to interviewing additional applicants who are
referred to H-2B employers by job advertisements. The Department does
not have valid data on referrals resulting from job advertisements and
therefore is unable to quantify this impact.
i. Contacting Labor Organizations
The analysis performed for the proposed rule included a cost for
employers to contact the local union to locate qualified U.S. workers
where the occupation is customarily unionized. Under this Final Rule,
union notification is the responsibility of the SWA and employers incur
no costs.
j. Disclosure of Job Order
The rule requires an employer to provide a copy of the job order to
an H-2B worker no later than the time at which the worker outside of
the U.S. applies for the H-2B visa or to a worker in corresponding
employment no later than on the day that work starts. The job order
must be translated to a language understood by the worker. For an H-2B
worker changing employment from an H-2B employer to a subsequent H-2B
employer, the copy must be provided no later than the time the
subsequent H-2B employer makes an offer of employment.
We estimate two cost components of the disclosure of job orders:
The cost of reproducing the document containing the terms and
conditions of employment, and the cost of translation. We obtained the
cost of reproducing the terms and conditions by multiplying the number
of pages to be photocopied (three) by the cost per photocopy ($0.12)
and the percent of certified H-2B workers that are not involved in
reforestation (88.3 percent).\87\ We estimate average annual
reproduction costs for an employer with one H-2B employee of $0.32 per
year (3 x $0.12 x 0.883). We then multiplied this product by the
average number of H-2B workers in the top five industries to obtain the
average annual costs per small employer; these costs are summarized in
Table B-9.
---------------------------------------------------------------------------
\87\ The requirement to disclose the job order does not result
in a new cost to reforestation employers because the Migrant and
Seasonal Agricultural Worker Protection Act presently requires
reforestation employers to make this disclosure. According to H-2B
program data for FY2000-FY2009, 88.3 percent of H-2B workers work in
an industry other than reforestation.
---------------------------------------------------------------------------
For the cost of translation, the Department assumes that an
employer hires all of its H-2B workers from a country or set of
countries that speak the same foreign language; thus, only one
translation is necessary per employer needing translation. Using DHS
data, we determined that approximately 83.92 percent of H-2B workers
from the top ten countries of origin do not speak English.\88\ We used
this as a proxy for the probability that an H-2B employer will need to
translate the job order. We obtained the cost of translation by
multiplying the percent of H-2B workers who do not speak English
(83.92) by the weighted average cost of translation ($68).\89\ We
estimate average annual translation costs of $57.07 per employer
(0.8392 x $68).
---------------------------------------------------------------------------
\88\ U.S. Department of Homeland Security (DHS). 2009. Yearbook
of Immigration Statistics. Available at
https://www.dhs.gov/files/statistics/publications/yearbook.shtm
(Accessed June 12, 2011).
\89\ LanguageScape. 2011. How it Works--Cost Calculator.
Available at https://www.languagescape.com/how_works_1.asp
(Accessed June 7, 2011).
---------------------------------------------------------------------------
Summing reproduction and translation costs results in the average
annual job order disclosure costs per small employer (listed in Table
29).
Table 29--Cost of Disclosure of Job Order for Small Firms
------------------------------------------------------------------------
Cost component Value
------------------------------------------------------------------------
Percent workers not in reforestation................. 88.3%
Reproducing Job Order:
Pages to be photocopied.......................... 3
Cost per page.................................... $0.12
Cost per job order............................... $0.36
Firm with One H-2B Employee...................... $0.32
Landscaping Services--Cost to Reproduce.......... $0.85
Janitorial Services--Cost to Reproduce........... $2
Food Services and Drinking Places--Cost to $2
Reproduce.......................................
Amusement, Gambling, and Recreation--Cost to $2
Reproduce.......................................
Construction--Cost to Reproduce.................. $1
Translating Job Order:
Weighted average translation cost................ $68
Translation Cost per H-2B Employer............... $57
Total Cost of Disclosure of Job Order:
Firm with One H-2B Employee...................... $57
Landscaping Services............................. $58
Janitorial Services.............................. $59
Food Services and Drinking Places................ $59
Amusement, Gambling, and Recreation.............. $59
Construction..................................... $58
------------------------------------------------------------------------
Sources: DHS, 2009; LanguageScape, 2011.
[[Page 10142]]
k. Elimination of Attestation-Based Model
The 2008 Final Rule implemented an attestation-based model:
employers conduct the required recruitment in advance of application
filing and, based on the results of that effort, apply for
certification from the Department for the remaining openings. The
Department has determined that there are insufficient worker
protections in the current attestation-based model. In eliminating the
attestation-based model, the rule shifts the recruitment process to
after the filing of the Application for Temporary Employment
Certification so that employers have to demonstrate--and not merely
attest--that they have performed an adequate test of the labor market.
Therefore, the primary effect of eliminating the attestation-based
model is a change in the timing of recruitment rather than a
substantive change in required activities.
The elimination of the attestation-based model will impose minimal
costs on employers because they will only need to include additional
information in the recruitment report they are already required to
submit, including information on additional recruitment conducted,
means of posting, and contact with former U.S. workers. We estimated
two costs for the elimination of the attestation-based model: the
material cost to reproduce and mail the additional pages of the
documents, and the labor cost to reproduce and mail the additional
pages. To estimate the cost of reproducing and mailing the documents,
we multiplied the additional number of pages that must be submitted
(three) by the additional postage required to ship those pages ($0.17).
We estimate this cost to be approximately $0.51 per employer. To
estimate the labor cost of reproducing and mailing the documents, we
multiplied the time needed to reproduce and mail the documents (0.08
hours, or 5 minutes) by the scaled hourly labor compensation of an
administrative assistant/executive secretary ($28.77). We estimate this
cost to be approximately $2.40 per employer. Summing material and labor
costs results in total costs per small firm of $2.91 (see Table 30).
Table 30--Cost of Elimination of Attestation-Based Model for Small Firms
------------------------------------------------------------------------
Cost component Value
------------------------------------------------------------------------
Postage Costs:
Additional pages to submit....................... 3
Additional postage............................... $0.17
Postage Cost per Small Firm.......................... $0.51
Labor Costs to Photocopy and Mail Documents:
Labor time to photocopy and mail documents....... 0.08
Administrative Assistant hourly wage w/fringe.... $29
Photocopying Cost per Small Firm................. $2
Total Cost of Elimination of Attestation-Based Model:
Total Cost per Small Firm........................ $3
------------------------------------------------------------------------
Sources: BLS, 2011a; BLS, 2011b.
l. Document Retention
Under the rule, H-2B employers must retain documentation beyond
that required by the 2008 Final Rule. The Department assumes that each
H-2B employer will purchase a filing cabinet ($49.99) in which to store
the additional documents starting in the first year of the rule.\90\
The cost for each employer is likely an overestimate, since the 2008
Final Rule already contains document retention requirements, and many
employers who already use the H-2B program will already have bought a
file cabinet to store the documents they must retain under that rule.
---------------------------------------------------------------------------
\90\ OfficeMax. 2011. Vertical File Cabinets. Available at
https://www.officemax.com/office-furniture/file-cabinets-accessories/
vertical-file-
cabinets?history=utozftma%7CcategoryId%7E10001%5EcategoryName%7EOffic
e%2BFurniture%5EparentCategoryID%7Ecategory--
root%5EprodPage%7E25%5Eregion%7E1%40porkedzu%7CcategoryId%7E40%5Ecate
goryName%7EFile%2BCabinets%2B%2526%2BAccessories%5EparentCategoryID%7
Ecat--
10001%5EprodPage%7E25%5Eregion%7E1%5Erefine%7E1%40wih8mfsy%7CprodPage
%7E15%5Erefine%7E1%5Eregion%7E1%5EcategoryName%7Evertical-file-
cabinets%5EcategoryId%7E91%5EparentCategoryID%7Ecat--
40&view=list&position=1&prodPage=15&sort=Price+%28Low-High%29
(Accessed July 11, 2011).
---------------------------------------------------------------------------
m. Departure Time Determination
The Proposed Rule would have required employers to provide notice
to the local SWA of the time at which the last H-2B worker departs for
the place of employment, if the last worker has not departed at least 3
days before the date of need. Under the Final Rule, the obligation to
hire U.S. workers will end 21 days before the date of need and the
employer is not required to provide any notice to the local SWA, thus
eliminating the costs associated with this provision of the Proposed
Rule.
n. Read and Understand the Rule
During the first year that this rule would be in effect, employers
would need to learn about the new processes and requirements. We
estimated this cost for a hypothetical small entity that is interested
in applying for H-2B workers by multiplying the time required to read
the new rule and any educational and outreach materials that explain
the H-2B application process under the rule by the average compensation
of a human resources manager. In the first year that the Final Rule is
effective, the Department estimates that the average small business
participating in the program will spend approximately three hours of
staff time to read and review the new processes and requirements, which
amounts to approximately $186.52 ($62.17 x 3) in labor costs in the
first year.
o. Job Posting Requirement
The rule requires employer applicants to post the availability of
the job opportunity in at least two conspicuous locations at the place
of intended employment for at least 15 consecutive days. This provision
entails additional reproduction costs. For the job posting requirement,
the total cost to photocopy the additional job postings (two) is $0.24
per employer applicant. Those employer applicants who need to print the
posting in languages other than English may face a small additional
cost.
p. Workers Rights Poster
The Final Rule requires employers to post and maintain in a
conspicuous location at the place of employment, a poster provided by
the Secretary that sets out the rights and protections for workers. The
poster must be in English and, to the extent necessary and as
[[Page 10143]]
provided by the Secretary, foreign language(s) common to a significant
portion of the workers if they are not fluent in English. We estimate
the cost of producing the workers' rights poster to be $0.12.
q. Total Cost Burden for Small Entities
The Department's calculations indicate that for a hypothetical
small entity in the top five industries that applies for one worker
(representing the smallest of the small entities that hire H-2B
workers), the total annualized first-year costs and annual costs are
between $1,058 (using the low estimate of corresponding worker wages
and annualizing at 3 percent over 10 years) and $1,367 (using the high
estimate and annualizing at 7 percent over 10 years). Using the low
estimate of corresponding worker wages and annualizing at 3 percent and
using the high estimate of corresponding worker wages and annualizing
at 7 percent, respectively, the total annualized first-year and annual
costs for employers in the top five industries that hire the average
number of employees for their respective industries are as follows:
Landscaping Services, $2,404 to $3,218;
Janitorial Services, $4,673 to $6,339;
Food Services and Drinking Places, $4,884 to $6,628;
Amusement, Gambling, and Recreation, $5,881 to $8,000;
Construction, $2,772 to $3,724.
A rule is considered to have a significant economic impact when the
total annual cost associated with the rule is equal to or exceeds 1
percent of annual revenue. To evaluate this impact, the Department
calculates the total cost burden as a percent of revenue for each of
the top five industries. The estimated revenues for small entities in
the top five industries are as follows:
Landscaping Services, $517,105;
Janitorial Services, $425,693;
Food Services and Drinking Places, $516,055;
Amusement, Gambling, and Recreation, $846,948;
Construction, $1,292,201.\91\
---------------------------------------------------------------------------
\91\ U.S. Census Bureau. 2007. Statistics of U.S. Businesses.
Available at https://www.census.gov/econ/susb/data/susb2007.html. c.
The Department then divides the total cost burden for small
entities by the total estimated revenue for small entities in each of
the top five industries. The total costs as a percent of revenues for
---------------------------------------------------------------------------
the top five industries are summarized in Table 31:
Landscaping Services, 0.46 to 0.62 percent;
Janitorial Services, 1.10 to 1.549 percent;
Food Services and Drinking Places, 0.95 to 1.28 percent;
Amusement, Gambling, and Recreation, 0.69 to 0.94 percent;
Construction, 0.21 to 0.29 percent.
Table 31--Total Costs for Small Firms
----------------------------------------------------------------------------------------------------------------
Industry
------------------------------------------------------------------------------
Food
Cost per services Amusement,
firm with Landscaping Janitorial and gambling, Construction
one H-2B services services drinking and
worker places recreation
----------------------------------------------------------------------------------------------------------------
H-2B Workers..................... 1.0 2.7 5.5 5.7 7.0 3.1
Annual Costs to Employers:
Corresponding Workers' Wages-- $152 $404 $830 $869 $1056 $473
Low.........................
Corresponding Workers' Wages-- $455 $1,212 $2,489 $2,607 $3,169 $1,419
High........................
Transportation............... $531 $1,415 $2,905 $3,043 $3,698 $1,656
Subsistence.................. $24 $65 $133 $139 $169 $76
Lodging...................... $14 $37 $75 $79 $95 $43
Visa and Consular Fees....... $88 $234 $480 $503 $611 $274
Additional Recruiting........ $161 $161 $161 $161 $161 $161
Disclosure of Job Order...... $57 $58 $59 $59 $59 $58
Elimination of Attestation... $3 $3 $3 $3 $3 $3
Post Job Opportunity......... $0.24 $0.24 $0.24 $0.24 $0.24 $0.24
Workers Rights Poster........ $0.12 $0.12 $0.12 $0.12 $0.12 $0.12
------------------------------------------------------------------------------
Total Annual Costs--Low.. $1,030 $2,376 $4,646 $4,856 $5,854 $2,744
Total Annual Costs--High. $1,334 $3,185 $6,305 $6,594 $7,966 $3,690
------------------------------------------------------------------------------
First Year Costs to Employers:
Read and Understand Rule..... $187 $187 $187 $187 $187 $187
Document Retention........... $50 $50 $50 $50 $50 $50
Total First Year Costs....... $237 $237 $237 $237 $237 $237
Annualized First Year Costs $34 $34 $34 $34 $34 $34
(7%)........................
Annualized First Year Costs $28 $28 $28 $28 $28 $28
(3%)........................
------------------------------------------------------------------------------
Total Costs per Small Firm
(Annualized First Year and
Annual Costs, 7%)
Total Costs--Low......... $1,064 $2,410 $4,679 $4,890 $5,877 $2,778
Total Costs--High........ $1,367 $3,218 $6,339 $6,628 $8,000 $3,724
Total Revenue............ N/A $517,105 $425,693 $516,055 $846,948 $1,292,201
------------------------------------------------------------------------------
Costs as a Percent of N/A 0.47% 1.10% 0.95% 0.70% 0.21%
Revenue--Low................
Cost as a Percent of Revenue-- N/A 0.63% 1.50% 1.29% 0.95% 0.29%
High........................
Total Costs per Small Firm
(Annualized First Year and
Annual Costs, 3%):
Total Costs--Low......... $1,058 $2,404 $4,673 $4,884 $5,881 $2,772
------------------------------------------------------------------------------
Total Costs--High........ $1,361 $3,212 $6,333 $6,622 $7,994 $3,718
Total Revenue............ N/A $517,105 $425,693 $516,055 $846,948 $1,292,201
[[Page 10144]]
Costs as a Percent of N/A 0.46% 1.10% 0.95% 0.69% 0.21%
Revenue--Low................
Cost as a Percent of Revenue-- N/A 0.62% 1.549% 1.28% 0.94% 0.29%
High........................
----------------------------------------------------------------------------------------------------------------
N/A: Not Applicable.
Note: Totals may not sum due to rounding.
This rule is expected to have a significant economic impact (at
least 1 percent of annual revenue) on the average participating small
entity in two of the five most common industries: Janitorial Services,
and Food Services and Drinking Places. Although applying to hire H-2B
workers is voluntary, and any employer (small or otherwise) may choose
not to apply, an employer, whether it continues to participate in the
H-2B program or fills its workforce with U.S. workers, could face costs
equal to or slightly greater than 1 percent of annual revenue. However,
in the Department's view, increased employment opportunities for U.S.
workers and higher wages for both U.S. and H-2B workers provide a broad
societal benefit that outweighs these costs.
The Department considers that a rule has an impact on a
"substantial number of small entities" when the total number of small
entities impacted by the rule is equal to or exceeds 10 percent of the
relevant universe of small entities in a given industry. See, e.g., 76
FR 3476, Jan. 19, 2011. The Department has used the 10 percent
threshold in previous regulations. As discussed earlier in the
analysis, the percentage of small entities authorized to employ
temporary non-agricultural workers would be less than 1 percent of the
total number of small entities in the top five industries with the
greatest number of H-2B workers. Therefore, this rule is not expected
to impact a substantial number of small entities.
5. Alternatives Considered as Options for Small Businesses
We have concluded that this Final Rule will not have a significant
economic impact on a substantial number of small entities. This Final
Rule sets minimum standards to ensure that foreign workers may be
employed only if qualified domestic workers are not available and that
the hiring of H-2B workers will not adversely affect the wages and
working conditions of similarly employed domestic workers. While we
recognize the concerns expressed by small businesses and have made
every effort to minimize the burden on the relatively small number of
businesses that use the program, creating different and likely lower
standards for one class of employers (e.g., small businesses) would
essentially sanction the very adverse effects that we are compelled to
prevent.
Under the existing H-2B program, an employer must first apply for a
temporary labor certification from the Secretary of Labor. That
certification informs USCIS that U.S. workers qualified to perform the
services or labor are not available, and that the employment of the
foreign worker(s) will not adversely affect the wages and working
conditions of similarly employed U.S. workers. Our obligation to ensure
that U.S. workers capable of performing the services or labor are not
available, and that the employment of the foreign worker(s) will not
adversely affect the wages and working conditions of similarly employed
U.S. workers was reaffirmed in a recent court decision, CATA v. Solis,
Civil No. 2:09-cv-240, 2011 WL 2414555 (E.D. Pa. 20100), which made
clear that our consideration of hardship to employers when setting the
January 1, 2012 effective data was contrary to our responsibilities
under the INA.
While our responsibilities in the H-2B labor certification program
first and foremost are to ensure that U.S. workers are given priority
for temporary non-agricultural job opportunities and to protect U.S.
workers' wages and working conditions, we solicited and considered
public comments on a number of alternatives that would balance the
needs of small businesses while providing adequate protection to U.S.
and H-2B workers. A discussion on each alternative considered and our
final determination is below.
First, we proposed to change the definition of full-time from 30 or
more hours of work per workweek to 35 or more hours of work per week in
response to the District Court's decision in CATA v. Solis, 2010 WL
3431761, which invalidated the 2008 H-2B Final Rule's 30-hour
definition because our decision was not supported by empirical data. We
stated in the NPRM that a 35-hour work week was supported by empirical
data and was more representative of the actual needs of employers and
expectations of workers. However in the NPRM, we requested comments on
whether extending the definition of full-time to at least 40 hours is
more protective of U.S workers and better conforms to employer
standards and needs.
As discussed in this preamble, several trade associations and
private businesses supported retaining the 2008 Final Rule's standard
of 30 hours per workweek, citing the difficulties of scheduling work
around unpredictable and uncontrollable events, particularly the
weather. Other employers suggested that full-time employment should be
determined not in each individual workweek, but by averaging workweeks
over the length of the certified employment period. In addition,
several businesses stated that a 35-hour workweek would be burdensome
in combination with other aspects of the proposed rule, particularly
the three-quarter guarantee. We concluded, after a thorough review of
the comments, to retain the definition of full-time as 35 or more hours
of work per week. This standard more accurately reflects full-time
employment expectations than the current 30-hour definition, would not
compromise worker protections, and is consistent with other existing
Department standards and practices in the industries that currently use
the H-2B program to obtain workers.
The NPRM also proposed to eliminate job contractors from
participating in the H-2B program based on our view that a job
contractor's ongoing need is by its very nature permanent rather than
temporary and therefore the job contractor does not qualify to
participate in the program. We received a comment that questioned our
underlying assumption that all job contractors have a permanent need
and asserted that the bar on job contractors should not be complete
because to the
[[Page 10145]]
extent that any one job contractor does not have a year-round need and
routinely does not employ workers in a particular occupation for a
specific segment of the year, its needs are seasonal. The commenter
asserted that job contractors should be afforded the same opportunity
as all other employers to prove they have a temporary need for services
or labor. Upon further consideration, we recognize that there very well
may be job contractors who only operate several months out of the year
and thus have a genuine temporary need and that these job contractors
should not be excluded from the program. Additionally, we recognize
that job contractors with a one-time need may also have a genuine
temporary need and should not be excluded from the program. Therefore,
we revised Sec. 655.6 to permit only those job contractors that
demonstrate through documentation their own temporary need, not that of
their employer-clients, to continue to participate in the H-2B program.
Job contractors will only be permitted to file applications based on
seasonal need and one-time occurrences.
We also introduced in the NPRM a three-fourths guarantee provision
that would require that H-2B employers guarantee to offer the worker
employment for a total number of hours equal to at least three-fourths
of the workdays in each 4-week period of the certified period of
employment. We believed that this guarantee would motivate employers to
carefully consider the extent of their workforce needs before applying
for certification and discourage employers from applying for
unnecessary workers or from promising work which may not exist. While
we stated in the NPRM that an hours' guarantee is necessary to protect
the integrity of the H-2B program and to protect the interests of both
workers and employers in the program, we invited the public to suggest
alternative guarantee systems that may better serve the goals of the
guarantee. In particular, the Department sought comments on whether a
4-week increment is the best period of time for measuring the three-
fourths guarantee or whether a shorter or longer time period would be
more appropriate.
Many small businesses expressed concerns about the guarantee. They
were particularly concerned about the impact of the weather on their
ability to meet the guarantee and their ability to meet the guarantee
in the event of unforeseen events like oil spills or health department
or conservation closures that, for example, can make the harvesting and
processing of crabs impossible. Numerous other employers similarly
stated that if a guarantee remains in the Final Rule, it should be
spread over the entire certification period, as it is in the H-2A
regulations. They noted that this would provide flexibility and enhance
their ability to meet the guarantee without cost, because often the
loss of demand for work in one period is shifted to another point in
the season, but such a guarantee would still deter egregious cases of
employers misstating their need for H-2B employees. A number of
commenters also suggested that the guarantee should be based upon pay
for three-fourths of the hours, rather than three-fourths of the hours,
so that employers could take credit for any overtime paid at time-and-
a-half. After careful consideration of all comments received, we
decided to retain the three-fourths guarantee of the hours, but
lengthen the increment over which the guarantee is measured from 4
weeks to 12 weeks, if the period of employment covered by the job order
is 120 days or more and to 6 weeks, if the period of employment covered
by the job order is less than 120 days.
The NPRM continued to reflect our commitment to ensuring that U.S.
workers have priority for H-2B job opportunities by proposing that
employers hire qualified U.S. workers referred by the SWA or who
respond to recruitment until 3 days before the date of need or the last
H-2B worker departs for the workplace for the certified job
opportunity, whichever is later. We believed that this proposal would
increase the opportunity for U.S. workers to fill the available
positions without unnecessarily burdening the employer. The proposal
would have required the employer to inform the appropriate SWA(s) in
writing of the later departure so that the SWA would know when to stop
referring potential U.S. workers to the employer.
We received many comments from employers and their advocates
arguing that accepting U.S. applicants until 3 days before the date of
need would be unworkable for employers. Some of these commenters
suggested that we require the SWA to keep the job order posted for 30
days (instead of the current 10), while others recommended changing the
closing date from 3 days to 30 days or 60 days before the date of need.
We carefully reviewed all comments and weighed these concerns against
our mandate to ensure that U.S. workers rather than foreign workers be
employed whenever possible. As a result, we changed the day through
which employers must accept SWA referrals of qualified U.S. applicants
from 3 days to 21 days before the date of need. The Department believes
that increasing the number of days before the date of need that
referrals are cut off as well as removing the clause or the date that
the last H-2B worker departs for the job opportunity will alleviate a
number of employer concerns without compromising our obligation to U.S.
workers. In addition, this change takes into consideration the USCIS
requirement that H-2B workers not enter the United States until 10 days
before the date of need, providing employers the certainty that their
H-2B workers will have sufficient time to obtain their visas and
eliminating the employer concern that an H-2B worker could be displaced
by a U.S. worker after beginning inbound travel.
Employers and small businesses generally opposed our proposed
provisions that would require an employer to provide, pay, or reimburse
the worker in the first workweek the cost of transportation and
subsistence from the place from which the worker has come to the place
of employment, and for H-2B workers' visa, visa processing, and other
related consular fees including those fees mandated by the government
(but not for passport expenses or other charges primarily for the
benefit of the workers). Employers and small businesses asserted that
paying such fees would be too costly and that transportation costs
should be the responsibility of the employee or paid at the discretion
of the employer. A number of commenters suggested that the Department
adopt the H-2A provision requiring that workers must complete at least
50 percent of the work contract to be reimbursed for inbound
transportation and subsistence expenses. After careful consideration of
all comments, we have made two changes. While we will continue to
require employers to provide inbound transportation and subsistence to
H-2B workers and to U.S. workers who are not reasonably able to return
to their residence within the same workday, the Final Rule now provides
that employers may arrange and pay for the transportation and
subsistence directly, advance at a minimum, the most economical and
reasonable common carrier cost, or reimburse a worker's reasonable
costs, after the worker completes 50 percent of the period of
employment covered by the job order if the employer has not previously
reimbursed such costs. We also continue in the Final Rule to require
employers to provide return transportation and subsistence from the
place of employment; however, these
[[Page 10146]]
obligations have been revised to stipulate that an employer is only
required to provide return transportation and subsistence if the worker
completes the period of employment covered by the job order or if the
worker is dismissed from employment for any reason by the employer
before the end of the period. In addition, the Final Rule continues to
provide that if a worker has contracted with a subsequent employer that
has agreed to provide or pay for the worker's transportation to the
subsequent employer's worksite, the subsequent employer must provide or
pay for such expenses; otherwise, if this agreement has not been made,
the employer must provide or pay for that transportation and
subsistence. The Final Rule also continues to require employers to
reimburse all visa, visa processing, and other related consular fees in
the first workweek.
We received several comments from employers noting the need to have
a stable workforce throughout their certified period of need. Employers
were concerned that after expending significant resources to hire H-2B
workers, these workers could be displaced to hire U.S. workers referred
by the SWA who may not report for work, or might fail to complete the
contract period. One employer requested that we consider new provisions
that would allow an employer to hire H-2B workers if the hired U.S.
workers become unavailable. We considered these comments and agreed to
address the circumstances where an employer's U.S. workers fail to
report to work or quit before the end of the certified period of
employment by providing the CO the authority to issue a redetermination
based on the unavailability of U.S. workers. While we have provided a
means by which employers may request a new determination, we strongly
encourage employers to make an additional effort to voluntarily contact
the SWA for additional referrals for qualified U.S. workers.
Finally, the Small Business Administration's Office of Advocacy and
several industry groups requested an exemption from the job order
obligations for man-made catastrophic events such as an oil-spill or
controlled flooding that is wholly outside of the employer's control.
The Department proposed that a CO could only terminate the employer's
obligations under the guarantee in the event of fire, weather, or
another Act of God. The Department agreed with commenters that this
provision should be expanded to allow a CO to terminate an employer's
job order based upon these man-made catastrophes.
C. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531) directs agencies to assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private
sector. The rule has no Federal mandate, which is defined in 2 U.S.C.
658(6) to include either a Federal intergovernmental mandate or a
Federal private sector mandate. A Federal mandate is any provision in a
regulation that imposes an enforceable duty upon State, local, or
tribal governments, or imposes a duty upon the private sector that is
not voluntary. A decision by a private entity to obtain an H-2B worker
is purely voluntary and is, therefore, excluded from any reporting
requirement under the Act.
SWAs are mandated to perform certain activities for the Federal
Government under the H-2B program, and receive grants to support the
performance of these activities. Under the 2008 Final Rule the SWA role
was changed to accommodate the attestation-based process. The current
regulation requires SWAs to accept and place job orders into intra- and
interstate clearance, review referrals, and verify employment
eligibility of the applicants who apply to the SWA to be referred to
the job opportunity. Under the Final Rule the SWA will continue to play
a significant and active role. The Department continues to require that
employers submit their job orders to the SWA having jurisdiction over
the area of intended employment as is the case in the current
regulation, with the added requirement that the SWA review the job
order prior to posting it. The Final Rule further requires that the
employer provide a copy of the Application for Temporary Employment
Certification to the SWA; however, this is simply a copy for disclosure
purposes and would require no additional information collection or
review activities by the SWA. The Department will also continue to
require SWAs to place job orders into clearance, as well as provide
employers with referrals received in connection with the job
opportunity. Additionally, the Final Rule requires SWAs to contact
labor organizations where union representation is customary in the
occupation and area of intended employment. The Department recognizes
that SWAs may experience a slight increase in their workload in terms
of review, referrals, and employer guidance. However, the Department is
eliminating the employment verification responsibilities the SWA has
under the current regulations. The elimination of workload created by
the employment verification requirement will allow the SWAs to apply
those resources to the additional recruitment requirements under this
rule.
