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

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

Wage and Hour Division

29 CFR Part 503

RIN 1205-AB58

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

AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

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

DATES:

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

ADDRESSES:

You may submit comments, identified by Regulatory Information Number (RIN) 1205-AB58, by any one of the following methods:

•

Federal e-Rulemaking Portal www.regulations.gov.

Follow the Web site instructions for submitting comments.

•

Mail or Hand Delivery/Courier:

Please submit all written comments (including disk and CD-ROM submissions) to Michael Jones, Acting Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-5641, Washington, DC 20210.

Please submit your comments by only one method. Comments received by means other than those listed above or that are received after the comment period has closed will not be reviewed. The Department will post all comments received on

http://www.regulations.gov

without making any change to the comments, including any personal information provided. The

http://www.regulations.gov

Web site is the Federal e-rulemaking portal and all comments posted there are available and accessible to the public. The Department cautions commenters not to include their personal information such as Social Security Numbers, personal addresses, telephone numbers, and e-mail addresses in their comments as such submitted information will become viewable by the public on the

http://www.regulations.gov

Web site. It is the commenter's responsibility to safeguard his or her information. Comments submitted through

http://www.regulations.gov

will not include the commenter's e-mail address unless the commenter chooses to include that information as part of his or her comment.

Postal delivery in Washington, DC, may be delayed due to security concerns. Therefore, the Department encourages the public to submit comments through the

http://www.regulations.gov

Web site.

Docket:

For access to the docket to read background documents or comments received, go the Federal eRulemaking portal at

http://www.regulations.gov.

The Department will also make all the comments it receives available for public inspection during normal business hours at the Employment and Training Administration (ETA) Office of Policy Development and Research at the above address. If you need assistance to review the comments, the Department will provide you with appropriate aids such as readers or print magnifiers. The Department will make copies of the rule available, upon request, in large print and as an electronic file on computer disk. The Department will consider providing the proposed rule in other formats upon request. To schedule an appointment to review the comments and/or obtain the rule in an alternate format, contact the Office of Policy Development and Research at (202) 693-3700 (VOICE) (this is not a toll-free number) or 1-877-889-5627 (TTY/TDD).

FOR FURTHER INFORMATION CONTACT:

For further information on 20 CFR part 655, subpart A, contact William L. Carlson, PhD, Administrator, Office of Foreign Labor Certification, ETA, U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210; Telephone (202) 693-3010 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.

For further information on 29 CFR part 503, contact Mary Ziegler, Director, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S-3510, Washington, DC 20210; Telephone (202) 693-0406 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Revisions to 20 CFR Part 655 Subpart A

A. Statutory Standard and Current Department of Labor Regulations

Section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act (INA or the Act) defines an H-2B worker as a nonimmigrant admitted to the U.S. on a temporary basis to perform temporary non-agricultural labor or services for which “unemployed persons capable of performing such service or labor cannot be found in this country.” 8 U.S.C. 1101(a)(15)(H)(ii)(b). Section 214(c)(1) of the INA requires DHS to consult with appropriate agencies before approving an H-2B visa petition. 8 U.S.C. 1184(c)(1). The regulations for the U.S. Citizenship and Immigration Services (USCIS), the agency within DHS which adjudicates requests for H-2B status, require that an intending employer first apply for a temporary labor certification from the Secretary of Labor (the Secretary). That certification informs USCIS that U.S. workers capable of performing the services or labor are not available, and that the employment of the foreign worker(s) will not adversely affect the wages and working conditions of similarly employed U.S. workers. 8 CFR 214.2(h)(6). A certification from the Secretary currently is not required for H-2B employment on Guam, for which certification from the Governor of Guam is required. 8 CFR 214.2(h)(6)(iii).

The Department's regulations at 20 CFR part 655, Subpart A, “Labor Certification Process for Temporary Employment in Occupations other than

Agriculture or Registered Nursing in the United States (H-2B Workers),” govern the H-2B labor certification process, as well as the enforcement process to ensure U.S and H-2B workers are employed in compliance with H-2B labor certification requirements. Applications for labor certification are processed by the Office of Foreign Labor Certification (OFLC) in ETA, the agency to which the Secretary of Labor has delegated her responsibilities described in the USCIS H-2B regulations. Enforcement of the attestations made by employers in the course of submission of H-2B applications for labor certification is conducted by the Wage and Hour Division (WHD) within the Department of Labor, to which DHS on January 16, 2009 delegated enforcement authority granted to it by the INA. 8 U.S.C. 1184(c)(14)(B).

Under the current regulations, an employer seeking to fill job opportunities through the H-2B program must demonstrate that it has a temporary need for the services or labor, as defined by one of four regulatory standards: (1) A one-time occurrence; (2) a seasonal need; (3) a peakload need; or (4) an intermittent need. 8 CFR 214.2(h)(6)(ii)(B). Generally, that period of time will be limited to 1 year or less but, in the case of a one-time occurrence, could last up to 3 years, consistent with the standard under DHS regulations at 8 CFR 214.2(h)(6) as well as current Department regulations.

See

20 CFR 655.6(b).

Before 2008, the Department's regulatory scheme was minimal; the process was governed primarily through program guidance issued by ETA, with enforcement by WHD only of independently applicable laws such as the Fair Labor Standards Act (FLSA). Before 2007, ETA processing was governed primarily by General Administration Letter No. 1-95, 60 FR 7216, Feb. 7, 1995, which laid out the processing of applications, first at the State Workforce Agency (SWA), then at the Federal level. Applications were filed first with the SWA, allowing them to review the applications, oversee the conduct of recruitment of potential U.S. workers, review the results, and then forward the application to OFLC with a recommendation of whether to approve or deny the application. ETA issued Training and Employment Guidance Letter (TEGL) No. 21-06, 72 FR 19961, Apr. 20, 2007, to replace the previous guidance for the processing of H-2B applications.

In January 2005, DHS and the Department issued companion NPRMs to significantly revise each agency's H-2B processing procedures. 70 FR 3984, Jan. 27, 2005; 70 FR 3993, Jan. 27, 2005. This set of proposed rules suggested an attestation-based approach to adjudication, sending applications directly to USCIS with enhanced enforcement by the Department. The two agencies received significant opposition to these proposals. The Department withdrew its proposed rule as a result of these comments. See

http://www.reginfo.gov/public/do/eAgendaViewRule?ruleID=221117.

In 2008, the Department again proposed regulations employing an attestation-based filing model. See 73 FR 29942, May 22, 2008. In this proposed model, SWAs no longer oversaw recruitment, instead allowing the employer to conduct its recruitment with no direct Federal or state oversight. This attestation-based model meant that OFLC could only review certain aspects of compliance with the regulations through post-certification audits rather than through the recruitment process, although the recruitment process itself was not dissimilar and the employers were performing the same activities as they would be with a SWA's assistance and oversight. The proposed regulation also provided for enforcement by WHD through investigation and findings, leading to the imposition of civil money penalties and other actions. These regulations were proposed in light of (1) considerable workload increases for both the Department and the SWAs (an approximate 30 percent increase in applications in Fiscal Year (FY) 2007 over those received in FY 2006, and a similar increase during the first half of FY 2008); (2) limited appropriations funding for program-related operations, both at the Federal and SWA levels; and (3) frequent and increasing comments from the user community that the process was cumbersome, complicated, time-consuming, and inefficient. These proposed regulations were a substantial shift from the administration of the program which provided for greater SWA involvement in the application and recruitment process. The Department received substantial comment on the proposed rule, and issued a Final Rule on December 19, 2008 (the 2008 Final Rule), which became effective January 18, 2009. See 73 FR 78020, Dec. 19, 2008.

Under the current attestation-based processing model, before filing an application to seek H-2B workers, an employer must first recruit U.S. workers to ensure an adequate test of the labor market for the position. In addition, the employer must offer and subsequently pay throughout the period of employment a wage that is equal to or higher than the prevailing wage for the occupation in the area of intended employment; provide terms and conditions of employment that are not less favorable than those offered to the foreign worker(s); and contact any previously laid-off workers.

One important change in the 2008 Final Rule was its inclusion of enforcement authority for the Department. Before 2008, the Department had no H-2B specific enforcement authority or process to ensure employer compliance with H-2B labor certifications. Congress vested DHS with that enforcement authority in 2005. See 8 U.S.C. 1184, as amended by the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief of 2005, Public Law 109-13, 119 Stat. 231. That legislation authorized DHS to delegate this enforcement authority to the Department and DHS subsequently made that delegation. The 2008 Final Rule instituted an H-2B regulatory enforcement regime based upon DHS's delegation.

On August 30, 2010, the U.S. District Court for the Eastern District of Pennsylvania in

Comité de Apoyo a los Trabajadores Agricolas (CATA)

v.

Solis,

Civil No. 2:09-cv-240-LP, 2010 WL 3431761 (E.D. Pa. Aug. 30, 2010), invalidated various provisions of the Department's 2008 Final Rule and remanded the case to the Department to correct its errors. The court ruled that the Department had violated the Administrative Procedure Act when it did not adequately explain its reasoning for using skill levels as part of the H-2B prevailing wage determination process, and that it failed to consider comments relating to the choice of appropriate data sets in deciding to rely on Occupational Employment Statistics survey data rather than Davis Bacon Act and Service Contract Act wage data in setting the prevailing wage rates. The court ordered the Department to “promulgate new rules concerning the calculation of the prevailing wage rate in the H-2B program that are in compliance with the Administrative Procedure Act no later than 120 days from the date of this order.”

CATA

v.

Solis,

Civil No. 2:09-cv-240-LP, 2010 WL 3431761 (E.D. Pa. Aug. 30, 2010). The Department began a separate rulemaking process to address the prevailing wage calculation and, on January 19, 2011, finalized its new prevailing wage calculation methodology in Wage Methodology for the Temporary Non-agricultural Employment H-2B Program Final Rule, 76 FR 3452 (Jan. 19, 2011). This NPRM does not address the matters in the Prevailing Wage Final Rule, and

commenters should not address those matters in this proceeding. However, commenters may wish to consider the content of that rule in fashioning their comments to the NPRM since the prevailing wage determination system set forth in the Prevailing Wage Final Rule will be applied to the final rule that results from this NPRM.

Additionally, the court invalidated and vacated 20 CFR 655.22(k) insofar as that provision permits the clients of job contractors to hire H-2B workers without submitting an application to the Department. As a result, the Department no longer accepts H-2B labor certification applications filed solely by job contractors.

Lastly, the court invalidated the following provisions on the ground that the Department did not provide a rational explanation of its policy choices: (1) 20 CFR 655.15(g) concerning the situations in which H-2B employers must contact unions as a potential source of labor; (2) the portion of 20 CFR 655.4 defining “full time”; and (3) the portion of 20 CFR 655.4 defining “job contractor” to mean an entity that “will not exercise any supervision or control in the performance of the services or labor to be performed other than hiring, paying, and firing the workers.” In this NPRM, the Department is proposing a new provision at section 655.44 specifying when H-2B employers must contact unions as a potential source of labor and a new definition of “full time” at section 655.5 and 29 CFR 503.4 and is thereby proposing to abandon the particular union contact and full time provisions that were invalidated by the court. The Department is also proposing a slightly modified definition of job contractor based on the invalidated definition; however, the Department has provided an explanation in section 655.5 of the preamble which clarifies the rationale for the underlying definition and its modification.

B. The Need for Rulemaking

The Department has determined for a variety of reasons that a new rulemaking effort is necessary for the H-2B program. The Department believes that the policy underpinnings of the 2008 Final Rule,

e.g.

streamlining the H-2B process to defer many determinations of program compliance until after an application has been adjudicated, do not provide an adequate level of protection for either U.S. or foreign workers. These protections are essential to meet the regulatory mandate to prevent adverse effect on wages and working conditions for U.S. workers and to ensure access to jobs for U.S. workers in order to satisfy the statutory requirement that certifications be granted only if no U.S. workers are available.

First, there are insufficient worker protections in the current attestation-based model in which employers merely assert, and do not demonstrate, that they have performed an adequate test of the U.S. labor market and one which is in accordance with the regulations. Further, in the first year of the operation of the attestation-based system our experience indicates that employers are attesting to compliance with program obligations with which they have not complied, and that employers do not appear to be recruiting, hiring and paying U.S. workers, and in some cases the H-2B workers themselves, in accordance with established program requirements. Cases audited after certification by the OFLC in the 2 years since the adoption of an attestation-based program demonstrate a pattern of non-compliance or avoidance of demonstrating compliance. In the first round of audits conducted, which was primarily a random sample of cases, the Department found that 52 percent of employers that had attested to compliance with regulatory obligations were in fact not in compliance with those obligations. A second round demonstrated a higher level of compliance, but in total, the audited cases demonstrate a level of compliance of only 55 percent. The violations included evidence of both H-2B and U.S. workers being offered less than full-time work; misrepresentations as to the work time that was actually offered or the number of workers actually needed; workers being paid less than the prevailing wages; and U.S. workers being rejected for other than lawful, job-related reasons, such as not having a commercial driver's license when one is not required to perform the job. The identified violations come from different geographical sectors and relate to both new and experienced filers. The most disturbing evidence of non-compliance is, however, a lack of response from many of those audited—indicating anything from a company that does not exist (evidenced by returned mail) to an employer seeking to avoid liability by simply not informing the Department of its errors.

