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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2015-09694

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** April 29, 2015
- **Citation:** 80 FR 24042

## Text

DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 214
[CIS No. 2563-15]
RIN 1615-AC06
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
Wage and Hour Division
29 CFR Part 503
RIN 1205-AB76
Temporary Non-Agricultural Employment of H-2B Aliens in the United States

AGENCY:

U.S. Citizenship and Immigration Services, Department of Homeland Security; Employment and Training Administration, and Wage and Hour Division, Labor.

ACTION:

Interim final rule; request for comments.

SUMMARY:

The Department of Homeland Security (DHS) and the Department of Labor (DOL) are jointly issuing 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 interim final rule establishes the process by which employers obtain a temporary labor certification from DOL for use in petitioning DHS to employ a nonimmigrant worker in H-2B status. We are also issuing regulations to provide for increased worker protections for both United States (U.S.) and foreign workers. DHS and DOL are issuing simultaneously with this rule a companion rule governing the methodology to set the prevailing wage in the H-2B program.

DATES:

This interim final rule is effective April 29, 2015. Interested persons are invited to submit written comments on this interim final rule on or before June 29, 2015.

ADDRESSES:

You may submit comments, identified by Regulatory Information Number (RIN) 1205-AB76, 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 Adele Gagliardi, 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 received after the comment period has closed will not be reviewed. The Departments 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 Departments caution commenters not to include personal information such as Social Security Numbers, personal addresses, telephone numbers, and email addresses in their comments as such 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 email 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 Departments encourage 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 to the Federal eRulemaking portal at
http://www.regulations.gov.
The Departments will also make all the comments received 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, DOL will provide you with appropriate aids such as readers or print magnifiers. DOL will make copies of the rule available, upon request, in large print and as an electronic file on computer disk. DOL will consider providing the interim final 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 ETA 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 8 CFR part 214, contact Steven W. Viger, Adjudications Officer (Policy), Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts NW., Washington, DC 20529-2060; Telephone (202) 272-1470 (this is not a toll-free number).

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

For further information on 29 CFR part 503, contact Mary Ziegler, Director, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, 200 Constitution Avenue NW., Room S-3510, Washington, DC 20210; Telephone (202) 693-0071 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

The Immigration and Nationality Act (INA) establishes the H-2B nonimmigrant classification for a non-agricultural temporary worker “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform . . . temporary [non-agricultural] service or labor if unemployed persons capable of performing such service or labor cannot be found in this country.” 8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b). In accordance with the INA and as discussed in detail in this preamble, the Department of Homeland Security (DHS) consults with the Department of Labor (DOL) with respect to the H-2B program, and DOL provides advice on whether U.S. workers capable of performing the temporary services or labor are available.
See
8 U.S.C. 1184(c)(1), INA

section 214(c)(1) (providing for DHS to consult with “appropriate agencies of the government”). Under DHS regulations, an H-2B petition for temporary employment must be accompanied by an approved temporary labor certification from DOL, which serves as DOL's advice to DHS regarding whether a qualified U.S. worker is available to fill the petitioning H-2B employer's job opportunity and whether a foreign worker's employment in the job opportunity will adversely affect the wages or working conditions of similarly employed U.S. workers.
See
8 CFR 214.2(h)(6)(iii)(A) and (D).

This interim final rule, which is virtually identical to the 2012 final rule that DOL developed following public notice and comment, improves DOL's ability to determine whether it is appropriate to grant a temporary employment certification. For reasons described in further detail below, DOL never implemented the 2012 final rule; as a result, this rulemaking contains a number of improvements to the temporary employment certification process that was in place on March 4, 2015. This interim final rule expands the ability of U.S. workers to become aware of the job opportunities in question and to apply for opportunities in which they are interested. For example, this interim final rule includes new recruitment and other requirements to broaden the dissemination of job offer information (such as by introducing the electronic job registry and the possibility of additional required contact with community-based organizations). The interim final rule also requires the job offer to remain open to U.S. workers until 21 days before the employer's start date of need, which provides a longer application period that ends closer to the date of need than was previously required. The interim final rule also reverts back to the compliance-based certification model that had been used prior to the 2008 final rule, rather than continuing to use the attestation model. Finally, the interim final rule also adopts an employer registration process that requires employers to demonstrate their temporary need for labor or services before they apply for a temporary labor certification, which expedites the certification process; additionally, the resulting registration may remain valid for up to three years, thereby shortening the employer's certification process in future years.