SWA activities under the H-2B program are currently funded by the
Department through grants provided under the Wagner-Peyser Act. 29
U.S.C. 49 et seq, and directly through appropriated funds for
administration of the Department's foreign labor certification program.
D. Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)
We have determined that this rulemaking does not impose a
significant impact on a substantial number of small entities under the
RFA. We have similarly concluded that this Final Rule is a major rule
requiring review by the Congress under the SBREFA because it will
likely result in an annual effect on the economy of $100 million.
E. Executive Order 13132--Federalism
We have reviewed this Final Rule in accordance with E.O. 13132 on
federalism and have determined that it does not have federalism
implications. The Final Rule does not have substantial direct effects
on States, on the relationship between the States, or on the
distribution of power and responsibilities among the various levels of
government as described by E.O. 13132. Therefore, we have determined
that this Final Rule will not have a sufficient federalism implication
to warrant the preparation of a summary impact statement.
F. Executive Order 13175--Indian Tribal Governments
We reviewed this Final Rule under the terms of E.O. 13175 and
determined it not to have tribal implications. The Final Rule does not
have substantial direct effects on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes. As a result, no tribal summary impact
statement has been prepared.
G. Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act, enacted as part of the Omnibus Consolidated and Emergency
[[Page 10147]]
Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat.
2681) requires us to assess the impact of this Final Rule on family
well-being. A rule that is determined to have a negative effect on
families must be supported with an adequate rationale. We have assessed
this Final Rule and determined that it will not have a negative effect
on families.
H. Executive Order 12630--Government Actions and Interference With
Constitutionally Protected Property Rights
The Final Rule is not subject to E.O. 12630, Governmental Actions
and Interference with Constitutionally Protected Property Rights,
because it does not involve implementation of a policy with takings
implications.
I. Executive Order 12988--Civil Justice
The Final Rule has been drafted and reviewed in accordance with
E.O. 12988, Civil Justice Reform, and will not unduly burden the
Federal court system. The Department has developed the Final Rule to
minimize litigation and provide a clear legal standard for affected
conduct, and has reviewed the Final Rule carefully to eliminate
drafting errors and ambiguities.
J. Plain Language
We drafted this Final Rule in plain language.
K. Paperwork Reduction Act
As part of its continuing effort to reduce paperwork and respondent
burden, the U.S. Department of Labor (the Department) conducts a
preclearance consultation process to provide the general public and
Federal agencies with an opportunity to comment on proposed and
continuing collections of information in accordance with the Paperwork
Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)).
This helps to ensure that the public understands the Department's
collection instructions; respondents can provide the requested data in
the desired format, reporting burden (time and financial resources) is
minimized, collection instruments are clearly understood, and the
Department can properly assess the impact of collection requirements on
respondents. Persons are not required to respond to a collection of
information unless it displays a currently valid OMB control number as
required in 5 CFR 1320.11(l).
The information collected is mandated in this Final Rule at Title
20 CFR 655.8, 655.9, 655.11, 655.12, 655.13, 655.15, 655.16, 655.17,
655.20, 655.32, 655.33, 655.35, 655.40, 655.42, 655.43, 655.45, 655.46,
655.47, 655.48, 655.56, 655.57, 655.60, 655, 61, 655.62, 655.70,
655.71, 655.72, 655.73, and Title 29 CFR 503.16, 503.17, 503.43, and
503.51. In accordance with the PRA (44 U.S.C. 3501) information
collection requirements, which must be implemented as a result of this
regulation, a clearance package containing proposed changes to the
already approved collection was submitted to OMB on March 18, 2011, as
part of the proposed rule to reform the H-2B program for hiring
temporary non-agricultural aliens. The public was given 60 days to
comment on this information collection.
The Department did not receive any comments specifically related to
this section. The Department did receive several comments suggesting
that it collect information about how many U.S. workers and H-2B
workers an employer hires as a result of its participation in this
program and how many of the H-2B workers were hired from abroad as
opposed to from within the United States. The Department agrees that
this would be valuable information and has decided to amend ETA Form
9142 to collect from the employer the number of H-2B and U.S. workers
it actually hired from within the U.S. or from abroad based on its last
H-2B labor certification application, if applicable.
The forms used to comply with this Final Rule include those that
were required under the 2008 Final Rule, except that ETA Form 9142,
Appendix B was modified to reflect the assurances and obligations of
the H-2B employer as required under the compliance-based system
proposed in the NPRM and retained in this Final Rule. Also, a new form
was created for registering as an H-2B employer--the ETA Form 9155, H-
2B Registration--was developed at the time of the NPRM in compliance
with the new provisions first proposed in the NPRM and retained in the
Final Rule, and was available for public comment.
The Department has made changes to this Final Rule after receiving
comments to the NPRM. In addition to the change discussed above, the
Department has also made changes to the forms for consistency with
other changes to the Final Rule and for clarity. However, these changes
do not impact the overall annual burden hours for the H-2B program
information collection. The total costs associated with the form, as
defined by the PRA, are zero dollars per employer for ETA Forms 9141,
9142, and 9155.
This Final Rule utilizes the information collection, which OMB
first approved on November 21, 2008 under OMB control number 1205-0466.
The Department has simultaneously submitted with this Final Rule an
information collection containing the revised ETA Forms 9141 and ETA
9142, and the new ETA Form 9155. The ETA Form 9141 has a public
reporting burden estimated to average 1 hour per response or
application filed. The ETA Form 9142 with Appendix B.1 has a public
reporting burden estimated to average 1 hour per response or
application filed. Additionally, the ETA Form 9155 has a public
reporting burden estimated to average 1 hour per response or
application filed.
For an additional explanation of how the Department calculated the
burden hours and related costs, the PRA packages for these information
collections may be obtained from the RegInfo.gov Web site at
https://www.reginfo.gov/public/do/PRAMain or by contacting the Department at:
Office of Policy Development and Research, U.S. Department of Labor,
200 Constitution Ave. NW., Washington, DC 20210 or by phone request to
202-693-3700 (this is not a toll-free number) or by email at DOL_PRA_PUBLIC@dol.gov.
List of Subjects
20 CFR Part 655
Administrative practice and procedure, Employment, Employment and
training, Enforcement, Foreign workers, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Longshore and harbor
work, Migrant workers, Nonimmigrant workers, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.
29 CFR Part 503
Administrative practice and procedure, Employment, Foreign Workers,
Housing, Housing standards, Immigration, Labor, Nonimmigrant workers,
Penalties, Transportation, Wages.
Accordingly, the Department of Labor amends 20 CFR part 655 and
adds 29 CFR part 503 as follows:
Title 20--Employees' Benefits
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
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), 1182(m), (n) and
(t), 1184(c), (g), and
[[Page 10148]]
(j), 1188, and 1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103
Stat. 2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649,
104 Stat. 4978, 5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L.
102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c),
Pub. L. 103-206, 107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112
Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113
Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L. 109-423, 120 Stat.
2900; and 8 CFR 214.2(h)(4)(i).
Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii),
1184(c), and 1188; and 8 CFR 214.2(h).
Subparts A and C issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c),
and 1188; and 8 CFR 214.2(h).
Subparts D and E authority repealed.
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); and sec.
323(c), Pub. L. 103-206, 107 Stat. 2428.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Pub.
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e),
Pub. L. 105-277, 112 Stat. 2681; and 8 CFR 214.2(h).
Subparts J and K authority repealed.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
0
2. In subpart A, revise Sec. Sec. 655.1 through 655.6 to read as
follows:
Subpart A--Labor Certification Process for Temporary Non-Agricultural
Employment in the United States (H-2B Workers)
Sec.
655.1 Scope and purpose of subpart A.
655.2 Authority of the agencies, offices, and divisions in the
Department of Labor.
655.3 Territory of Guam.
655.4 Special procedures.
655.5 Definition of terms.
655.6 Temporary need.
* * * * *
Sec. 655.1 Scope and purpose of subpart A.
The Immigration and Nationality Act (INA) at 8 U.S.C. 1184(c)(1)
requires the Secretary of the Department of Homeland Security (DHS) to
consult with appropriate agencies before authorizing the entry of H-2B
workers. DHS regulations at 8 CFR 214.2(h)(6)(iv) provide that an
employer's petition to employ nonimmigrant workers on H-2B visas for
temporary non-agricultural employment in the United States (U.S.),
except for Guam, must be accompanied by an approved temporary labor
certification from the Secretary of Labor (Secretary).
(a) Purpose. The temporary labor certification reflects a
determination by the Secretary that:
(1) There are not sufficient U.S. workers who are qualified and who
will be available to perform the temporary services or labor for which
an employer desires to hire foreign workers, and that
(2) The employment of the H-2B worker(s) will not adversely affect
the wages and working conditions of U.S. workers similarly employed.
(b) Scope. This subpart sets forth the procedures governing the
labor certification process for the temporary employment of
nonimmigrant foreign workers in the H-2B visa category, as defined in 8
U.S.C. 1101(a)(15)(H)(ii)(b). It also establishes obligations with
respect to the terms and conditions of the temporary labor
certification with which H-2B employers must comply, as well as their
obligations to H-2B workers and workers in corresponding employment.
Additionally, this subpart sets forth integrity measures for ensuring
employers' continued compliance with the terms and conditions of the
temporary labor certification.
Sec. 655.2 Authority of the agencies, offices, and divisions in the
Department of Labor.
(a) Authority and role of the Office of Foreign Labor Certification
(OFLC). The Secretary has delegated her authority to make
determinations under this subpart, pursuant to 8 CFR 214.2(h)(6)(iv),
to the Assistant Secretary for the Employment and Training
Administration (ETA), who in turn has delegated that authority to OFLC.
Determinations on an Application for Temporary Employment Certification
in the H-2B program are made by the Administrator, OFLC who, in turn,
may delegate this responsibility to designated staff members, e.g., a
Certifying Officer (CO).
(b) Authority of the Wage and Hour Division (WHD). Pursuant to its
authority under the INA, 8 U.S.C. 1184(c)(14)(B), DHS has delegated to
the Secretary certain investigatory and law enforcement functions with
respect to terms and conditions of employment in the H-2B program. The
Secretary has, in turn, delegated that authority to WHD. The
regulations governing WHD investigation and enforcement functions,
including those related to the enforcement of temporary labor
certifications, issued under this subpart, may be found in 29 CFR part
503.
(c) Concurrent authority. OFLC and WHD have concurrent authority to
impose a debarment remedy under Sec. 655.73 or under 29 CFR 503.24.
Sec. 655.3 Territory of Guam.
Subpart A of this part does not apply to temporary employment in
the Territory of Guam, except that an employer seeking certification
for a job opportunity on Guam must obtain a prevailing wage from the
Department in accordance with Sec. 655.10 of this subpart. The U.S.
Department of Labor (Department or DOL) does not certify to the United
States Citizenship and Immigration Services (USCIS) of DHS the
temporary employment of nonimmigrant foreign workers under H-2B visas,
or enforce compliance with the provisions of the H-2B visa program, in
the Territory of Guam. Under DHS regulations, administration of the H-
2B temporary labor certification program is undertaken by the Governor
of Guam, or the Governor's designated representative.
Sec. 655.4 Special procedures.
To provide for a limited degree of flexibility in carrying out the
Secretary's responsibilities, the Administrator, OFLC has the authority
to establish, continue, revise, or revoke special procedures in the
form of variances for processing certain H-2B applications. Employers
must request and demonstrate in writing to the Administrator, OFLC that
special procedures are necessary. Before making determinations under
this section, the Administrator, OFLC may consult with affected
employers and worker representatives. Special procedures in place on
the effective date of this regulation, including special procedures
currently in effect for handling applications for tree planters and
related reforestation workers, professional athletes, boilermakers
coming to the U.S. on an emergency basis, and professional
entertainers, will remain in force until modified or withdrawn by the
Administrator, OFLC.
Sec. 655.5 Definition of terms.
For purposes of this subpart:
Act means the Immigration and Nationality Act or INA, as amended, 8
U.S.C. 1101 et seq.
Administrative Law Judge (ALJ) means a person within the
Department's Office of Administrative Law Judges appointed under 5
U.S.C. 3105.
Administrator, Office of Foreign Labor Certification (OFLC) means
the primary official of the Office of Foreign Labor Certification, ETA,
or the Administrator's designee.
Administrator, Wage and Hour Division (WHD) means the primary
official of the WHD, or the Administrator's designee.
Agent. (1) Agent means a legal entity or person who:
(i) Is authorized to act on behalf of an employer for temporary
nonagricultural labor certification purposes;
[[Page 10149]]
(ii) Is not itself an employer, or a joint employer, as defined in
this part with respect to a specific application; and
(iii) Is not an association or other organization of employers.
(2) No agent who is under suspension, debarment, expulsion,
disbarment, or otherwise restricted from practice before any court, the
Department, the Executive Office for Immigration Review under 8 CFR
1003.101, or DHS under 8 CFR 292.3 may represent an employer under this
part.
Agricultural labor or services means those duties and occupations
defined in subpart B of this part.
Applicant means a U.S. worker who is applying for a job opportunity
for which an employer has filed an Application for Temporary Employment
Certification (ETA Form 9142 and the appropriate appendices).
Application for Temporary Employment Certification means the Office
of Management and Budget (OMB)-approved ETA Form 9142 and the
appropriate appendices, a valid wage determination, as required by
Sec. 655.10, and a subsequently-filed U.S. worker recruitment report,
submitted by an employer to secure a temporary labor certification
determination from DOL.
Area of intended employment means the geographic area within normal
commuting distance of the place (worksite address) of the job
opportunity for which the certification is sought. There is no rigid
measure of distance that constitutes a normal commuting distance or
normal commuting area, because there may be widely varying factual
circumstances among different areas (e.g., average commuting times,
barriers to reaching the worksite, or quality of the regional
transportation network). If the place of intended employment is within
a Metropolitan Statistical Area (MSA), including a multistate MSA, any
place within the MSA is deemed to be within normal commuting distance
of the place of intended employment. The borders of MSAs are not
controlling in the identification of the normal commuting area; a
location outside of an MSA may be within normal commuting distance of a
location that is inside (e.g., near the border of) the MSA.
Area of substantial unemployment means a contiguous area with a
population of at least 10,000 in which there is an average unemployment
rate equal to or exceeding 6.5 percent for the 12 months preceding the
determination of such areas made by the ETA.
Attorney means any person who is a member in good standing of the
bar of the highest court of any State, possession, territory, or
commonwealth of the U.S., or the District of Columbia. No attorney who
is under suspension, debarment, expulsion, disbarment, or otherwise
restricted from practice before any court, the Department, the
Executive Office for Immigration Review under 8 CFR 1003.101, or DHS
under 8 CFR 292.3 may represent an employer under this subpart.
Board of Alien Labor Certification Appeals (BALCA or Board) means
the permanent Board established by part 656 of this chapter, chaired by
the Chief Administrative Law Judge (Chief ALJ), and consisting of ALJs
assigned to the Department and designated by the Chief ALJ to be
members of BALCA.
Certifying Officer (CO) means an OFLC official designated by the
Administrator, OFLC to make determinations on applications under the H-
2B program. The Administrator, OFLC is the National CO. Other COs may
also be designated by the Administrator, OFLC to make the
determinations required under this subpart.
Chief Administrative Law Judge (Chief ALJ) means the chief official
of the Department's Office of Administrative Law Judges or the Chief
Administrative Law Judge's designee.
Corresponding employment. (1) Corresponding employment means the
employment of workers who are not H-2B workers by an employer that has
a certified H-2B Application for Temporary Employment Certification
when those workers are performing either substantially the same work
included in the job order or substantially the same work performed by
the H-2B workers, except that workers in the following two categories
are not included in corresponding employment:
(i) Incumbent employees continuously employed by the H-2B employer
to perform substantially the same work included in the job order or
substantially the same work performed by the H-2B workers during the 52
weeks prior to the period of employment certified on the Application
for Temporary Employment Certification and who have worked or been paid
for at least 35 hours in at least 48 of the prior 52 workweeks, and who
have worked or been paid for an average of at least 35 hours per week
over the prior 52 weeks, as demonstrated on the employer's payroll
records, provided that the terms and working conditions of their
employment are not substantially reduced during the period of
employment covered by the job order. In determining whether this
standard was met, the employer may take credit for any hours that were
reduced by the employee voluntarily choosing not to work due to
personal reasons such as illness or vacation; or
(ii) Incumbent employees covered by a collective bargaining
agreement or an individual employment contract that guarantees both an
offer of at least 35 hours of work each workweek and continued
employment with the H-2B employer at least through the period of
employment covered by the job order, except that the employee may be
dismissed for cause.
(2) To qualify as corresponding employment, the work must be
performed during the period of the job order, including any approved
extension thereof.
Date of need means the first date the employer requires services of
the H-2B workers as listed on the Application for Temporary Employment
Certification.
Department of Homeland Security (DHS) means the Federal Department
having jurisdiction over certain immigration-related functions, acting
through its agencies, including USCIS.
Employee means a person who is engaged to perform work for an
employer, as defined under the general common law. Some of the factors
relevant to the determination of employee status include: the hiring
party's right to control the manner and means by which the work is
accomplished; the skill required to perform the work; the source of the
instrumentalities and tools for accomplishing the work; the location of
the work; the hiring party's discretion over when and how long to work;
and whether the work is part of the regular business of the hiring
party. Other applicable factors may be considered and no one factor is
dispositive. The terms employee and worker are used interchangeably in
this subpart.
Employer means a person (including any individual, partnership,
association, corporation, cooperative, firm, joint stock company,
trust, or other organization with legal rights and duties) that:
(1) Has a place of business (physical location) in the U.S. and a
means by which it may be contacted for employment;
(2) Has an employer relationship (such as the ability to hire, pay,
fire, supervise or otherwise control the work of employees) with
respect to an H-2B worker or a worker in corresponding employment; and
(3) Possesses, for purposes of filing an Application for Temporary
Employment Certification, a valid Federal Employer Identification
Number (FEIN).
Employer-client means an employer that has entered into an
agreement with
[[Page 10150]]
a job contractor and that is not an affiliate, branch or subsidiary of
the job contractor, under which the job contractor provides services or
labor to the employer on a temporary basis and will not exercise
substantial, direct day-to-day supervision and control in the
performance of the services or labor to be performed other than hiring,
paying and firing the workers.
Employment and Training Administration (ETA) means the agency
within the Department which includes OFLC and has been delegated
authority by the Secretary to fulfill the Secretary's mandate under the
DHS regulations for the administration and adjudication of an
Application for Temporary Employment Certification and related
functions.
Federal holiday means a legal public holiday as defined at 5 U.S.C.
6103.
Full-time means 35 or more hours of work per week.
H-2B Petition means the DHS Petition for a Nonimmigrant Worker
form, or successor form, and accompanying documentation required by DHS
for employers seeking to employ foreign persons as H-2B nonimmigrant
workers. The H-2B Petition includes the approved Application for
Temporary Employment Certification and the Final Determination letter.
H-2B Registration means the OMB-approved ETA Form 9155, submitted
by an employer to register its intent to hire H-2B workers and to file
an Application for Temporary Employment Certification.
H-2B worker means any temporary foreign worker who is lawfully
present in the U.S. and authorized by DHS to perform nonagricultural
labor or services of a temporary or seasonal nature under 8 U.S.C.
1101(a)(15)(H)(ii)(b).
Job contractor means a person, association, firm, or a corporation
that meets the definition of an employer and that contracts services or
labor on a temporary basis to one or more employers, which is not an
affiliate, branch or subsidiary of the job contractor and where the job
contractor will not exercise substantial, direct day-to-day supervision
and control in the performance of the services or labor to be performed
other than hiring, paying and firing the workers.
Job offer means the offer made by an employer or potential employer
of H-2B workers to both U.S. and H-2B workers describing all the
material terms and conditions of employment, including those relating
to wages, working conditions, and other benefits.
Job opportunity means one or more openings for full-time employment
with the petitioning employer within a specified area(s) of intended
employment for which the petitioning employer is seeking workers.
Job order means the document containing the material terms and
conditions of employment relating to wages, hours, working conditions,
worksite and other benefits, including obligations and assurances under
29 CFR part 503 and this subpart that is posted between and among the
State Workforce Agencies (SWAs) on their job clearance systems.
Joint employment means that where two or more employers each have
sufficient definitional indicia of being an employer to be considered
the employer of a worker, those employers will be considered to jointly
employ that worker. Each employer in a joint employment relationship to
a worker is considered a joint employer of that worker.
Layoff means any involuntary separation of one or more U.S.
employees without cause.
Metropolitan Statistical Area (MSA) means a geographic entity
defined by OMB for use by Federal statistical agencies in collecting,
tabulating, and publishing Federal statistics. A metro area contains a
core urban area of 50,000 or more population, and a micro area contains
an urban core of at least 10,000 (but fewer than 50,000) population.
Each metro or micro area consists of one or more counties and includes
the counties containing the core urban area, as well as any adjacent
counties that have a high degree of social and economic integration (as
measured by commuting to work) with the urban core.
National Prevailing Wage Center (NPWC) means that office within
OFLC from which employers, agents, or attorneys who wish to file an
Application for Temporary Employment Certification receive a prevailing
wage determination (PWD).
NPWC Director means the OFLC official to whom the Administrator,
OFLC has delegated authority to carry out certain NPWC operations and
functions.
National Processing Center (NPC) means the office within OFLC which
is charged with the adjudication of an Application for Temporary
Employment Certification or other applications. For purposes of this
subpart, the NPC receiving a request for an H-2B Registration and an
Application for Temporary Employment Certification is the Chicago NPC
whose address is published in the Federal Register.
NPC Director means the OFLC official to whom the Administrator,
OFLC has delegated authority for purposes of certain Chicago NPC
operations and functions.
Non-agricultural labor and services means any labor or services not
considered to be agricultural labor or services as defined in subpart B
of this part. It does not include the provision of services as members
of the medical profession by graduates of medical schools.
Occupational employment statistics (OES) survey means the program
under the jurisdiction of the Bureau of Labor Statistics (BLS) that
provides annual wage estimates for occupations at the State and MSA
levels.
Offered wage means the wage offered by an employer in an H-2B job
order. The offered wage must equal or exceed the highest of the
prevailing wage or Federal, State or local minimum wage.
Office of Foreign Labor Certification (OFLC) means the
organizational component of the ETA that provides national leadership
and policy guidance and develops regulations to carry out the
Secretary's responsibilities for the admission of foreign workers to
the U.S. to perform work described in 8 U.S.C. 1101(a)(15)(H)(ii)(b).
Prevailing wage determination (PWD) means the prevailing wage for
the position, as described in Sec. 655.10, that is the subject of the
Application for Temporary Employment Certification. The PWD is made on
ETA Form 9141, Application for Prevailing Wage Determination.
Professional athlete is defined in 8 U.S.C. 1182(a)(5)(A)(iii)(II),
and means an individual who is employed as an athlete by:
(1) A team that is a member of an association of six or more
professional sports teams whose total combined revenues exceed
$10,000,000 per year, if the association governs the conduct of its
members and regulates the contests and exhibitions in which its member
teams regularly engage; or
(2) Any minor league team that is affiliated with such an
association.
Secretary means the Secretary of Labor, the chief official of the
U.S. Department of Labor, or the Secretary's designee.
Secretary of the Department of Homeland Security means the chief
official of the U.S. Department of Homeland Security (DHS) or the
Secretary of DHS's designee.
Secretary of State means the chief official of the U.S. Department
of State or the Secretary of State's designee.
State Workforce Agency (SWA) means a State government agency that
receives funds under the Wagner-Peyser Act (29
[[Page 10151]]
U.S.C. 49 et seq.) to administer the State's public labor exchange
activities.
Strike means a concerted stoppage of work by employees as a result
of a labor dispute, or any concerted slowdown or other concerted
interruption of operation (including stoppage by reason of the
expiration of a collective bargaining agreement).
Successor in interest means:
(1) Where an employer has violated 29 CFR part 503, or this
subpart, and has ceased doing business or cannot be located for
purposes of enforcement, a successor in interest to that employer may
be held liable for the duties and obligations of the violating employer
in certain circumstances. The following factors, as used under Title
VII of the Civil Rights Act and the Vietnam Era Veterans' Readjustment
Assistance Act, may be considered in determining whether an employer is
a successor in interest; no one factor is dispositive, but all of the
circumstances will be considered as a whole:
(i) Substantial continuity of the same business operations;
(ii) Use of the same facilities;
(iii) Continuity of the work force;
(iv) Similarity of jobs and working conditions;
(v) Similarity of supervisory personnel;
(vi) Whether the former management or owner retains a direct or
indirect interest in the new enterprise;
(vii) Similarity in machinery, equipment, and production methods;
(viii) Similarity of products and services; and
(ix) The ability of the predecessor to provide relief.
(2) For purposes of debarment only, the primary consideration will
be the personal involvement of the firm's ownership, management,
supervisors, and others associated with the firm in the violation(s) at
issue.
United States (U.S.) means the continental U.S., Alaska, Hawaii,
the Commonwealth of Puerto Rico, and the territories of Guam, the U.S.
Virgin Islands, and the Commonwealth of the Northern Mariana Islands
(CNMI).
United States Citizenship and Immigration Services (USCIS) means
the Federal agency within DHS that makes the determination under the
INA whether to grant petitions filed by employers seeking H-2B workers
to perform temporary non-agricultural work in the U.S.
United States worker (U.S. worker) means a worker who is:
(1) A citizen or national of the U.S.;
(2) An alien who is lawfully admitted for permanent residence in
the U.S., is admitted as a refugee under 8 U.S.C. 1157, is granted
asylum under 8 U.S.C. 1158, or is an immigrant otherwise authorized (by
the INA or by DHS) to be employed in the U.S.; or
(3) An individual who is not an unauthorized alien (as defined in 8
U.S.C. 1324a(h)(3)) with respect to the employment in which the worker
is engaging.
Wage and Hour Division (WHD) means the agency within the Department
with investigatory and law enforcement authority, as delegated from
DHS, to carry out the provisions under 8 U.S.C. 1184(c).
Wages mean all forms of cash remuneration to a worker by an
employer in payment for personal services.
Sec. 655.6 Temporary need.
(a) An employer seeking certification under this subpart must
establish that its need for non-agricultural services or labor is
temporary, regardless of whether the underlying job is permanent or
temporary. 8 CFR 214.2(h)(6)(ii)(A).
(b) The employer's need is considered temporary if justified to the
CO as one of the following: A one-time occurrence; a seasonal need; a
peakload need; or an intermittent need, as defined by DHS. 8 CFR
214.2(h)(6)(ii)(B). Except where the employer's need is based on a one-
time occurrence, the CO will deny a request for an H-2B Registration or
an Application for Temporary Employment Certification where the
employer has a need lasting more than 9 months.
(c) A job contractor will only be permitted to seek certification
if it can demonstrate through documentation its own temporary need, not
that of its employer-client(s). A job contractor will only be permitted
to file applications based on a seasonal need or a one-time occurrence.
0
3. In subpart A, add Sec. Sec. 655.7 through 655.9 to read as follows:
Subpart A--Labor Certification Process for Temporary Non-Agricultural
Employment in the United States (H-2B Workers)
* * * * *
Sec.
655.7 Persons and entities authorized to file.
655.8 Requirements for agents.
655.9 Disclosure of foreign worker recruitment.
* * * * *
Sec. 655.7 Persons and entities authorized to file.
(a) Persons authorized to file. In addition to the employer
applicant, a request for an H-2B Registration or an Application for
Temporary Employment Certification may be filed by an attorney or
agent, as defined in Sec. 655.5.
(b) Employer's signature required. Regardless of whether the
employer is represented by an attorney or agent, the employer is
required to sign the H-2B Registration and Application for Temporary
Employment Certification and all documentation submitted to the
Department.
Sec. 655.8 Requirements for agents.
An agent filing an Application for Temporary Employment
Certification on behalf of an employer must provide:
(a) A copy of the agent agreement or other document demonstrating
the agent's authority to represent the employer; and
(b) A copy of the Migrant and Seasonal Agricultural Worker
Protection Act (MSPA) Farm Labor Contractor Certificate of
Registration, if the agent is required under MSPA, at 29 U.S.C. 1801 et
seq., to have such a certificate, identifying the specific farm labor
contracting activities the agent is authorized to perform.
Sec. 655.9 Disclosure of foreign worker recruitment.
(a) The employer, and its attorney or agent, as applicable, must
provide a copy of all agreements with any agent or recruiter whom it
engages or plans to engage in the international recruitment of H-2B
workers under this Application for Temporary Employment Certification.