There has also been increasing evidence in the H-2B program of violations rising to the criminal level. The Department has seen increasing evidence of employers and agents filing fraudulent applications—involving hundreds or thousands of requested employees—for non-existent job opportunities.

U.S.

v.

Broyles,

2:09-cr-00003-MSD-TEM-23 (E.D. Va. 2010) (conspiracy to conspiracy to fraudulently obtain H-2B visas),

U.S.

v.

Barbugli,

6:10-cr-00177-MSS-DAB, 6:10-mj-01089-KRS, 6:10-cr-00180-MSS-GJK (C.D. Fl. 2010) (three family members guilty for operations involving a labor staffing company obtaining fraudulent H-2B visas through more than 11 subsidiary companies), and

U.S.

v.

Manuel

, 9:10-cr-80057-KAM (S.D. FL. 2010) (false statements and conspiring to hold approximately 39 Filipino nationals in forced service to work in H-2B status in country clubs and hotels in Southeast Florida) represent the most recent criminal actions involving H-2B applications filed for fraudulent job opportunities or containing false information at odds with the treatment actually received by the workers. Moreover, the General Accountability Office (GAO) released a report in September 2010 summarizing a review of ten concluded criminal and civil cases covering the previous 5 years involving H-2B employers and recruiters. These cases demonstrated violations of various labor laws or the settlement of alleged violations such as wage and/or overtime violations; charging of fees by employers; and the submission of fraudulent documentation to obtain visas and other government benefits. The Department cannot ignore this rise in successful criminal and civil prosecutions which demonstrate the abuse of the H-2 program; while the attestation-based model may not be a direct cause of the types of action resulting in these criminal charges, the model provides more of an opportunity for such actions to occur and remain undetected.

The steps offered in this proposed rule cannot entirely eliminate the concerns the Department has with an attestation-based application model. The evidence of non-compliance under such a model is, however, sufficient in the Department's view to warrant steps to ensure that employers who comply in good faith can do so while those who have no intent to uphold their obligations have a decreased opportunity to defraud the program. In eliminating the attestation-based application model, the Department also increases the efficiency of the program, by ensuring applications with potential violations can be addressed before recruitment or certification, rather than requiring the more drastic potential for debarment after audit.

In light of such non-compliance the Department has chosen to revisit the use of attestations, notwithstanding the use of post-certification program integrity measures. Increased enforcement such as that proposed in this NPRM, although

essential to a viable H-2B program, is not sufficient to ensure protection of workers in H-2B occupations who constitute a particularly vulnerable subgroup of the workforce. Rather, the most reliable method by which the Department can ensure compliance with the regulatory requirements is through the review of compliance through documentation provided to the Department in advance of the certification determination, rather than during the audit process. In addition to communicating to all the parties to the process the need to comply with those obligations, this review deters bad actors in the program from making false statements and also reinforces program requirements for those who are new to the program or unable to adequately discern their program obligations. To the extent that employers have incorrectly attested to compliance with program requirements through ignorance or misunderstanding of those requirements, the compliance-based model will identify those problems in the review of the application and offer the employer an opportunity to correct its error without penalty or delay in meeting its date of need.

Although the Department still seeks to maintain an efficient system, it has in this new rule struck a balance between reducing processing times and protecting U.S. worker access to these job opportunities. The structured time frames for the processing of applications set forth in the proposed rule help the agency to strike that vital balance. We would emphasize that the return to the certification model which was used in the program for its entire history until January 2009, and which was recently reintroduced into the H-2A program, creates no significant additional burdens on employers. It does not change the nature of the obligations with which employers must comply, or the documentation that employers must maintain, but merely adjusts the timing and circumstances under which that documentation, the evidence of compliance with those obligations, must be produced for review. While this change produces no additional burden on employers, it will substantially enhance overall program integrity by allowing the Department to identify potential problematic applications at the earliest possible time. It is also much less onerous on employers to be required to amend a deficient or incomplete application before it is certified, than to subject the employer to the potential for back pay, civil money penalties or debarment if the deficiencies in the application are not identified until the job opportunity is gone.

The Department, however, is aware that in certain instances, employers would prefer a continuation of an attestation-based application process. Using an attestation-based application, applications would be streamlined and employers may be able to obtain some cost savings from not being required to duplicate and send documentation demonstrating compliance along with the application. Many employers have indicated to the Department the preference for a streamlined application system, with more of an emphasis on enforcement for compliance on the back end. This is the model that was put into place in the 2008 Final Rule and has support of many employers.

The Department remains concerned, however, whether its goals of ensuring compliance (both up-front compliance by those unfamiliar with program requirements and for those engaged in deliberate disregard for program obligations) can be met through increased program compliance assistance and post-certification enforcement. This is particularly true in a temporary worker program, where non-compliance would likely be identified through enforcement efforts well after the impacted H-2B workers have returned to their home country or the U.S. workers were already denied employment.

While a compliance demonstration model remains the Department's preferred alternative and as such is reflected in the proposed regulatory text, the Department proposes dual consideration of an alternative retaining the current attestation-based application system. The Department is interested in receiving comments on the alternative of maintaining the current or some modification of the current attestation-based program design. Specifically, the Department is seeking comments on whether it should develop certain attestations which can be required of all employers (such as an attestation for certain kinds of recruitment), or for only certain program compliance requirements. In order to provide information to address the Department's concerns, comments on any attestation alternative should focus on the following:

1. What kind of specific guidance could the Department provide that would benefit a first-time (or sporadic) employer in the H-2B program to avoid mistakes in making attestations of compliance with program obligations?

2. What kind of guidance would benefit frequent users of the program with respect to repetitive errors in recruitment? What kind of guidance would be beneficial in avoiding errors in unique situations for these users?

3. Could pre-certification audits augment a post-certification audit in an attestation-based program model? If not, how would you propose the Department obtain information in the absence of supervised activity in order to arrive at certification while ensuring compliance with program obligations?

4. What additional sanctions could be taken against employers to ensure compliance with program requirements, given the potential for fraud in the H-2B program?

5. What other kinds of actions could the Department take to prevent an H-2B employer from filing attestations that do not meet program requirements?

Accordingly, in order to adequately protect U.S. and H-2B workers, the Department proposes the changes discussed below, including the proposal of a new 29 CFR part 503 to set forth WHD's investigative and enforcement roles. The Department is engaging in this new rulemaking to provide the public with notice and opportunity to comment on the H-2B program.

The NPRM seeks to help employers meet legitimate short-term temporary labor needs where and when there are no available U.S. workers. Over the years as the program has evolved, stakeholders in diverse industries throughout the country repeatedly have expressed concerns that some employers were inappropriately using H-2B workers for job opportunities that were permanent, thereby denying U.S. workers the opportunity for long-term employment. These employers' actions are at the detriment of other employers with a legitimate temporary need that are ultimately denied access to the program due to the statutory limitation on available visas. By preventing employers with a long-term permanent need from participating in the H-2B program, the Department would provide employers with genuine unmet temporary needs with a greater opportunity to participate in the program. Similarly, the proposed requirement that employers provide a single date of need or start date for the workers ensures that employers with legitimate temporary needs will have a better chance of receiving available visas in years in which the demand exceeds the supply.

The Department's proposal to bifurcate the current application process into a registration phase which addresses the employer's temporary need and an application phase which addresses the labor market test will enable the Department to prevent

employers without a legitimate temporary need from even filing an application. The current process where the adjudication of temporary need is concurrent with the evaluation of the labor market test often results in delays in processing employer applications for H-2B labor certifications. The Department believes that bifurcating this process will facilitate the timely processing of applications. This bifurcation allows the employers to conduct the labor market test closer to the date of need without the simultaneous adjudication of temporary need. Because the registration may be valid for up to 3 years, employers will be able to commence the process at the second phase without having to re-establish temporary need for the second and third years of registration, absent significant change in conditions, saving employer and public resources from re-adjudication of an obvious legitimate need. Additionally, removing employers without demonstrable temporary need from the application process further enables the Department and the SWAs to focus their limited resources on administering in a timely manner the labor market test. A registration process enables the Department to better serve the employers with legitimate temporary need, as well as the public by being able to focus on ensuring that U.S. workers are afforded full access to these job opportunities.

As part of the Department's commitment to openness and public input, DOL reached out to stakeholders, including employers, labor unions, advocates and other Federal agencies to learn more about their experiences with the H-2B program and hear their views on how the program can be improved to meet temporary labor needs, while ensuring U.S. worker access to the job opportunities and providing sufficient worker protections to both U.S. and H-2B workers. These listening sessions included targeted immigration sessions at the full-day Stakeholder Forum convened by WHD in Washington, DC and attended by hundreds of representatives from business, labor and other stakeholders, as part of its annual strategic planning process. These meetings provided the Department with a wealth and diversity of experience and views that helped better inform the drafting process. The Department hopes that the interested parties review this proposal and continue to engage and provide feedback and comments that are essential to ensuring an effective and workable final rule.

II. Discussion of 20 CFR Part 655, Subpart A

A. Introductory Sections

1. Section 655.1 Scope and Purpose of Subpart A

This proposed provision informs program users of the statutory basis and regulatory authority for the H-2B labor certification process. This provision describes the Department's role in receiving, reviewing, adjudicating, and upholding the integrity of an

Application for Temporary Employment Certification.

2. Section 655.2 Authority of Agencies, Offices and Divisions in the Department of Labor

The Department proposes in this provision to describe the authority of and division of activities related to the H-2B program among the Department's agencies. It discusses the authority of OFLC, the office within ETA that exercises the Secretary's responsibility for determining the availability of U.S. workers and whether the employment of H-2B nonimmigrant workers will adversely affect the wages and working conditions of similarly employed workers. It also discusses the authority of WHD, the agency responsible for investigation and enforcement of the terms and conditions of H-2B labor certifications, as delegated by the DHS.

3. Section 655.3 Territory of Guam

As in the 2008 Final Rule, under the proposed rule, the granting of H-2B labor certifications and the enforcement of the H-2B visa program in Guam will continue to reside with the Governor of Guam, pursuant to DHS regulations. However, this regulation proposes that the determination of all prevailing wages should be housed in the Department, including those for Guam. The function determining a prevailing wage for construction workers on Guam has most recently been housed with USCIS, which consults with the Governor of Guam as to the admission of H-2B construction workers on Guam. 8 CFR 214.2(h)(6)(iii). DHS and the Department are in agreement that issuing prevailing wages for all workers, including construction workers, would more appropriately be performed by the Department, specifically by the OFLC, because OFLC already provides prevailing wage determinations for all other U.S. jurisdictions. The Department, therefore, is proposing that the process for obtaining a prevailing wage in proposed section 655.12 also apply to H-2B job opportunities in Guam. Employment opportunities in Guam would, under the proposed rule, be subject to the same process and methodology for calculating prevailing wages as any other jurisdiction within the Department's purview.

4. Section 655.4 Special Procedures

The proposed rule continues the Department's authority to establish, continue, revise, or revoke special procedures that establish variations for processing certain H-2B

Applications for Temporary Employment Certification.

These are situations where the Department recognizes that variations from the normal H-2B labor certification processes are necessary to permit access to the program for specific industries or occupations. These variations permit access to the program for those who would otherwise be unable to readily comply with the program's established processes, such as by allowing itinerary employment for reforestation employers and certain employers in the entertainment industry. Under the proposed rule, as with the 2008 Final Rule, special procedures already in place on the effective date of the regulations will remain in force until otherwise modified or withdrawn by the Department.

5. Section 655.5 Definition of Terms

Although the Department proposes a number of changes to the definitions section from the definitions contained in the 2008 Final Rule, many of the changes are to clarify meanings in minor ways that do not substantively change the meaning of the term. However, some substantive changes to definitions are also proposed.

The Department proposes to add a reference to the definition of “agricultural labor or services” from its own regulations governing H-2A temporary agricultural employment in order to assist in clarifying what non-agricultural employment is, by defining what it is not. The distinction between agricultural and non-agricultural employment is defined in part by the H-2A temporary agricultural regulations, drawn from the express authorization of the Department to define what constitutes agricultural labor or services. The Department is also offering a definition of “non-agricultural labor or services” as any type of employment that is not agricultural in nature.

The Department proposes to add the definition of “area of substantial unemployment” to the H-2B program. As will be discussed more fully below, employers seeking H-2B workers in areas of substantial unemployment may

be subject to enhanced recruitment based on the Certifying Officer's (CO) discretion. Further discussions of how the Department has derived the definition of “area of substantial unemployment” can be found in ETA's Training and Employment Guidance Letter No. 1-08, Aug. 20, 2008.

The Department proposes to amend the definition of an “attorney” to reflect the scope of activities attorneys can perform under the program.

The Department proposes to amend the definition of “Certifying Officer” to clarify that the Administrator, OFLC is the National CO.