The interim final rule also provides a number of additional worker protections, such as increasing the number of hours per week required for full-time employment and requiring that U.S. workers in corresponding employment receive the same wages and benefits as the H-2B workers. It also requires that employers must guarantee employment for a total number of work hours equal to at least three-fourths of the workdays in specific periods for both H-2B workers and workers in corresponding employment. The interim final rule requires employers to pay visa and related fees of H-2B workers, and it requires employers to pay the inbound transportation and subsistence costs of workers who complete 50 percent of the job order period and the outbound transportation and subsistence expenses of employees who complete the entire job order period. Finally, it prohibits employers from retaliating against employees for exercising rights under the H-2B program.

The interim final rule also contains a number of provisions that will lead to increased transparency. It requires employers to disclose their use of foreign labor recruiters in the solicitation of workers; to provide workers with earnings statements, with hours worked and offered and deductions clearly specified; to provide workers with copies of the job order; and to display a poster describing employee rights and protections. The Departments believe that these procedures and additional worker protections will lead to an improved temporary employment certification process.

Summing the present value of the costs associated with this rulemaking in Years 1-10 results in total discounted costs over 10 years of $9.24 million to $10.58 million (with 7 percent and 3 percent discounting, respectively).

Table 1—Summary of Estimated Cost and Transfers by Provision
[Millions of dollars]

Undiscounted

Cost component

Transfers and costs by year
(in millions of dollars)

Year 1
costs

Year 2-10 costs
Year 1-10 costs

Transfers

Corresponding Workers' Wages—Low
$18.21
$18.21
$182.1

Corresponding Workers' Wages—High
$54.62
$54.62
$546.2

Transportation
$55.19
$55.19
$551.9

Subsistence
$3.13
$3.13
$31.3

Lodging
$1.87
$1.87
$18.66

Visa and Border Crossing Fees
$10.65
$10.65
$106.48

Total Transfers—Low
$87.24
$87.24
$890.43

Total Transfers—High
$125.45
$125.45
$1,254.52

Costs to Employers

Additional Recruiting
$0.76
$0.76
$7.57

Disclosure of Job Order
$0.23
$0.23
$2.34

Read and Understand Rule
$0.98
$0
$0.98

Document Retention
$0.27
$0
$0.27

Other Provisions
a

$0.014
$0.014
$0.14

Total Costs to Employers
$2.25
$1.01
$11.30

Costs to Government

Electronic Job Registry
$0.14
$0.05
$0.56

Enhanced U.S. Worker Referral Period
Not Estimated
Not Estimated
Not Estimated

Total Costs to Government
$0.14
$0.05
$0.56

Total Costs & Transfers

Total Costs and Transfers—Low
$91.43
$90.09
$902.28

Total Costs and Transfers—High
$127.84
$126.50
$1,266.37

Total Transfers—Low
$89.04
$89.04
$890.43

Total Transfers—High
$125.45
$125.45
$1,254.52

Total Costs
$2.39
$1.05
$11.85

Note:
Totals may not sum due to rounding.

a
Includes the sum of: Elimination of Attestation-Based Model; Post Job Opportunity; Workers Rights Poster.

Table 2—Summary of Costs and Transfers—Sum of Present Values

Cost component

Transfers and costs
(millions of dollars)

Year 1-10 costs

Present Value—7% Real Interest Rate

Total Costs & Transfers—Low
$678.42

Total Costs & Transfers—High
952.04

Total Transfers—Low
669.18

Total Transfers—High
942.80

Total Costs
9.24

Present Value—3% Real Interest Rate

Total Costs & Transfers—Low
$792.92

Total Costs & Transfers—High
1,112.81

Total Transfers—Low
782.34

Total Transfers—High
1,102.23

Total Costs
10.58

Note:
Totals may not sum due to rounding.