These agreements must contain the contractual prohibition against
charging fees as set forth in Sec. 655.20(p).
(b) The employer, and its attorney or agent, as applicable, must
also provide the identity and location of all persons and entities
hired by or working for the recruiter or agent referenced in paragraph
(a) of this section, and any of the agents or employees of those
persons and entities, to recruit prospective foreign workers for the H-
2B job opportunities offered by the employer.
(c) The Department will maintain a publicly available list of
agents and recruiters who are party to the agreements referenced in
paragraph (a) of this section, as well as the persons and entities
referenced in paragraph (b) of this section and the locations in which
they are operating.
0
4a. In subpart A add an undesignated center heading before Sec. 655.10
to read as follows:
Prefiling Procedures
0
4b. In Sec. 655.10, revise paragraphs (a), (c) through (e), (h), and
(i), and add paragraphs (j) and (k), to read as follows:
[[Page 10152]]
Sec. 655.10 Prevailing wage.
(a) Offered wage. The employer must advertise the position to all
potential workers at a wage at least equal to the prevailing wage
obtained from the NPWC, or the Federal, State or local minimum wage,
whichever is highest. The employer must offer and pay this wage (or
higher) to both its H-2B workers and its workers in corresponding
employment. The issuance of a PWD under this section does not permit an
employer to pay a wage lower than the highest wage required by any
applicable Federal, State or local law.
* * * * *
(c) Request for PWD. (1) An employer must request and receive a PWD
from the NPWC before filing the job order with the SWA.
(2) The PWD must be valid on the date the job order is posted.
(d) Multiple worksites. If the job opportunity involves multiple
worksites within an area of intended employment and different
prevailing wage rates exist for the opportunity within the area of
intended employment, the prevailing wage is the highest applicable wage
among all the worksites.
(e) NPWC action. The NPWC will provide the PWD, indicate the
source, and return the Application for Prevailing Wage Determination
(ETA Form 9141) with its endorsement to the employer.
* * * * *
(h) Validity period. The NPWC must specify the validity period of
the prevailing wage, which in no event may be more than 365 days and no
less than 90 days from the date that the determination is issued.
(i) Professional athletes. In computing the prevailing wage for a
professional athlete when the job opportunity is covered by
professional sports league rules or regulations, the wage set forth in
those rules or regulations is considered the prevailing wage. 8 U.S.C.
1182(p)(2).
(j) Retention of documentation. The employer must retain the PWD
for 3 years from the date of issuance or the date of a final
determination on the Application for Temporary Employment
Certification, whichever is later, and submit it to a CO if requested
by a Notice of Deficiency, described in Sec. 655.31, or audit, as
described in Sec. 655.70, or to a WHD representative during a WHD
investigation.
(k) Guam. The requirements of this paragraph apply to any request
filed for an H-2B job opportunity on Guam.
0
5. Revise Sec. 655.11 to read as follows:
Sec. 655.11 Registration of H-2B employers.
All employers that desire to hire H-2B workers must establish their
need for services or labor is temporary by filing an H-2B Registration
with the Chicago NPC.
(a) Registration filing. An employer must file an H-2B
Registration. The H-2B Registration must be accompanied by
documentation evidencing:
(1) The number of positions that will be sought in the first year
of registration;
(2) The time period of need for the workers requested;
(3) That the nature of the employer's need for the services or
labor to be performed is non-agricultural and temporary, and is
justified as either a one-time occurrence, a seasonal need, a peakload
need, or an intermittent need, as defined at 8 CFR 214.2(h)(6)(ii)(B)
and Sec. 655.6 (or in the case of job contractors, a seasonal need or
one-time occurrence); and
(4) For job contractors, the job contractor's own seasonal need or
one-time occurrence, such as through the provision of payroll records.
(b) Original signature. The H-2B Registration must bear the
original signature of the employer (and that of the employer's attorney
or agent if applicable). If and when the H-2B Registration is permitted
to be filed electronically, the employer will satisfy this requirement
by signing the H-2B Registration as directed by the CO.
(c) Timeliness of registration filing. A completed request for an
H-2B Registration must be received by no less than 120 calendar days
and no more than 150 calendar days before the employer's date of need,
except where the employer submits the H-2B Registration in support of
an emergency filing under Sec. 655.17.
(d) Temporary need. (1) The employer must establish that its need
for non-agricultural services or labor is temporary, regardless of
whether the underlying job is permanent or temporary. 8 CFR
214.2(h)(6)(ii)(A). A job contractor must also demonstrate through
documentation its own seasonal need or one-time occurrence.
(2) The employer's need will be assessed in accordance with the
definitions provided by the Secretary of DHS and as further defined in
Sec. 655.6.
(e) NPC review. The CO will review the H-2B Registration and its
accompanying documentation for completeness and make a determination
based on the following factors:
(1) The job classification and duties qualify as non-agricultural;
(2) The employer's need for the services or labor to be performed
is temporary in nature, and for job contractors, demonstration of the
job contractor's own seasonal need or one-time occurrence;
(3) The number of worker positions and period of need are
justified; and
(4) The request represents a bona fide job opportunity.
(f) Mailing and postmark requirements. Any notice or request
pertaining to an H-2B Registration sent by the CO to an employer
requiring a response will be mailed to the address provided on the H-2B
Registration using methods to assure next day delivery, including
electronic mail. The employer's response to the notice or request must
be mailed using methods to assure next day delivery, including
electronic mail, and be sent by the due date specified by the CO or by
the next business day if the due date falls on a Saturday, Sunday or
Federal holiday.
(g) Request for information (RFI). If the CO determines the H-2B
Registration cannot be approved, the CO will issue an RFI. The RFI will
be issued within 7 business days of the CO's receipt of the H-2B
Registration. The RFI will:
(1) State the reason(s) why the H-2B Registration cannot be
approved and what supplemental information or documentation is needed
to correct the deficiencies;
(2) Specify a date, no later than 7 business days from the date the
RFI is issued, by which the supplemental information or documentation
must be sent by the employer;
(3) State that, upon receipt of a response to the RFI, the CO will
review the H-2B Registration as well as any supplemental information
and documentation and issue a Notice of Decision on the H-2B
Registration. The CO may, at his or her discretion, issue one or more
additional RFIs before issuing a Notice of Decision on the H-2B
Registration; and
(4) State that failure to comply with an RFI, including not
responding in a timely manner or not providing all required
documentation within the specified timeframe, will result in a denial
of the H-2B Registration.
(h) Notice of Decision. The CO will notify the employer in writing
of the final decision on the H-2B Registration.
(1) Approved H-2B Registration. If the H-2B Registration is
approved, the CO will send a Notice of Decision to the employer, and a
copy to the employer's attorney or agent, if applicable. The Notice of
Decision will notify the employer that it is eligible to seek H-2B
workers in the occupational classification for the anticipated number
of positions and period of need stated
[[Page 10153]]
on the approved H-2B Registration. The CO may approve the H-2B
Registration for a period of up to 3 consecutive years.
(2) Denied H-2B Registration. If the H-2B Registration is denied,
the CO will send a Notice of Decision to the employer, and a copy to
the employer's attorney or agent, if applicable. The Notice of Decision
will:
(i) State the reason(s) why the H-2B Registration is denied;
(ii) Offer the employer an opportunity to request administrative
review under Sec. 655.61 within 10 business days from the date the
Notice of Decision is issued and state that if the employer does not
request administrative review within that period the denial is final.
(i) Retention of documents. All employers filing an H-2B
Registration are required to retain any documents and records not
otherwise submitted proving compliance with this subpart. Such records
and documents must be retained for a period of 3 years from the date of
certification of the last Application for Temporary Employment
Certification supported by the H-2B Registration, if approved, or 3
years from the date the decision is issued if the H-2B Registration is
denied or 3 years from the day the Department receives written
notification from the employer withdrawing its pending H-2B
Registration.
(j) Transition period. In order to allow OFLC to make the necessary
changes to its program operations to accommodate the new registration
process, OFLC will announce in the Federal Register a separate
transition period for the registration process, and until that time,
will continue to adjudicate temporary need during the processing of
applications.
0
6. In subpart A, add Sec. Sec. 655.12 and 655.13 to read as follows:
Sec. 655.12 Use of registration of H-2B employers.
(a) Upon approval of the H-2B Registration, the employer is
authorized for the specified period of up to 3 consecutive years from
the date the H-2B Registration is approved to file an Application for
Temporary Employment Certification, unless:
(1) The number of workers to be employed has increased by more than
20 percent (or 50 percent for employers requesting fewer than 10
workers) from the initial year;
(2) The dates of need for the job opportunity have changed by more
than a total of 30 calendar days from the initial year for the entire
period of need;
(3) The nature of the job classification and/or duties has
materially changed; or
(4) The temporary nature of the employer's need for services or
labor to be performed has materially changed.
(b) If any of the changes in paragraphs (a)(1) through (4) of this
section apply, the employer must file a new H-2B Registration in
accordance with Sec. 655.11.
Sec. 655.13 Review of PWDs.
(a) Request for review of PWDs. Any employer desiring review of a
PWD must make a written request for such review to the NPWC Director
within 7 business days from the date the PWD is issued. The request for
review must clearly identify the PWD for which review is sought; set
forth the particular grounds for the request; and include any materials
submitted to the NPWC for purposes of securing the PWD.
(b) NPWC review. Upon the receipt of the written request for
review, the NPWC Director will review the employer's request and
accompanying documentation, including any supplementary material
submitted by the employer, and after review shall issue a Final
Determination letter; that letter may:
(1) Affirm the PWD issued by the NPWC; or
(2) Modify the PWD.
(c) Request for review by BALCA. Any employer desiring review of
the NPWC Director's decision on a PWD must make a written request for
review of the determination by BALCA within 10 business days from the
date the Final Determination letter is issued.
(1) The request for BALCA review must be in writing and addressed
to the NPWC Director who made the final determinations. Upon receipt of
a request for BALCA review, the NPWC will prepare an appeal file and
submit it to BALCA.
(2) The request for review, statements, briefs, and other
submissions of the parties must contain only legal arguments and may
refer to only the evidence that was within the record upon which the
decision on the PWD was based.
(3) BALCA will handle appeals in accordance with Sec. 655.61.
0
7. In subpart A, add an undesignated center heading above Sec. 655.15
to read as follows:
Application for Temporary Employment Certification Filing Procedures
0
8. Revise Sec. 655.15 to read as follows:
Sec. 655.15 Application filing requirements.
All registered employers that desire to hire H-2B workers must file
an Application for Temporary Employment Certification with the NPC
designated by the Administrator, OFLC. Except for employers that
qualify for emergency procedures at Sec. 655.17, employers that fail
to register under the procedures in Sec. 655.11 and/or that fail to
submit a PWD obtained under Sec. 655.10 will not be eligible to file
an Application for Temporary Employment Certification and their
applications will be returned without review.
(a) What to file. A registered employer seeking H-2B workers must
file a completed Application for Temporary Employment Certification
(ETA Form 9142 and the appropriate appendices and valid PWD), a copy of
the job order being submitted concurrently to the SWA serving the area
of intended employment, as set forth in Sec. 655.16, and copies of all
contracts and agreements with any agent and/or recruiter, executed in
connection with the job opportunities and all information required, as
specified in Sec. Sec. 655.8 and 655.9.
(b) Timeliness. A completed Application for Temporary Employment
Certification must be filed no more than 90 calendar days and no less
than 75 calendar days before the employer's date of need.
(c) Location and method of filing. The employer must submit the
Application for Temporary Employment Certification and all required
supporting documentation to the NPC. At a future date the Department
may also permit an Application for Temporary Employment Certification
to be filed electronically in addition to or instead of by mail. Notice
of such procedure will be published in the Federal Register.
(d) Original signature. The Application for Temporary Employment
Certification must bear the original signature of the employer (and
that of the employer's authorized attorney or agent if the employer is
so represented). If and when an Application for Temporary Employment
Certification is permitted to be filed electronically, the employer
will satisfy this requirement by signing the Application for Temporary
Employment Certification as directed by the CO.
(e) Requests for multiple positions. Certification of more than one
position may be requested on the Application for Temporary Employment
Certification as long as all H-2B workers will perform the same
services or labor under the same terms and conditions, in the same
occupation, in the same area of intended employment, and during the
same period of employment.
(f) Separate applications. Only one Application for Temporary
Employment Certification may be filed for worksite(s)
[[Page 10154]]
within one area of intended employment for each job opportunity with an
employer for each period of employment. Except where otherwise
permitted under Sec. 655.4, an association or other organization of
employers is not permitted to file master applications on behalf of its
employer-members under the H-2B program.
(g) One-time occurrence. Where a one-time occurrence lasts longer
than 1 year, the CO will instruct the employer on any additional
recruitment requirements with respect to the continuing validity of the
labor market test or offered wage obligation.
(h) Information dissemination. Information received in the course
of processing a request for an H-2B Registration, an Application for
Temporary Employment Certification or program integrity measures such
as audits may be forwarded from OFLC to WHD, or any other Federal
agency as appropriate, for investigative and/or enforcement purposes.
0
9. Add Sec. 655.16 to read as follows:
Sec. 655.16 Filing of the job order at the SWA.
(a) Submission of the job order. (1) The employer must submit the
job order to the SWA serving the area of intended employment at the
same time it submits the Application for Temporary Employment
Certification and a copy of the job order to the NPC in accordance with
Sec. 655.15. If the job opportunity is located in more than one State
within the same area of intended employment, the employer may submit
the job order to any one of the SWAs having jurisdiction over the
anticipated worksites, but must identify the receiving SWA on the copy
of the job order submitted to the NPC with its Application for
Temporary Employment Certification. The employer must inform the SWA
that the job order is being placed in connection with a concurrently
submitted Application for Temporary Employment Certification for H-2B
workers.
(2) In addition to complying with State-specific requirements
governing job orders, the job order submitted to the SWA must satisfy
the requirements set forth in Sec. 655.18.
(b) SWA review of the job order. The SWA must review the job order
and ensure that it complies with criteria set forth in Sec. 655.18. If
the SWA determines that the job order does not comply with the
applicable criteria, the SWA must inform the CO at the NPC of the noted
deficiencies within 6 business days of receipt of the job order.
(c) Intrastate and interstate clearance. Upon receipt of the Notice
of Acceptance, as described in Sec. 655.33, the SWA must promptly
place the job order in intrastate clearance and provide to other states
as directed by the CO.
(d) Duration of job order posting and SWA referral of U.S. workers.
Upon receipt of the Notice of Acceptance, any SWA in receipt of the
employer's job order must keep the job order on its active file until
the end of the recruitment period, as set forth in Sec. 655.40(c), and
must refer to the employer in a manner consistent with Sec. 655.47 all
qualified U.S. workers who apply for the job opportunity or on whose
behalf a job application is made.
(e) Amendments to a job order. The employer may amend the job order
at any time before the CO makes a final determination, in accordance
with procedures set forth in Sec. 655.35.
0
10. Revise Sec. 655.17 to read as follows:
Sec. 655.17 Emergency situations.
(a) Waiver of time period. The CO may waive the time period(s) for
filing an H-2B Registration and/or an Application for Temporary
Employment Certification for employers that have good and substantial
cause, provided that the CO has sufficient time to thoroughly test the
domestic labor market on an expedited basis and to make a final
determination as required by Sec. 655.50.
(b) Employer requirements. The employer requesting a waiver of the
required time period(s) must submit to the NPC a request for a waiver
of the time period requirement, a completed Application for Temporary
Employment Certification and the proposed job order identifying the SWA
serving the area of intended employment, and must otherwise meet the
requirements of Sec. 655.15. If the employer did not previously apply
for an H-2B Registration, the employer must also submit a completed H-
2B Registration with all supporting documentation, as required by Sec.
655.11. If the employer did not previously apply for a PWD, the
employer must also submit a completed PWD request. The employer's
waiver request must include detailed information describing the good
and substantial cause that has necessitated the waiver request. Good
and substantial cause may include, but is not limited to, the
substantial loss of U.S. workers due to Acts of God, or a similar
unforeseeable man-made catastrophic event (such as an oil spill or
controlled flooding) that is wholly outside of the employer's control,
unforeseeable changes in market conditions, or pandemic health issues.
A denial of a previously submitted H-2B Registration in accordance with
the procedures set forth in Sec. 655.11 does not constitute good and
substantial cause necessitating a waiver under this section.
(c) Processing of emergency applications. The CO will process the
emergency H-2B Registration and/or Application for Temporary Employment
Certification and job order in a manner consistent with the provisions
of this subpart and make a determination on the Application for
Temporary Employment Certification in accordance with Sec. 655.50. If
the CO grants the waiver request, the CO will forward a Notice of
Acceptance and the approved job order to the SWA serving the area of
intended employment identified by the employer in the job order. If the
CO determines that the certification cannot be granted because, under
paragraph (a) of this section, the request for emergency filing is not
justified and/or there is not sufficient time to make a determination
of temporary need or ensure compliance with the criteria for
certification contained in Sec. 655.51, the CO will send a Final
Determination letter to the employer in accordance with Sec. 655.53.
0
11. Add Sec. Sec. 655.18 and 655.19 to read as follows:
Sec. 655.18 Job order assurances and contents.
(a) General. Each job order placed in connection with an
Application for Temporary Employment Certification must at a minimum
include the information contained in paragraph (b) of this section. In
addition, by submitting the Application for Temporary Employment
Certification, an employer agrees to comply with the following
assurances with respect to each job order:
(1) Prohibition against preferential treatment. The employer's job
order must offer to U.S. workers no less than the same benefits, wages,
and working conditions that the employer is offering, intends to offer,
or will provide to H-2B workers. Job offers may not impose on U.S.
workers any restrictions or obligations that will not be imposed on the
employer's H-2B workers. This does not relieve the employer from
providing to H-2B workers at least the minimum benefits, wages, and
working conditions which must be offered to U.S. workers consistent
with this section.
(2) Bona fide job requirements. Each job qualification and
requirement must be listed in the job order and must be bona fide and
consistent with the normal and accepted qualifications and requirements
imposed by non-H-2B employers in the same occupation and area of
intended employment.
[[Page 10155]]
(b) Contents. In addition to complying with the assurances in
paragraph (a) of this section, the employer's job order must meet the
following requirements:
(1) State the employer's name and contact information;
(2) Indicate that the job opportunity is a temporary, full-time
position, including the total number of job openings the employer
intends to fill;
(3) Describe the job opportunity for which certification is sought
with sufficient information to apprise U.S. workers of the services or
labor to be performed, including the duties, the minimum education and
experience requirements, the work hours and days, and the anticipated
start and end dates of the job opportunity;
(4) Indicate the geographic area of intended employment with enough
specificity to apprise applicants of any travel requirements and where
applicants will likely have to reside to perform the services or labor;
(5) Specify the wage that the employer is offering, intends to
offer, or will provide to H-2B workers, or, in the event that there are
multiple wage offers (such as where an itinerary is authorized through
special procedures for an employer), the range of wage offers, and
ensure that the wage offer equals or exceeds the highest of the
prevailing wage or the Federal, State, or local minimum wage;
(6) If applicable, specify that overtime will be available to the
worker and the wage offer(s) for working any overtime hours;
(7) If applicable, state that on-the-job training will be provided
to the worker;
(8) State that the employer will use a single workweek as its
standard for computing wages due;
(9) Specify the frequency with which the worker will be paid, which
must be at least every 2 weeks or according to the prevailing practice
in the area of intended employment, whichever is more frequent;
(10) If the employer provides the worker with the option of board,
lodging, or other facilities, including fringe benefits, or intends to
assist workers to secure such lodging, disclose the provision and cost
of the board, lodging, or other facilities, including fringe benefits
or assistance to be provided;
(11) State that the employer will make all deductions from the
worker's paycheck required by law. Specify any deductions the employer
intends to make from the worker's paycheck which are not required by
law, including, if applicable, any deductions for the reasonable cost
of board, lodging, or other facilities;
(12) Detail how the worker will be provided with or reimbursed for
transportation and subsistence from the place from which the worker has
come to work for the employer, whether in the U.S. or abroad, to the
place of employment, if the worker completes 50 percent of the period
of employment covered by the job order, consistent with Sec.
655.20(j)(1)(i);
(13) State that the employer will provide or pay for the worker's
cost of return transportation and daily subsistence from the place of
employment to the place from which the worker, disregarding intervening
employment, departed to work for the employer, if the worker completes
the certified period of employment or is dismissed from employment for
any reason by the employer before the end of the period, consistent
with Sec. 655.20(j)(1)(ii);
(14) If applicable, state that the employer will provide daily
transportation to and from the worksite;
(15) State that the employer will reimburse the H-2B worker in the
first workweek for all visa, visa processing, border crossing, and
other related fees, including those mandated by the government,
incurred by the H-2B worker (but need not include passport expenses or
other charges primarily for the benefit of the worker);
(16) State that the employer will provide to the worker, without
charge or deposit charge, all tools, supplies, and equipment required
to perform the duties assigned, in accordance with Sec. 655.20(k);
(17) State the applicability of the three-fourths guarantee,
offering the worker employment for a total number of work hours equal
to at least three-fourths of the workdays of each 12-week period, if
the period of employment covered by the job order is 120 or more days,
or each 6-week period, if the period of employment covered by the job
order is less than 120 days, in accordance with Sec. 655.20(f); and
(18) Instruct applicants to inquire about the job opportunity or
send applications, indications of availability, and/or resumes directly
to the nearest office of the SWA in the State in which the
advertisement appeared and include the SWA contact information.
Sec. 655.19 Job contractor filing requirements.
(a) Provided that a job contractor and any employer-client are
joint employers, a job contractor may submit an Application for
Temporary Employment Certification on behalf of itself and that
employer-client.
(b) A job contractor must have separate contracts with each
different employer-client. Each contract or agreement may support only
one Application for Temporary Employment Certification for each
employer-client job opportunity within a single area of intended
employment.
(c) Either the job contractor or its employer-client may submit an
ETA Form 9141, Application for Prevailing Wage Determination,
describing the job opportunity to the NPWC. However, each of the joint
employers is separately responsible for ensuring that the wage offer
listed on the Application for Temporary Employment Certification, ETA
Form 9142, and related recruitment at least equals the prevailing wage
rate determined by the NPWC and that all other wage obligations are
met.
(d)(1) A job contractor that is filing as a joint employer with its
employer-client must submit to the NPC a completed Application for
Temporary Employment Certification, ETA Form 9142, that clearly
identifies the joint employers (the job contractor and its employer-
client) and the employment relationship (including the actual
worksite), in accordance with the instructions provided by the
Department. The Application for Temporary Employment Certification must
bear the original signature of the job contractor and the employer-
client and be accompanied by a recruitment report bearing both joint
employers' signatures and the contract or agreement establishing the
employers' relationship related to the workers sought.
(2) By signing the Application for Temporary Employment
Certification, each employer independently attests to the conditions of
employment required of an employer participating in the H-2B program
and assumes full responsibility for the accuracy of the representations
made in the application and for all of the responsibilities of an
employer in the H-2B program.
(e)(1) Either the job contractor or its employer-client may place
the required job order and conduct recruitment as described in Sec.
655.16 and Sec. Sec. 655.42-46. Also, either one of the joint
employers may assume responsibility for interviewing applicants.
However, both of the joint employers must sign the recruitment report
that is submitted to the NPC with the Application for Temporary
Employment Certification, ETA Form 9142.
(2) The job order and all recruitment conducted by joint employers
must satisfy the content requirements identified in Sec. 655.18 and
Sec. 655.41. Additionally, in order to fully apprise applicants of the
job opportunity and
[[Page 10156]]
avoid potential confusion inherent in a job opportunity involving two
employers, joint employer recruitment must clearly identify both
employers (the job contractor and its employer-client) by name and must
clearly identify the worksite location(s) where workers will perform
labor or services.
(3)(i) Provided that all of the employer-clients' job opportunities
are in the same occupation and area of intended employment and have the
same requirements and terms and conditions of employment, including
dates of employment, a job contractor may combine more than one of its
joint employer employer-clients' job opportunities in a single
advertisement. Each advertisement must fully apprise potential workers
of the job opportunity available with each employer-client and
otherwise satisfy the advertising content requirements required for all
H-2B-related advertisements, as identified in Sec. 655.41. Such a
shared advertisement must clearly identify the job contractor by name,
the joint employment relationship, and the number of workers sought for
each job opportunity, identified by employer-client name and location
(e.g. 5 openings with Employer-Client 1 (worksite location), 3 openings
with Employer-Client 2 (worksite location)).
(ii) In addition, the advertisement must contain the following
statement: "Applicants may apply for any or all of the jobs listed.
When applying, please identify the job(s) (by company and work
location) you are applying to for the entire period of employment
specified." If an applicant fails to identify one or more specific
work location(s), that applicant is presumed to have applied to all
work locations listed in the advertisement.
(f) If an application for joint employers is approved, the NPC will
issue one certification and send it to the job contractor. In order to
ensure notice to both employers, a courtesy copy of the certification
cover letter will be sent to the employer-client.
(g) When submitting a certified Application for Temporary
Employment Certification to USCIS, the job contractor should submit the
complete ETA Form 9142 containing the original signatures of both the
job contractor and employer-client.
0
12. In subpart A, add an undesignated center heading before Sec.
655.20 to read as follows:
Assurances and Obligations
0
13. Revise Sec. 655.20 to read as follows:
Sec. 655.20 Assurances and obligations of H-2B employers.
An employer employing H-2B workers and/or workers in corresponding
employment under an Application for Temporary Employment Certification
has agreed as part of the Application for Temporary Employment
Certification that it will abide by the following conditions with
respect to its H-2B workers and any workers in corresponding
employment:
(a) Rate of pay. (1) The offered wage in the job order equals or
exceeds the highest of the prevailing wage or Federal minimum wage,
State minimum wage, or local minimum wage. The employer must pay at
least the offered wage, free and clear, during the entire period of the
Application for Temporary Employment Certification granted by OFLC.
(2) The offered wage is not based on commissions, bonuses, or other
incentives, including paying on a piece-rate basis, unless the employer
guarantees a wage earned every workweek that equals or exceeds the
offered wage.
(3) If the employer requires one or more minimum productivity
standards of workers as a condition of job retention, the standards
must be specified in the job order and the employer must demonstrate
that they are normal and usual for non-H-2B employers for the same
occupation in the area of intended employment.
(4) An employer that pays on a piece-rate basis must demonstrate
that the piece rate is no less than the normal rate paid by non-H-2B
employers to workers performing the same activity in the area of
intended employment. The average hourly piece rate earnings must result
in an amount at least equal to the offered wage. If the worker is paid
on a piece rate basis and at the end of the workweek the piece rate
does not result in average hourly piece rate earnings during the
workweek at least equal to the amount the worker would have earned had
the worker been paid at the offered hourly wage, then the employer must
supplement the worker's pay at that time so that the worker's earnings
are at least as much as the worker would have earned during the
workweek if the worker had instead been paid at the offered hourly wage
for each hour worked.
(b) Wages free and clear. The payment requirements for wages in
this section will be satisfied by the timely payment of such wages to
the worker either in cash or negotiable instrument payable at par. The
payment must be made finally and unconditionally and "free and
clear." The principles applied in determining whether deductions are
reasonable and payments are received free and clear and the
permissibility of deductions for payments to third persons are
explained in more detail in 29 CFR part 531.
(c) Deductions. The employer must make all deductions from the
worker's paycheck required by law. The job order must specify all
deductions not required by law which the employer will make from the
worker's pay; any such deductions not disclosed in the job order are
prohibited. The wage payment requirements of paragraph (b) of this
section are not met where unauthorized deductions, rebates, or refunds
reduce the wage payment made to the worker below the minimum amounts
required by the offered wage or where the worker fails to receive such
amounts free and clear because the worker "kicks back" directly or
indirectly to the employer or to another person for the employer's
benefit the whole or part of the wages delivered to the worker.
Authorized deductions are limited to: Those required by law, such as
taxes payable by workers that are required to be withheld by the
employer and amounts due workers which the employer is required by
court order to pay to another; deductions for the reasonable cost or
fair value of board, lodging, and facilities furnished; and deductions
of amounts which are authorized to be paid to third persons for the
worker's account and benefit through his or her voluntary assignment or
order or which are authorized by a collective bargaining agreement with
bona fide representatives of workers which covers the employer.
Deductions for amounts paid to third persons for the worker's account
and benefit which are not so authorized or are contrary to law or from
which the employer, agent or recruiter including any agents or
employees of these entities, or any affiliated person derives any
payment, rebate, commission, profit, or benefit directly or indirectly,
may not be made if they reduce the actual wage paid to the worker below
the offered wage indicated on the Application for Temporary Employment
Certification.