The Department proposes to include the definition of “corresponding employment” under these H-2B regulations to more accurately reflect the DHS regulatory requirement that, as a condition for approval of H-2B petitions the Secretary certify that the employment of the alien in such labor or services will not adversely affect the wages and working conditions of similarly employed U.S. workers. 8 CFR 214.2(h)(6). To ensure that U.S. workers are not adversely affected by the employment of H-2B workers, the Department proposes to require that employers provide to workers engaged in corresponding employment at least the same protections and benefits as those provided to H-2B workers (except for border crossing and visa fees which would not be applicable). Like the definition of corresponding employment in the H-2A program, “corresponding employment” is defined as the employment of workers who are not H-2B workers by an employer whose H-2B Application was approved by OFLC in any work included in the job order, or any work performed by the H-2B workers during the validity period of the job order. Workers in “corresponding employment” may be either workers hired during the recruitment process on an H-2B job order or workers who already work for an employer who perform the same work as H-2B workers.

Historically, there has been a recognition that U.S. workers should not be treated less favorably than temporary foreign workers. For example, a 1980 Senate Judiciary Report on Temporary Worker Programs stated that U.S. employers were required to offer domestic workers wages equal to foreign workers as a prerequisite for labor certification. See Congressional Research Service: “Report to the Senate Committee on the Judiciary: Temporary Worker Programs: Background and Issues, 53 (1980).” Current § 655.22(a) reflects this principle, requiring that the terms and conditions of offered employment cannot be less favorable than those offered to H-2B workers. This provides for equal treatment of workers hired during the H-2B recruitment process. However, the current regulation does not encompass all workers who may be engaged in work performed by H-2B workers during the validity of the job order.

Courts have consistently upheld the Department's interpretation that the wages and benefits offered or provided to H-2A agricultural workers must also be provided to domestic workers. See

Farmer

v.

Employment Security Comm'n of N.C., 4 F.3d 1274, 1276, nn. 2, 3, 4 (4th Cir. 1993)

(H-2A employers must make certain benefits available to all temporary agricultural laborers); see also

Williams

v.

Usery, 531 F.2d 305, 306 (5th Cir. 1976)

(the Secretary's authority is limited to making an economic determination of what rate must be paid all workers to neutralize any adverse effect resulting from the influx of temporary foreign workers). Similarly, in the H-2B non-agricultural context, paying the prevailing wage rate to all workers protects against possible wage depression from the introduction of foreign workers.

Further, under the current H-2B regulations, since employees hired during the current ten-day recruitment period in § 655.15(e) are entitled to the same offered terms and conditions of employment as the foreign workers hired for those positions, a longtime employee earning less than the advertised wage would be entitled to quit his current employment and re-apply for the same job with the same employer to obtain the higher wage rate offered to H-2B workers and U.S. workers hired during that recruitment period. This would be disruptive for the employer and could create an additional administrative burden for the SWAs for any workers being referred through them. It also puts too high a premium on longtime employees understanding their rights under the regulations, and feeling secure enough—rare in low-wage employment—to quit a job with the expectation of being immediately rehired. Under this NPRM, longtime U.S. workers would be entitled to the wage rates paid to H-2B employees without having to quit their jobs and be rehired.

The H-2B program must ensure that U.S. workers are not adversely affected by the presence of H-2B workers in the labor market. A primary means of providing this protection is to ensure that the jobs are available to U.S. workers under the same wages, benefits, and terms and conditions of employment provided to temporary foreign workers. The problem we seek to address with this aspect of corresponding employment are H-2B employers who place H-2B workers in occupations and/or at job sites outside the scope of the labor certification and in violation of the regulations, thereby bypassing many of the protections U.S. workers otherwise enjoy under the program, such as domestic recruitment requirements, wage protections, and the right to be employed if available and qualified. We invite comments that propose alternatives to including in the definition of corresponding employment U.S. workers employed in occupations which are beyond the scope of the labor certification but at job sites where H-2B workers are placed and that will still ensure that U.S. worker protections are not undermined.

An employer employing H-2B workers and/or workers in corresponding employment under an

Application for Temporary Employment Certification

has agreed as part of the

Application for Temporary Employment Certification

that it will abide by the conditions in this section. The Department also invites members of the public to provide comments on whether and how each new proposed condition, including the application of transportation benefits, the three-quarter guarantee and the definition of full-time employment, should apply to H-2B workers and U.S. workers in corresponding employment.

The Department proposes to retain the definition of “employee” from the 2008 Final Rule, with minor clarifying edits. This definition is based on the common law, as set forth in the Supreme Court's holding in

Nationwide Mutual Insurance

v.

Darden,

503 U.S. 318, 322-324 (1992). The proposed clarifying edits would conform the definition to one used in most other Department-administered temporary foreign worker programs. To provide clarity, the Department proposes a definition of the term “H-2B worker” as an individual authorized to be in the United States to perform H-2B non-agricultural services or labor.

The Department proposes to amend the definition of “full time” in the H-2B program to mean 35 or more hours per week. The proposed increase in the number of hours from 30 to 35 to constitute full-time employment conforms more closely to the available data on full-time employment. This will also provide greater clarity for employers than the current regulation, which defines full time to mean 30 hours or more per week with a vague exception for unidentified local or

industry standards. The proposal also restores the pre-2008 level of 35 hours.

The District Court in

CATA

v.

Solis,

Civil No. 2:09-cv-240-LP, 2010 WL 3431761 (E.D. Pa. Aug. 30, 2010), invalidated the definition in the 2008 H-2B Final Rule of full time as 30 hours a week, which was a change from the proposed definition of full time as 35 hours a week primarily because, in the court's view, the Department did not “consider[ ] the relevant factors and articulate[ ] a rational connection between the facts found and the choice made.” CATA, 2010 WL 3431761 at * 14 (quotation and citation omitted).

In accord with the CATA decision, the Department believes that the regulatory definition of full-time work should be supported by empirical data. In response to these data, the Department's position regarding the definition of full time has evolved. Though the 2008 Final Rule established a 30-hour work week as the standard for full time employment, the CATA court correctly pointed out that the 2008 Final Rule contained no meaningful rationale for that determination. After reviewing available information, the Department now believes that a 35-hour work week is more representative of the actual needs of employers and expectations of workers. First, the most recent statistics available from BLS indicate that the average hours worked during a week, including both full and part time employment was 34.3 hours during December 2010,

1

and that the average weekly hours worked of workers who usually work full time is 42.4 hours.

2

These statistics make clear that full time U.S. workers are employed for at least 35 hours per week. The last two years of experience under the current rule are consistent with the direction of BLS data. Though an exhaustive statistical analysis of hours requested is not feasible, it is clear that a substantial majority of H-2B employers recruit workers for 35 or more hours of work each week. All of the approximately 30 investigations undertaken by the WHD since enforcement authority was transferred from DHS have identified work weeks of at least 35 hours (with some even indicating possible overtime). In addition, as noted in the preamble to the current H-2B regulations, landscapers—one of the largest groups of H-2B workers—typically work 35-hour weeks.

See

73 FR 78038 (Dec. 19, 2008). Defining a workweek as at least 35 hours is consistent with existing H-2A regulations, and it is closer to the 40 hours per week standard used in the H-1B program. Furthermore, the use of the 35-hour week may increase the possibility of recruiting U.S. workers who may find the additional hours of work more attractive.

1

Bureau of Labor Statistics,

Employment Situation,

Table B-2: Average weekly hours and overtime of all employees on private nonfarm payrolls by industry sector, seasonally adjusted, Dec. 2010.

http://www.bls.gov/news.release/empsit.t18.htm.

2

Bureau of Labor Statistics,

Employment Situation,

Table A-24: Persons at work in agriculture and related and in nonagriculture industries by hours of work, Dec. 2010.

http://www.bls.gov/web/empsit/spseea24.pdf.

The Department anticipates that this change will not impose substantial cost on most employers. Since the data and experience referenced above indicated that a substantial majority of H-2B employers already employ workers for 35 hours or longer each week, the proposed rule will have no impact on a large proportion of the employer population. Furthermore, 66 percent of employers in FY2010 requested at least ten employees to work in the same occupation in the same area of intended employment, suggesting that some employers can avoid any adverse impact by requesting fewer workers and scheduling each to work several more hours per week. The Department seeks comments on costs to employers and other stakeholders of an increase from 30 to 35 hours per week.

Alternatively, the Department considered proposing a 40-hour threshold. This level is more in line with what the U.S. labor market generally considers as full time. Forty hours is also reflective of data actually captured by the December 2010 BLS Current Population Survey (CPS) concluding that the average workweek of non-agricultural workers who usually work full time is 42.4 hours long.

3

The Department is currently proposing 35 hours instead of 40 because 35 hours is more consistent with the Department's historical practice for the H-2B program, and should therefore not pose difficulty for the regulated community. However, the Department welcomes comments regarding whether extending the definition of a full-time workweek to at least 40 hours is more protective of U.S. workers and whether it conforms better to employer standards and needs.

3

Bureau of Labor Statistics,

Employment Situation,

Table A-24: Persons at work in agriculture and related and in nonagriculture industries by hours of work, Dec. 2010.

http://www.bls.gov/web/empsit/spseea24.pdf.

The Department proposes to amend the definition of an “H-2B petition” to clarify that the petition includes the certified

Application for Temporary Employment Certification

and its attachments. This more closely reflects the Department of Homeland Security's current H-2B regulations, in which a certified

Application for Temporary Employment Certification

is required.

In this NPRM, the Department proposes to amend the definition of a “job contractor.” The U.S. District Court for the Eastern District of Pennsylvania in

CATA

v.

Solis,

Civil No. 2:09-cv-240-LP, 2010 WL 3431761 (E.D. Pa. Aug. 30, 2010) invalidated the definition of “job contractor” under the 2008 Final Rule, concluding that the Department did not provide a rational explanation for its adoption of the language in the final rule that the job contractor “will not exercise any supervision or control in the performance of the services or labor to be performed other than hiring, paying, and firing the workers.” The court found the Department's explanation deficient because the Department stated that this language was to “make clear that the job contractor, rather than the contractor's client, must control the work of the individual employee.” However, as the court stated, this language “did precisely the opposite—it clarified that it is the contractor's client who ‘must control the work of the individual employee.’ The explanation is therefore not rationally connected to the change, which will accordingly be invalidated as arbitrary.”

Accordingly, the Department would like to resolve any confusion and clarify that the phrase “the job contractor will not exercise any supervision or control in the performance of the services or labor to be performed other than hiring, paying and firing the workers” was intended to clarify that an employer meets the definition of job contractor where the job contractor's client, rather than the job contractor, exercises primary supervision or control over the work of the individual employee.

The Department is proposing to amend the definition of job contractor to include the phrase “substantial, direct day-to-day” before “supervision or control” to clarify that an entity exercising some limited degree of supervision or control over the H-2B workers would still be considered a job contractor, while an entity exercising substantial, direct day-to-day supervision or control over the H-2B workers would not be considered a job contractor. This revised definition better reflects the activities of job contractors in the H-2B program.

The Department is not of the view that employers engaged in reforestation activities that have historically used the program will be impacted by this proposed action because their activities generally should not fall under the definition of a job contractor. Reforestation employers provide on site,

day-to-day supervision and direction of workers and are therefore not job contractors for the purposes of this proposed rule.

The Department also proposes an amended definition of the “offered wage.” The amended definition makes clear the employer's obligation to pay all affected workers at least the highest of the prevailing wage, or the Federal, State, or local minimum wage.

The Department proposes to revise the definition of “strike.” The term is used in the same way as in the Department's 2010 H-2A regulations. The proposed definition is broader than the current definition and includes any concerted work stoppage as a result of a labor dispute or any concerted interruption or slowdown of operation.

The Department also proposes to define several terms not previously defined in the 2008 Final Rule. The Department intends by these new definitions to provide interested parties with an understanding of terms that are either new or are commonly used in the H-2B program. As discussed more fully later in this preamble, the Department is including a definition of “H-2B Registration.” See discussion of § 655.11. Other terms have been proposed to provide program users with insight to better achieve program compliance, including “job offer” and “job order.” The Department proposes these definitions to ensure that employers understand the difference between the offer that is made to workers, which must contain all the material terms and conditions of the job, and the order that is the published document used by SWAs in the dissemination of the job opportunity.

The Department is including a proposed definition of a “Federal holiday” to provide clarity for employers about which holidays are included for purposes of tracking timelines that are used in this regulation. The Department proposes to move several definitions to the definition section, such as the “Administrator, OFLC,” that have appeared in different sections in previous regulations to provide one place for the definition of those terms.

The Department also proposes the removal of certain definitions that are obsolete in or inapplicable to the H-2B program. The terms “representative” and “eligible worker” for example, are proposed to be eliminated, as they are no longer used.

6. Section 655.6 Temporary Need

The Department proposes an interpretation of temporary need that is directly reflective of the DHS definition of that term and of the Department's experience in the H-2B program. The DHS regulations define temporary need as a need for a limited period of time, where the employer must “establish that the need for the employee will end in the near, definable future.” 8 CFR 214.2(h)(6)(ii)(B). The proposed interpretation is consistent with this approach.

The Department proposes to exclude job contractors from being considered for participation in the H-2B program. Job contractors are defined in this regulation as entities that employ workers they supply to other entities and that are generally only engaged in the hiring, firing and payment of the workers they supply; they do not control the day-to-day performance of or directly supervise the services or labor of those workers. Furthermore, they have an ongoing business of supplying workers to other entities, even if that entity's need for the services is temporary. It is the Department's view that a job contractor's ongoing need is by its very nature permanent rather than temporary and therefore the job contractor does not qualify to participate in the program. The contractor may have many clients, each of whom has a temporary need, but the contractor's need for the employees it seeks to fulfill its contracts is ongoing and therefore of a potentially permanent duration. Accordingly, the contractor's need would not be temporary.

This conclusion is consistent with the Board of Immigration Appeals' seminal decision in

Matter of Artee,

18 I. & N. Dec 366, Interim Decision 2934, 1982 WL 190706 (BIA 1982).

Matter of Artee

established that a determination of temporary need rests on the nature of the underlying need for the duties of the position. The Board of Alien Labor Certification Appeals (BALCA) has recently further clarified the definition of temporary need in

Matter of Caballero Contracting & Consulting LLC

2009-TLN-00015 (April 9, 2009), finding that “the main point of

Artee

* * * is that a job contractor cannot use [solely] its client's needs to define the temporary nature of the job where focusing solely on the client's needs would misrepresent the reality of the application.” BALCA, in

Matter of Cajun Constructors, Inc.

2009-TLN-00096 (October 9, 2009), also decided that an employer that by the nature of its business works on a project until completion and then moves on to another, has a permanent rather than a temporary need. The Department concurs that a job contractor that provides workers to an employer on a temporary basis, but has an ongoing need for such workers, is an entity with a permanent and not a temporary need.

As a result of the order issued by the U.S. District Court for the Eastern District of Pennsylvania in

CATA

v.

Solis,

Civil No. 2:09-cv-240-LP, 2010 WL 3431761 (E.D. Pa. Aug. 30, 2010), the Department has stopped accepting labor certification applications submitted by job contractors. In the CATA decision, the court interpreted DHS' regulations to require every employer client of a “job contractor” as defined in the regulations at 20 CFR 655.4, to file a visa petition (and thus the underlying labor certification as well); therefore, requiring only job contractors to file a labor certification application would be contrary to DHS regulations. The proposal to eliminate job contractors altogether from the H-2B program, based on the determination that job contractors have a permanent need, effectively achieves the same result as the court's ruling in CATA since the Department has yet to receive a labor certification application from a job contractor that meets both the requirements of the CATA decision and the existing H-2B regulations.

4

4

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

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

a permanent need for workers, it cannot transgress the temporary parameters of the program to permit employers with permanent job opportunities to apply for temporary workers. The Department recognizes that by taking this position, the result may be that some employers who have been clients of such job contractors, and who have not previously participated in the program, may now seek to do so. We encourage those employers to submit information to us about their changed circumstances as a result of this proposal, including the potential costs or savings that may result.

DHS categorizes and defines temporary need into four classifications: Seasonal need; peakload need; intermittent need; and one-time occurrence. A one-time occurrence may be for a period of up to 3 years. The other categories are limited to 1 year or less in duration.

The Department proposes to define temporary need as less than 9 months, except in the case of a one-time occurrence. The definition is in keeping with the DHS definition of temporary need, in which the “period of time will be one year or less, but in the case of a one-time event could last up to 3 years.” 8 CFR 214.2(h)(6)(ii)(B). The Department believes its proposed time period is an appropriate interpretation of the “or less” limitation contained in the DHS regulations, a limitation it has always previously applied in this program. This interpretation is necessary to ensure that the program is available only for employers with truly temporary or seasonal needs. The current approach that permits temporary certifications for periods up to 10 months encompasses job opportunities that the Department believes are permanent in nature and not consistent with Congressional intent to limit H-2B visas to employers with temporary or seasonal needs. If work is performed during all four seasons of the year, either it is not temporary or seasonal, consistent with statutory intent, or it is not the same work (for example, landscape workers who also perform snow removal duties) and thus would require separate applications. Employers that have recurring needs that are longer than 9 months should not have access to the H-2B temporary worker program for those job opportunities.

In addition, the Department's experience in administering the H-2B program indicates that some employers are not appropriately characterizing the nature of their peakload need, specifically where this need is based on a short-term, as opposed to seasonal, demand. Peakload need is based on “seasonal or short-term demand” for which the employer needs to supplement its normal workforce. 8 CFR 214.2(h)(6)(ii)(A)(3). The Department is concerned that employers who cannot demonstrate a seasonal need mischaracterize a permanent need as a short-term temporary need, relying on a perceived short-term demand. Employers such as landscaping or construction companies frequently conduct year-round activities at a sustained level for the maximum allowable period of time for certification that would otherwise constitute a permanent need but for the two months when the H-2B workers return to their home countries. The slowdown in work is attributed more to the absence of H-2B workers, as opposed to an actual decrease in the demand for labor or services.

The Department is seeking comments and ideas from the public on factors or criteria that the Department should consider in determining whether the employer has a genuine peakload need based on short-term demand. In particular, the Department seeks comments on whether the Department should restrict the definition of short-term demand to one that is the direct result of climatic, environmental or other natural conditions. The Department would also appreciate comments on other alternatives limiting short-term demand to a specific time period, such as 6 months.

7. Section 655.8 Requirements for Agents

The Department has long accepted applications from agents acting on behalf of employers in the H-2B program. However, in administering the H-2B program, the Department has become concerned about the role of agents in the program, especially as to whether their presence and participation have contributed to problems with program compliance, such as the passing on of prohibited costs to employees. The Department invites the public to provide ideas and suggestions on the appropriate role of agents in the H-2B program. In particular, the Department seeks comments on whether the Department should continue to permit the representation of employers by agents in the H-2B program.

Alternatively, if the Department were to continue to accept applications from agents, the Department seeks comments on any additional requirements that should be applied to agents to strengthen program integrity. At a minimum, the Department proposes to require agents to provide copies of current agreements defining the scope of their relationships with employers to demonstrate that a bona fide relationship exists between an agent and employer. Where the agent is required under MSPA to have a Certificate of Registration, the agent must also provide a current copy which identifies the specific farm labor contracting activities that the agent is authorized to perform.

8. Section 655.9 Disclosure of Foreign Worker Recruitment

The Department proposes to require the employer and its attorney and/or agents to provide a copy of any agreements with a foreign labor contractor or recruiter whom it engages or plans to engage in the international recruitment of H-2B workers under an

Application for Temporary Employment Certification.

The disclosure of the terms and conditions of the agreement will assist the Department in determining whether the underlying transaction raises any program compliance concerns, including whether prohibited fees are being paid or passed on by the foreign labor contractor or recruiter. Additionally, information about the identity of the international recruiters will assist the Department in more appropriately directing its audits and investigations. By disclosing to the public the names of the foreign labor contractors and recruiters used by employers and their attorneys and/or agents participating in the H-2B program, the Department seeks to provide greater transparency regarding the H-2B worker recruitment process. In particular, the Department intends to use this list of foreign labor contractors and recruiters to facilitate information sharing between the Department and public, so that where the Department believes it is appropriate, it can more closely examine applications or certifications involving a particular labor contractor or recruiter identified by members of the public to have engaged in improper behavior.

B. Prefiling Procedures

1. Section 655.11 Registration of H-2B Employers

The Department proposes requiring all employers to participate in a registration process that will allow the Department to assess the employer's claim of temporary need for non-agricultural temporary foreign workers before the employer is permitted to file an

Application for Temporary Employment Certification

to employ H-

2B workers. As discussed more fully below, the Department intends to use this process to ensure, in a manner that will facilitate the adjudication of applications, that each employer that seeks to employ temporary foreign workers in the H-2B category has a real and justifiable temporary need.

The Department proposes this registration step for a number of reasons. First, a registration process will streamline the adjudication of applications by ensuring an up-front determination of the employer's temporary need. The classification of an employer's need is a key issue in the current adjudicatory model, with significant resources employed in, and substantial frustration resulting from, the determination of whether an employer's need can be classified as temporary, and within that definition, whether it can be classified as a one-time, seasonal, intermittent, or peakload need. By requiring advance determination of the temporary need question, employers and workers seeking jobs can be assured of an application process that is closer in time to the dates of need and more focused on determining the availability of U.S. workers.

Second, the registration process will ensure a more efficient process to repeat users of the program. A registration approval that may be issued for a period of up to 3 years will allow employers to concentrate on their recruitment efforts in later years, while allowing the Department to focus on first-time or infrequent users whose program knowledge may be lacking. Slight variances in employers' underlying need will also be tolerated while significant variances (for example, an increase in the number of requested H-2B positions of more than 20 percent; a change of more than 14 days in the beginning or ending date of need; or a change in the nature of the job classification) will result in having to redetermine temporary need in accordance with § 655.11.

Under the proposed rule, an employer must 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

H-2B Registration

must be accompanied by supporting 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 § 655.6. The employer is also required to sign the

H-2B Registration,

as is the employer's attorney or agent, if applicable.

Under the proposed rule, upon receiving a non-transferrable

H-2B Registration

and the accompanying documentation, the CO will, at a minimum, review the request for completeness and makes a determination based on whether the job classification and duties are non-agricultural; whether the employer's need for the services or labor to be performed is temporary in nature; whether the number of worker positions is justified; and whether the request represents a bona fide job opportunity.

The Department's proposal requires the CO to send any notice or request related to an

H-2B Registration

that requires a response from the employer by means assuring next day delivery, and that the employer's response be sent by similar means by the due date specified by the CO. The Department acknowledges that in many cases electronic mail may be the fastest way to relay correspondence and other information, and it may elect to use that method of transmission in order to ensure the fastest delivery. The proposal also allows employers to elect to use that method of delivery in their responses.

The proposed rule authorizes the CO to issue a Request for Further Information (RFI) if the CO determines the

H-2B Registration

cannot be approved as submitted. The CO may issue the RFI for a number of 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. The RFI will inform the employer why the

H-2B Registration

is not sufficient for the CO to grant the registration; direct the employer to submit supplemental information or documentation in response to the RFI within 7 business days from the date of the RFI, and inform the employer that the CO will issue a Notice of Decision after reviewing the information submitted in response to the RFI. The RFI further informs the employer that a failure to comply with the RFI, including not providing all requested documentation within the specified timeframe, will result in a denial of the

H-2B Registration.

The proposed rule authorizes the CO to issue one or more additional RFIs before issuing a Notice of Decision on the employer's

H-2B Registration,

if needed.

If the CO approves the

H-2B Registration,

the CO will send the decision to the employer, and a copy to the employer's attorney or agent, if applicable, notifying the employer that it is eligible to file an

Application for Temporary Employment Certification

to employ H-2B workers in the occupational classification for the anticipated number of positions and period of need stated on the approved

H-2B Registration.

Under the Department's proposal, the CO is authorized to approve an

H-2B Registration

for a period of up to 3 consecutive years for that occupation and area of intended employment. If the CO denies the request, the decision informs the employer why the request was denied, offers the employer an opportunity to request administrative review under § 655.61, and informs the employer that if it does not request administrative review within 10 business days, the denial of the

H-2B Registration

will be final.

The Department proposes requiring all employers that file an

H-2B Registration

to retain any documents and records not otherwise submitted proving compliance with this subpart. An employer whose

H-2B Registration

is approved is required to retain all records for a period of 3 years from the final date of applicability of the

H-2B Registration.

An employer whose

H-2B Registration

is denied or withdrawn is also required to retain all records for 3 years, to be measured from the date of the final registration decision or withdrawal by the employer. The Department's regulatory mandate to ensure that qualified workers in the United States are not available and that the alien's employment will not adversely affect wages and working conditions of similarly employed U.S. workers serves as the basis for the Department's authority to require employers to retain records relating to their

H-2B Registration,

even if the employer's

H-2B Registration

is ultimately withdrawn or denied. While it is extremely unlikely that the Department would audit any employer who initiated activity but did not actually file an application, these records would be potentially invaluable to the Department in evaluating future

H-2B Registrations

filed by the employer as to whether the employer has a temporary need that meets the requirements of the H-2B program.

For instance, in the first year, an employer files an

H-2B Registration

in which the employer claims it has a seasonal need with dates of need from

February to November. The Department grants the

H-2B Registration,

but the employer subsequently withdraws its

H-2B Registration.

In the second year, the same employer files an

H-2B Registration

for the identical job opportunity, except that its dates of need are now from April to December. Due to the changes in dates of need, the Department may have some concerns as to the legitimacy of the employer's temporary need and thus may request the employer to provide documentation of temporary need in support of both its previous and current year's

H-2B Registration.

Especially given that any burden that would be placed on an employer would be minimal

5

—

i.e.,

the employer merely would be required to retain documents for 3 years—making these records available to the Department clearly is worthwhile to uphold the integrity of the H-2B labor certification program and to ensure optimal employment opportunities for U.S. workers and no adverse effect on the wages and working conditions of U.S. workers.

5

The EO 12866 analysis estimates the cost per employer to comply with document retention requirements to be not in excess of $21.99.

2. Section 655.12 Use of Registration of H-2B Employers

The Department proposes 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. The employer, however, may not use the same approved

H-2B Registration

to file an

Application for Temporary Employment Certification

if the employer's need for workers has 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 has changed by more than 14 calendar days; if the nature of the job classification and/or duties has changed; and/or if the temporary nature of the employer's need for services or labor is no longer temporary. If these changes occur, the proposed rule requires the employer to file a new

H-2B Registration.