(d) Job opportunity is full-time. The job opportunity is a full-
time temporary position, consistent with Sec. 655.5, and the employer
must use a single workweek as its standard for computing wages due. An
employee's workweek must be a fixed and regularly recurring period of
168 hours--seven consecutive 24-hour periods. It need not coincide with
the calendar week but may begin on any day and at any hour of the day.
(e) Job qualifications and requirements. Each job qualification and
[[Page 10157]]
requirement must be listed in the job order and must be bona fide and
consistent with the normal and accepted qualifications and requirements
imposed by non-H-2B employers in the same occupation and area of
intended employment. The employer's job qualifications and requirements
imposed on U.S. workers must be no less favorable than the
qualifications and requirements that the employer is imposing or will
impose on H-2B workers. A qualification means a characteristic that is
necessary to the individual's ability to perform the job in question. A
requirement means a term or condition of employment which a worker is
required to accept in order to obtain the job opportunity. The CO may
require the employer to submit documentation to substantiate the
appropriateness of any job qualification and/or requirement specified
in the job order.
(f) Three-fourths guarantee. (1) The employer must guarantee to
offer the worker employment for a total number of work hours equal to
at least three-fourths of the workdays in each 12-week period (each 6-
week period if the period of employment covered by the job order is
less than 120 days) beginning with the first workday after the arrival
of the worker at the place of employment or the advertised first date
of need, whichever is later, and ending on the expiration date
specified in the job order or in its extensions, if any. See the
exception in paragraph (y) of this section.
(2) For purposes of this paragraph a workday means the number of
hours in a workday as stated in the job order. The employer must offer
a total number of hours of work to ensure the provision of sufficient
work to reach the three-fourths guarantee in each 12-week period (each
6-week period if the period of employment covered by the job order is
less than 120 days) during the work period specified in the job order,
or during any modified job order period to which the worker and
employer have mutually agreed and that has been approved by the CO.
(3) In the event the worker begins working later than the specified
beginning date the guarantee period begins with the first workday after
the arrival of the worker at the place of employment, and continues
until the last day during which the job order and all extensions
thereof are in effect.
(4) The 12-week periods (6-week periods if the period of employment
covered by the job order is less than 120 days) to which the guarantee
applies are based upon the workweek used by the employer for pay
purposes. The first 12-week period (or 6-week period, as appropriate)
also includes any partial workweek, if the first workday after the
worker's arrival at the place of employment is not the beginning of the
employer's workweek, with the guaranteed number of hours increased on a
pro rata basis (thus, the first period may include up to 12 weeks and 6
days (or 6 weeks and 6 days, as appropriate)). The final 12-week period
(or 6-week period, as appropriate) includes any time remaining after
the last full 12-week period (or 6-week period) ends, and thus may be
as short as 1 day, with the guaranteed number of hours decreased on a
pro rata basis.
(5) Therefore, if, for example, a job order is for a 32-week period
(a period greater than 120 days), during which the normal workdays and
work hours for the workweek are specified as 5 days a week, 7 hours per
day, the worker would have to be guaranteed employment for at least 315
hours (12 weeks x 35 hours/week = 420 hours x 75 percent = 315) in the
first 12-week period, at least 315 hours in the second 12-week period,
and at least 210 hours (8 weeks x 35 hours/week = 280 hours x 75
percent = 210) in the final partial period. If the job order is for a
16-week period (less than 120 days), during which the normal workdays
and work hours for the workweek are specified as 5 days a week, 7 hours
per day, the worker would have to be guaranteed employment for at least
157.5 hours (6 weeks x 35 hours/week = 210 hours x 75 percent = 157.5)
in the first 6-week period, at least 157.5 hours in the second 6-week
period, and at least 105 hours (4 weeks x 35 hours/week = 140 hours x
75 percent = 105) in the final partial period.
(6) If the worker is paid on a piece rate basis, the employer must
use the worker's average hourly piece rate earnings or the offered
wage, whichever is higher, to calculate the amount due under the
guarantee.
(7) A worker may be offered more than the specified hours of work
on a single workday. For purposes of meeting the guarantee, however,
the worker will not be required to work for more than the number of
hours specified in the job order for a workday. The employer, however,
may count all hours actually worked in calculating whether the
guarantee has been met. If during any 12-week period (6-week period if
the period of employment covered by the job order is less than 120
days) during the period of the job order the employer affords the U.S.
or H-2B worker less employment than that required under paragraph
(f)(1) of this section, the employer must pay such worker the amount
the worker would have earned had the worker, in fact, worked for the
guaranteed number of days. An employer has not met the work guarantee
if the employer has merely offered work on three-fourths of the
workdays in an 12-week period (or 6-week period, as appropriate) if
each workday did not consist of a full number of hours of work time as
specified in the job order.
(8) Any hours the worker fails to work, up to a maximum of the
number of hours specified in the job order for a workday, when the
worker has been offered an opportunity to work in accordance with
paragraph (f)(1) of this section, and all hours of work actually
performed (including voluntary work over 8 hours in a workday), may be
counted by the employer in calculating whether each 12-week period (or
6-week period, as appropriate) of guaranteed employment has been met.
An employer seeking to calculate whether the guaranteed number of hours
has been met must maintain the payroll records in accordance with this
part.
(g) Impossibility of fulfillment. If, before the expiration date
specified in the job order, the services of the worker are no longer
required for reasons beyond the control of the employer due to fire,
weather, or other Act of God, or similar unforeseeable man-made
catastrophic event (such as an oil spill or controlled flooding) that
is wholly outside the employer's control that makes the fulfillment of
the job order impossible, the employer may terminate the job order with
the approval of the CO. In the event of such termination of a job
order, the employer must fulfill a three-fourths guarantee, as
described in paragraph (f) of this section, for the time that has
elapsed from the start date listed in the job order or the first
workday after the arrival of the worker at the place of employment,
whichever is later, to the time of its termination. The employer must
make efforts to transfer the H-2B worker or worker in corresponding
employment to other comparable employment acceptable to the worker and
consistent with the INA, as applicable. If a transfer is not effected,
the employer must return the worker, at the employer's expense, to the
place from which the worker (disregarding intervening employment) came
to work for the employer, or transport the worker to the worker's next
certified H-2B employer, whichever the worker prefers.
(h) Frequency of pay. The employer must state in the job order the
frequency with which the worker will be paid, which must be at least
every 2 weeks or according to the prevailing practice in
[[Page 10158]]
the area of intended employment, whichever is more frequent. Employers
must pay wages when due.
(i) Earnings statements. (1) The employer must keep accurate and
adequate records with respect to the workers' earnings, including but
not limited to: Records showing the nature, amount and location(s) of
the work performed; the number of hours of work offered each day by the
employer (broken out by hours offered both in accordance with and over
and above the three-fourths guarantee in paragraph (f) of this
section); the hours actually worked each day by the worker; if the
number of hours worked by the worker is less than the number of hours
offered, the reason(s) the worker did not work; the time the worker
began and ended each workday; the rate of pay (both piece rate and
hourly, if applicable); the worker's earnings per pay period; the
worker's home address; and the amount of and reasons for any and all
deductions taken from or additions made to the worker's wages.
(2) The employer must furnish to the worker on or before each
payday in one or more written statements the following information:
(i) The worker's total earnings for each workweek in the pay
period;
(ii) The worker's hourly rate and/or piece rate of pay;
(iii) For each workweek in the pay period the hours of employment
offered to the worker (showing offers in accordance with the three-
fourths guarantee as determined in paragraph (f) of this section,
separate from any hours offered over and above the guarantee);
(iv) For each workweek in the pay period the hours actually worked
by the worker;
(v) An itemization of all deductions made from or additions made to
the worker's wages;
(vi) If piece rates are used, the units produced daily;
(vii) The beginning and ending dates of the pay period; and
(viii) The employer's name, address and FEIN.
(j) Transportation and visa fees. (1)(i) Transportation to the
place of employment. The employer must provide or reimburse the worker
for transportation and subsistence from the place from which the worker
has come to work for the employer, whether in the U.S. or abroad, to
the place of employment if the worker completes 50 percent of the
period of employment covered by the job order (not counting any
extensions). The employer may arrange and pay for the transportation
and subsistence directly, advance at a minimum the most economical and
reasonable common carrier cost of the transportation and subsistence to
the worker before the worker's departure, or pay the worker for the
reasonable costs incurred by the worker. When it is the prevailing
practice of non-H-2B employers in the occupation in the area to do so
or when the employer extends such benefits to similarly situated H-2B
workers, the employer must advance the required transportation and
subsistence costs (or otherwise provide them) to workers in
corresponding employment who are traveling to the employer's worksite.
The amount of the transportation payment must be no less (and is not
required to be more) than the most economical and reasonable common
carrier transportation charges for the distances involved. The amount
of the daily subsistence must be at least the amount permitted in Sec.
655.173 of subpart B of this part. Where the employer will reimburse
the reasonable costs incurred by the worker, it must keep accurate and
adequate records of: The cost of transportation and subsistence
incurred by the worker; the amount reimbursed; and the dates of
reimbursement. Note that the FLSA applies independently of the H-2B
requirements and imposes obligations on employers regarding payment of
wages.
(ii) Transportation from the place of employment. If the worker
completes the period of employment covered by the job order (not
counting any extensions), or if the worker is dismissed from employment
for any reason by the employer before the end of the period, and the
worker has no immediate subsequent H-2B employment, the employer must
provide or pay at the time of departure for the worker's cost of return
transportation and daily subsistence from the place of employment to
the place from which the worker, disregarding intervening employment,
departed to work for the employer. If the worker has contracted with a
subsequent employer that has not agreed in the job order to provide or
pay for the worker's transportation from the employer's worksite to
such subsequent employer's worksite, the employer must provide or pay
for that transportation and subsistence. If the worker has contracted
with a subsequent employer that has agreed in the job order to provide
or pay for the worker's transportation from the employer's worksite to
such subsequent employer's worksite, the subsequent employer must
provide or pay for such expenses.
(iii) Employer-provided transportation. All employer-provided
transportation must comply with all applicable Federal, State, and
local laws and regulations and must provide, at a minimum, the same
vehicle safety standards, driver licensure requirements, and vehicle
insurance as required under 49 CFR parts 390, 393, and 396.
(iv) Disclosure. All transportation and subsistence costs that the
employer will pay must be disclosed in the job order.
(2) The employer must pay or reimburse the worker in the first
workweek for all visa, visa processing, border crossing, and other
related fees (including those mandated by the government) incurred by
the H-2B worker, but not for passport expenses or other charges
primarily for the benefit of the worker.
(k) Employer-provided items. The employer must provide to the
worker, without charge or deposit charge, all tools, supplies, and
equipment required to perform the duties assigned.
(l) Disclosure of job order. The employer must provide to an H-2B
worker if outside of the U.S. no later than the time at which the
worker applies for the visa, or to a worker in corresponding employment
no later than on the day work commences, a copy of the job order
including any subsequent approved modifications. For an H-2B worker
changing employment from an H-2B employer to a subsequent H-2B
employer, the copy must be provided no later than the time an offer of
employment is made by the subsequent H-2B employer. The disclosure of
all documents required by this paragraph must be provided in a language
understood by the worker, as necessary or reasonable.
(m) Notice of worker rights. The employer must post and maintain in
a conspicuous location at the place of employment a poster provided by
the Department which sets out the rights and protections for H-2B
workers and workers in corresponding employment. The employer must post
the poster in English. To the extent necessary, the employer must
request and post additional posters, as made available by the
Department, in any language common to a significant portion of the
workers if they are not fluent in English.
(n) No unfair treatment. The employer has not and will not
intimidate, threaten, restrain, coerce, blacklist, discharge or in any
manner discriminate against, and has not and will not cause any person
to intimidate, threaten, restrain, coerce, blacklist, discharge, or in
any manner discriminate against, any person who has:
(1) Filed a complaint under or related to 8 U.S.C. 1184(c), 29 CFR
part 503, or
[[Page 10159]]
this subpart, or any other Department regulation promulgated
thereunder;
(2) Instituted or caused to be instituted any proceeding under or
related to 8 U.S.C. 1184(c), 29 CFR part 503, or this subpart or any
other Department regulation promulgated thereunder;
(3) Testified or is about to testify in any proceeding under or
related to 8 U.S.C. 1184(c), 29 CFR part 503, or this subpart or any
other Department regulation promulgated thereunder;
(4) Consulted with a workers' center, community organization, labor
union, legal assistance program, or an attorney on matters related to 8
U.S.C. 1184(c), 29 CFR part 503, or this subpart or any other
Department regulation promulgated thereunder; or
(5) Exercised or asserted on behalf of himself/herself or others
any right or protection afforded by 8 U.S.C. 1184(c), 29 CFR part 503,
or this subpart or any other Department regulation promulgated
thereunder.
(o) Comply with the prohibitions against employees paying fees. The
employer and its attorney, agents, or employees have not sought or
received payment of any kind from the worker for any activity related
to obtaining H-2B labor certification or employment, including payment
of the employer's attorney or agent fees, application and H-2B Petition
fees, recruitment costs, or any fees attributed to obtaining the
approved Application for Temporary Employment Certification. For
purposes of this paragraph, payment includes, but is not limited to,
monetary payments, wage concessions (including deductions from wages,
salary, or benefits), kickbacks, bribes, tributes, in kind payments,
and free labor. All wages must be paid free and clear. This provision
does not prohibit employers or their agents from receiving
reimbursement for costs that are the responsibility and primarily for
the benefit of the worker, such as government-required passport fees.
(p) Contracts with third parties to comply with prohibitions. The
employer must contractually prohibit in writing any agent or recruiter
(or any agent or employee of such agent or recruiter) whom the employer
engages, either directly or indirectly, in international recruitment of
H-2B workers to seek or receive payments or other compensation from
prospective workers. The contract must include the following statement:
"Under this agreement, [name of agent, recruiter] and any agent of or
employee of [name of agent or recruiter] are prohibited from seeking or
receiving payments from any prospective employee of [employer name] at
any time, including before or after the worker obtains employment.
Payments include but are not limited to, any direct or indirect fees
paid by such employees for recruitment, job placement, processing,
maintenance, attorneys' fees, agent fees, application fees, or petition
fees."
(q) Prohibition against preferential treatment of foreign workers.
The employer's job offer must offer to U.S. workers no less than the
same benefits, wages, and working conditions that the employer is
offering, intends to offer, or will provide to H-2B workers. Job offers
may not impose on U.S. workers any restrictions or obligations that
will not be imposed on the employer's H-2B workers. This does not
relieve the employer from providing to H-2B workers at least the
minimum benefits, wages, and working conditions which must be offered
to U.S. workers consistent with this section.
(r) Non-discriminatory hiring practices. The job opportunity is,
and through the period set forth in paragraph (t) of this section must
continue to be, open to any qualified U.S. worker regardless of race,
color, national origin, age, sex, religion, disability, or citizenship.
Rejections of any U.S. workers who applied or apply for the job must
only be for lawful, job-related reasons, and those not rejected on this
basis have been or will be hired. In addition, the employer has and
will continue to retain records of all hired workers and rejected
applicants as required by Sec. 655.56.
(s) Recruitment requirements. The employer must conduct all
required recruitment activities, including any additional employer-
conducted recruitment activities as directed by the CO, and as
specified in Sec. Sec. 655.40-655.46.
(t) Continuing requirement to hire U.S. workers. The employer has
and will continue to cooperate with the SWA by accepting referrals of
all qualified U.S. workers who apply (or on whose behalf a job
application is made) for the job opportunity, and must provide
employment to any qualified U.S. worker who applies to the employer for
the job opportunity, until 21 days before the date of need.
(u) No strike or lockout. There is no strike or lockout at any of
the employer's worksites within the area of intended employment for
which the employer is requesting H-2B certification at the time the
Application for Temporary Employment Certification is filed.
(v) No recent or future layoffs. The employer has not laid off and
will not lay off any similarly employed U.S. worker in the occupation
that is the subject of the Application for Temporary Employment
Certification in the area of intended employment within the period
beginning 120 calendar days before the date of need through the end of
the period of certification. A layoff for lawful, job-related reasons
such as lack of work or the end of a season is permissible if all H-2B
workers are laid off before any U.S. worker in corresponding
employment.
(w) Contact with former U.S. employees. The employer will contact
(by mail or other effective means) its former U.S. workers, including
those who have been laid off within 120 calendar days before the date
of need (except those who were dismissed for cause or who abandoned the
worksite), employed by the employer in the occupation at the place of
employment during the previous year, disclose the terms of the job
order, and solicit their return to the job.
(x) Area of intended employment and job opportunity. The employer
must not place any H-2B workers employed under the approved Application
for Temporary Employment Certification outside the area of intended
employment or in a job opportunity not listed on the approved
Application for Temporary Employment Certification unless the employer
has obtained a new approved Application for Temporary Employment
Certification.
(y) Abandonment/termination of employment. Upon the separation from
employment of worker(s) employed under the Application for Temporary
Employment Certification or workers in corresponding employment, if
such separation occurs before the end date of the employment specified
in the Application for Temporary Employment Certification, the employer
must notify OFLC in writing of the separation from employment not later
than 2 work days after such separation is discovered by the employer.
In addition, the employer must notify DHS in writing (or any other
method specified by the Department or DHS in the Federal Register or
the Code of Federal Regulations) of such separation of an H-2B worker.
An abandonment or abscondment is deemed to begin after a worker fails
to report for work at the regularly scheduled time for 5 consecutive
working days without the consent of the employer. If the separation is
due to the voluntary abandonment of employment by the H-2B worker or
worker in corresponding employment, and the employer provides
appropriate notification specified under this paragraph, the employer
will not be responsible for providing or paying for
[[Page 10160]]
the subsequent transportation and subsistence expenses of that worker
under this section, and that worker is not entitled to the three-
fourths guarantee described in paragraph (f) of this section. The
employer's obligation to guarantee three-fourths of the work described
in paragraph (f) ends with the last full 12-week period (or 6-week
period, as appropriate) preceding the worker's voluntary abandonment or
termination for cause.
(z) Compliance with applicable laws. During the period of
employment specified on the Application for Temporary Employment
Certification, the employer must comply with all applicable Federal,
State and local employment-related laws and regulations, including
health and safety laws. In compliance with such laws, including the
William Wilberforce Trafficking Victims Protection Reauthorization Act
of 2008, 18 U.S.C. 1592(a), neither the employer nor the employer's
agents or attorneys may hold or confiscate workers' passports, visas,
or other immigration documents.
(aa) Disclosure of foreign worker recruitment. The employer, and
its attorney or agent, as applicable, must comply with Sec. 655.9 by
providing a copy of all agreements with any agent or recruiter whom it
engages or plans to engage in the international recruitment of H-2B
workers, and the identity and location of the persons or entities hired
by or working for the agent or recruiter and any of the agents or
employees of those persons and entities, to recruit foreign workers.
Pursuant to Sec. 655.15(a), the agreements and information must be
filed with the Application for Temporary Employment Certification.
Sec. Sec. 655.21-655.24 [Removed and Reserved]
0
13. Remove and reserve Sec. Sec. 655.21 through 655.24.
0
14. In subpart A, add an undesignated center heading before Sec.
655.30 to read as follows:
Processing of an Application for Temporary Employment Certification
0
15. In subpart A, revise Sec. Sec. 655.30 through 655.35 to read as
follows:
Subpart A--Labor Certification Process for Temporary Non-Agricultural
Employment in the United States (H-2B Workers)
* * * * *
Sec.
655.30 Processing of an application and job order.
655.31 Notice of deficiency.
655.32 Submission of a modified application or job order.
655.33 Notice of acceptance.
655.34 Electronic job registry.
655.35 Amendments to an application or job order.
* * * * *
Sec. 655.30 Processing of an application and job order.
(a) NPC review. The CO will review the Application for Temporary
Employment Certification and job order for compliance with all
applicable program requirements.
(b) Mailing and postmark requirements. Any notice or request sent
by the CO to an employer requiring a response will be mailed to the
address provided in the Application for Temporary Employment
Certification using methods to assure next day delivery, including
electronic mail. The employer's response to such a notice or request
must be mailed using methods to assure next day delivery, including
electronic mail, and be sent by the due date or the next business day
if the due date falls on a Saturday, Sunday or Federal holiday.
(c) Information dissemination. OFLC may forward information
received in the course of processing an Application for Temporary
Employment Certification and program integrity measures to WHD, or any
other Federal agency, as appropriate, for investigation and/or
enforcement purposes.
Sec. 655.31 Notice of deficiency.
(a) Notification timeline. If the CO determines the Application for
Temporary Employment Certification and/or job order is incomplete,
contains errors or inaccuracies, or does not meet the requirements set
forth in this subpart, the CO will notify the employer within 7
business days from the CO's receipt of the Application for Temporary
Employment Certification. If applicable, the Notice of Deficiency will
include job order deficiencies identified by the SWA under Sec.
655.16. The CO will send a copy of the Notice of Deficiency to the SWA
serving the area of intended employment identified by the employer on
its job order, and if applicable, to the employer's attorney or agent.
(b) Notice content. The Notice of Deficiency will:
(1) State the reason(s) why the Application for Temporary
Employment Certification or job order fails to meet the criteria for
acceptance and state the modification needed for the CO to issue a
Notice of Acceptance;
(2) Offer the employer an opportunity to submit a modified
Application for Temporary Employment Certification or job order within
10 business days from the date of the Notice of Deficiency. The Notice
will state the modification needed for the CO to issue a Notice of
Acceptance;
(3) Offer the employer an opportunity to request administrative
review of the Notice of Deficiency before an ALJ under provisions set
forth in Sec. 655.61. The notice will inform the employer that it must
submit a written request for review to the Chief ALJ of DOL within 10
business days from the date the Notice of Deficiency is issued by
facsimile or other means normally assuring next day delivery, and that
the employer must simultaneously serve a copy on the CO. The notice
will also state that the employer may submit any legal arguments that
the employer believes will rebut the basis of the CO's action; and
(4) State that if the employer does not comply with the
requirements of this section by either submitting a modified
application within 10 business days or requesting administrative review
before an ALJ under Sec. 655.61, the CO will deny the Application for
Temporary Employment Certification. The notice will inform the employer
that the denial of the Application for Temporary Employment
Certification is final, and cannot be appealed. The Department will not
further consider that Application for Temporary Employment
Certification.
Sec. 655.32 Submission of a modified application or job order.
(a) Review of a modified Application for Temporary Employment
Certification or job order. Upon receipt of a response to a Notice of
Deficiency, including any modifications, the CO will review the
response. The CO may issue one or more additional Notices of Deficiency
before issuing a Notice of Decision. The employer's failure to comply
with a Notice of Deficiency, including not responding in a timely
manner or not providing all required documentation, will result in a
denial of the Application for Temporary Employment Certification.
(b) Acceptance of a modified Application for Temporary Employment
Certification or job order. If the CO accepts the modification(s) to
the Application for Temporary Employment Certification and/or job
order, the CO will issue a Notice of Acceptance to the employer. The CO
will send a copy of the Notice of Acceptance to the SWA instructing it
to make any necessary modifications to the not yet posted job order
and, if applicable, to the employer's attorney or agent, and follow the
procedure set forth in Sec. 655.33.
(c) Denial of a modified Application for Temporary Employment
Certification or job order. If the CO finds
[[Page 10161]]
the response to Notice of Deficiency unacceptable, the CO will deny the
Application for Temporary Employment Certification in accordance with
the labor certification determination provisions in Sec. 655.51.
(d) Appeal from denial of a modified Application for Temporary
Employment Certification or job order. The procedures for appealing a
denial of a modified Application for Temporary Employment Certification
and/or job order are the same as for appealing the denial of a non-
modified Application for Temporary Employment Certification outlined in
Sec. 655.61.
(e) Post acceptance modifications. Irrespective of the decision to
accept the Application for Temporary Employment Certification, the CO
may require modifications to the job order at any time before the final
determination to grant or deny the Application for Temporary Employment
Certification if the CO determines that the offer of employment does
not contain all the minimum benefits, wages, and working condition
provisions as set forth in Sec. 655.18. The employer must make such
modification, or certification will be denied under Sec. 655.53. The
employer must provide all workers recruited in connection with the job
opportunity in the Application for Temporary Employment Certification
with a copy of the modified job order no later than the date work
commences, as approved by the CO.
Sec. 655.33 Notice of acceptance.
(a) Notification timeline. If the CO determines the Application for
Temporary Employment Certification and job order are complete and meet
the requirements of this subpart, the CO will notify the employer in
writing within 7 business days from the date the CO received the
Application for Temporary Employment Certification and job order or
modification thereof. A copy of the Notice of Acceptance will be sent
to the SWA serving the area of intended employment identified by the
employer on its job order and, if applicable, to the employer's
attorney or agent.
(b) Notice content. The notice will:
(1) Direct the employer to engage in recruitment of U.S. workers as
provided in Sec. Sec. 655.40-655.46, including any additional
recruitment ordered by the CO under Sec. 655.46;
(2) State that such employer-conducted recruitment is in addition
to the job order being circulated by the SWA(s) and that the employer
must conduct recruitment within 14 calendar days from the date the
Notice of Acceptance is issued, consistent with Sec. 655.40;
(3) Direct the SWA to place the job order into intra- and
interstate clearance as set forth in Sec. 655.16 and to commence such
clearance by:
(i) Sending a copy of the job order to other States listed as
anticipated worksites in the Application for Temporary Employment
Certification and job order, if applicable; and
(ii) Sending a copy of the job order to the SWAs for all States
designated by the CO for interstate clearance;
(4) Instruct the SWA to keep the approved job order on its active
file until the end of the recruitment period as defined in Sec.
655.40(c), and to transmit the same instruction to other SWAs to which
it circulates the job order in the course of interstate clearance;
(5) Where the occupation or industry is traditionally or
customarily unionized, direct the SWA to circulate a copy of the job
order to the following labor organizations:
(i) The central office of the State Federation of Labor in the
State(s) in which work will be performed; and
(ii) The office(s) of local union(s) representing employees in the
same or substantially equivalent job classification in the area(s) in
which work will be performed;
(6) Advise the employer, as appropriate, that it must contact the
appropriate designated community-based organization(s) with notice of
the job opportunity; and
(7) Require the employer to submit a report of its recruitment
efforts as specified in Sec. 655.48.
Sec. 655.34 Electronic job registry.
(a) Location of and placement in the electronic job registry. Upon
acceptance of the Application for Temporary Employment Certification
under Sec. 655.33, the CO will place for public examination a copy of
the job order posted by the SWA on the Department's electronic job
registry, including any amendments or required modifications approved
by the CO.
(b) Length of posting on electronic job registry. The Department
will keep the job order posted on the electronic job registry until the
end of the recruitment period, as set forth in Sec. 655.40(c).
(c) Conclusion of active posting. Once the recruitment period has
concluded the job order will be placed in inactive status on the
electronic job registry.
Sec. 655.35 Amendments to an application or job order.
(a) Increases in number of workers. The employer may request to
increase the number of workers noted in the H-2B Registration by no
more than 20 percent (50 percent for employers requesting fewer than 10
workers). All requests for increasing the number of workers must be
made in writing and will not be effective until approved by the CO. In
considering whether to approve the request, the CO will determine
whether the proposed amendment(s) are sufficiently justified and must
take into account the effect of the changes on the underlying labor
market test for the job opportunity. Upon acceptance of an amendment,
the CO will submit to the SWA any necessary changes to the job order
and update the electronic job registry. The employer must promptly
provide copies of any approved amendments to all U.S. workers hired
under the original job order.
(b) Minor changes to the period of employment. The employer may
request minor changes to the total period of employment listed on its
Application for Temporary Employment Certification and job order, for a
period of up to 14 days, but the period of employment may not exceed a
total of 9 months, except in the event of a one-time occurrence. All
requests for minor changes to the total period of employment must be
made in writing and will not be effective until approved by the CO. In
considering whether to approve the request, the CO will determine
whether the proposed amendment(s) are sufficiently justified and must
take into account the effect of the changes on the underlying labor
market test for the job opportunity. Upon acceptance of an amendment,
the CO will submit to the SWA any necessary changes to the job order
and update the electronic job registry. The employer must promptly
provide copies of any approved amendments to all U.S. workers hired
under the original job order.
(c) Other amendments to the Application for Temporary Employment
Certification and job order. The employer may request other amendments
to the Application for Temporary Employment Certification and job
order. All such requests must be made in writing and will not be
effective until approved by the CO. In considering whether to approve
the request, the CO will determine whether the proposed amendment(s)
are sufficiently justified and must take into account the effect of the
changes on the underlying labor market test for the job opportunity.
Upon acceptance of an amendment, the CO will submit to the SWA any
necessary changes to the job
[[Page 10162]]
order and update the electronic job registry.