Limiting the use of the employer's approved

H-2B Registration

in this way ensures the integrity of the registration process by requiring employers to submit a new

H-2B Registration

when the employer's circumstances change significantly.

3. Section 655.10 Prevailing Wage

The Department proposes a modified process for obtaining a prevailing wage. In order to provide clarity, the proposed rule simplifies how an employer requests prevailing wage determinations (PWD). Under the proposed rule employers must request PWDs from the NPWC before posting their job orders with the SWA and the PWD must be valid on the day the job orders are posted. Employers should continue to request a PWD in the H-2B program at least 60 days before the date on which the determination is needed.

As discussed above, the determination of a prevailing wage has been the subject of another rulemaking, necessitated by the court's decision in

CATA

v.

Solis,

Civil No. 2:09-cv-240-LP, 2010 WL 3431761 (E.D. Pa. Aug. 30, 2010), which culminated in the publication of the Wage Methodology for the Temporary Non-agricultural Employment H-2B Program Final Rule, 76 FR 3452, Jan. 19, 2011. This NPRM does not address or seek to amend the prevailing wage methodology established under that final rule.

4. Section 655.13 Review of PWDs

The Department proposes changes to the process for the review of PWDs for purposes of clarity and consistency. The proposed rule reduces 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. The proposed rule revises the language of the 2008 Final Rule to reflect that the NPWC Director will review determinations. For similar reasons, the proposed rule specifies that the employer has 10 business days from the date of the NPWC Director's final determination within which to request review by BALCA. No other substantive changes were made to this section.

C. Application for Temporary Employment Certification Filing Procedures

1. Section 655.15 Application Filing Requirements

This provision sets out the basic requirements with which employers need to comply in order to file an

Application for Temporary Employment Certification

once they have an approved

H-2B Registration.

Under the proposed rule, the Department has returned to a post-filing recruitment model in order to ensure better and more thorough compliance by H-2B employers with program requirements. The Department's 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. The recruitment model described below 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 the employer in obtaining the qualified personnel that it requires in a timelier manner. The proposed rule allows the Department to work more closely with the SWAs by requiring the employer to file the

Application for Temporary Employment Certification

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, job requirements, and local prevailing practices by authorizing the SWA to review the contents of the job order for compliance and submit to the CO any deficiencies pursuant to § 655.16. The Department continues 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. 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. The Department recognizes that there may be industries whose participation in the H-2B program may be constrained as a result of this revised timeframe in years in which the statutory cap of 33,000 visas 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 the Department has no control.

While the Department has begun efforts to establish an online format for the submission of an

Application for Temporary Employment Certification,

as such a system depends upon the resolution of issues in this rulemaking, it cannot be immediately implemented when a final rule becomes effective. Thus there will have to be a period during which paper submissions remain the means by which applications must be filed. Therefore, the Department proposes 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. The Department proposes to continue to use Form ETA 9142 to collect the necessary information; however, the form's appendices will be slightly modified to reflect changes from the 2008 Final Rule (such as a change of tense to note pre-recruitment filing). As in the 2008 Final Rule, the proposed rule requires the

Application for Temporary Employment Certification

to contain original signatures.

2. Section 655.16 Filing of the Job Order at the SWA

The proposed rule requires the employer to submit the 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 NPC, no more than 90 calendar days and no fewer than 75 calendar days before the employer's date of need. Ensuring that the recruitment of U.S. workers occurs closer in time to the actual job availability makes the recruitment more realistic and more likely to result in greater opportunities for U.S. workers. The proposed rule continues to use the SWAs' experience with the local labor market, job requirements, and prevailing practices by requiring the SWA to review the contents of the job order for compliance with § 655.18 and notify the CO of any deficiencies within 4 business days of its receipt of the job order. The proposed rule differs from the 2008 Final Rule in that it prohibits the SWA from posting the job order before receiving a Notice of Acceptance from the CO directing it to do so. It is the Department's belief that the cooperative relationship between the CO and the SWA continues to ensure program integrity. Additionally, by requiring such concurrent filing and review, the CO can simultaneously address job order deficiencies identified by the NPC and the SWA in a single Notice of Deficiency before the employer conducts its recruitment. This coordination will ensure greater program integrity and efficiency.

Upon placement of the job order in intra and interstate clearance, the SWA must keep the job order on its active file and continue to refer U.S. workers who apply (or on whose behalf an application is made) for the job opportunity until 3 days before the date of need, when it is assumed that the last H-2B worker has departed for the place of employment, unless informed otherwise by the employer, as provided in proposed § 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. This is a substantial change from the current practice of keeping the job order open only for a short time, but the Department believes the change will ensure that U.S. workers are apprised of the job opening and provided a meaningful opportunity to apply when they are most likely to do so and most likely to accept the offered employment.

3. Section 655.17 Emergency Situations

Under the proposed rule, an employer may file an

H-2B Registration

and/or an

Application for Temporary Employment Certification

fewer than 75 days before the start date where an employer has good and substantial cause and there is sufficient time for the employer to undertake an adequate test of the labor market. This is a change from the current regulations which do not allow for emergency filings. This affords employers flexibility while maintaining the integrity of the application and recruitment processes. To meet the good and substantial cause test, the employer must provide to the CO detailed information describing the reason(s) which led to the emergency request. Such cause may include the substantial loss of U.S. workers due to Acts of God or pandemic health issues, damage to facilities resulting from weather or other conditions, or new contracts that require earlier start dates. However, the CO's denial of an

H-2B Registration

in accordance with the procedures under § 655.11 does not constitute good and substantial cause necessitating a waiver request.

4. Section 655.18 Content of the Job Order

The job order is essential for providing U.S. workers sufficient information to make informed employment decisions. The Department proposes to require employers to inform applicants in the job order not only of the typical information provided in advertisements, but also of several key assurances and obligations to which the employer is committing to by filing an

Application for Temporary Employment Certification

for H-2B workers. The job order must also be provided to H-2B workers with its pertinent terms in a language the worker understands.

a.

Prohibition Against Preferential Treatment (§ 655.18(a)).

Under the proposed rule, the employer is responsible for providing 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 current § 655.22(a). The additional requirement is that this guarantee must be set forth in the job order to be sure that all workers are aware of their rights.

b.

Bona Fide Job Requirements (§ 655.18(b)).

The Department proposes to require that the job qualifications and requirements listed in the job order be bona fide and consistent with those required by employers that do not use H-2B workers for the same or comparable occupations in the same area of intended employment, consistent with the requirements in current § 655.22(a). The intent of this provision is to prevent employers from artificially making the job opportunity unattractive to U.S. workers, thereby increasing the need for H-2B workers.

c.

Benefits, Wages, and Working Conditions Covered Under (§ 655.18(c)-(g)).

The Department proposes to require the employer to list all of 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 current § 655.17 and § 655.22; where changes were made, they are discussed in the preamble to § 655.20. These disclosures are critical to a potential applicant's decision whether to accept the opportunity.

d.

Three-Fourths Guarantee (§ 655.18(h)).

The Department proposes to require that H-2B employers guarantee payment of wages for at least three-fourths of the contract period and proposes to require the employer to list this guarantee in the job order. Currently, there is no minimum number of hours that employers are required to provide to H-2B workers. The NPRM proposes to require that employers guarantee the worker employment for a total number of work hours equal to at least three-fourths of the workdays of each 4-week period, beginning with the first workday after the arrival of the worker at the place of employment or the advertised contractual date of need, whichever is later, and which ends on the expiration date specified in the job order or in any extensions. Again, awareness of this guarantee would be critical to a U.S. worker's ability to evaluate the job opportunity and thus influence the decision to accept the employer's job offer. These proposed requirements are similar to the three-fourths guarantee in the H-2A program; however, that program assesses the guarantee based upon the entire contract period rather than based upon 4-week

periods. Recent experience enforcing the H-2B regulations demonstrates that workers are often provided much less work than that promised in the job order and this occurrence has convinced the Department that this protection is necessary.

e.

Transportation and Visa Fees (§ 655.18(i)).

The proposed rule requires 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. This requirement applies to both 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, if applicable, the job order must disclose that the employer will provide daily transportation to the workers to the worksite. The job order also must disclose that the employer will reimburse the H-2B workers for visa and related fees.

f.

Employer-Provided Items (§ 655.18(j)).

The proposed rule requires the job order to indicate that the employer will provide workers with all tools, supplies, and equipment needed to perform the job at no cost to the employee. This requirement, which is consistent with current § 655.22(g) which requires all deductions to be reasonable, gives the workers additional protection against improper deductions from wages, and assures them that they will not be required to pay for items necessary to perform the job.

g.

Board, Lodging, or Facilities (§ 655.18(k)).

While not required to offer such benefits, if the employer intends to provide H-2B workers with room and board or other such facilities or offer assistance in securing such lodging, it must be disclosed in the job order and offered to all U.S. worker-applicants who cannot reasonably return to their residence within the same workday. This requirement is intended to ensure that the employer offers, to the extent practicable, the U.S. workers the same benefits, wages, and working conditions as those offered to the H-2B workers. If the employer intends to make a deduction from cash wages for the reasonable costs of board, lodging or other facilities, it must disclose that in the job order.

Some employers qualify under existing special procedures to use a single

Application for Temporary Employment Certification

to recruit and employ itinerant workers in multiple areas of intended employment on the same job order. Consistent with case law interpreting the primary benefit principle under the Fair Labor Standards Act, in the situation where employees must move from one temporary work location to another, the employee's temporary housing while at a particular work location is primarily for the benefit of the employer. See

Masters

v.

Maryland Management Co.,

439 F.2d 1329 (4th Cir. 1974);

Marshall

v.

DeBord,

1978 WL 1705 (E.D. Okla. 1978);

Bailey

v.

Pilots' Association for the Bay and River Delaware,

406 F. Supp. 1302 (E.D. Pa. 1976). Similarly, the transportation required to move the employees from one work location to the next work location, as well as the daily transportation between the temporary housing and the worksite, is primarily for the employer's benefit.

See

29 CFR 531.32(c); 29 CFR 778.217(b)(3). Therefore, employers operating under the special procedures mechanism to employ itinerant workers will be required to pay for housing and transportation expenses that are primarily for the benefit of the employer, and the employer's job order will have to advise potential employees of this obligation.

D. Assurances and Obligations

1. Section 655.20 Assurances and Obligations of H-2B Employers

Proposed § 655.20 would replace current § 655.22 and contains the employer obligations that WHD will enforce. The Department proposes to modify, expand, and clarify current requirements to ensure that an employer's need for H-2B workers is genuine because no qualified U.S. workers are available, and that the employment of H-2B workers will not adversely affect the wages and working conditions of U.S. workers. Requiring compliance with the following enhanced conditions of employment is the most effective way to meet these goals. As discussed in the preamble to § 655.5, workers engaged in corresponding employment are entitled to the same protections and benefits provided to H-2B workers.

a.

Rate of Pay (§ 655.20(a)).

Proposed § 655.20(a) draws from several different provisions of existing § 655.22. For example, the Department proposes to modify the current § 655.22(e) on the employer's responsibility to pay the offered wage throughout the worker's authorized period of employment to include the requirement that the payment must be made “free and clear.” Further discussion of “free and clear” appears below.

The proposed section also adds a requirement that productivity standards that are a condition of job retention must be specified in the job order and must be no more than normally required by non-H-2B employers for the occupation in the area of intended employment. The Department maintains that imposition of productivity standards should be evaluated by the SWA prior to acceptance of the

Application for Temporary Employment Certification

in order to ensure that there is no adverse effect on the working conditions of similarly employed U.S. workers.

The Department recognizes that some occupations for which H-2B workers are sought have traditionally been piece-rate jobs and the

Application for Temporary Employment Certification

allows an employer to compute pay on a piece-rate basis. The proposed section allows piece rates to serve as the basis for computing wages only if the piece rate paid is at least equal to the piece rate normally paid to workers performing the same activity in the area of intended employment. Consistent with current § 655.22(g)(1), in every workweek the piece rate must result in wages at least equal to what the weekly earnings would have been had the worker's pay been computed based upon the offered hourly wage. If the piece rate earnings do not equal at least the required amount, this proposed paragraph requires that the employer supplement the worker's wages on a workweek basis to meet the offered wage. Finally, the proposal eliminates the current option of paying wages on a monthly basis.

b.

Wages Free and Clear and Deductions (§§ 655.20(b) and 655.20(c)).

The Department's experience demonstrates that some employers may seek to reduce their wage liability by imposing unauthorized deductions on gross wages. The proposed obligations in paragraphs (b) and (c) of this section seek to ensure payment of the offered wage by requiring that wage payments be final, unconditional, and “free and clear” and by limiting deductions which reduce wages to below the required rate. Specifically, authorized deductions are limited 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 (only if disclosed in the job order); or that are amounts paid to third parties authorized by the employee or a collective bargaining agreement. Deductions for costs that are primarily for the benefit of the employer are never reasonable. Unauthorized or impermissible deductions include those not specified in the job order; “kick backs” paid to the employer or employer representative; and amounts paid to third parties which

are unauthorized, unlawful, or from which the employer or its foreign labor contractor, recruiter, agent worker, or affiliated person benefits to the extent such deductions reduce the actual wage to below the required wage. The FLSA and 29 CFR part 531 provide appropriate guidance in determining the permissibility of deductions, as indicated in the proposed paragraph.

c.