(d) Amendments after certification are not permitted. The employer
must promptly provide copies of any approved amendments to all U.S.
workers hired under the original job order.
Sec. Sec. 655.36-655.39 [Added and Reserved]
0
16. Add and reserve Sec. Sec. 655.36 through 655.39.
0
17-18. Add an undesignated center heading and Sec. Sec. 655.40 through
655.48 to read as follows:
Subpart A--Labor Certification Process for Temporary Non-Agricultural
Employment in the United States (H-2B Workers)
* * * * *
Post-Acceptance Requirements
Sec.
655.40 Employer-conducted recruitment.
655.41 Advertising requirements.
655.42 Newspaper advertisements.
655.43 Contact with former U.S. employees.
655.44 [Reserved]
655.45 Contact with bargaining representative, posting and other
contact requirements.
655.46 Additional employer-conducted recruitment.
655.47 Referrals of U.S. workers.
655.48 Recruitment report.
* * * * *
Post-Acceptance Requirements
Sec. 655.40 Employer-conducted recruitment.
(a) Employer obligations. Employers must conduct recruitment of
U.S. workers to ensure that there are not qualified U.S. workers who
will be available for the positions listed in the Application for
Temporary Employment Certification. U.S. Applicants can be rejected
only for lawful job-related reasons.
(b) Employer-conducted recruitment period. Unless otherwise
instructed by the CO, the employer must conduct the recruitment
described in Sec. Sec. 655.42-655.46 within 14 calendar days from the
date the Notice of Acceptance is issued. All employer-conducted
recruitment must be completed before the employer submits the
recruitment report as required in Sec. 655.48.
(c) U.S. worker referrals. Employers must continue to accept
referrals of all U.S. applicants interested in the position until 21
days before the date of need.
(d) Interviewing U.S. workers. Employers that wish to require
interviews must conduct those interviews by phone or provide a
procedure for the interviews to be conducted in the location where the
worker is being recruited so that the worker incurs little or no cost.
Employers cannot provide potential H-2B workers with more favorable
treatment with respect to the requirement for, and conduct of,
interviews.
(e) Qualified and available U.S. workers. The employer must
consider all U.S. applicants for the job opportunity. The employer must
accept and hire any applicants who are qualified and who will be
available.
(f) Recruitment report. The employer must prepare a recruitment
report meeting the requirements of Sec. 655.48.
Sec. 655.41 Advertising requirements.
(a) All recruitment conducted under Sec. Sec. 655.42-655.46 must
contain terms and conditions of employment that are not less favorable
than those offered to the H-2B workers and, at a minimum, must comply
with the assurances applicable to job orders as set forth in Sec.
655.18(a).
(b) All advertising must contain the following information:
(1) The employer's name and contact information;
(2) The geographic area of intended employment with enough
specificity to apprise applicants of any travel requirements and where
applicants will likely have to reside to perform the services or labor;
(3) A description of the job opportunity for which certification is
sought with sufficient information to apprise U.S. workers of the
services or labor to be performed, including the duties, the minimum
education and experience requirements, the work hours and days, and the
anticipated start and end dates of the job opportunity;
(4) A statement that the job opportunity is a temporary, full-time
position including the total number of job openings the employer
intends to fill;
(5) If applicable, a statement that overtime will be available to
the worker and the wage offer(s) for working any overtime hours;
(6) If applicable, a statement indicating that on-the-job training
will be provided to the worker;
(7) The wage that the employer is offering, intends to offer or
will provide to the H-2B workers, or in the event that there are
multiple wage offers (such as where an itinerary is authorized through
special procedures for an employer), the range of applicable wage
offers, each of which must equal or exceed the highest of the
prevailing wage or the Federal, State, or local minimum wage;
(8) If applicable, any board, lodging, or other facilities the
employer will offer to workers or intends to assist workers in
securing;
(9) All deductions not required by law that the employer will make
from the worker's paycheck, including, if applicable, reasonable
deduction for board, lodging, and other facilities offered to the
workers;
(10) A statement that transportation and subsistence from the place
where the worker has come to work for the employer to the place of
employment and return transportation and subsistence will be provided,
as required by Sec. 655.20(j)(1);
(11) If applicable, a statement that work tools, supplies, and
equipment will be provided to the worker without charge;
(12) If applicable, a statement that daily transportation to and
from the worksite will be provided by the employer;
(13) A statement summarizing the three-fourths guarantee as
required by Sec. 655.20(f); and
(14) A statement directing applicants to apply for the job
opportunity at the nearest office of the SWA in the State in which the
advertisement appeared, the SWA contact information, and, if
applicable, the job order number.
Sec. 655.42 Newspaper advertisements.
(a) The employer must place an advertisement (which may be in a
language other than English, where the CO determines appropriate) on 2
separate days, which may be consecutive, one of which must be a Sunday
(except as provided in paragraph (b) of this section), in a newspaper
of general circulation serving the area of intended employment and
appropriate to the occupation and the workers likely to apply for the
job opportunity.
(b) If the job opportunity is located in a rural area that does not
have a newspaper with a Sunday edition, the CO may direct the employer,
in place of a Sunday edition, to advertise in the regularly published
daily edition with the widest circulation in the area of intended
employment.
(c) The newspaper advertisements must satisfy the requirements in
Sec. 655.41.
(d) The employer must maintain copies of newspaper pages (with date
of publication and full copy of the advertisement), or tear sheets of
the pages of the publication in which the advertisements appeared, or
other proof of publication furnished by the newspaper containing the
text of the printed advertisements and the dates of publication,
consistent with the document retention requirements in
[[Page 10163]]
Sec. 655.56. If the advertisement was required to be placed in a
language other than English, the employer must maintain a translation
and retain it in accordance with Sec. 655.56.
Sec. 655.43 Contact with former U.S. employees.
The employer must contact (by mail or other effective means) its
former U.S. workers, including those who have been laid off within 120
calendar days before the date of need (except those who were dismissed
for cause or who abandoned the worksite), employed by the employer in
the occupation at the place of employment during the previous year,
disclose the terms of the job order, and solicit their return to the
job. The employer must maintain documentation sufficient to prove such
contact in accordance with Sec. 655.56.
Sec. 655.44 [Reserved]
Sec. 655.45 Contact with bargaining representative, posting and other
contact requirements.
(a) If there is a bargaining representative for any of the
employer's employees in the occupation and area of intended employment,
the employer must provide written notice of the job opportunity, by
providing a copy of the Application for Temporary Employment
Certification and the job order, and maintain documentation that it was
sent to the bargaining representative(s). An employer governed by this
paragraph must include information in its recruitment report that
confirms that the bargaining representative(s) was contacted and
notified of the position openings and whether the organization referred
qualified U.S. worker(s), including the number of referrals, or was
non-responsive to the employer's requests.
(b) If there is no bargaining representative, the employer must
post the availability of the job opportunity in at least 2 conspicuous
locations at the place(s) of anticipated employment or in some other
manner that provides reasonable notification to all employees in the
job classification and area in which the work will be performed by the
H-2B workers. Electronic posting, such as displaying the notice
prominently on any internal or external Web site that is maintained by
the employer and customarily used for notices to employees about terms
and conditions of employment, is sufficient to meet this posting
requirement as long as it otherwise meets the requirements of this
section. The notice must meet the requirements under Sec. 655.41 and
be posted for at least 15 consecutive business days. The employer must
maintain a copy of the posted notice and identify where and when it was
posted in accordance with Sec. 655.56.
(c) If appropriate to the occupation and area of intended
employment, as indicated by the CO in the Notice of Acceptance, the
employer must provide written notice of the job opportunity to a
community-based organization, and maintain documentation that it was
sent to any designated community-based organization. An employer
governed by this paragraph must include information in its recruitment
report that confirms that the community-based organization was
contacted and notified of the position openings and whether the
organization referred qualified U.S. worker(s), including the number of
referrals, or was non-responsive to the employer's requests.
Sec. 655.46 Additional employer-conducted recruitment.
(a) Requirement to conduct additional recruitment. The employer may
be instructed by the CO to conduct additional recruitment. Such
recruitment may be required at the discretion of the CO where the CO
has determined that there may be U.S. workers who are qualified and who
will be available for the work, including but not limited to where the
job opportunity is located in an Area of Substantial Unemployment.
(b) Nature of the additional employer-conducted recruitment. The CO
will describe the precise number and nature of the additional
recruitment efforts. Additional recruitment may include, but is not
limited to, posting on the employer's Web site or another Web site,
contact with additional community-based organizations, additional
contact with State One-Stop Career Centers, and other print
advertising, such as using a professional, trade or ethnic publication
where such a publication is appropriate for the occupation and the
workers likely to apply for the job opportunity.
(c) Proof of the additional employer-conducted recruitment. The CO
will specify the documentation or other supporting evidence that must
be maintained by the employer as proof that the additional recruitment
requirements were met. Documentation must be maintained as required in
Sec. 655.56.
Sec. 655.47 Referrals of U.S. workers.
SWAs may only refer for employment individuals who have been
apprised of all the material terms and conditions of employment and who
are qualified and will be available for employment.
Sec. 655.48 Recruitment report.
(a) Requirements of the recruitment report. The employer must
prepare, sign, and date a recruitment report. The recruitment report
must be submitted by a date specified by the CO in the Notice of
Acceptance and contain the following information:
(1) The name of each recruitment activity or source (e.g., job
order and the name of the newspaper);
(2) The name and contact information of each U.S. worker who
applied or was referred to the job opportunity up to the date of the
preparation of the recruitment report, and the disposition of each
worker's application. The employer must clearly indicate whether the
job opportunity was offered to the U.S. worker and whether the U.S.
worker accepted or declined;
(3) Confirmation that former U.S. employees were contacted, if
applicable, and by what means;
(4) Confirmation that the bargaining representative was contacted,
if applicable, and by what means, or that the employer posted the
availability of the job opportunity to all employees in the job
classification and area in which the work will be performed by the H-2B
workers;
(5) Confirmation that the community-based organization designated
by the CO was contacted, if applicable;
(6) If applicable, confirmation that additional recruitment was
conducted as directed by the CO; and
(7) If applicable, for each U.S. worker who applied for the
position but was not hired, the lawful job-related reason(s) for not
hiring the U.S. worker.
(b) Duty to update recruitment report. The employer must continue
to update the recruitment report throughout the recruitment period. The
updated report need not be submitted to the Department, but must be
made available in the event of a post-certification audit or upon
request by DOL.
Sec. 655.49 [Added and Reserved]
0
19. Add and reserve Sec. 655.49.
0
20. Add an undesignated center heading before Sec. 655.50 to read as
follows:
Labor Certification Determinations
0
21. Revise Sec. 655.50 to read as follows:
Sec. 655.50 Determinations.
(a) Certifying Officers (COs). The Administrator, OFLC is the
Department's National CO. The Administrator, OFLC and the CO(s), by
virtue of delegation from the Administrator, OFLC, have the authority
to certify or deny Applications for
[[Page 10164]]
Temporary Employment Certification under the H-2B nonimmigrant
classification. If the Administrator, OFLC directs that certain types
of temporary labor certification applications or a specific Application
for Temporary Employment Certification under the H-2B nonimmigrant
classification be handled by the OFLC's National Office, the Director
of the NPC will refer such applications to the Administrator, OFLC.
(b) Determination. Except as otherwise provided in this paragraph,
the CO will make a determination either to certify or deny the
Application for Temporary Employment Certification. The CO will certify
the application only if the employer has met all the requirements of
this subpart, including the criteria for certification in Sec. 655.51,
thus demonstrating that there is an insufficient number of U.S. workers
who are qualified and who will be available for the job opportunity for
which certification is sought and that the employment of the H-2B
workers will not adversely affect the benefits, wages, and working
conditions of similarly employed U.S. workers.
0
22-23. In subpart A, add Sec. Sec. 655.51 through 655.57 to read as
follows:
Subpart A--Labor Certification Process for Temporary Non-Agricultural
Employment in the United States (H-2B Workers)
* * * * *
Sec.
655.51 Criteria for certification.
655.52 Approved certification.
655.53 Denied certification.
655.54 Partial certification.
655.55 Validity of temporary labor certification.
655.56 Document retention requirements of H-2B employers.
655.57 Request for determination based on nonavailability of U.S.
workers.
* * * * *
Sec. 655.51 Criteria for certification.
(a) The criteria for certification include whether the employer has
a valid H-2B Registration to participate in the H-2B program and has
complied with all of the requirements necessary to grant the labor
certification.
(b) In making a determination whether there are insufficient U.S.
workers to fill the employer's job opportunity, the CO will count as
available any U.S. worker referred by the SWA or any U.S. worker who
applied (or on whose behalf an application is made) directly to the
employer, but who was rejected by the employer for other than a lawful
job-related reason.
(c) A certification will not be granted to an employer that has
failed to comply with one or more sanctions or remedies imposed by
final agency actions under the H-2B program.
Sec. 655.52 Approved certification.
If a temporary labor certification is granted, the CO will send the
approved Application for Temporary Employment Certification and a Final
Determination letter to the employer by means normally assuring next
day delivery, including electronic mail, and a copy, if applicable, to
the employer's attorney or agent. If and when the Application for
Temporary Employment Certification will be permitted to be
electronically filed, the employer must sign the certified Application
for Temporary Employment Certification as directed by the CO. The
employer must retain a signed copy of the Application for Temporary
Employment Certification, as required by Sec. 655.56.
Sec. 655.53 Denied certification.
If a temporary labor certification is denied, the CO will send the
Final Determination letter to the employer by means normally assuring
next day delivery, including electronic mail, and a copy, if
applicable, to the employer's attorney or agent. The Final
Determination letter will:
(a) State the reason(s) certification is denied, citing the
relevant regulatory standards and/or special procedures;
(b) Offer the employer an opportunity to request administrative
review of the denial under Sec. 655.61; and
(c) State that if the employer does not request administrative
review in accordance with Sec. 655.61, the denial is final and the
Department will not accept any appeal on that Application for Temporary
Employment Certification.
Sec. 655.54 Partial certification.
The CO may issue a partial certification, reducing either the
period of need or the number of H-2B workers or both for certification,
based upon information the CO receives during the course of processing
the Application for Temporary Employment Certification. The number of
workers certified will be reduced by one for each referred U.S. worker
who is qualified and who will be available at the time and place needed
to perform the services or labor and who has not been rejected for
lawful job-related reasons. If a partial labor certification is issued,
the CO will amend the Application for Temporary Employment
Certification and then return it to the employer with a Final
Determination letter, with a copy to the employer's attorney or agent,
if applicable. The Final Determination letter will:
(a) State the reason(s) why either the period of need and/or the
number of H-2B workers requested has been reduced, citing the relevant
regulatory standards and/or special procedures;
(b) If applicable, address the availability of U.S. workers in the
occupation;
(c) Offer the employer an opportunity to request administrative
review of the partial certification under Sec. 655.61; and
(d) State that if the employer does not request administrative
review in accordance with Sec. 655.61, the partial certification is
final and the Department will not accept any appeal on that Application
for Temporary Employment Certification.
Sec. 655.55 Validity of temporary labor certification.
(a) Validity period. A temporary labor certification is valid only
for the period as approved on the Application for Temporary Employment
Certification. The certification expires on the last day of authorized
employment.
(b) Scope of validity. A temporary labor certification is valid
only for the number of H-2B positions, the area of intended employment,
the job classification and specific services or labor to be performed,
and the employer specified on the approved Application for Temporary
Employment Certification, including any approved modifications. The
temporary labor certification may not be transferred from one employer
to another unless the employer to which it is transferred is a
successor in interest to the employer to which it was issued.
Sec. 655.56 Document retention requirements of H-2B employers.
(a) Entities required to retain documents. All employers filing an
Application for Temporary Employment Certification requesting H-2B
workers are required to retain the documents and records proving
compliance with 29 CFR part 503 and this subpart, including but not
limited to those specified in paragraph (c) of this section.
(b) Period of required retention. The employer must retain records
and documents for 3 years from the date of certification of the
Application for Temporary Employment Certification, or from the date of
adjudication if the Application for Temporary Employment Certification
is denied, or 3 years from the day the Department receives the letter
of withdrawal provided in accordance with Sec. 655.62. For the
purposes of this section, records and
[[Page 10165]]
documents required to be retained in connection with an H-2B
Registration must be retained in connection with all of the
Applications for Temporary Employment Certification that are supported
by it.
(c) Documents and records to be retained by all employer
applicants. All employers filing an H-2B Registration and an
Application for Temporary Employment Certification must retain the
following documents and records and must provide the documents and
records to the Department and other Federal agencies in the event of an
audit or investigation:
(1) Documents and records not previously submitted during the
registration process that substantiate temporary need;
(2) Proof of recruitment efforts, as applicable, including:
(i) Job order placement as specified in Sec. 655.16;
(ii) Advertising as specified in Sec. Sec. 655.41 and 655.42;
(iii) Contact with former U.S. workers as specified in Sec.
655.43;
(iv) Contact with bargaining representative(s), or a copy of the
posting of the job opportunity, if applicable, as specified in Sec.
655.45(a) or (b); and
(v) Additional employer-conducted recruitment efforts as specified
in Sec. 655.46;
(3) Substantiation of the information submitted in the recruitment
report prepared in accordance with Sec. 655.48, such as evidence of
nonapplicability of contact with former workers as specified in Sec.
655.43;
(4) The final recruitment report and any supporting resumes and
contact information as specified in Sec. 655.48;
(5) Records of each worker's earnings, hours offered and worked,
location(s) of work performed, and other information as specified in
Sec. 655.20(i);
(6) If appropriate, records of reimbursement of transportation and
subsistence costs incurred by the workers, as specified in Sec.
655.20(j).
(7) Evidence of contact with U.S. workers who applied for the job
opportunity in the Application for Temporary Employment Certification,
including documents demonstrating that any rejections of U.S. workers
were for lawful, job-related reasons, as specified in Sec. 655.20(r);
(8) Evidence of contact with any former U.S. worker in the
occupation at the place of employment in the Application for Temporary
Employment Certification, including documents demonstrating that the
U.S. worker had been offered the job opportunity in the Application for
Temporary Employment Certification, as specified in Sec. 655.20(w),
and that the U.S. worker either refused the job opportunity or was
rejected only for lawful, job-related reasons, as specified in Sec.
655.20(r);
(9) The written contracts with agents or recruiters as specified in
Sec. Sec. 655.8 and 655.9, and the list of the identities and
locations of persons hired by or working for the agent or recruiter and
these entities' agents or employees, as specified in Sec. 655.9;
(10) Written notice provided to and informing OFLC that an H-2B
worker or worker in corresponding employment has separated from
employment before the end date of employment specified in the
Application for Temporary Employment Certification, as specified in
Sec. 655.20(y);
(11) The H-2B Registration, job order and a copy of the Application
for Temporary Employment Certification. If and when the Application for
Temporary Employment Certification and H-2B Registration is permitted
to be electronically filed, a printed copy of each adjudicated
Application for Temporary Employment Certification, including any
modifications, amendments or extensions will be signed by the employer
as directed by the CO and retained;
(12) The H-2B Petition, including all accompanying documents; and
(13) Any collective bargaining agreement(s), individual employment
contract(s), or payroll records from the previous year necessary to
substantiate any claim that certain incumbent workers are not included
in corresponding employment, as specified in Sec. 655.5.
(d) Availability of documents for enforcement purposes. An employer
must make available to the Administrator, WHD within 72 hours following
a request by the WHD the documents and records required under 29 CFR
part 503 and this section so that the Administrator, WHD may copy,
transcribe, or inspect them.
Sec. 655.57 Request for determination based on nonavailability of
U.S. workers.
(a) Standards for requests. If a temporary labor certification has
been partially granted or denied, based on the CO's determination that
qualified U.S. workers are available, and, on or after 21 calendar days
before the date of need, some or all of those qualified U.S. workers
are, in fact no longer available, the employer may request a new
temporary labor certification determination from the CO. Prior to
making a new determination the CO will promptly ascertain (which may be
through the SWA or other sources of information on U.S. worker
availability) whether specific qualified replacement U.S. workers are
available or can be reasonably expected to be present at the employer's
establishment with 72 hours from the date the employer's request was
received. The CO will expeditiously, but in no case later than 72 hours
after the time a complete request (including the signed statement
included in paragraph (b) of this section) is received, make a
determination on the request. An employer may appeal a denial of such a
determination in accordance with procedures contained in Sec. 655.61.
(b) Unavailability of U.S. workers. The employer's request for a
new determination must be made directly to the CO by electronic mail or
other appropriate means and must be accompanied by a signed statement
confirming the employer's assertion. In addition, unless the employer
has provided to the CO notification of abandonment or termination of
employment as required by Sec. 655.20(y), the employer's signed
statement must include the name and contact information of each U.S.
worker who became unavailable and must supply the reason why the worker
has become unavailable.
(c) Notification of determination. If the CO determines that U.S.
workers have become unavailable and cannot identify sufficient
available U.S. workers who are qualified or who are likely to become
available, the CO will grant the employer's request for a new
determination. However, this does not preclude an employer from
submitting subsequent requests for new determinations, if warranted,
based on subsequent facts concerning purported nonavailability of U.S.
workers or referred workers not being qualified because of lawful job-
related reasons.
Sec. Sec. 655.58-655.59 [Added and Reserved]
0
24. Add and reserve Sec. Sec. 655.58 through 655.59.
0
25. Add an undesignated center heading before Sec. 655.60 to read as
follows:
Post Certification Activities
0
26. Revise Sec. 655.60 to read as follows:
Sec. 655.60 Extensions.
An employer may apply for extensions of the period of employment in
the following circumstances. A request for extension must be related to
weather conditions or other factors beyond the control of the employer
(which may include unforeseeable changes in market conditions), and
must be supported in writing, with
[[Page 10166]]
documentation showing why the extension is needed and that the need
could not have been reasonably foreseen by the employer. The CO will
notify the employer of the decision in writing. The CO will not grant
an extension where the total work period under that Application for
Temporary Employment Certification and the authorized extension would
exceed 9 months for employers whose temporary need is seasonal,
peakload, or intermittent, or 3 years for employers that have a one-
time occurrence of temporary need, except in extraordinary
circumstances. The employer may appeal a denial of a request for an
extension by following the procedures in Sec. 655.61. The H-2B
employer's assurances and obligations under the temporary labor
certification will continue to apply during the extended period of
employment. The employer must immediately provide to its workers a copy
of any approved extension.
0
27. In subpart A, add Sec. Sec. 655.61 through 655.63 to read as
follows:
Subpart A--Labor Certification Process for Temporary Non-Agricultural
Employment in the United States (H-2B Workers)
* * * * *
Sec.
655.61 Administrative review.
655.62 Withdrawal of an Application for Temporary Employment
Certification.
655.63 Public disclosure.
* * * * *
Sec. 655.61 Administrative review.
(a) Request for review. Where authorized in this subpart, employers
may request an administrative review before the BALCA of a
determination by the CO. In such cases, the request for review:
(1) Must be sent to the BALCA, with a copy simultaneously sent to
the CO who denied the application, within 10 business days from the
date of determination;
(2) Must clearly identify the particular determination for which
review is sought;
(3) Must set forth the particular grounds for the request;
(4) Must include a copy of the CO's determination; and
(5) May contain only legal argument and such evidence as was
actually submitted to the CO before the date the CO's determination was
issued.
(b) Appeal file. Upon the receipt of a request for review, the CO
will, within 7 business days, assemble and submit the Appeal File using
means to ensure same day or next day delivery, to the BALCA, the
employer, and the Associate Solicitor for Employment and Training Legal
Services, Office of the Solicitor, U.S. Department of Labor.
(c) Briefing schedule. Within 7 business days of receipt of the
Appeal File, the counsel for the CO may submit, using means to ensure
same day or next day delivery, a brief in support of the CO's decision.
(d) Assignment. The Chief ALJ may designate a single member or a
three member panel of the BALCA to consider a particular case.
(e) Review. The BALCA must review the CO's determination only on
the basis of the Appeal File, the request for review, and any legal
briefs submitted and must:
(1) Affirm the CO's determination; or
(2) Reverse or modify the CO's determination; or
(3) Remand to the CO for further action.
(f) Decision. The BALCA should notify the employer, the CO, and
counsel for the CO of its decision within 7 business days of the
submission of the CO's brief or 10 business days after receipt of the
Appeal File, whichever is later, using means to ensure same day or next
day delivery.
Sec. 655.62 Withdrawal of an Application for Temporary Employment
Certification.
Employers may withdraw an Application for Temporary Employment
Certification after it has been accepted and before it is adjudicated.
The employer must request such withdrawal in writing.
Sec. 655.63 Public disclosure.
The Department will maintain an electronic file accessible to the
public with information on all employers applying for temporary
nonagricultural labor certifications. The database will include such
information as the number of workers requested, the date filed, the
date decided, and the final disposition.
Sec. 655.64 [Added and Reserved]
0
28. Add and reserve Sec. 655.64.
Sec. 655.65 [Removed and Reserved]
0
29. Remove and reserve Sec. 655.65.
Sec. Sec. 655.66-655.69 [Added and Reserved]
0
30. Add and reserve Sec. Sec. 655.66 through 655.69.
0
31. Add an undesignated center heading before Sec. 655.70 to read as
follows:
Integrity Measures
0
32. In subpart A, revise Sec. Sec. 655.70 through 655.73 to read as
follows:
Subpart A--Labor Certification Process for Temporary Non-Agricultural
Employment in the United States (H-2B Workers)
* * * * *
Sec.
655.70 Audits.
655.71 CO-ordered assisted recruitment.
655.72 Revocation.
655.73 Debarment.
* * * * *
Sec. 655.70 Audits.
The CO may conduct audits of adjudicated temporary labor
certification applications.
(a) Discretion. The CO has the sole discretion to choose the
applications selected for audit.
(b) Audit letter. Where an application is selected for audit, the
CO will send an audit letter to the employer and a copy, if
appropriate, to the employer's attorney or agent. The audit letter
will:
(1) Specify the documentation that must be submitted by the
employer;
(2) Specify a date, no more than 30 calendar days from the date the
audit letter is issued, by which the required documentation must be
sent to the CO; and
(3) Advise that failure to fully comply with the audit process may
result:
(i) In the requirement that the employer undergo the assisted
recruitment procedures in Sec. 655.71 in future filings of H-2B
temporary labor certification applications for a period of up to 2
years, or
(ii) In a revocation of the certification and/or debarment from the
H-2B program and any other foreign labor certification program
administered by the Department.
(c) Supplemental information request. During the course of the
audit examination, the CO may request supplemental information and/or
documentation from the employer in order to complete the audit. If
circumstances warrant, the CO can issue one or more requests for
supplemental information.
(d) Potential referrals. In addition to measures in this subpart,
the CO may decide to provide the audit findings and underlying
documentation to DHS, WHD, or other appropriate enforcement agencies.
The CO may refer any findings that an employer discouraged a qualified
U.S. worker from applying, or failed to hire, discharged, or otherwise
discriminated against a qualified U.S. worker, to the Department of
Justice, Civil Rights Division, Office of Special Counsel for Unfair
Immigration Related Employment Practices.
Sec. 655.71 CO-ordered assisted recruitment.
(a) Requirement of assisted recruitment. If, as a result of audit
or
[[Page 10167]]
otherwise, the CO determines that a violation has occurred that does
not warrant debarment, the CO may require the employer to engage in
assisted recruitment for a defined period of time for any future
Application for Temporary Employment Certification.
(b) Notification of assisted recruitment. The CO will notify the
employer (and its attorney or agent, if applicable) in writing of the
assisted recruitment that will be required of the employer for a period
of up to 2 years from the date the notice is issued. The notification
will state the reasons for the imposition of the additional
requirements, state that the employer's agreement to accept the
conditions will constitute their inclusion as bona fide conditions and
terms of a temporary labor certification, and offer the employer an
opportunity to request an administrative review. If administrative
review is requested, the procedures in Sec. 655.61 apply.
(c) Assisted recruitment. The assisted recruitment process will be
in addition to any recruitment required of the employer by Sec. Sec.
655.41 through 655.47 and may consist of, but is not limited to, one or
more of the following:
(1) Requiring the employer to submit a draft advertisement to the
CO for review and approval at the time of filing the Application for
Temporary Employment Certification;
(2) Designating the sources where the employer must recruit for
U.S. workers, including newspapers and other publications, and
directing the employer to place the advertisement(s) in such sources;
(3) Extending the length of the placement of the advertisement and/
or job order;
(4) Requiring the employer to notify the CO and the SWA in writing
when the advertisement(s) are placed;
(5) Requiring an employer to perform any additional assisted
recruitment directed by the CO;
(6) Requiring the employer to provide proof of the publication of
all advertisements as directed by the CO, in addition to providing a
copy of the job order;
(7) Requiring the employer to provide proof of all SWA referrals
made in response to the job order;
(8) Requiring the employer to submit any proof of contact with all
referrals and past U.S. workers; and/or
(9) Requiring the employer to provide any additional documentation
verifying it conducted the assisted recruitment as directed by the CO.