Job Opportunity is Full-Time (§ 655.20(d)).

In proposed § 655.20(d), the Department redefines full-time employment as at least 35 hours per week, an increase from the current level of 30 hours. A 35-hour workweek more accurately reflects the nature of full-time work and strikes an appropriate balance between the employer's needs and the employment and income needs of both U.S. and foreign workers. Additionally, consistent with the FLSA, this NPRM adds the requirement that the workweek will 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. Accordingly, wages would be computed based on this workweek. This requirement establishes a clear period for determining whether the employer has paid the required wages, which will aid in enforcement.

d.

Job Qualifications and Requirements (§ 655.20(e)).

Proposed § 655.20(e) clarifies the existing § 655.22(h) by stating that each job qualification and requirement listed in the job order must be consistent with normal and accepted qualifications required by non-H-2B employers for similar occupations in the same area of intended employment. OFLC will determine what is normal and accepted during the pre-certification process. The proposed paragraph also allows the CO to require the employer to substantiate any job qualifications specified in the job order.

e.

Three-Fourths Guarantee (§ 655.20(f)).

The Department has determined that the three-fourths guarantee required in the H-2A program provides protection that is necessary in the H-2B program as well. The guarantee has been required under the H-2A program since its inception in 1987; in the 2008 Final Rule, the Department defended the requirement: “The Department believes the rule provides essential protection for both U.S. and H-2A workers, in that it ensures their commitment to a particular employer will result in real jobs that meet their reasonable expectations.” 73 FR 77152 (Dec. 18, 2008).

Recent experience in enforcing the H-2B regulations demonstrates that workers are often provided much less work than that promised in the job order, which has convinced the Department that this protection is necessary. For example, the Department's enforcement experience has 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. Indeed, in some weeks the workers did not work at all.

In addition to the Department's recent experience enforcing the H-2B regulations, the Department is aware of testimony involving cases in which unscrupulous employers which have obtained H-2B labor certification have overstated the period of need and/or the number of hours for which the workers are needed. For example, 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, “The 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.”

6

Miguel Angel Jovel Lopez, a plumber and farmer from El Salvador, was recruited to do demolition work in Louisiana with a guaranteed minimum of 40 hours of work per week. Mr. Lopez testified, “Instead 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.

7

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).

6

Testimony of Daniel Angel Castellanos Contreras before the House Committee on Oversight and Government Reform Domestic Policy Subcommittee, 2, (2009, Apr. 23)

http://oversight.house.gov/images/stories/documents/20090423085101.pdf.

7

Testimony of Miguel Angel Jovel Lopez before the House Committee on Oversight and Government Reform Domestic Policy Subcommittee, 2. (2009, Apr. 23)

http://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 “[s]everal women interviewed spent days and weeks without work when crabs were scarce. During this time most continued to make rent payments, and struggled to send money to family back in Mexico.”

8

8

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.

http://www.wcl.american.edu/clinical/documents/20100714_auwcl_ihrlc_picked_apart.pdf?rd=1.

WHD enforcement experience from the H-2A program provides further evidence supporting the need to extend guaranteed minimum work protections to H-2B workers who in many ways are similarly situated to their H-2A counterparts. Though the three-fourths guarantee is already in place in the H-2A program, WHD has found employers substantially violating its provisions. For instance, as recently as January 2011, WHD assessed $1/3 million in back wages from a vegetable farm employer which failed to provide to 244 workers—148 of whom were U.S. workers—at least 75 percent of the work hours promised. This case is currently in litigation.

Few legal options exist for H-2B workers who feel their work contracts have been violated. An initial barrier to legal recourse is purely practical: H-2B workers are not eligible for services from federally-funded legal aid programs. As a result, most H-2B workers have no access to lawyers or information about their legal rights. Furthermore, the H-2B job order, which specifies the terms and conditions of employment, including work hours, may not be enforceable through private litigation.

See Garcia

v.

Frog Island Seafood, Inc.,

644 F.Supp.2d 696, 716-18 (E.D.N.C. 2009) (holding H-2B job orders would not be treated as enforceable contracts). A guaranteed number of hours, enforceable by WHD, may well be the only protection H-2B workers have if employers misrepresent the amount of work the worker will actually be provided.

In an effort to combat such abuses, § 655.20(f) proposes to require a guaranteed offer of employment for a total number of work hours equal to at least three-fourths of the workdays of each 4-week period. The Department proposes to use successive 4-week periods to measure the three-fourths guarantee instead of measuring the three-fourths guarantee over the course of the entire time period of need (as in the H-2A three-quarters guarantee), in order to ensure that work is offered during the entire time period certified by the Department. Four-week increments will aid the Department in enforcing the statutory and regulatory temporary need requirement. When employers file applications for H-2B certifications, they represent that they have a need for full-time temporary work during the entire time period for which they request certification from the Department. Using a 4-week period will prevent employers from requesting workers for nine months, for example, if they really only have a need for their services for seven months. Thus, a 4-week period will help to ensure that employers do not assert that they need workers throughout the winter months if the work cannot be conducted in such weather and there is little or no work for the workers to perform until spring. Using a 4-week period also prevents an employer from inappropriately stating, for example, that it needs workers until October 31st, if its season is over and there generally is little or no work after September 30th, in the hopes that the employees will simply leave the job before the end of the period so the employer will be relieved of its obligation to pay for their return transportation. When a worker accepts a job offer that promises full-time work for a set period of time and foregoes other opportunities to make that commitment, the worker has a right to be provided with the promised amount of work for the entire period for which work was promised. The hours are not fungible, and should not be provided primarily in the middle of the period of need in order to meet the three-fourths guarantee.

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 Department believes that this guarantee will impose no burden on employers that have accurately stated their need for workers, even if the employer's calculation of the amount of available work is off by as much as 25 percent. Therefore, the three-fourths guarantee offers the appropriate level of protection for workers who are employed by unscrupulous employers, without any penalty or burden to compliant employers.

The proposed system provides for a workday to be based on the workday hours stated in the employer's job order and require the guarantee in each 4-week period. The 4-week period would be based on the employer's workweek. If a worker arrives and starts work after the first day of the employer's workweek, resulting in a partial workweek, then the initial 4-week guarantee period could result in a period of as long as 4 weeks and 6 days. Similarly, the worker might cease employment before the end of a final 4-week period, resulting in a guarantee period as short as one workday. In such cases, the guarantee is increased for the initial period and decreased for the last period on a pro rata basis.

Under the proposed guarantee, the employer would be required to pay the worker three-fourths of the wages the worker would have earned in any 4-week period if the employer had offered the worker the number of hours specified in the job offer. In contrast to the guarantee provided under the H-2A program, this proposal does not exclude hours offered on the worker's Sabbath and Federal holidays from the three-fourths guarantee requirement in recognition of the fact that many H-2B workers are employed in the hospitality industry that need those workers available during those times.

The Department recognizes that workers may fail or refuse to work hours which have been offered by the employer. Consequently, the proposed section allows the employer to count any hours offered consistent with the job order that a worker freely and without coercion chooses not to work, up to the maximum number of daily hours on the job order, in the calculation of guaranteed hours. The proposed section also allows the employer to offer the worker more than the specified daily work hours, but the employer may not require the employee to work such hours or count them as offered if the employee chooses not to work the extra hours. However, the employer may include all hours actually worked when determining whether the guarantee has been met. Furthermore, as detailed in § 503.16(g), the CO can terminate the employer's obligations under the guarantee in the event of fire, weather, or another Act of God that makes the fulfillment of the job order impossible.

As indicated above, the purpose of the guarantee is to ensure that employers do not misuse 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. The Department believes that the guarantee will motivate employers to carefully consider the extent of their workforce needs before applying for certification, thus discouraging employers from applying for unnecessary workers or from promising work which may not exist. To the extent that employers more accurately describe the amount of work available and the periods during which work may be more or less available, it gives both U.S. and foreign workers a better chance to realistically evaluate the desirability of the offered job. Not only will this result in workers working most of the hours promised in the job order but it may also make the capped H-2B visas available to other employers whose businesses need to use H-2B workers. The three-fourths guarantee is a reasonable deterrent to such 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 affected by weather conditions.

An hour guarantee is necessary to protect the integrity of the H-2B program and to protect the interests of both workers and employers in the H-2B program. At the same time, the Department invites the public to suggest alternative guarantee systems that may better serve those goals. In particular, the Department seeks 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.

f.

Impossibility of Fulfillment (§ 655.20(g)).

In proposed § 655.20(g), the Department acknowledges that circumstances beyond the control of the employer or the worker, such as a natural disaster or a fire, might result in the need to terminate a worker's employment before the expiration date of a job order. Therefore, the new language in this paragraph allows employers to terminate a job order in certain 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 work termination date. The employer would also be required to attempt to transfer the H-2B worker (if permitted under the INA) or worker in corresponding employment to another comparable job. Absent such transfer, the employer would have to comply with the proposed transportation requirements in paragraph (j) of this section.

g.

Frequency of Pay (§ 655.20(h)).

The proposed § 655.20(h) adds the requirements that the employer indicate the frequency of pay in the job order and that workers be paid every 2 weeks or according to the prevailing practice in the area of intended employment, whichever is more frequent. Further, wages must be paid when due. Allowing the employer to pay less frequently than every 2 weeks and to not make timely payment of wages imposes an undue burden on workers who traditionally are paid low wages and live paycheck to paycheck.

h.

Earnings Statements (§ 655.20(i)).

Proposed § 655.20(i) adds requirements for the employer to maintain accurate records of worker earnings and provide the worker on or before each payday an appropriate earnings statement. This proposed paragraph also lists the information that the employer must include in such a statement. Providing such statements to employees will enhance program integrity because employees will have a timely and clear understanding of the basis for their pay, and such statements will provide the Department with additional information in any investigation or audit.

i.

Transportation and Visa Fees (§ 655.20(j)).

The Department proposes changes relating to transportation and visa costs in § 655.20(j). The Department has determined that the cost of transporting workers from remote locations to the worksite is an expense that primarily benefits employers who choose to use the H-2B program and it is the Department's intention to ensure that the cost of transporting workers from remote locations to the worksite are not passed on to the employees.

The NPRM would 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. Similarly, at the end of the employment, the NPRM would require the employer 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 in the worker's home country 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 registered 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 return transportation costs. Employers also would be required to pay or reimburse the worker 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).

The proposed changes are consistent with the Department's interpretation of the FLSA, explained in Field Assistance Bulletin No. 2009-2 (Aug 21, 2009), that H-2B workers' transportation and visa costs are primarily for the benefit of the employer. The employer benefits because it obtains foreign workers where the employer has certified that there are not sufficient able, willing and qualified U.S. workers available to perform the work. Transporting these workers from remote locations to the workplace is primarily for the benefit of the employer who has sought authority to bring in workers from foreign countries.

The Bulletin explained that an employer must bear such expenses if shifting them to the employee would bring the employee's effective rate of pay below the FLSA minimum wage. H-2B employers covered by the FLSA must, therefore, pay such expenses to meet FLSA requirements.

See Arriaga

v.

Florida Pacific Farms, LLC,

305 F.3d 1228 (11th Cir. 2002); but see

Castellanos-Contreras

v.

Decatur Hotels, LLC,

_F.3d, 2010 WL 3816016 (5th Cir. 2010). Moreover, the current (and proposed) H-2B regulations specifically require employers to comply with all applicable Federal, State, and local employment-related laws.

The Department's proposal would require the employer to pay these expenses if payment by the employee would bring the employee's rate of pay below the offered wage. The proposed requirement protects U.S. workers from adverse effect by protecting the integrity of the offered wage. Without these protections, the employer, who is obligated to pay the “offered wage” which is generally higher than the FLSA minimum wage, could take deductions from wages that could reduce the effective wage to the FLSA minimum.

The following illustrates the benefits of this proposal. Under the current regulation the employer is not obligated to reimburse H-2B workers for inbound transportation, visa, visa processing, border crossing, and other related costs even though the Department has determined that under the FLSA these costs are primarily for the benefit of the employer. Further, the only restriction on deductions from pay are found in current 20 CFR 655.22(g)(1), which states,

The job offer must specify all deductions not required by law that the employer will make from the worker's paycheck. All deductions must be reasonable. However, an employer subject to the FLSA may not make deductions that would violate the FLSA.

In this illustration, the employer, a landscaping contractor in Orange County, FL, provides a disclosure to the employee that the employer will advance the $800

9

for inbound transportation, visa, visa processing, and other related fees as well as the return transportation cost, and deduct the costs from the employee's paycheck until fully repaid. The employee, from Mexico, is hired to work for a landscaping company for 12 weeks and the Level 1 prevailing wage, as determined by OES, is $8.90 per hour. The employee works 40 hours and is entitled to be paid $356.00. Since the employer disclosed that he would advance the transportation costs and visa related fees and recoup those costs through deductions from the worker's pay, the worker is paid $290.00, the amount equivalent to the FLSA minimum wage for 40 hours work. The worker would be paid $290 instead of $356.00 each of the subsequent 11 workweeks until the $800 is recouped by the employer. This is so even though the WHD has determined that the transportation and visa-related cost for H-2B workers is primarily for the benefit of the employer. Further, the Department has determined that in order to protect the labor market from the adverse effects on wages caused by the presence of temporary foreign workers in this labor market the minimum wage that must be paid by H-2B employers is $8.90. Without a provision requiring the employer to pay the transportation cost and visa-related fees the wage provisions of the H-2B program are severely compromised, providing an economic incentive for employers to hire foreign workers who

can be paid the FLSA wage instead of the “offered wage” in contravention of the Department's obligations to prevent adverse effect under the program.