(d) Failure to comply. If an employer materially fails to comply
with requirements ordered by the CO under this section, the
certification will be denied and the employer and/or its attorney or
agent may be debarred under Sec. 655.73.
Sec. 655.72 Revocation.
(a) Basis for DOL revocation. The Administrator, OFLC may revoke a
temporary labor certification approved under this subpart, if the
Administrator, OFLC finds:
(1) The issuance of the temporary labor certification was not
justified due to fraud or willful misrepresentation of a material fact
in the application process, as defined in Sec. 655.73(d);
(2) The employer substantially failed to comply with any of the
terms or conditions of the approved temporary labor certification. A
substantial failure is a willful failure to comply that constitutes a
significant deviation from the terms and conditions of the approved
certification and is further defined in Sec. 655.73(d) and (e);
(3) The employer failed to cooperate with a DOL investigation or
with a DOL official performing an investigation, inspection, audit
(under Sec. 655.73), or law enforcement function under 29 CFR part 503
or this subpart; or
(4) The employer failed to comply with one or more sanctions or
remedies imposed by WHD, or with one or more decisions or orders of the
Secretary with the respect to the H-2B program.
(b) DOL procedures for revocation. (1) Notice of Revocation. If the
Administrator, OFLC makes a determination to revoke an employer's
temporary labor certification, the Administrator, OFLC will send to the
employer (and its attorney or agent, if applicable) a Notice of
Revocation. The notice will contain a detailed statement of the grounds
for the revocation and inform the employer of its right to submit
rebuttal evidence or to appeal. If the employer does not file rebuttal
evidence or an appeal within 10 business days from the date the Notice
of Revocation is issued, the notice is the final agency action and will
take effect immediately at the end of the 10-day period.
(2) Rebuttal. If the employer timely submits rebuttal evidence, the
Administrator, OFLC will inform the employer of the final determination
on the revocation within 10 business days of receiving the rebuttal
evidence. If the Administrator, OFLC determines that the certification
should be revoked, the Administrator, OFLC will inform the employer of
its right to appeal according to the procedures of Sec. 655.61. If the
employer does not appeal the final determination, it will become the
final agency action.
(3) Appeal. An employer may appeal a Notice of Revocation, or a
final determination of the Administrator, OFLC after the review of
rebuttal evidence, according to the appeal procedures of Sec. 655.61.
The ALJ's decision is the final agency action.
(4) Stay. The timely filing of rebuttal evidence or an
administrative appeal will stay the revocation pending the outcome of
those proceedings.
(5) Decision. If the temporary labor certification is revoked, the
Administrator, OFLC will send a copy of the final agency action to DHS
and the Department of State.
(c) Employer's obligations in the event of revocation. If an
employer's temporary labor certification is revoked, the employer is
responsible for:
(1) Reimbursement of actual inbound transportation and other
expenses;
(2) The workers' outbound transportation expenses;
(3) Payment to the workers of the amount due under the three-
fourths guarantee; and
(4) Any other wages, benefits, and working conditions due or owing
to the workers under this subpart.
Sec. 655.73 Debarment.
(a) Debarment of an employer. The Administrator, OFLC may not issue
future labor certifications under this subpart to an employer or any
successor in interest to that employer, subject to the time limits set
forth in paragraph (c) of this section, if the Administrator, OFLC
finds that the employer committed the following violations:
(1) Willful misrepresentation of a material fact in its H-2B
Registration, Application for Temporary Employment Certification, or H-
2B Petition;
(2) Substantial failure to meet any of the terms and conditions of
its H-2B Registration, Application for Temporary Employment
Certification, or H-2B Petition. A substantial failure is a willful
failure to comply that constitutes a significant deviation from the
terms and conditions of such documents; or
(3) Willful misrepresentation of a material fact to the DOS during
the visa application process.
(b) Debarment of an agent or attorney. If the Administrator, OFLC
finds, under this section, that an attorney or agent committed a
violation as described in paragraphs (a)(1) through (3) of this section
or participated in an employer's violation, the Administrator, OFLC may
not issue future labor certifications to an employer represented by
such agent or attorney, subject to the time limits set forth in
paragraph (c) of this section.
(c) Period of debarment. Debarment under this subpart may not be
for less
[[Page 10168]]
than 1 year or more than 5 years from the date of the final agency
decision.
(d) Determining whether a violation is willful. A willful
misrepresentation of a material fact or a willful failure to meet the
required terms and conditions occurs when the employer, attorney, or
agent knows a statement is false or that the conduct is in violation,
or shows reckless disregard for the truthfulness of its representation
or for whether its conduct satisfies the required conditions.
(e) Determining whether a violation is significant. In determining
whether a violation is a significant deviation from the terms and
conditions of the H-2B Registration, Application for Temporary
Employment Certification, or H-2B Petition, the factors that the
Administrator, OFLC may consider include, but are not limited to, the
following:
(1) Previous history of violation(s) under the H-2B program;
(2) The number of H-2B workers, workers in corresponding
employment, or improperly rejected U.S. applicants who were and/or are
affected by the violation(s);
(3) The gravity of the violation(s);
(4) The extent to which the violator achieved a financial gain due
to the violation(s), or the potential financial loss or potential
injury to the worker(s); and
(5) Whether U.S. workers have been harmed by the violation.
(f) Violations. Where the standards set forth in paragraphs (d) and
(e) in this section are met, debarrable violations would include but
would not be limited to one or more acts of commission or omission
which involve:
(1) Failure to pay or provide the required wages, benefits or
working conditions to the employer's H-2B workers and/or workers in
corresponding employment;
(2) Failure, except for lawful, job-related reasons, to offer
employment to qualified U.S. workers who applied for the job
opportunity for which certification was sought;
(3) Failure to comply with the employer's obligations to recruit
U.S. workers;
(4) Improper layoff or displacement of U.S. workers or workers in
corresponding employment;
(5) Failure to comply with one or more sanctions or remedies
imposed by the Administrator, WHD for violation(s) of obligations under
the job order or other H-2B obligations, or with one or more decisions
or orders of the Secretary or a court under this subpart or 29 CFR part
503;
(6) Failure to comply with the Notice of Deficiency process under
this subpart;
(7) Failure to comply with the assisted recruitment process under
this subpart;
(8) Impeding an investigation of an employer under 29 CFR part 503
or an audit under this subpart;
(9) Employing an H-2B worker outside the area of intended
employment, in an activity/activities not listed in the job order, or
outside the validity period of employment of the job order, including
any approved extension thereof;
(10) A violation of the requirements of Sec. 655.20(o) or (p);
(11) A violation of any of the provisions listed in Sec.
655.20(r);
(12) Any other act showing such flagrant disregard for the law that
future compliance with program requirements cannot reasonably be
expected;
(13) Fraud involving the H-2B Registration, Application for
Temporary Employment Certification or the H-2B Petition; or
(14) A material misrepresentation of fact during the registration
or application process.
(g) Debarment procedure. (1) Notice of Debarment. If the
Administrator, OFLC makes a determination to debar an employer,
attorney, or agent, the Administrator, OFLC will send the party a
Notice of Debarment. The Notice will state the reason for the debarment
finding, including a detailed explanation of the grounds for and the
duration of the debarment and inform the party subject to the notice of
its right to submit rebuttal evidence or to request a debarment
hearing. If the party does not file rebuttal evidence or request a
hearing within 30 calendar days of the date of the Notice of Debarment,
the notice is the final agency action and the debarment will take
effect at the end of the 30-day period. The timely filing of an
rebuttal evidence or a request for a hearing stays the debarment
pending the outcome of the appeal as provided in paragraphs (g)(2)-(6)
of this section.
(2) Rebuttal. The party who received the Notice of Debarment may
choose to submit evidence to rebut the grounds stated in the notice
within 30 calendar days of the date the notice is issued. If rebuttal
evidence is timely filed, the Administrator, OFLC will issue a final
determination on the debarment within 30 calendar days of receiving the
rebuttal evidence. If the Administrator, OFLC determines that the party
should be debarred, the Administrator, OFLC will inform the party of
its right to request a debarment hearing according to the procedures in
this section. The party must request a hearing within 30 calendar days
after the date of the Administrator, OFLC's final determination, or the
Administrator OFLC's determination will be the final agency order and
the debarment will take effect at the end of the 30-day period.
(3) Hearing. The recipient of a Notice of Debarment seeking to
challenge the debarment must request a debarment hearing within 30
calendar days of the date of a Notice of Debarment or the date of a
final determination of the Administrator, OFLC after review of rebuttal
evidence submitted under paragraph (g)(2) of this section. To obtain a
debarment hearing, the recipient must, within 30 days of the date of
the Notice or the final determination, file a written request with the
Chief ALJ, United States Department of Labor, 800 K Street, NW., Suite
400-N, Washington, DC 20001-8002, and simultaneously serve a copy on
the Administrator, OFLC. The debarment will take effect 30 calendar
days from the date the Notice of Debarment or final determination is
issued, unless a request for review is timely filed. Within 10 business
days of receipt of the request for a hearing, the Administrator, OFLC
will send a certified copy of the ETA case file to the Chief ALJ by
means normally assuring next day delivery. The Chief ALJ will
immediately assign an ALJ to conduct the hearing. The procedures in 29
CFR part 18 apply to such hearings, except that the request for a
hearing will not be considered to be a complaint to which an answer is
required.
(4) Decision. After the hearing, the ALJ must affirm, reverse, or
modify the Administrator, OFLC's determination. The ALJ will prepare
the decision within 60 calendar days after completion of the hearing
and closing of the record. The ALJ's decision will be provided to the
parties to the debarment hearing by means normally assuring next day
delivery. The ALJ's decision is the final agency action, unless either
party, within 30 calendar days of the ALJ's decision, seeks review of
the decision with the Administrative Review Board (ARB).
(5) Review by the ARB. (i) Any party wishing review of the decision
of an ALJ must, within 30 calendar days of the decision of the ALJ,
petition the ARB to review the decision. Copies of the petition must be
served on all parties and on the ALJ. The ARB will decide whether to
accept the petition within 30 calendar days of receipt. If the ARB
declines to accept the petition, or if the ARB does not issue a notice
accepting a petition within 30 calendar days after the receipt of a
timely filing of the
[[Page 10169]]
petition, the decision of the ALJ is the final agency action. If a
petition for review is accepted, the decision of the ALJ will be stayed
unless and until the ARB issues an order affirming the decision. The
ARB must serve notice of its decision to accept or not to accept the
petition upon the ALJ and upon all parties to the proceeding.
(ii) Upon receipt of the ARB's notice to accept the petition, the
Office of Administrative Law Judges will promptly forward a copy of the
complete hearing record to the ARB.
(iii) Where the ARB has determined to review the decision and
order, the ARB will notify each party of the issue(s) raised, the form
in which submissions must be made (e.g., briefs or oral argument), and
the time within which the presentation must be submitted.
(6) ARB Decision. The ARB's final decision must be issued within 90
calendar days from the notice granting the petition and served upon all
parties and the ALJ.
(h) Concurrent debarment jurisdiction. OFLC and the WHD have
concurrent jurisdiction to debar under this section or under 29 CFR
503.24. When considering debarment, OFLC and the WHD will coordinate
their activities. A specific violation for which debarment is imposed
will be cited in a single debarment proceeding. Copies of final
debarment decisions will be forwarded to DHS and DOS promptly.
(i) Debarment from other foreign labor programs. Upon debarment
under this subpart or 29 CFR 503.24, the debarred party will be
disqualified from filing any labor certification applications or labor
condition applications with the Department by, or on behalf of, the
debarred party for the same period of time set forth in the final
debarment decision.
Sec. Sec. 655.74-655.76, 655.80, and 655.81 [Removed and Reserved]
0
33. In subpart A, remove and reserve Sec. Sec. 655.74 through 655.76,
655.80, and 655.81.
Sec. Sec. 655.82-655.99 [Added and Reserved]
0
34. In subpart A, add and reserve Sec. Sec. 655.82 through 655.99.
Title 29--Labor
0
35. Add part 503 to read as follows:
PART 503--ENFORCEMENT OF OBLIGATIONS FOR TEMPORARY NONIMMIGRANT
NON-AGRICULTURAL WORKERS ADMITTED UNDER SECTION 214(c)(1) OF THE
IMMIGRATION AND NATIONALITY ACT
Subpart A--General Provisions
Sec.
503.0 Introduction.
503.1 Scope and purpose.
503.2 Territory of Guam.
503.3 Coordination among Governmental agencies.
503.4 Definition of terms.
503.5 Temporary need.
503.6 Waiver of rights prohibited.
503.7 Investigation authority of Secretary.
503.8 Accuracy of information, statements, data.
Subpart B--Enforcement
503.15 Enforcement.
503.16 Assurances and obligations of H-2B employers.
503.17 Documentation retention requirements of H-2B employers.
503.18 Validity of temporary labor certification.
503.19 Violations.
503.20 Sanctions and remedies--general.
503.21 Concurrent actions.
503.22 Representation of the Secretary.
503.23 Civil money penalty assessment.
503.24 Debarment.
503.25 Failure to cooperate with investigators.
503.26 Civil money penalties--payment and collection.
Subpart C--Administrative Proceedings
503.40 Applicability of procedures and rules.
Procedures Related to Hearing
503.41 Administrator, WHD's determination.
503.42 Contents of notice of determination.
503.43 Request for hearing.
Rules of Practice
503.44 General.
503.45 Service of pleadings.
503.46 Commencement of proceeding.
503.47 Caption of proceeding.
503.48 Conduct of proceeding.
Procedures Before Administrative Law Judge
503.49 Consent findings and order.
Post-Hearing Procedures
503.50 Decision and order of Administrative Law Judge.
Review of Administrative Law Judge's Decision
503.51 Procedures for initiating and undertaking review.
503.52 Responsibility of the Office of Administrative Law Judges
(OALJ).
503.53 Additional information, if required.
503.54 Submission of documents to the Administrative Review Board.
503.55 Final decision of the Administrative Review Board.
Record
503.56 Retention of official record.
Authority: 8 U.S.C. 1101(a)(15(H)(ii(b) and 1184(c) and 8 CFR
214.2(h).
Subpart A--General Provisions
Sec. 503.0 Introduction.
The regulations in this part cover the enforcement of all statutory
and regulatory obligations, including requirements under 8 U.S.C.
1184(c) and 20 CFR part 655, Subpart A, applicable to the employment of
H-2B workers admitted under the Immigration and Nationality Act (INA),
8 U.S.C. 1101(a)(15)(H)(ii)(b), and workers in corresponding
employment, including obligations to offer employment to eligible
United States (U.S.) workers and to not lay off or displace U.S.
workers in a manner prohibited by the regulations in this part or 20
CFR part 655, Subpart A.
Sec. 503.1 Scope and purpose.
(a) Statutory standard. 8 U.S.C. 1184(c)(1) requires the Secretary
of the Department of Homeland Security (DHS) to consult with
appropriate agencies before authorizing the entry of H-2B workers. DHS
regulations 8 CFR 214.2(h)(6)(iv) provide that a petition to bring
nonimmigrant workers on H-2B visas into the U.S. for temporary
nonagricultural employment may not be approved by the Secretary of DHS
unless the petitioner has applied for and received a temporary labor
certification from the U.S. Secretary of Labor (Secretary). The
temporary labor certification reflects a determination by the Secretary
that:
(1) There are not sufficient U.S. workers who are qualified and
will be available at the time and place needed to perform the labor or
services involved in the petition; and
(2) The employment of the foreign worker will not adversely affect
the wages and working conditions of U.S. workers similarly employed.
(b) Role of the Employment and Training Administration (ETA). The
issuance and denial of labor certifications under 8 U.S.C. 1184(c) has
been delegated by the Secretary to ETA, an agency within the U.S.
Department of Labor (the Department or DOL), which in turn has
delegated that authority to the Office of Foreign Labor Certification
(OFLC). In general, matters concerning the obligations of an H-2B
employer related to the temporary labor certification process are
administered by OFLC, including obligations and assurances made by
employers, overseeing employer recruitment, and assuring program
integrity. The
[[Page 10170]]
regulations pertaining to the issuance, denial, and revocation of labor
certification for temporary foreign workers by the OFLC are found in 20
CFR part 655, Subpart A.
(c) Role of the Wage and Hour Division (WHD). DHS, effective
January 18, 2009, under section 214(c)(14)(B) of the INA, 8 U.S.C.
1184(c)(14)(B), has delegated to the Secretary certain investigatory
and law enforcement functions to carry out the provisions under 8
U.S.C. 1184(c). The Secretary has delegated these functions to the WHD.
In general, matters concerning the rights of H-2B workers and workers
in corresponding employment under this part and the employer's
obligations are enforced by the WHD, including whether employment was
offered to U.S. workers as required under 20 CFR part 655, Subpart A,
or whether U.S. workers were laid off or displaced in violation of
program requirements. The WHD has the responsibility to carry out
investigations, inspections, and law enforcement functions and in
appropriate instances to impose penalties, to debar from future
certifications, to recommend revocation of existing certifications, and
to seek remedies for violations, including recovery of unpaid wages and
reinstatement of improperly laid off or displaced U.S. workers.
(d) Effect of regulations. The enforcement functions carried out by
the WHD under 8 U.S.C. 1184(c), 20 CFR part 655, Subpart A, and the
regulations in this part apply to the employment of any H-2B worker and
any worker in corresponding employment as the result of an Application
for Temporary Employment Certification filed with the Department on or
after April 23, 2012.
Sec. 503.2 Territory of Guam.
This part does not apply to temporary employment in the Territory
of Guam. The Department does not certify to the United States
Citizenship and Immigration Services (USCIS) of DHS the temporary
employment of nonimmigrant foreign workers under H-2B visas, or enforce
compliance with the provisions of the H-2B visa program in the
Territory of Guam. Under DHS regulations, 8 CFR 214.2(h)(6)(v),
administration of the H-2B temporary labor certification program is
undertaken by the Governor of Guam, or the Governor's designated
representative.
Sec. 503.3 Coordination among Governmental agencies.
(a) Complaints received by ETA or any State Workforce Agency (SWA)
regarding noncompliance with H-2B statutory or regulatory labor
standards will be immediately forwarded to the appropriate WHD office
for suitable action under the regulations in this part.
(b) Information received in the course of processing registrations
and applications, program integrity measures, or enforcement actions
may be shared between OFLC and WHD or, where applicable to employer
enforcement under the H-2B program, may be forwarded to other agencies
as appropriate, including the Department of State (DOS) and DHS.
(c) A specific violation for which debarment is sought will be
cited in a single debarment proceeding. OFLC and the WHD will
coordinate their activities to achieve this result. Copies of final
debarment decisions will be forwarded to DHS promptly.
Sec. 503.4 Definition of terms.
For purposes of this part:
Act means the Immigration and Nationality Act or INA, as amended, 8
U.S.C. 1101 et seq.
Administrative Law Judge (ALJ) means a person within the
Department's Office of Administrative Law Judges appointed under 5
U.S.C. 3105.
Administrator, Office of Foreign Labor Certification (OFLC) means
the primary official of the Office of Foreign Labor Certification, ETA,
or the Administrator's designee.
Administrator, Wage and Hour Division (WHD) means the primary
official of the WHD, or the Administrator's designee.
Agent. (1) Agent means a legal entity or person who:
(i) Is authorized to act on behalf of an employer for temporary
nonagricultural labor certification purposes;
(ii) Is not itself an employer, or a joint employer, as defined in
this part with respect to a specific application; and
(iii) Is not an association or other organization of employers.
(2) No agent who is under suspension, debarment, expulsion,
disbarment, or otherwise restricted from practice before any court, the
Department, the Executive Office for Immigration Review under 8 CFR
1003.101, or DHS under 8 CFR 292.3 may represent an employer under this
part.
Agricultural labor or services means those duties and occupations
defined in 20 CFR 655.100.
Applicant means a U.S. worker who is applying for a job opportunity
for which an employer has filed an Application for Temporary Employment
Certification (ETA Form 9142 and the appropriate appendices).
Application for Temporary Employment Certification means the Office
of Management and Budget (OMB)-approved ETA Form 9142 and the
appropriate appendices, a valid wage determination, as required by 20
CFR 655.10, and a subsequently-filed U.S. worker recruitment report,
submitted by an employer to secure a temporary labor certification
determination from DOL.
Area of intended employment means the geographic area within normal
commuting distance of the place (worksite address) of the job
opportunity for which the certification is sought. There is no rigid
measure of distance that constitutes a normal commuting distance or
normal commuting area, because there may be widely varying factual
circumstances among different areas (e.g., average commuting times,
barriers to reaching the worksite, or quality of the regional
transportation network). If the place of intended employment is within
a Metropolitan Statistical Area (MSA), including a multistate MSA, any
place within the MSA is deemed to be within normal commuting distance
of the place of intended employment. The borders of MSAs are not
controlling in the identification of the normal commuting area; a
location outside of an MSA may be within normal commuting distance of a
location that is inside (e.g., near the border of) the MSA.
Attorney means any person who is a member in good standing of the
bar of the highest court of any State, possession, territory, or
commonwealth of the U.S., or the District of Columbia. No attorney who
is under suspension, debarment, expulsion, disbarment, or otherwise
restricted from practice before any court, the Department, the
Executive Office for Immigration Review under 8 CFR 1003.101, or DHS
under 8 CFR 292.3 may represent an employer under this part.
Certifying Officer (CO) means an OFLC official designated by the
Administrator, OFLC to make determinations on applications under the H-
2B program. The Administrator, OFLC is the National CO. Other COs may
also be designated by the Administrator, OFLC to make the
determinations required under 20 CFR part 655, Subpart A.
Chief Administrative Law Judge (Chief ALJ) means the chief official
of the Department's Office of Administrative Law Judges or the Chief
Administrative Law Judge's designee.
Corresponding employment. (1) Corresponding employment means the
employment of workers who are not H-2B workers by an employer that has
a certified H-2B Application for Temporary Employment Certification
[[Page 10171]]
when those workers are performing either substantially the same work
included in the job order or substantially the same work performed by
the H-2B workers, except that workers in the following two categories
are not included in corresponding employment:
(i) Incumbent employees continuously employed by the H-2B employer
to perform substantially the same work included in the job order or
substantially the same work performed by the H-2B workers during the 52
weeks prior to the period of employment certified on the Application
for Temporary Employment Certification and who have worked or been paid
for at least 35 hours in at least 48 of the prior 52 workweeks, and who
have worked or been paid for an average of at least 35 hours per week
over the prior 52 weeks, as demonstrated on the employer's payroll
records, provided that the terms and working conditions of their
employment are not substantially reduced during the period of
employment covered by the job order. In determining whether this
standard was met, the employer may take credit for any hours that were
reduced by the employee voluntarily choosing not to work due to
personal reasons such as illness or vacation; or
(ii) Incumbent employees covered by a collective bargaining
agreement or an individual employment contract that guarantees both an
offer of at least 35 hours of work each workweek and continued
employment with the H-2B employer at least through the period of
employment covered by the job order, except that the employee may be
dismissed for cause.
(2) To qualify as corresponding employment, the work must be
performed during the period of the job order, including any approved
extension thereof.
Date of need means the first date the employer requires services of
the H-2B workers as listed on the application.
Department of Homeland Security (DHS) means the Federal Department
having jurisdiction over certain immigration-related functions, acting
through its agencies, including USCIS.
Employee means a person who is engaged to perform work for an
employer, as defined under the general common law. Some of the factors
relevant to the determination of employee status include: The hiring
party's right to control the manner and means by which the work is
accomplished; the skill required to perform the work; the source of the
instrumentalities and tools for accomplishing the work; the location of
the work; the hiring party's discretion over when and how long to work;
and whether the work is part of the regular business of the hiring
party. Other applicable factors may be considered and no one factor is
dispositive. The terms "employee" and "worker" are used
interchangeably in this part.
Employer means a person (including any individual, partnership,
association, corporation, cooperative, firm, joint stock company,
trust, or other organization with legal rights and duties) that:
(1) Has a place of business (physical location) in the U.S. and a
means by which it may be contacted for employment;
(2) Has an employer relationship (such as the ability to hire, pay,
fire, supervise or otherwise control the work of employees) with
respect to an H-2B worker or a worker in corresponding employment; and
(3) Possesses, for purposes of filing an Application for Temporary
Employment Certification, a valid Federal Employer Identification
Number (FEIN).
Employment and Training Administration (ETA) means the agency
within the Department which includes OFLC and has been delegated
authority by the Secretary to fulfill the Secretary's mandate under the
DHS regulations for the administration and adjudication of an
Application for Temporary Employment Certification and related
functions.
Federal holiday means a legal public holiday as defined at 5 U.S.C.
6103.
Full-time means 35 or more hours of work per week.
H-2B Petition means the DHS Petition for a Nonimmigrant Worker
form, or successor form, and accompanying documentation required by DHS
for employers seeking to employ foreign persons as H-2B nonimmigrant
workers. The H-2B Petition includes the approved Application for
Temporary Employment Certification and the Final Determination letter.
H-2B Registration means the OMB-approved ETA Form 9155, submitted
by an employer to register its intent to hire H-2B workers and to file
an Application for Temporary Employment Certification.
H-2B worker means any temporary foreign worker who is lawfully
present in the U.S. and authorized by DHS to perform nonagricultural
labor or services of a temporary or seasonal nature under 8 U.S.C.
1101(a)(15)(H)(ii)(b).
Job contractor means a person, association, firm, or a corporation
that meets the definition of an employer and that contracts services or
labor on a temporary basis to one or more employers, which is not an
affiliate, branch or subsidiary of the job contractor and where the job
contractor will not exercise substantial, direct day-to-day supervision
and control in the performance of the services or labor to be performed
other than hiring, paying and firing the workers.
Job offer means the offer made by an employer or potential employer
of H-2B workers to both U.S. and H-2B workers describing all the
material terms and conditions of employment, including those relating
to wages, working conditions, and other benefits.
Job opportunity means one or more openings for full-time employment
with the petitioning employer within a specified area(s) of intended
employment for which the petitioning employer is seeking workers.
Job order means the document containing the material terms and
conditions of employment relating to wages, hours, working conditions,
worksite and other benefits, including obligations and assurances under
29 CFR part 655, Subpart A and this subpart that is posted between and
among the SWAs on their job clearance systems.
Joint employment means that where two or more employers each have
sufficient definitional indicia of being an employer to be considered
the employer of a worker, those employers will be considered to jointly
employ that worker. Each employer in a joint employment relationship to
a worker is considered a joint employer of that worker.
Layoff means any involuntary separation of one or more U.S.
employees without cause.
Metropolitan Statistical Area (MSA) means a geographic entity
defined by OMB for use by Federal statistical agencies in collecting,
tabulating, and publishing Federal statistics. A metro area contains a
core urban area of 50,000 or more population, and a micro area contains
an urban core of at least 10,000 (but fewer than 50,000) population.
Each metro or micro area consists of one or more counties and includes
the counties containing the core urban area, as well as any adjacent
counties that have a high degree of social and economic integration (as
measured by commuting to work) with the urban core.
National Processing Center (NPC) means the office within OFLC which
is charged with the adjudication of an Application for Temporary
Employment Certification or other applications.
Non-agricultural labor and services means any labor or services not
[[Page 10172]]
considered to be agricultural labor or services as defined in 20 CFR
part 655, Subpart B. It does not include the provision of services as
members of the medical profession by graduates of medical schools.
Offered wage means the wage offered by an employer in an H-2B job
order. The offered wage must equal or exceed the highest of the
prevailing wage or Federal, State or local minimum wage.
Office of Foreign Labor Certification (OFLC) means the
organizational component of the ETA that provides national leadership
and policy guidance and develops regulations to carry out the
Secretary's responsibilities for the admission of foreign workers to
the U.S. to perform work described in 8 U.S.C. 1101(a)(15)(H)(ii)(b).
Prevailing wage determination (PWD) means the prevailing wage for
the position, as described in 20 CFR 655.12, which is the subject of
the Application for Temporary Employment Certification.
Secretary means the Secretary of Labor, the chief official of the
U.S. Department of Labor, or the Secretary's designee.
Secretary of Homeland Security means the chief official of the U.S.
DHS or the Secretary of DHS's designee.
State Workforce Agency (SWA) means a State government agency that
receives funds under the Wagner-Peyser Act (29 U.S.C. 49 et seq.) to
administer the State's public labor exchange activities.
Strike means a concerted stoppage of work by employees as a result
of a labor dispute, or any concerted slowdown or other concerted
interruption of operation (including stoppage by reason of the
expiration of a collective bargaining agreement).
Successor in interest. (1) Successor in interest means where an
employer has violated 20 CFR part 655, Subpart A or this part, and has
ceased doing business or cannot be located for purposes of enforcement,
a successor in interest to that employer may be held liable for the
duties and obligations of the violating employer in certain
circumstances. The following factors, as used under Title VII of the
Civil Rights Act and the Vietnam Era Veterans' Readjustment Assistance
Act, may be considered in determining whether an employer is a
successor in interest; no one factor is dispositive, but all of the
circumstances will be considered as a whole:
(i) Substantial continuity of the same business operations;
(ii) Use of the same facilities;
(iii) Continuity of the work force;
(iv) Similarity of jobs and working conditions;
(v) Similarity of supervisory personnel;
(vi) Whether the former management or owner retains a direct or
indirect interest in the new enterprise;
(vii) Similarity in machinery, equipment, and production methods;
(viii) Similarity of products and services; and
(ix) The ability of the predecessor to provide relief.
(2) For purposes of debarment only, the primary consideration will
be the personal involvement of the firm's ownership, management,
supervisors, and others associated with the firm in the violation(s) at
issue.
United States (U.S.) means the continental U.S., Alaska, Hawaii,
the Commonwealth of Puerto Rico, and the territories of Guam, the U.S.
Virgin Islands, and the Commonwealth of the Northern Mariana Islands
(CNMI).
United States Citizenship and Immigration Services (USCIS) means
the Federal agency within DHS that makes the determination under the
INA whether to grant petitions filed by employers seeking H-2B workers
to perform temporary nonagricultural work in the U.S.
United States worker (U.S. worker) means a worker who is:
(1) A citizen or national of the U.S.;
(2) An alien who is lawfully admitted for permanent residence in
the U.S., is admitted as a refugee under 8 U.S.C. 1157, is granted
asylum under 8 U.S.C. 1158, or is an immigrant otherwise authorized (by
the INA or by DHS) to be employed in the U.S.; or
(3) An individual who is not an unauthorized alien (as defined in 8
U.S.C. 1324a(h)(3)) with respect to the employment in which the worker
is engaging.
Wage and Hour Division (WHD) means the agency within the Department
with investigatory and law enforcement authority, as delegated from
DHS, to carry out the provisions under 8 U.S.C. 1184(c).
Wages mean all forms of cash remuneration to a worker by an
employer in payment for personal services.
Sec. 503.5 Temporary need.
(a) An employer seeking certification under 20 CFR part 655,
Subpart A must establish that its need for non-agricultural services or
labor is temporary, regardless of whether the underlying job is
permanent or temporary. 8 CFR 214.2(h)(6)(ii)(A).
(b) The employer's need is considered temporary if justified to the
CO as one of the following: a one-time occurrence; a seasonal need; a
peakload need; or an intermittent need, as defined by DHS. 8 CFR
214.2(h)(6)(ii)(B).
Sec. 503.6 Waiver of rights prohibited.
A person may not seek to have an H-2B worker, a worker in
corresponding employment, or any other person, including but not
limited to a U.S. worker improperly rejected for employment or
improperly laid off or displaced, waive or modify any rights conferred
under 8 U.S.C. 1184(c), 20 CFR part 655, Subpart A, or the regulations
in this part. Any agreement by an employee purporting to waive or
modify any rights given to said person under these provisions will be
void as contrary to public policy except as follows:
(a) Waivers or modifications of rights or obligations hereunder in
favor of the Secretary will be valid for purposes of enforcement; and
(b) Agreements in settlement of private litigation are permitted.
Sec. 503.7 Investigation authority of Secretary.
(a) Authority of the Administrator, WHD. The Secretary of Homeland
Security has delegated to the Secretary, under 8 U.S.C. 1184(c)(14)(B),
authority to perform investigative and enforcement functions. The
Administrator, WHD will perform all such functions.
(b) Conduct of investigations. The Secretary, through the WHD, may
investigate to determine compliance with obligations under 8 U.S.C.
1184(c), 20 CFR part 655, Subpart A, or the regulations in this part,
either under a complaint or otherwise, as may be appropriate. In
connection with such an investigation, WHD may enter and inspect any
premises, land, property, worksite, vehicles, structure, facility,
place and records (and make transcriptions, photographs, scans, videos,
photocopies, or use any other means to record the content of the
records or preserve images of places or objects), question any person,
or gather any information, in whatever form, as may be appropriate.
(c) Confidential investigation. The WHD will conduct investigations
in a manner that protects the confidentiality of any complainant or
other person who provides information to the Secretary in good faith.
(d) Report of violations. Any person may report a violation of the
obligations imposed by 8 U.S.C. 1184(c), 20 CFR part 655, Subpart A, or
the regulations in this part to the Secretary by advising any local
office of the SWA, ETA, WHD or any other authorized representative of
the Secretary. The office or person
[[Page 10173]]
receiving such a report will refer it to the appropriate office of WHD
for the geographic area in which the reported violation is alleged to
have occurred.
Sec. 503.8 Accuracy of information, statements, data.
Information, statements, and data submitted in compliance with 8
U.S.C. 1184(c) or the regulations in this part are subject to 18 U.S.C.
1001, which provides, with regard to statements or entries generally,
that whoever, in any matter within the jurisdiction of any department
or agency of the U.S., knowingly and willfully falsifies, conceals, or
covers up a material fact by any trick, scheme, or device, or makes any
false, fictitious, or fraudulent statements or representations, or
makes or uses any false writing or document knowing the same to contain
any false, fictitious, or fraudulent statement or entry, will be fined
not more than $250,000 or imprisoned not more than 5 years, or both.
Subpart B--Enforcement
Sec. 503.15 Enforcement.
The investigation, inspection, and law enforcement functions that
carry out the provisions of 8 U.S.C. 1184(c), 20 CFR part 655, Subpart
A, or the regulations in this part pertain to the employment of any H-
2B worker, any worker in corresponding employment, or any U.S. worker
improperly rejected for employment or improperly laid off or displaced.
Sec. 503.16 Assurances and obligations of H-2B employers.
An employer employing H-2B workers and/or workers in corresponding
employment under an Application for Temporary Employment Certification
has agreed as part of the Application for Temporary Employment
Certification that it will abide by the following conditions with
respect to its H-2B workers and any workers in corresponding
employment:
(a) Rate of pay. (1) The offered wage in the job order equals or
exceeds the highest of the prevailing wage or Federal minimum wage,
State minimum wage, or local minimum wage. The employer must pay at
least the offered wage, free and clear, during the entire period of the
Application for Temporary Employment Certification granted by OFLC.
(2) The offered wage is not based on commissions, bonuses, or other
incentives, including paying on a piece-rate basis, unless the employer
guarantees a wage earned every workweek that equals or exceeds the
offered wage.
(3) If the employer requires one or more minimum productivity
standards of workers as a condition of job retention, the standards
must be specified in the job order and the employer must demonstrate
that they are normal and usual for non-H-2B employers for the same
occupation in the area of intended employment.
(4) An employer that pays on a piece-rate basis must demonstrate
that the piece rate is no less than the normal rate paid by non-H-2B
employers to workers performing the same activity in the area of
intended employment. The average hourly piece rate earnings must result
in an amount at least equal to the offered wage. If the worker is paid
on a piece rate basis and at the end of the workweek the piece rate
does not result in average hourly piece rate earnings during the
workweek at least equal to the amount the worker would have earned had
the worker been paid at the offered hourly wage, then the employer must
supplement the worker's pay at that time so that the worker's earnings
are at least as much as the worker would have earned during the
workweek if the worker had instead been paid at the offered hourly wage
for each hour worked.
(b) Wages free and clear. The payment requirements for wages in
this section will be satisfied by the timely payment of such wages to
the worker either in cash or negotiable instrument payable at par. The
payment must be made finally and unconditionally and "free and
clear." The principles applied in determining whether deductions are
reasonable and payments are received free and clear and the
permissibility of deductions for payments to third persons are
explained in more detail in 29 CFR part 531.
(c) Deductions. The employer must make all deductions from the
worker's paycheck required by law. The job order must specify all
deductions not required by law which the employer will make from the
worker's pay; any such deductions not disclosed in the job order are
prohibited. The wage payment requirements of paragraph (b) of this
section are not met where unauthorized deductions, rebates, or refunds
reduce the wage payment made to the worker below the minimum amounts
required by the offered wage or where the worker fails to receive such
amounts free and clear because the worker "kicks back" directly or
indirectly to the employer or to another person for the employer's
benefit the whole or part of the wages delivered to the worker.
Authorized deductions are limited to: Those required by law, such as
taxes payable by workers that are required to be withheld by the
employer and amounts due workers which the employer is required by
court order to pay to another; deductions for the reasonable cost or
fair value of board, lodging, and facilities furnished; and deductions
of amounts which are authorized to be paid to third persons for the
worker's account and benefit through his or her voluntary assignment or
order or which are authorized by a collective bargaining agreement with
bona fide representatives of workers which covers the employer.
Deductions for amounts paid to third persons for the worker's account
and benefit which are not so authorized or are contrary to law or from
which the employer, agent or recruiter, including any agents or
workers, or any affiliated person derives any payment, rebate,
commission, profit, or benefit directly or indirectly, may not be made
if they reduce the actual wage paid to the worker below the offered
wage indicated on the Application for Temporary Employment
Certification.
(d) Job opportunity is full-time. The job opportunity is a full-
time temporary position, consistent with Sec. 503.4, and the employer
must use a single workweek as its standard for computing wages due. An
employee's workweek must be a fixed and regularly recurring period of
168 hours--seven consecutive 24-hour periods. It need not coincide with
the calendar week but may begin on any day and at any hour of the day.
(e) Job qualifications and requirements. Each job qualification and
requirement must be listed in the job order and must be bona fide and
consistent with the normal and accepted qualifications and requirements
imposed by non-H-2B employers in the same occupation and area of
intended employment. The employer's job qualifications and requirements
imposed on U.S. workers must be no less favorable than the
qualifications and requirements that the employer is imposing or will
impose on H-2B workers. A qualification means a characteristic that is
necessary to the individual's ability to perform the job in question. A
requirement means a term or condition of employment which a worker is
required to accept in order to obtain the job opportunity. The CO may
require the employer to submit documentation to substantiate the
appropriateness of any job qualification and/or requirement specified
in the job order.
(f) Three-fourths guarantee. (1) The employer must guarantee to
offer the worker employment for a total number of work hours equal to
at least three-fourths of the workdays in each 12-week
[[Page 10174]]
period (each 6-week period if the period of employment covered by the
job order is less than 120 days) beginning with the first workday after
the arrival of the worker at the place of employment or the advertised
first date of need, whichever is later, and ending on the expiration
date specified in the job order or in its extensions, if any. See the
exception in paragraph (y) of this section.
(2) For purposes of this paragraph (f) a workday means the number
of hours in a workday as stated in the job order. The employer must
offer a total number of hours of work to ensure the provision of
sufficient work to reach the three-fourths guarantee in each 12-week
period (each 6-week period if the period of employment covered by the
job order is less than 120 days) during the work period specified in
the job order, or during any modified job order period to which the
worker and employer have mutually agreed and that has been approved by
the CO.
(3) In the event the worker begins working later than the specified
beginning date the guarantee period begins with the first workday after
the arrival of the worker at the place of employment, and continues
until the last day during which the job order and all extensions
thereof are in effect.
(4) The 12-week periods to which the guarantee applies (6-week
periods if the period of employment covered by the job order is less
than 120 days) to which the guarantee applies are based upon the
workweek used by the employer for pay purposes. The first 12-week
period (or 6-week period, as appropriate) also includes any partial
workweek, if the first workday after the worker's arrival at the place
of employment is not the beginning of the employer's workweek, with the
guaranteed number of hours increased on a pro rata basis (thus, the
first period may include up to 12 weeks and 6 days (or 6 weeks and 6
days, as appropriate)). The final 12-week period (or 6-week period, as
appropriate) includes any time remaining after the last full 12-week
period (or 6-week period) ends, and thus may be as short as 1 day, with
the guaranteed number of hours decreased on a pro rata basis.
(5) Therefore, if, for example, a job order is for a 32-week period
(a period greater than 120 days), during which the normal workdays and
work hours for the workweek are specified as 5 days a week, 7 hours per
day, the worker would have to be guaranteed employment for at least 315
hours (12 weeks x 35 hours/week = 420 hours x 75 percent = 315) in the
first 12-week period, at least 315 hours in the second 12-week period,
and at least 210 hours (8 weeks x 35 hours/week = 280 hours x 75
percent = 210) in the final partial period. If the job order is for a
16-week period (less than 120 days), during which the normal workdays
and work hours for the workweek are specified as 5 days a week, 7 hours
per day, the worker would have to be guaranteed employment for at least
157.5 hours (6 weeks x 35 hours/week = 210 hours x 75 percent = 157.5)
in the first 6-week period, at least 157.5 hours in the second 6-week
period, and at least 105 hours (4 weeks x 35 hours/week = 140 hours x
75 percent = 105) in the final partial period.
(6) If the worker is paid on a piece rate basis, the employer must
use the worker's average hourly piece rate earnings or the offered
wage, whichever is higher, to calculate the amount due under the
guarantee.
(7) A worker may be offered more than the specified hours of work
on a single workday. For purposes of meeting the guarantee, however,
the worker will not be required to work for more than the number of
hours specified in the job order for a workday. The employer, however,
may count all hours actually worked in calculating whether the
guarantee has been met. If during any 12-week period (6-week period if
the period of employment covered by the job order is less than 120
days) during the period of the job order the employer affords the U.S.
or H-2B worker less employment than that required under paragraph
(f)(1) of this section, the employer must pay such worker the amount
the worker would have earned had the worker, in fact, worked for the
guaranteed number of days. An employer has not met the work guarantee
if the employer has merely offered work on three-fourths of the
workdays in an 12-week period (or 6-week period, as appropriate) if
each workday did not consist of a full number of hours of work time as
specified in the job order.
(8) Any hours the worker fails to work, up to a maximum of the
number of hours specified in the job order for a workday, when the
worker has been offered an opportunity to work in accordance with
paragraph (f)(1) of this section, and all hours of work actually
performed (including voluntary work over 8 hours in a workday), may be
counted by the employer in calculating whether each 12-week period (or
6-week period, as appropriate) of guaranteed employment has been met.
An employer seeking to calculate whether the guaranteed number of hours
has been met must maintain the payroll records in accordance with this
part.
(g) Impossibility of fulfillment. If, before the expiration date
specified in the job order, the services of the worker are no longer
required for reasons beyond the control of the employer due to fire,
weather, or other Act of God or similar unforeseeable man-made
catastrophic event (such as an oil spill or controlled flooding) that
is wholly outside the employer's control that makes the fulfillment of
the job order impossible, the employer may terminate the job order with
the approval of the CO. In the event of such termination of a job
order, the employer must fulfill a three-fourths guarantee, as
described in paragraph (f) of this section, for the time that has
elapsed from the start date listed in the job order or the first
workday after the arrival of the worker at the place of employment,
whichever is later, to the time of its termination. The employer must
make efforts to transfer the H-2B worker or worker in corresponding
employment to other comparable employment acceptable to the worker and
consistent with the INA, as applicable. If a transfer is not effected,
the employer must return the worker, at the employer's expense, to the
place from which the worker (disregarding intervening employment) came
to work for the employer, or transport the worker to the worker's next
certified H-2B employer, whichever the worker prefers.
(h) Frequency of pay. The employer must state in the job order the
frequency with which the worker will be paid, which must be at least
every 2 weeks or according to the prevailing practice in the area of
intended employment, whichever is more frequent. Employers must pay
wages when due.
(i) Earnings statements. (1) The employer must keep accurate and
adequate records with respect to the workers' earnings, including but
not limited to: records showing the nature, amount, and location(s) of
the work performed; the number of hours of work offered each day by the
employer (broken out by hours offered both in accordance with and over
and above the three-fourths guarantee in paragraph (f) of this
section); the hours actually worked each day by the worker; if the
number of hours worked by the worker is less than the number of hours
offered, the reason(s) the worker did not work; the time the worker
began and ended each workday; the rate of pay (both piece rate and
hourly, if applicable); the worker's earnings per pay period; the
worker's home address; and the amount of and reasons for any and all
deductions taken from or additions made to the worker's wages.
[[Page 10175]]
(2) The employer must furnish to the worker on or before each
payday in one or more written statements the following information:
(i) The worker's total earnings for each workweek in the pay
period;
(ii) The worker's hourly rate and/or piece rate of pay;
(iii) For each workweek in the pay period the hours of employment
offered to the worker (showing offers in accordance with the three-
fourths guarantee as determined in paragraph (f) of this section,
separate from any hours offered over and above the guarantee);
(iv) For each workweek in the pay period the hours actually worked
by the worker;
(v) An itemization of all deductions made from or additions made to
the worker's wages;
(vi) If piece rates are used, the units produced daily;
(vii) The beginning and ending dates of the pay period; and
(viii) The employer's name, address and FEIN.
(j) Transportation and visa fees. (1)(i) Transportation to the
place of employment. The employer must provide or reimburse the worker
for transportation and subsistence from the place from which the worker
has come to work for the employer, whether in the U.S. or abroad, to
the place of employment if the worker completes 50 percent of the
period of employment covered by the job order (not counting any
extensions). The employer may arrange and pay for the transportation
and subsistence directly, advance at a minimum the most economical and
reasonable common carrier cost of the transportation and subsistence to
the worker before the worker's departure, or pay the worker for the
reasonable costs incurred by the worker. When it is the prevailing
practice of non-H-2B employers in the occupation in the area to do so
or when the employer extends such benefits to similarly situated H-2B
workers, the employer must advance the required transportation and
subsistence costs (or otherwise provide them) to workers in
corresponding employment who are traveling to the employer's worksite.
The amount of the transportation payment must be no less (and is not
required to be more) than the most economical and reasonable common
carrier transportation charges for the distances involved. The amount
of the daily subsistence must be at least the amount permitted in 20
CFR 655.173. Where the employer will reimburse the reasonable costs
incurred by the worker, it must keep accurate and adequate records of:
the costs of transportation and subsistence incurred by the worker; the
amount reimbursed; and the date(s) of reimbursement. Note that the Fair
Labor Standards Act (FLSA) applies independently of the H-2B
requirements and imposes obligations on employers regarding payment of
wages.
(ii) Transportation from the place of employment. If the worker
completes the period of employment covered by the job order (not
counting any extensions), or if the worker is dismissed from employment
for any reason by the employer before the end of the period, and the
worker has no immediate subsequent H-2B employment, the employer must
provide or pay at the time of departure for the worker's cost of return
transportation and daily subsistence from the place of employment to
the place from which the worker, disregarding intervening employment,
departed to work for the employer. If the worker has contracted with a
subsequent employer that has not agreed in the job order to provide or
pay for the worker's transportation from the employer's worksite to
such subsequent employer's worksite, the employer must provide or pay
for that transportation and subsistence. If the worker has contracted
with a subsequent employer that has agreed in the job order to provide
or pay for the worker's transportation from the employer's worksite to
such subsequent employer's worksite, the subsequent employer must
provide or pay for such expenses.
(iii) Employer-provided transportation. All employer-provided
transportation must comply with all applicable Federal, State, and
local laws and regulations and must provide, at a minimum, the same
vehicle safety standards, driver licensure requirements, and vehicle
insurance as required under 49 CFR parts 390, 393, and 396.
(iv) Disclosure. All transportation and subsistence costs that the
employer will pay must be disclosed in the job order.
(2) The employer must pay or reimburse the worker in the first
workweek for all visa, visa processing, border crossing, and other
related fees (including those mandated by the government) incurred by
the H-2B worker, but not for passport expenses or other charges
primarily for the benefit of the worker.
(k) Employer-provided items. The employer must provide to the
worker, without charge or deposit charge, all tools, supplies, and
equipment required to perform the duties assigned.
(l) Disclosure of job order. The employer must provide to an H-2B
worker outside of the U.S. no later than the time at which the worker
applies for the visa, or to a worker in corresponding employment no
later than on the day work commences, a copy of the job order including
any subsequent approved modifications. For an H-2B worker changing
employment from an H-2B employer to a subsequent H-2B employer, the
copy must be provided no later than the time an offer of employment is
made by the subsequent H-2B employer. The disclosure of all documents
required by this paragraph must be provided in a language understood by
the worker, as necessary or reasonable.
(m) Notice of worker rights. The employer must post and maintain in
a conspicuous location at the place of employment a poster provided by
the Department which sets out the rights and protections for H-2B
workers and workers in corresponding employment. The employer must post
the poster in English. To the extent necessary, the employer must
request and post additional posters, as made available by the
Department, in any language common to a significant portion of the
workers if they are not fluent in English.
(n) No unfair treatment. The employer has not and will not
intimidate, threaten, restrain, coerce, blacklist, discharge or in any
manner discriminate against, and has not and will not cause any person
to intimidate, threaten, restrain, coerce, blacklist, discharge, or in
any manner discriminate against, any person who has:
(1) Filed a complaint under or related to 8 U.S.C. 1184(c), 20 CFR
part 655, Subpart A, or this part or any other Department regulation
promulgated thereunder;
(2) Instituted or caused to be instituted any proceeding under or
related to 8 U.S.C. 1184(c), 20 CFR part 655, Subpart A, or this part
or any other Department regulation promulgated thereunder;
(3) Testified or is about to testify in any proceeding under or
related to 8 U.S.C. 1184(c), 20 CFR part 655, Subpart A, or this part
or any other Department regulation promulgated thereunder;
(4) Consulted with a workers' center, community organization, labor
union, legal assistance program, or an attorney on matters related to 8
U.S.C. 1184(c), 20 CFR part 655, Subpart A, or this part or any other
Department regulation promulgated thereunder; or
(5) Exercised or asserted on behalf of himself/herself or others
any right or protection afforded by 8 U.S.C. 1184(c), 20 CFR part 655,
Subpart A, or this part or any other Department regulation promulgated
thereunder.
[[Page 10176]]
(o) Comply with the prohibitions against employees paying fees. The
employer and its attorney, agents, or employees have not sought or
received payment of any kind from the worker for any activity related
to obtaining H-2B labor certification or employment, including payment
of the employer's attorney or agent fees, application and H-2B Petition
fees, recruitment costs, or any fees attributed to obtaining the
approved Application for Temporary Employment Certification. For
purposes of this paragraph, payment includes, but is not limited to,
monetary payments, wage concessions (including deductions from wages,
salary, or benefits), kickbacks, bribes, tributes, in-kind payments,
and free labor. All wages must be paid free and clear. This provision
does not prohibit employers or their agents from receiving
reimbursement for costs that are the responsibility and primarily for
the benefit of the worker, such as government-required passport fees.
(p) Contracts with third parties to comply with prohibitions. The
employer must contractually prohibit in writing any agent or recruiter
(or any agent or employee of such agent or recruiter) whom the employer
engages, either directly or indirectly, in international recruitment of
H-2B workers to seek or receive payments or other compensation from
prospective workers. The contract must include the following statement:
"Under this agreement, [name of agent, recruiter] and any agent of or
employee of [name of agent or recruiter] are prohibited from seeking or
receiving payments from any prospective employee of [employer name] at
any time, including before or after the worker obtains employment.
Payments include but are not limited to, any direct or indirect fees
paid by such employees for recruitment, job placement, processing,
maintenance, attorneys' fees, agent fees, application fees, or petition
fees."
(q) Prohibition against preferential treatment of foreign workers.
The employer's job offer must offer to U.S. workers no less than the
same benefits, wages, and working conditions that the employer is
offering, intends to offer, or will provide to H-2B workers. Job offers
may not impose on U.S. workers any restrictions or obligations that
will not be imposed on the employer's H-2B workers. This does not
relieve the employer from providing to H-2B workers at least the
minimum benefits, wages, and working conditions which must be offered
to U.S. workers consistent with this section.
(r) Non-discriminatory hiring practices. The job opportunity is,
and through the period set forth in paragraph (t) of this section must
continue to be, open to any qualified U.S. worker regardless of race,
color, national origin, age, sex, religion, disability, or citizenship.
Rejections of any U.S. workers who applied or apply for the job must
only be for lawful, job-related reasons, and those not rejected on this
basis have been or will be hired. In addition, the employer has and
will continue to retain records of all hired workers and rejected
applicants as required by Sec. 503.17.
(s) Recruitment requirements. The employer must conduct all
required recruitment activities, including any additional employer-
conducted recruitment activities as directed by the CO, and as
specified in 20 CFR 655.40 through 655.46.
(t) Continuing requirement to hire U.S. workers. The employer has
and will continue to cooperate with the SWA by accepting referrals of
all qualified U.S. workers who apply (or on whose behalf a job
application is made) for the job opportunity, and must provide
employment to any qualified U.S. worker who applies to the employer for
the job opportunity, until 21 days before the date of need.
(u) No strike or lockout. There is no strike or lockout at any of
the employer's worksites within the area of intended employment for
which the employer is requesting H-2B certification at the time the
Application for Temporary Employment Certification is filed.
(v) No recent or future layoffs. The employer has not laid off and
will not lay off any similarly employed U.S. worker in the occupation
that is the subject of the Application for Temporary Employment
Certification in the area of intended employment within the period
beginning 120 calendar days before the date of need through the end of
the period of certification. A layoff for lawful, job-related reasons
such as lack of work or the end of a season is permissible if all H-2B
workers are laid off before any U.S. worker in corresponding
employment.
(w) Contact with former U.S. employees. The employer will contact
(by mail or other effective means) its former U.S. workers, including
those who have been laid off within 120 calendar days before the date
of need (except those who were dismissed for cause or who abandoned the
worksite), employed by the employer in the occupation at the place of
employment during the previous year, disclose the terms of the job
order, and solicit their return to the job.
(x) Area of intended employment and job opportunity. The employer
must not place any H-2B workers employed under the approved Application
for Temporary Employment Certification outside the area of intended
employment or in a job opportunity not listed on the approved
Application for Temporary Employment Certification unless the employer
has obtained a new approved Application for Temporary Employment
Certification.
(y) Abandonment/termination of employment. Upon the separation from
employment of worker(s) employed under the Application for Temporary
Employment Certification or workers in corresponding employment, if
such separation occurs before the end date of the employment specified
in the Application for Temporary Employment Certification, the employer
must notify OFLC in writing of the separation from employment not later
than 2 work days after such separation is discovered by the employer.
In addition, the employer must notify DHS in writing (or any other
method specified by the Department or DHS in the Federal Register or
the Code of Federal Regulations) of such separation of an H-2B worker.
An abandonment or abscondment is deemed to begin after a worker fails
to report for work at the regularly scheduled time for 5 consecutive
working days without the consent of the employer. If the separation is
due to the voluntary abandonment of employment by the H-2B worker or
worker in corresponding employment, and the employer provides
appropriate notification specified under this paragraph, the employer
will not be responsible for providing or paying for the subsequent
transportation and subsistence expenses of that worker under this
section, and that worker is not entitled to the three-fourths guarantee
described in paragraph (f) of this section. The employer's obligation
to guarantee three-fourths of the work described in paragraph (f) ends
with the last full 12-week period (or 6-week period, as appropriate)
preceding the worker's voluntary abandonment or termination for cause.
(z) Compliance with applicable laws. During the period of
employment specified on the Application for Temporary Employment
Certification, the employer must comply with all applicable Federal,
State and local employment-related laws and regulations, including
health and safety laws. In compliance with such laws, including the
William Wilberforce Trafficking Victims Protection Reauthorization Act
of 2008, 18 U.S.C. 1592(a), neither the employer nor the
[[Page 10177]]
employer's agents or attorneys may hold or confiscate workers'
passports, visas, or other immigration documents.
(aa) Disclosure of foreign worker recruitment. The employer, and
its attorney or agent, as applicable, must comply with 20 CFR 655.9 by
providing a copy of all agreements with any agent or recruiter whom it
engages or plans to engage in the international recruitment of H-2B
workers, and the identity and location of the persons or entities hired
by or working for the agent or recruiter, and any of the agents or
employees of those persons and entities, to recruit foreign workers.
Pursuant to 20 CFR 655.15(a), the agreements and information must be
filed with the Application for Temporary Employment Certification.
(bb) Cooperation with investigators. The employer must cooperate
with any employee of the Secretary who is exercising or attempting to
exercise the Department's authority pursuant to 8 U.S.C. 1184(c).