9

The transportation cost is estimated to be $286 each way, $10.64 daily for subsistence, and $150 for visa fees. For a more detailed discussion of the estimated cost of transportation, see Section IV. Administrative Information, A. Executive Order 12866 of this preamble.

This NPRM also adds daily subsistence costs during inbound and outbound travel as an expense the employer is required to cover in addition to the actual transportation, consistent with a similar provision under the H-2A program. Because U.S. workers living far away from an area of intended employment may accept an H-2B job opportunity, the proposed rule provides the same treatment for U.S. workers who are unable to return to their residence each workday.

Finally, the Department proposes that all employer-provided transportation—including transportation to and from the worksite, if provided—meet applicable safety, licensure, and insurance standards. Under this proposed rule, all transportation and subsistence costs covered by the employer (even costs not required by this section) must be disclosed in the job order.

The proposed requirement that the employer pay inbound and outbound transportation, subsistence, visa, visa processing, border crossing, and related fees in this provision applies to H-2B workers, including those who have traveled to the place of employment but have not started work due to their displacement by a U.S. worker. See Proposed § 655.40 (U.S. worker recruitment period terminates on the third day preceding the employer's date of need or the date the last foreign worker departs for the employment, whichever is later). DHS regulations currently allow H-2B workers to enter the U.S. ten days before their employment start date. 8 CFR 214.2(h)(13)(i). Thus, there may be a gap in time between the time when an H-2B worker enters the country intending to work for the employer (up to 10 days before the date of need) and the time when the employer is no longer obligated to hire qualified U.S. workers for these job opportunities (three days before the employer's date of need or the date the last foreign worker departs, if later). Because employers have the ability to control the travel of H-2B workers from the point of visa issuance to the worksite, the Department expects that employers will delay the H-2B worker's departure date until the required recruitment period has ended. In the rare event that an H-2B worker enters the country before the U.S. worker recruitment period has ended and the position has been filled by a U.S. worker, the employer must reimburse the foreign worker for these costs and/or provide payment for the cost of return transportation at the time the worker presents for employment.

j.

Employer-Provided Items (§ 655.20(k)).

The Department proposes to add a new requirement under § 655.20(k), consistent with the requirement under the FLSA regulations at 29 CFR part 531, that the employer provide to the worker without charge all tools, supplies, and equipment necessary to perform the assigned duties. The employer may not shift to the employee the burden to account for damage to, loss of, or normal wear and tear of, such items. This proposed provision gives workers additional protections against improper deductions of the employer's business expenses from required wages.

k.

Disclosure of the Job Order and Notice of Worker Rights (§§ 655.20(l) and 655.20(m)).

Worker notification is a vital component of worker protection and program compliance. Proposed §§ 655.20(l) and 655.20(m) would enhance worker notifications. Proposed § 655.20(l) requires 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 will contain information about the terms and conditions of employment and employer obligations as provided in proposed § 655.18 and must be in a language understandable to the workers. Proposed § 655.20(m) requires 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.

l.

No Unfair Treatment (§ 655.20(n)).

Proposed § 655.20(n) adds new language on nondiscrimination and nonretaliation protections which are basic 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 H-2B provisions. As provided in proposed 29 CFR 503.20, make-whole relief is available for victims of discrimination and retaliation under this paragraph.

m.

Comply with the Prohibitions Against Employees Paying Fees (§ 655.20(o)).

Proposed § 655.20(o) amends current § 655.22(j) by expanding the list of persons who may not seek reimbursement from workers for any costs associated with obtaining H-2B employment certification or employment, and by repeating the new requirement in proposed § 655.20(b) that wages must be paid free and clear. This paragraph also clarifies that H-2B employers or their agents may recoup costs that are the responsibility of, and primarily for, the benefit of the worker. Passport fees, currently included in § 655.22(g)(2), are noted here as an example of a cost that is primarily for the benefit of the worker.

n.

Contracts with Third Parties to Comply with Prohibitions (§ 655.20(p)).

In § 655.20(p), the Department proposes to amend current § 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 contract must be made available to the CO, WHD or other Federal party, upon request. The Department also proposes to eliminate the reference to DHS regulations at 8 CFR 214.2(h)(5)(xi)(A) to avoid confusion in light of the proposed provisions concerning the employer responsibilities for transportation and visa costs in § 655.20(j). Similarly, the current sentence allowing an employer to recover visa costs is removed, consistent with proposed § 655.20(j)(2).

o.

Prohibition Against Preferential Treatment of H-2B Workers (§ 655.20(q)).

Proposed § 655.20(q) is similar to § 655.22(a) of the current rule, which prohibits employers from providing better terms and conditions of employment to H-2B workers than to U.S. workers. The language has been modified to reflect the change to a certification process from the current attestation-based process.

p.

Non-Discriminatory Hiring Practices, Recruitment Requirements, and Continuing Requirement to Hire U.S. Workers (§§ 655.20(r), 655.20(s), and 655.20(t)).

The current regulations require that the employer recruit and hire qualified U.S. workers during a limited 10-day period before filing the

Application for Temporary Employment Certification.

The Department firmly believes that this represents inadequate time and effort to ensure that there are no or insufficient qualified U.S. workers to fill the employer's temporary employment needs. To remedy this inadequacy, the Department proposes to extend the employer's recruitment and hiring obligations by making the changes in §§ 655.20(r), 655.20(s), and 655.20(t), as described below.

First, consistent with current § 655.22(c), proposed § 655.20(r) reaffirms the Department's commitment to ensuring that U.S. workers have priority for H-2B job opportunities by stating that U.S. workers who apply must either be offered the job or rejected

only for lawful, job-related reasons, and by prohibiting discrimination. The proposal clarifies that this hiring obligation remains in effect throughout the period set forth in proposed paragraph (t).

Second, proposed § 655.20(s) requires that the employer conduct required recruitment as described in proposed §§ 655.40-46.

Last, proposed § 655.20(t) extends 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.

q.

No strike or lockout (§ 655.20(u)).

The Department proposes in § 655.20(u) to modify the “no strike or lockout” language in the current regulations at § 655.22(b) to enhance worker protections. Currently, requests for H-2B workers are not certified if the workers would be filling positions that are open due to a strike, lockout, or work stoppage. Under the proposed paragraph the CO would deny an H-2B certification if there is a strike or lockout at the worksite. Under the current regulation, an unscrupulous employer might be able to transfer U.S. workers to fill positions vacated by striking workers, thus employing H-2B workers in the positions those U.S. workers vacated.

r.

No Recent or Future Layoffs (§ 655.20(v)).

Proposed § 655.20(v) modifies the dates of impermissible layoffs of U.S. workers currently described in § 655.22(i). The period during which an H-2B employer must not lay off any similarly employed U.S. worker continues to begin 120 days before the date of need but would be extended from 120 days after the date of need to the end of the certification period. The Department also proposes adding the requirement that H-2B workers must be laid off before any U.S. worker in corresponding employment. These restrictions are essential in order to further the purpose of protecting U.S. workers.

s.

Contact with Former U.S. Employees (§ 655.20(w)).

Proposed § 655.20(w) requires employers to contact former U.S. employees who worked with them within the last year, including any who were laid off within 120 days before the date of need. This expands the current requirement that employers contact only former employees who were laid off during the 120 days preceding the date of need and for an additional 120 days after date of need.

t.

Area of Intended Employment and Job Opportunity (§ 655.20(x)).

Proposed § 655.20(x) modifies current § 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.

This clarifies 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 certification.

u.

Abandonment/Termination of Employment (§ 655.20(y)).

In proposed § 655.20(y), the Department addresses a worker's voluntary abandonment of a job or termination. This NPRM proposes retaining, in slightly amended form, current § 655.22(f) by requiring written notification to the OFLC and to DHS when a worker separates from employment before the certified end date. DHS has published in its own regulations at 8 CFR 214.2(h)(6)(i)(F) and its instructions at 73 FR 77816 (Dec. 19, 2008). Clarifications of how an employer in such circumstances must comply with proposed transportation and subsistence requirements under paragraph (j) and the three-fourths guarantee under paragraph (f) of this section are also added to proposed § 655.20(y). Specifically, the employer would be relieved of providing return transportation expenses if an employee voluntarily abandons employment, and the three-fourths guarantee period would end with the last full 4-week period before the separation if an employee either voluntarily abandons employment or is terminated for cause.

v.

Compliance with Applicable Laws (§ 655.20(z)).

In proposed § 655.20(z), the Department proposes to retain existing provisions in § 655.22(d) with minor revisions and to add a provision prohibiting the employer from holding or confiscating workers' passports, visas, or other immigration documents in accordance with the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008.

E. Processing of an Application for Temporary Employment Certification

1. Section 655.30 Processing of an Application and Job Order

Under the proposed rule, upon receipt of an

Application for Temporary Employment Certification

and copy of the job order, the CO at the NPC will promptly conduct a comprehensive review of all documentation submitted by the employer to verify employer compliance with program requirements. This process differs from the application processing model under the 2008 Final Rule where the CO initially reviews only attestations.

An additional difference between the 2008 Final Rule and the proposed rule in the review of the

Application for Temporary Employment Certification

is that under the proposed rule, the CO's review of the

Application for Temporary Employment Certification,

in most cases,

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will no longer entail a determination of temporary need, i.e., whether the employer has established a need for the non-agricultural services or labor to be performed that is temporary in nature. Instead, under the proposed rule, this aspect of the CO's review will be 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.

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As provided in the discussion of § 655.11, each employer filing an

Application for Temporary Employment Certification

will be required under the proposed rule to establish temporary need through the registration process. However, in limited circumstances where the employer has applied for a temporary labor certification on an emergency basis under emergency procedures in § 655.17 without an approved

H-2B Registration,

the CO may be required to also make a determination regarding temporary need.

The proposed rule also requires 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 communicates 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.

2. Section 655.31 Notice of Deficiency

Under the proposed rule, the CO will be required to issue a formal Notice of Deficiency where the CO determines that the

Application for Temporary Employment Certification

and/or job order contain errors or inaccuracies, or fails to comply with applicable regulatory and program requirements. The proposed provision requires the CO to issue the Notice within 7 business days from the date on which the NPC receives the employer's

Application for Temporary Employment Certification

and job order. This timeline is designed to ensure that the SWA has sufficient time to conduct its own review of the job order and notify the CO within 4 business days of any deficiencies as provided in § 655.16, as well as the timely processing of an employer's

Application for Temporary Employment Certification.

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 will include the specific reason(s) why the

Application for Temporary Employment Certification

and/or job order is deficient, identify the type of modification necessary in order for the CO to issue a Notice of Acceptance, and provide the employer with an opportunity to submit a modified application and/or job order within 10 business days from the date of the Notice of Deficiency. The Notice will 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 regarding how to file a request for such review in accordance with the administrative review provision under this subpart. Finally, the Notice of Deficiency will inform the employer 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.

The Notice of Deficiency is similar to the Request for Information (RFI) process used by the CO under the 2008 Final Rule. The concurrent submission of the job order to the CO and the SWA will ensure the thorough examination of the employer's job requirements and enable employers to timely and effectively comply with all program requirements.

3. Section 655.32 Submission of a Modified Application or Job Order

As previously stated, the CO will deny any

Application for Temporary Employment Certification

where the employer neither submits a modification nor requests a timely administrative review. A denial of an

Application for Temporary Employment Certification

for failure to timely submit a sufficiently responsive modification or request for review as prescribed above will be final and cannot be appealed. This proposal differs from the 2008 Final Rule, in which the CO has discretion to deny the employer's application or require supervised recruitment if the employer fails to comply with an RFI.

In addition, the proposed rule requires the CO to deny an

Application for Temporary Employment Certification

and/or job order if the modification(s) made by the employer do not comply with the requirements for certification under § 655.50. The proposed rule grants the employer the right to appeal the denial of the modified

Application for Temporary Employment Certification

and/or job order via the administrative review procedures set forth in § 655.61 of this proposed rule.

Under the proposed rule, if the CO accepts the modification(s) and issues a Notice of Acceptance, the CO will require the SWA to modify the job order in accordance with the accepted modification(s), as necessary. The Department proposes this explicit requirement to ensure the integrity of the simultaneous submission process and ensure that any material terms and conditions of employment and employer obligations contained in the job order correspond to the terms, conditions and obligations contained in an accepted

Application for Temporary Employment Certification.

In addition to requiring modification before the acceptance of an

Application for Temporary Employment Certification,

the Department proposes 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 offer of employment does not contain all the applicable minimum benefits, wages, and working conditions. Where the CO requires a later modification, the CO will update the electronic job registry to reflect the necessary modification(s) and 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 employer also is required to disclose the modified job order to all workers who were recruited under the original job order or

Application for Temporary Employment Certification.