Sec. 503.17 Document retention requirements of H-2B employers.
(a) Entities required to retain documents. All employers filing an
Application for Temporary Employment Certification requesting H-2B
workers are required to retain the documents and records proving
compliance with 20 CFR part 655, Subpart A and this part, including but
not limited to those specified in paragraph (c) of this section.
(b) Period of required retention. The employer must retain records
and documents for 3 years from the date of certification of the
Application for Temporary Employment Certification or from the date of
adjudication if the Application for Temporary Employment Certification
is denied or 3 years from the day the Department receives the letter of
withdrawal provided in accordance with 20 CFR 655.62.
(c) Documents and records to be retained by all employer
applicants. All employers filing an H-2B Registration and an
Application for Temporary Employment Certification must retain the
following documents and records and must provide the documents and
records in the event of an audit or investigation:
(1) Documents and records not previously submitted during the
registration process that substantiate temporary need;
(2) Proof of recruitment efforts, as applicable, including:
(i) Job order placement as specified in 20 CFR 655.16;
(ii) Advertising as specified in 20 CFR 655.41 and 655.42;
(iii) Contact with former U.S. workers as specified in 20 CFR
655.43;
(iv) Contact with bargaining representative(s), copy of the posting
of the job opportunity, and contact with community-based organizations,
if applicable, as specified in 20 CFR 655.45(a), (b) and (c); and
(v) Additional employer-conducted recruitment efforts as specified
in 20 CFR 655.46;
(3) Substantiation of the information submitted in the recruitment
report prepared in accordance with 20 CFR 655.48, such as evidence of
nonapplicability of contact with former workers as specified in 20 CFR
655.43;
(4) The final recruitment report and any supporting resumes and
contact information as specified in 20 CFR 655.48;
(5) Records of each worker's earnings, hours offered and worked,
and other information as specified in Sec. 503.16(i);
(6) If appropriate, records of reimbursement of transportation and
subsistence costs incurred by the workers, as specified in Sec.
503.16(j).
(7) Evidence of contact with U.S. workers who applied for the job
opportunity in the Application for Temporary Employment Certification,
including documents demonstrating that any rejections of U.S. workers
were for lawful, job-related reasons, as specified in Sec. 503.16(r);
(8) Evidence of contact with any former U.S. worker in the
occupation and the area of intended employment in the Application for
Temporary Employment Certification, including documents demonstrating
that the U.S. worker had been offered the job opportunity in the
Application for Temporary Employment Certification, as specified in
Sec. 503.16(w), and that the U.S. worker either refused the job
opportunity or was rejected only for lawful, job-related reasons, as
specified in Sec. 503.16(r);
(9) The written contracts with agents or recruiters, as specified
in 20 CFR 655.8 and 655.9, and the list of the identities and locations
of persons hired by or working for the agent or recruiter and these
entities' agents or employees, as specified in 20 CFR 655.9;
(10) Written notice provided to and informing OFLC that an H-2B
worker or worker in corresponding employment has separated from
employment before the end date of employment specified in the
Application for Temporary Employment Certification, as specified in
Sec. 503.16(y);
(11) The H-2B Registration, job order, and the Application for
Temporary Employment Certification;
(12) The approved H-2B Petition, including all accompanying
documents; and
(13) Any collective bargaining agreement(s), individual employment
contract(s), or payroll records from the previous year necessary to
substantiate any claim that certain incumbent workers are not included
in corresponding employment, as specified in Sec. 503.4.
(d) Availability of documents for enforcement purposes. An employer
must make available to the Administrator, WHD within 72 hours following
a request by the WHD the documents and records required under 20 CFR
part 655, Subpart A and this section so that the Administrator, WHD may
copy, transcribe, or inspect them.
Sec. 503.18 Validity of temporary labor certification.
(a) Validity period. A temporary labor certification is valid only
for the period of time between the beginning and ending dates of
employment, as approved on the Application for Temporary Employment
Certification. The certification expires on the last day of authorized
employment.
(b) Scope of validity. A temporary labor certification is valid
only for the number of H-2B positions, the area of intended employment,
the job classification and specific services or labor to be performed,
and the employer specified on the approved Application for Temporary
Employment Certification. The temporary labor certification may not be
transferred from one employer to another unless the employer to which
it is transferred is a successor in interest to the employer to which
it was issued.
Sec. 503.19 Violations.
(a) Types of violations. Pursuant to the statutory provisions
governing enforcement of the H-2B program, 8 U.S.C. 1184(c)(14)(A), a
violation exists under this part where the Administrator, WHD, through
investigation, determines that there has been a:
(1) Willful misrepresentation of a material fact on the H-2B
Registration, Application for Temporary Employment Certification, or H-
2B Petition;
(2) Substantial failure to meet any of the terms and conditions of
the H-2B Registration, Application for Temporary Employment
Certification, or H-2B Petition. A substantial failure is a willful
failure to comply that constitutes a significant deviation from the
terms and conditions of such documents; or
[[Page 10178]]
(3) Willful misrepresentation of a material fact to the Department
of State during the visa application process.
(b) Determining whether a violation is willful. A willful
misrepresentation of a material fact or a willful failure to meet the
required terms and conditions occurs when the employer, attorney, or
agent knows its statement is false or that its conduct is in violation,
or shows reckless disregard for the truthfulness of its representation
or for whether its conduct satisfies the required conditions.
(c) Determining whether a violation is significant. In determining
whether a violation is a significant deviation from the terms and
conditions of the H-2B Registration, Application for Temporary
Employment Certification, or H-2B Petition, the factors that the
Administrator, WHD may consider include, but are not limited to, the
following:
(1) Previous history of violation(s) under the H-2B program;
(2) The number of H-2B workers, workers in corresponding
employment, or U.S. workers who were and/or are affected by the
violation(s);
(3) The gravity of the violation(s);
(4) The extent to which the violator achieved a financial gain due
to the violation(s), or the potential financial loss or potential
injury to the worker(s); and
(5) Whether U.S. workers have been harmed by the violation.
(d) Employer acceptance of obligations. The provisions of this part
become applicable upon the date that the employer's Application for
Temporary Employment Certification is accepted. The employer's
submission of and signature on the approved H-2B Registration, Appendix
B of the Application for Temporary Employment Certification, and H-2B
Petition constitute the employer's representation that the statements
on the forms are accurate and that it knows and accepts the obligations
of the program.
Sec. 503.20 Sanctions and remedies--general.
Whenever the Administrator, WHD determines that there has been a
violation(s), as described in Sec. 503.19, such action will be taken
and such proceedings instituted as deemed appropriate, including (but
not limited to) the following:
(a) Institute administrative proceedings, including for: The
recovery of unpaid wages (including recovery of prohibited recruitment
fees paid or impermissible deductions from pay, and recovery of wages
due for improperly placing workers in areas of employment or in
occupations other than those identified on the Application for
Temporary Employment Certification and for which a prevailing wage was
not obtained); the enforcement of provisions of the job order, 8 U.S.C.
1184(c), 20 CFR part 655, Subpart A, or the regulations in this part;
the assessment of a civil money penalty; make whole relief for any
person who has been discriminated against; reinstatement and make whole
relief for any U.S. worker who has been improperly rejected for
employment, laid off or displaced; or debarment for no less than 1 or
no more than 5 years.
(b) The remedies referenced in paragraph (a) of this section will
be sought either directly from the employer, or from its successor in
interest, or from the employer's agent or attorney, as appropriate.
Sec. 503.21 Concurrent actions.
OFLC has primary responsibility to make all determinations
regarding the issuance, denial, or revocation of a labor certification
as described in Sec. 503.1(b) and in 20 CFR part 655, Subpart A. The
WHD has primary responsibility to make all determinations regarding the
enforcement functions as described in Sec. 503.1(c). The taking of any
one of the actions referred to above will not be a bar to the
concurrent taking of any other action authorized by 8 U.S.C. 1184(c),
20 CFR part 655, Subpart A, or the regulations in this part. OFLC and
the WHD have concurrent jurisdiction to impose a debarment remedy under
20 CFR 655.73 or under Sec. 503.24.
Sec. 503.22 Representation of the Secretary.
The Solicitor of Labor, through authorized representatives, will
represent the Administrator, WHD and the Secretary in all
administrative hearings under 8 U.S.C. 1184(c)(14) and the regulations
in this part.
Sec. 503.23 Civil money penalty assessment.
(a) A civil money penalty may be assessed by the Administrator, WHD
for each violation that meets the standards described in Sec. 503.19.
Each such violation involving the failure to pay an individual worker
properly or to honor the terms or conditions of a worker's employment
required by the H-2B Registration, Application for Temporary Employment
Certification, or H-2B Petition, constitutes a separate violation.
Civil money penalty amounts for such violations are determined as set
forth in paragraphs (b) to (e) of this section.
(b) Upon determining that an employer has violated any provisions
of Sec. 503.16 related to wages, impermissible deductions or
prohibited fees and expenses, the Administrator, WHD may assess civil
money penalties that are equal to the difference between the amount
that should have been paid and the amount that actually was paid to
such worker(s), not to exceed $10,000 per violation.
(c) Upon determining that an employer has terminated by layoff or
otherwise or has refused to employ any worker in violation of Sec.
503.16(r), (t), or (v), within the periods described in those sections,
the Administrator, WHD may assess civil money penalties that are equal
to the wages that would have been earned but for the layoff or failure
to hire, not to exceed $10,000 per violation. No civil money penalty
will be assessed, however, if the employee refused the job opportunity,
or was terminated for lawful, job-related reasons.
(d) The Administrator, WHD may assess civil money penalties in an
amount not to exceed $10,000 per violation for any other violation that
meets the standards described in Sec. 503.19.
(e) In determining the amount of the civil money penalty to be
assessed under paragraph (d) of this section, the Administrator, WHD
will consider the type of violation committed and other relevant
factors. In determining the level of penalties to be assessed, the
highest penalties will be reserved for willful failures to meet any of
the conditions of the Application for Temporary Employment
Certification and H-2B Petition that involve harm to U.S. workers.
Other factors which may be considered include, but are not limited to,
the following:
(1) Previous history of violation(s) of 8 U.S.C. 1184(c), 20 CFR
part 655, Subpart A, or the regulations in this part;
(2) The number of H-2B workers, workers in corresponding
employment, or improperly rejected U.S. applicants who were and/or are
affected by the violation(s);
(3) The gravity of the violation(s);
(4) Efforts made in good faith to comply with 8 U.S.C. 1184(c), 20
CFR part 655, Subpart A, and the regulations in this part;
(5) Explanation from the person charged with the violation(s);
(6) Commitment to future compliance, taking into account the public
health, interest or safety; and
(7) The extent to which the violator achieved a financial gain due
to the violation, or the potential financial loss or potential injury
to the workers.
[[Page 10179]]
Sec. 503.24 Debarment.
(a) Debarment of an employer. The Administrator, OFLC may not issue
future labor certifications under 20 CFR part 655, Subpart A to an
employer or any successor in interest to that employer, subject to the
time limits set forth in paragraph (c) of this section, if the
Administrator, WHD finds that the employer committed a violation that
meets the standards of Sec. 503.19. Where these standards are met,
debarrable violations would include but not be limited to one or more
acts of commission or omission which involve:
(1) Failure to pay or provide the required wages, benefits, or
working conditions to the employer's H-2B workers and/or workers in
corresponding employment;
(2) Failure, except for lawful, job-related reasons, to offer
employment to qualified U.S. workers who applied for the job
opportunity for which certification was sought;
(3) Failure to comply with the employer's obligations to recruit
U.S. workers;
(4) Improper layoff or displacement of U.S. workers or workers in
corresponding employment;
(5) Failure to comply with one or more sanctions or remedies
imposed by the Administrator, WHD for violation(s) of obligations under
the job order or other H-2B obligations, or with one or more decisions
or orders of the Secretary or a court under 20 CFR part 655, Subpart A
or this part;
(6) Impeding an investigation of an employer under this part;
(7) Employing an H-2B worker outside the area of intended
employment, in an activity/activities not listed in the job order, or
outside the validity period of employment of the job order, including
any approved extension thereof;
(8) A violation of the requirements of Sec. 503.16(o) or (p);
(9) A violation of any of the provisions listed in Sec. 503.16(r);
(10) Any other act showing such flagrant disregard for the law that
future compliance with program requirements cannot reasonably be
expected;
(11) Fraud involving the H-2B Registration, Application for
Temporary Employment Certification, or H-2B Petition; or
(12) A material misrepresentation of fact during the registration
or application process.
(b) Debarment of an agent or attorney. If the Administrator, WHD
finds, under this section, that an agent or attorney committed a
violation as described in paragraph (a) of this section or participated
in an employer's violation, the Administrator, OFLC may not issue
future labor certifications to an employer represented by such agent or
attorney, subject to the time limits set forth in paragraph (c) of this
section.
(c) Period of debarment. Debarment under this subpart may not be
for less than 1 year or more than 5 years from the date of the final
agency decision.
(d) Debarment procedure. If the Administrator, WHD makes a
determination to debar an employer, attorney, or agent, the
Administrator, WHD will send the party a Notice of Debarment. The
notice will state the reason for the debarment finding, including a
detailed explanation of the grounds for and the duration of the
debarment and inform the party subject to the notice of its right to
request a debarment hearing and the timeframe under which such rights
must be exercised under Sec. 503.43. If the party does not request a
hearing within 30 calendar days of the date of the Notice of Debarment,
the notice is the final agency action and the debarment will take
effect at the end of the 30-day period. The timely filing of an
administrative appeal stays the debarment pending the outcome of the
appeal as provided in Sec. 503.43(e).
(e) Concurrent debarment jurisdiction. OFLC and the WHD have
concurrent jurisdiction debar under 20 CFR 655.73 or under this part.
When considering debarment, OFLC and the WHD will coordinate their
activities. A specific violation for which debarment is imposed will be
cited in a single debarment proceeding. Copies of final debarment
decisions will be forwarded to DHS and DOS promptly.
(f) Debarment from other labor certification programs. Upon
debarment under this part or 20 CFR 655.73, the debarred party will be
disqualified from filing any labor certification applications or labor
condition applications with the Department by, or on behalf of, the
debarred party for the same period of time set forth in the final
debarment decision.
Sec. 503.25 Failure to cooperate with investigators.
(a) No person will interfere or refuse to cooperate with any
employee of the Secretary who is exercising or attempting to exercise
the Department's investigative or enforcement authority under 8 U.S.C.
1184(c). Federal statutes prohibiting persons from interfering with a
Federal officer in the course of official duties are found at 18 U.S.C.
111 and 18 U.S.C. 114.
(b) Where an employer (or employer's agent or attorney) interferes
or does not cooperate with an investigation concerning the employment
of an H-2B worker or a worker in corresponding employment, or a U.S.
worker who has been improperly rejected for employment or improperly
laid off or displaced, WHD may make such information available to OFLC
and may recommend that OFLC revoke the existing certification that is
the basis for the employment of the H-2B workers giving rise to the
investigation. In addition, WHD may take such action as appropriate
where the failure to cooperate meets the standards in Sec. 503.19,
including initiating proceedings for the debarment of the employer from
future certification for up to 5 years, and/or assessing civil money
penalties against any person who has failed to cooperate with a WHD
investigation. The taking of any one action will not bar the taking of
any additional action.
Sec. 503.26 Civil money penalties--payment and collection.
Where a civil money penalty is assessed in a final order by the
Administrator, WHD, by an ALJ, or by the ARB, the amount of the penalty
must be received by the Administrator, WHD within 30 calendar days of
the date of the final order. The person assessed the penalty will remit
the amount ordered to the Administrator, WHD by certified check or by
money order, made payable to the Wage and Hour Division, United States
Department of Labor. The remittance will be delivered or mailed to the
WHD Regional Office for the area in which the violations occurred.
Subpart C--Administrative Proceedings
Sec. 503.40 Applicability of procedures and rules.
The procedures and rules contained in this subpart prescribe the
administrative appeal process that will be applied with respect to a
determination to assess civil money penalties, to debar, to enforce
provisions of the job order or obligations under 8 U.S.C. 1184(c), 20
CFR part 655, Subpart A, or the regulations in this part, or to the
collection of monetary relief due as a result of any violation.
Procedures Related to Hearing
Sec. 503.41 Administrator, WHD's determination.
(a) Whenever the Administrator, WHD decides to assess a civil money
penalty, to debar, or to impose other appropriate administrative
remedies, including for the recovery of monetary relief, the party
against which such action is taken
[[Page 10180]]
will be notified in writing of such determination.
(b) The Administrator, WHD's determination will be served on the
party by personal service or by certified mail at the party's last
known address. Where service by certified mail is not accepted by the
party, the Administrator may exercise discretion to serve the
determination by regular mail.
Sec. 503.42 Contents of notice of determination.
The notice of determination required by Sec. 503.41 will:
(a) Set forth the determination of the Administrator, WHD,
including:
(1) The amount of any monetary relief due; or
(2) Other appropriate administrative remedies; or
(3) The amount of any civil money penalty assessment; or
(4) Whether debarment is sought and the term; and
(5) The reason or reasons for such determination.
(b) Set forth the right to request a hearing on such determination;
(c) Inform the recipient(s) of the notice that in the absence of a
timely request for a hearing, received by the Chief ALJ within 30
calendar days of the date of the determination, the determination of
the Administrator, WHD will become final and not appealable;
(d) Set forth the time and method for requesting a hearing, and the
related procedures for doing so, as set forth in Sec. 503.43, and give
the addresses of the Chief ALJ (with whom the request must be filed)
and the representative(s) of the Solicitor of Labor (upon whom copies
of the request must be served); and
(e) Where appropriate, inform the recipient(s) of the notice that
the Administrator, WHD will notify OFLC and DHS of the occurrence of a
violation by the employer.
Sec. 503.43 Request for hearing.
(a) Any party desiring review of a determination issued under Sec.
503.41, including judicial review, must make a request for such an
administrative hearing in writing to the Chief ALJ at the address
stated in the notice of determination. In such a proceeding, the
Administrator will be the plaintiff, and the party will be the
respondent. If such a request for an administrative hearing is timely
filed, the Administrator, WHD's determination will be inoperative
unless and until the case is dismissed or the ALJ issues an order
affirming the decision.
(b) No particular form is prescribed for any request for hearing
permitted by this section. However, any such request will:
(1) Be dated;
(2) Be typewritten or legibly written;
(3) Specify the issue or issues stated in the notice of
determination giving rise to such request;
(4) State the specific reason or reasons why the party believes
such determination is in error;
(5) Be signed by the party making the request or by the agent or
attorney of such party; and
(6) Include the address at which such party or agent or attorney
desires to receive further communications relating thereto.
(c) The request for such hearing must be received by the Chief ALJ,
at the address stated in the Administrator, WHD's notice of
determination, no later than 30 calendar days after the date of the
determination. A party which fails to meet this 30-day deadline for
requesting a hearing may thereafter participate in the proceedings only
by consent of the ALJ.
(d) The request may be filed in person, by facsimile transmission,
by certified or regular mail, or by courier service within the time set
forth in paragraph (c) of this section. For the requesting party's
protection, if the request is by mail, it should be by certified mail.
If the request is by facsimile transmission, the original of the
request, signed by the party or its attorney or agent, must be filed
within 25 days.
(e) The determination will take effect on the start date identified
in the written notice of determination, unless an administrative appeal
is properly filed. The timely filing of an administrative appeal stays
the determination pending the outcome of the appeal proceedings.
(f) Copies of the request for a hearing will be sent by the party
or attorney or agent to the WHD official who issued the notice of
determination on behalf of the Administrator, WHD, and to the
representative(s) of the Solicitor of Labor identified in the notice of
determination.
Rules of Practice
Sec. 503.44 General.
(a) Except as specifically provided in the regulations in this part
and to the extent they do not conflict with the provisions of this
part, the Rules of Practice and Procedure for Administrative Hearings
Before the Office of Administrative Law Judges established by the
Secretary at 29 CFR part 18 will apply to administrative proceedings
described in this part.
(b) As provided in the Administrative Procedure Act, 5 U.S.C. 556,
any oral or documentary evidence may be received in proceedings under
this part. The Federal Rules of Evidence and subpart B of the Rules of
Practice and Procedure for Administrative Hearings Before the Office of
Administrative Law Judges (29 CFR part 18, Subpart B) will not apply,
but principles designed to ensure production of relevant and probative
evidence will guide the admission of evidence. The ALJ may exclude
evidence which is immaterial, irrelevant, or unduly repetitive.
Sec. 503.45 Service of pleadings.
(a) Under this part, a party may serve any pleading or document by
regular mail. Service on a party is complete upon mailing to the last
known address. No additional time for filing or response is authorized
where service is by mail. In the interest of expeditious proceedings,
the ALJ may direct the parties to serve pleadings or documents by a
method other than regular mail.
(b) Two copies of all pleadings and other documents in any ALJ
proceeding must be served on the attorneys for the Administrator, WHD.
One copy must be served on the Associate Solicitor, Division of Fair
Labor Standards, Office of the Solicitor, U.S. Department of Labor, 200
Constitution Avenue NW., Room N-2716, Washington, DC 20210, and one
copy must be served on the attorney representing the Administrator in
the proceeding.
(c) Time will be computed beginning with the day following service
and includes the last day of the period unless it is a Saturday,
Sunday, or Federally-observed holiday, in which case the time period
includes the next business day.
Sec. 503.46 Commencement of proceeding.
Each administrative proceeding permitted under 8 U.S.C. 1184(c)(14)
and the regulations in this part will be commenced upon receipt of a
timely request for hearing filed in accordance with Sec. 503.43.
Sec. 503.47 Caption of proceeding.
(a) Each administrative proceeding instituted under 8 U.S.C.
1184(c)(14) and the regulations in this part will be captioned in the
name of the person requesting such hearing, and will be styled as
follows:
In the Matter of ----, Respondent.
(b) For the purposes of such administrative proceedings the
Administrator, WHD will be identified as plaintiff and the person
requesting such hearing will be named as respondent.
[[Page 10181]]
Sec. 503.48 Conduct of proceeding.
(a) Upon receipt of a timely request for a hearing filed under and
in accordance with Sec. 503.43, the Chief ALJ will promptly appoint an
ALJ to hear the case.
(b) The ALJ will notify all parties of the date, time and place of
the hearing. Parties will be given at least 30 calendar days notice of
such hearing.
(c) The ALJ may prescribe a schedule by which the parties are
permitted to file a prehearing brief or other written statement of fact
or law. Any such brief or statement must be served upon each other
party. Post-hearing briefs will not be permitted except at the request
of the ALJ. When permitted, any such brief must be limited to the issue
or issues specified by the ALJ, will be due within the time prescribed
by the ALJ, and must be served on each other party.
Procedures Before Administrative Law Judge
Sec. 503.49 Consent findings and order.
(a) General. At any time after the commencement of a proceeding
under this part, but before the reception of evidence in any such
proceeding, a party may move to defer the receipt of any evidence for a
reasonable time to permit negotiation of an agreement containing
consent findings and an order disposing of the whole or any part of the
proceeding. The allowance of such deferment and the duration thereof
will be at the discretion of the ALJ, after consideration of the nature
of the proceeding, the requirements of the public interest, the
representations of the parties, and the probability of an agreement
being reached which will result in a just disposition of the issues
involved.
(b) Content. Any agreement containing consent findings and an order
disposing of a proceeding or any part thereof will also provide:
(1) That the order will have the same force and effect as an order
made after full hearing;
(2) That the entire record on which any order may be based will
consist solely of the notice of administrative determination (or
amended notice, if one is filed), and the agreement;
(3) A waiver of any further procedural steps before the ALJ; and
(4) A waiver of any right to challenge or contest the validity of
the findings and order entered into in accordance with the agreement.
(c) Submission. On or before the expiration of the time granted for
negotiations, the parties or their attorney or agent may:
(1) Submit the proposed agreement for consideration by the ALJ; or
(2) Inform the ALJ that agreement cannot be reached.
(d) Disposition. In the event an agreement containing consent
findings and an order is submitted within the time allowed therefore,
the ALJ, within 30 days thereafter, will, if satisfied with its form
and substance, accept such agreement by issuing a decision based upon
the agreed findings.
Post-Hearing Procedures
Sec. 503.50 Decision and order of Administrative Law Judge.
(a) The ALJ will prepare, within 60 days after completion of the
hearing and closing of the record, a decision on the issues referred by
the Administrator, WHD.
(b) The decision of the ALJ will include a statement of the
findings and conclusions, with reasons and basis therefore, upon each
material issue presented on the record. The decision will also include
an appropriate order which may affirm, deny, reverse, or modify, in
whole or in part, the determination of the Administrator, WHD. The
reason or reasons for such order will be stated in the decision.
(c) In the event that the Administrator, WHD assesses back wages
for wage violation(s) of Sec. 503.16 based upon a PWD obtained by the
Administrator from OFLC during the investigation and the ALJ determines
that the Administrator's request was not warranted, the ALJ will remand
the matter to the Administrator for further proceedings on the
Administrator's determination. If there is no such determination and
remand by the ALJ, the ALJ will accept as final and accurate the wage
determination obtained from OFLC or, in the event the party filed a
timely appeal under 20 CFR 655.13 the final wage determination
resulting from that process. Under no circumstances will the ALJ
determine the validity of the wage determination or require submission
into evidence or disclosure of source data or the names of
establishments contacted in developing the survey which is the basis
for the PWD.
(d) The decision will be served on all parties.
(e) The decision concerning civil money penalties, debarment,
monetary relief, and/or other administrative remedies, when served by
the ALJ will constitute the final agency order unless the ARB, as
provided for in Sec. 503.51, determines to review the decision.
Review of Administrative Law Judge's Decision
Sec. 503.51 Procedures for initiating and undertaking review.
(a) A respondent, the WHD, or any other party wishing review,
including judicial review, of the decision of an ALJ will, within 30
days of the decision of the ALJ, petition the ARB to review the
decision. Copies of the petition will be served on all parties and on
the ALJ.
(b) No particular form is prescribed for any petition for the ARB's
review permitted by this part. However, any such petition will:
(1) Be dated;
(2) Be typewritten or legibly written;
(3) Specify the issue or issues stated in the ALJ decision and
order giving rise to such petition;
(4) State the specific reason or reasons why the party petitioning
for review believes such decision and order are in error;
(5) Be signed by the party filing the petition or by an authorized
representative of such party;
(6) Include the address at which such party or authorized
representative desires to receive further communications relating
thereto; and
(7) Include as an attachment the ALJ's decision and order, and any
other record documents which would assist the ARB in determining
whether review is warranted.
(c) If the ARB does not issue a notice accepting a petition for
review of the decision within 30 days after receipt of a timely filing
of the petition, or within 30 days of the date of the decision if no
petition has been received, the decision of the ALJ will be deemed the
final agency action.
(d) Whenever the ARB, either on the ARB's own motion or by
acceptance of a party's petition, determines to review the decision of
an ALJ, a notice of the same will be served upon the ALJ and upon all
parties to the proceeding.
Sec. 503.52 Responsibility of the Office of Administrative Law Judges
(OALJ).
Upon receipt of the ARB's notice under Sec. 503.51, the OALJ will
promptly forward a copy of the complete hearing record to the ARB.
Sec. 503.53 Additional information, if required.
Where the ARB has determined to review such decision and order, the
ARB will notify the parties of:
(a) The issue or issues raised;
(b) The form in which submissions will be made (i.e., briefs, oral
argument); and
(c) The time within which such presentation will be submitted.
[[Page 10182]]
Sec. 503.54 Submission of documents to the Administrative Review
Board.
All documents submitted to the ARB will be filed with the
Administrative Review Board, U.S. Department of Labor, 200 Constitution
Avenue NW., Room S-5220, Washington, DC 20210. An original and two
copies of all documents must be filed. Documents are not deemed filed
with the ARB until actually received by the ARB. All documents,
including documents filed by mail, must be received by the ARB either
on or before the due date. Copies of all documents filed with the ARB
must be served upon all other parties involved in the proceeding.
Sec. 503.55 Final decision of the Administrative Review Board.
The ARB's final decision will be issued within 90 days from the
notice granting the petition and served upon all parties and the ALJ.
Record
Sec. 503.56 Retention of official record.
The official record of every completed administrative hearing
provided by the regulations in this part will be maintained and filed
under the custody and control of the Chief ALJ, or, where the case has
been the subject of administrative review, the ARB.
Signed in Washington, this 6th day of February 2012.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
Nancy Leppink,
Deputy Administrator, Wage and Hour Division.
[FR Doc. 2012-3058 Filed 2-10-12; 8:45 am]
BILLING CODE 4510-FP-P
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