This requirement is also new in the proposed rule and is intended to ensure that U.S. workers have access to meaningful employment opportunities and that workers remain informed about the benefits, wages and working conditions offered by the employer.

4. Section 655.33 Notice of Acceptance

Under the proposed rule, the Department requires the CO to issue a formal notice accepting the employer's application for processing. Upon accepting the

Application for Temporary Employment Certification

and job order, the CO will 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.

The Notice of Acceptance under the proposed rule will direct the employer to recruit U.S. workers in accordance with employer-conducted recruitment provisions in §§ 655.40-655.47, as well as to conduct any additional recruitment in accordance with the CO's directions, consistent with § 655.46. The Notice of Acceptance will advise the employer that it must conduct such recruitment of U.S. workers within 14 calendar days from the date of the notice and informs the employer that such employer-conducted recruitment is required in addition to SWA circulation of the job order in intrastate and interstate clearance under § 655.16. The Notice of Acceptance also requires the employer to submit a written report of its recruitment efforts as specified in § 655.48.

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 where the CO directs the SWA to circulate the job order; (2) to keep the job order on its active file and continue to refer U.S. workers to the employer until the end of the recruitment period defined in § 655.40(c); and (3) to transmit the same instructions to all other SWAs to which it transmits the job order. Under the proposed rule, the Notice of Acceptance advises the employer of its obligation to notify all SWAs in possession of 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 indicates to the SWA when to stop referring potential U.S. workers to the employer. In order to increase the exposure of U.S. workers to H-2B job opportunities, the Notice of Acceptance also requires the SWA(s) to circulate a copy of the job order to certain labor organizations, where the job classification is traditionally or customarily unionized, as described in greater detail in § 655.44.

The elements of the Notice of Acceptance described in the proposed rule reflect an enhanced process for the recruitment of U.S. workers. The Department expects these additional requirements will provide timely and meaningful notice of job opportunities

and thus increase the likelihood that U.S. workers will learn of and apply for the available job opportunities.

5. Section 655.34 Electronic Job Registry

The Department proposes 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 the Department proposes to expand the registry to include H-2B job orders. The job orders will be posted by the CO on the job registry after acceptance of an

Application for Temporary Employment Certification

for the duration of the recruitment period, as provided in § 655.40(c). Once the recruitment period has concluded, the job order will be maintained on the registry in inactive status so that the information is available for a variety of purposes. It is expected, for example, that the continued accessibility of inactive orders will increase the transparency of the H-2B process and provide information, for example, for those currently seeking such information from the Department through Freedom of Information Act (FOIA) requests.

Posting job orders on the electronic job registry will serve as an effective, useable tool for alerting U.S. workers to jobs for which H-2B workers are being recruited. The electronic job registry will be accessible to the public through the Department's resources, including its One-Stop Career Centers, as well as through a link to the job registry on the OFLC's Web site

http://www.foreignlaborcert.doleta.gov/.

6. Section 655.35 Amendments to an Application or Job Order

The Department proposes 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 an

Application for Temporary Employment Certification.

The Department's proposed rule would permit an employer to seek amendments to the application and/or job order only before certification, not after certification. These provisions are being proposed to provide clarity to employers and workers alike of the limitations on and processes for amending an application and the need to inform any U.S. workers already recruited of the changed job opportunity. The Department recognizes that employers can face changed circumstances from varying sources—from climactic conditions to cancelled contracts—and is providing some flexibility to assess and respond to such changes. At the same time, the Department proposes certain limitations to ensure that these job opportunities are not misrepresented as a result of such amendments.

Specifically, under the proposed rule, 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, the Department is limiting such amendments to increase the number of workers to no more than 20 percent (50 percent for employers requesting fewer than 10 workers), consistent with § 655.11, that does not permit the use of an

H-2B Registration

in connection with the filing of an

Application for Temporary Employment Certification

if the number of workers required by the employer exceeds the number listed on the approved

H-2B Registration

by 20 percent.

In addition, the proposed rule permits minor changes to the period of employment at any time before the CO's final determination. However, the Department advises that such amendments to the period of employment may not exceed 14 days and may not cause the total period to exceed a total of 9 months, except in the event of a demonstrated one-time occurrence. This limitation to 14 days is consistent with the 14-day period in § 655.11 and is designed to ensure that the employer had a legitimate need before commencing the registration process and accurately estimated its date of need.

The regulation proposes that the employer may request an amendment of the

Application for Temporary Employment Certification

or job order at any time before the CO's final determination. 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, as required under § 655.50, including the ability to thoroughly test the labor market. Changes will not be approved which affect the underlying approval for the job registration.

The proposed rule provides that the employer must request any amendment(s) to the

Application for Temporary Employment Certification

and/or job order in writing and that any such amendment(s) will not be effective until approved by the CO. Once the CO approves an amendment to the

Application for Temporary Employment Certification

or job order, the CO will to submit to the SWA any necessary change to the job order or the amended job order and update the electronic job registry to reflect the approved amendment(s).

The Department's proposed rule allows amendments to the

Application for Temporary Employment Certification

and/or job order only before certification and does not permit the employer to request or the CO to amend a certified

Application for Temporary Employment Certification.

This provision strikes a balance between the employer's need for flexibility in the application process and the Department's intent to make a determination based on the employer's actual need.

F. Recruitment Requirements

1. Section 655.40 Employer-Conducted Recruitment

Unlike the 2008 Final Rule, this proposal requires employers to conduct recruitment only after filing an

Application for Temporary Employment Certification

and receiving a Notice of Acceptance from the CO. The Department proposes this approach so that the employer must demonstrate rather than simply attest that there are not sufficient qualified U.S. workers who would be available to fill the job opportunities for which the employer seeks to hire H-2B workers.

The Department proposes that the employer conduct such 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. This allows the employer time within which to initiate and complete required recruitment as well as ensures that U.S. workers are notified of job opportunities as they become available. The Department further proposes that the employer offer employment to all U.S. applicants who meet the requirements of the job opportunity and will be available to fill the positions.

An employer is obligated to accept all qualified U.S. applicants referred for employment by the SWA until the third day preceding the employer's date of need or the date the last foreign worker departs for the employment, whichever is later. This timeframe increases the opportunity for U.S. workers to fill the available positions without unnecessarily burdening the employer.

Where applicable, the employer must inform the appropriate SWA(s) in writing of a later date of departure so that the SWA knows when to stop referring potential U.S. workers to the employer. Where the employer neglects to inform the SWA of the date of departure of its H-2B workers as required, the employer may be subject to debarment, and/or other remedies.

The Department is considering whether employers must inform the Department not only of the date of the last departure, but also of the actual number of H-2B workers hired under the approved

Application for Temporary Employment Certification.

In addition, the Department is interested in knowing whether the H-2B workers were hired from a foreign country or were already present in the U.S. This will provide the Department and other Federal agencies with essential information on actual utilization of the program.

Like the 2008 Final Rule, the proposed rule clarifies that employers are not required to conduct employment interviews. However, 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. This ensures that employers do not use the interview process to discourage U.S. workers from applying.

Finally, the Department proposes to require the employer to list in its recruitment report filed in accordance with § 655.48, the names of all U.S. applicants referred for employment, whether the applicant was accepted or rejected, and the reason why the applicant was rejected, if applicable.

2. Section 655.41 Advertising Requirements

The employer's advertisements and recruitment activities are essential to providing U.S. workers with sufficient information to make informed employment decisions. In order to ensure a fair test of the labor market, the Department proposes to require 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 in the job order.

The remainder of this proposed section sets out the minimum content requirements for all advertisements. In addition to the requirements outlined in the 2008 Final Rule, the Department proposes to require that the advertisements include the assurances and obligations in the job order. These requirements include, but are not limited to: a statement referring to the three-fourths guarantee in § 655.20(f); a statement that transportation and subsistence to and from the place from which the employee has come to work for the employer will be provided; a statement that work tools, supplies, and equipment will be provided to the worker without charge; and if applicable, a statement that the employer is providing daily transportation to and from the worksite. In addition, the Department proposes that an employer with multiple wage offers, such as one in an itinerant or other occupation for which special procedures apply, must list the range of applicable wage offers in its advertisements/recruitment. The inclusion of such information will ensure that employers disclose all pertinent wage information and that U.S. workers are adequately informed about the wage rate for each job opportunity.

Sections 655.42 through 655.46 of the proposed rule outline the required recruitment steps. In addition to the involvement of the SWAs and the placement of two newspaper advertisements required under the 2008 Final Rule, the Department proposes to require the employer contact former U.S. employees, contact labor organizations in traditionally unionized occupations and industries, and post the availability of the job opportunity at the place of anticipated employment. These additional requirements will increase the likelihood that U.S. workers will learn of and potentially apply for the available job opportunities.

Additionally, many of these recruitment steps are aimed to increase the exposure of the job to the audience most likely to include, or to be able to locate, qualified workers—those closely associated to the job opportunity, either through direct contact with the employer (

i.e.,

former workers) or through secondary contact (

i.e.,

persons who hear about the job from current employees who see the posting notice at the worksite or from a community-based organization or a labor organization in the particular industry or occupation of the job opportunity). Employers using the H-2B program have consistently noted that U.S. workers do not seek out the jobs for which they must then seek foreign labor. Particularly in an economy in which the national unemployment rate has consistently exceeded 9 percent over the past two years, the Department assumes that some group of these available jobs would be taken by U.S. workers but for adequate notification of their existence. The concomitant downturn in the use of H-2B visas reflects the accuracy of the Department's assumption; even with recruitment far less than proposed by this NPRM, H-2B visa usage has been significantly decreased, as U.S. workers seek out these jobs.

3. Section 655.42 Newspaper Advertisements

Newspapers remain an important means to recruit U.S. workers. The Department is seeking comments on alternative advertising media that will reach the greatest number of U.S. workers.

The Department is continuing to require the employer to advertise 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. The employer's advertisements must run on 2 separate days, which may be consecutive, one of which must be a Sunday, unless the job opportunity is located in a rural area in which there is no newspaper with a Sunday edition. In such cases, the CO may permit the employer to substitute the Sunday advertisement with an advertisement in a newspaper with a regularly published daily edition that has the widest circulation in the area of intended employment. The Department further proposes to require that the content of each newspaper advertisement comply with the advertising requirements in § 655.41. The employer will be required to maintain copies of the newspaper pages, tear sheets or other proof of publication for 3 years after final determination to grant or deny the

Application for Temporary Employment Certification,

consistent with document retention requirements under § 655.56.

The Department proposes to no longer allow the employer to replace one of the newspaper advertisements with an advertisement in a professional, trade, or ethnic newspaper. The Department has concluded that newspapers of general circulation are more likely to reach the broader audiences who are more apt to be interested in most H-2B job opportunities and thus would be more appropriate as a recruitment requirement for all employers. However, the Department recognizes that advertisements in professional, trade, or ethnic newspapers may be appropriate for some applications, depending for instance, on the particular occupation and area of employment. Accordingly, the Department is instead proposing to permit the CO to require the employer to advertise in such publication(s) as part of any required additional

employer-conducted recruitment under § 655.46 of this subpart.

4. Section 655.43 Contact With Former U.S. Employees

In this section, the Department proposes 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 to that listed in the

Application for Temporary Employment Certification.

This expands the 2008 Final Rule requirement beyond former U.S. workers that have been laid off within 120 days of the employer's date of need. Employers will not be required to contact those U.S. workers who were dismissed for cause or who abandoned the worksite prior to the completion of the last employment period. Each employer must provide its former U.S. employees a full disclosure of the terms and conditions of the job order, and solicit their return to the job. Employers will be required to maintain documentation to be submitted in the event of an audit or investigation sufficient to prove contact with its former employees consistent with document retention requirements under § 655.56. This documentation may consist of a copy of a form letter sent to all former employees, along with evidence of its transmission (postage account, address list, etc.)

Since under the current regulations, most employers have a period of need of 10 months, the employer's former U.S. workers would be the same group of workers as those who were laid off at the end of work period. While the proposed requirement focuses on a longer period of time than the current requirement, it is unlikely that it will impose a significantly greater burden on employers. If an employer hires workers throughout the year to work for the period of its temporary need, it is unlikely that it will lay those workers off until the period of temporary need ends. Most, if not all workers who leave during the period of temporary need will have either quit or been terminated for cause, and the employer is not required to contact those workers. If for some reason, the employer did lay off some workers who were hired to work during the employer's period of temporary need, before the end of the period of need—

e.g.,

additional workers who were hired for a period of peakload need within the longer period of temporary need, the Department believes that it would be most appropriate to give those workers the first opportunity to take the jobs. Generally, however, there will be little practical difference between the operation of the current regulation and the operation of the proposed regulation except perhaps for seasonal jobs. In a seasonal program, reaching back to contact former employees who were employed over a cycle of a full year would be the minimum amount of time necessary to capture all of the seasonal activities for which H-2B workers are sought. For example, an oceanfront resort employer hires workers at the start of its season in May and releases them in September. The employer then seeks H-2B workers the following March, more than 60 days before the usual date of need. Reaching that particular workforce requires t

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