II. Background

A. The Statutory and Regulatory Framework

The INA establishes the H-2B nonimmigrant classification for a non-agricultural temporary worker “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform . . . temporary [non-agricultural] service or labor if unemployed persons capable of performing such service or labor cannot be found in this country.” 8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b). Section 214(c)(1) of the INA, 8 U.S.C. 1184(c)(1), requires an importing employer (H-2B employer) to petition DHS for classification of the prospective temporary worker as an H-2B nonimmigrant.
1

DHS must approve this petition before the beneficiary can be considered eligible for an H-2B visa or H-2B status. Finally, the INA requires that “[t]he question of importing any alien as [an H-2B] nonimmigrant . . . in any specific case or specific cases shall be determined by [DHS], after consultation with appropriate agencies of the Government, upon petition of the importing employer.” 8 U.S.C. 1184(c)(1), INA section 214(c)(1).

1
Under section 1517 of title XV of the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, any reference to the Attorney General in a provision of the INA describing functions that were transferred from the Attorney General or other Department of Justice official to DHS by the HSA “shall be deemed to refer to the Secretary” of Homeland Security.
See
6 U.S.C. 557 (2003) (codifying HSA, tit. XV, sec. 1517); 6 U.S.C. 542 note; 8 U.S.C. 1551 note.

Pursuant to the above-referenced authorities, DHS has promulgated regulations implementing the H-2B program.
See, e.g.,
73 FR 78104 (Dec. 19, 2008). These regulations prescribe the conditions under which DHS may grant an employer's petition to classify an alien as an H-2B worker.
See
8 CFR 214.2(h)(6). U.S. Citizenship and Immigration Services (USCIS) is the component agency within DHS that adjudicates H-2B petitions.
Id.

USCIS examines H-2B petitions for compliance with a range of statutory and regulatory requirements. For instance, USCIS will examine each petition to ensure,
inter alia,
(1) that the job opportunity in the employer's petition is of a temporary nature, 8 CFR 214.2(h)(1)(ii)(D), (6)(ii) and (6)(vi)(D); (2) that the beneficiary alien meets the educational, training, experience, or other requirements, if any, attendant to the job opportunity described in the petition, 8 CFR 214.2(h)(6)(vi)(C); (3) that there are sufficiently available H-2B visas in light of the applicable numerical limitation for H-2B visas, 8 CFR 214.2(h)(8)(ii)(A); and (4) that the application is submitted consistent with strict requirements ensuring the integrity of the H-2B system, 8 CFR 214.2(h)(6)(i)(B), (6)(i)(F).
2

2
DHS also publishes annually a list of countries whose nationals are eligible to participate in the H-2B visa program in the coming year.
See
8 CFR 214.2(h)(6)(i)(E);
see also, e.g.,
79 FR 3214 (Jan. 17, 2014 notice of eligible country list). As part of its adjudication of H-2B petitions, USCIS must determine whether the alien beneficiary is a national of a country on the list; if not, USCIS must determine whether it is in the U.S. national interest for that alien to be a beneficiary of such petition.
See
8 CFR 214.2(h)(6)(i)(E).

DHS has implemented the statutory protections attendant to the H-2B program, by regulation.
See
8 CFR 214.2(h)(6)(iii), (iv), and (v). In accordance with the statutory mandate at 8 U.S.C. 1184(c)(1), INA section 214(c)(1), that DHS consult with “appropriate agencies of the government” to determine eligibility for H-2B nonimmigrant status, DHS (and the former Immigration and Naturalization Service (“legacy INS”)) have long recognized that the most effective administration of the H-2B program requires consultation with DOL to advise whether U.S. workers capable of performing the temporary services or labor are available.
See, e.g.,
Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act, 55 FR 2606, 2617 (Jan. 26, 1990) (“The Service must seek advice from the Department of Labor under the H-2B classification because the statute requires a showing that unemployed U.S. workers are not available to perform the services before a petition can be approved. The Department of Labor is the appropriate agency of the Government to make such a labor

market finding. The Service supports the process which the Department of Labor uses for testing the labor market and assuring that wages and working conditions of U.S. workers will not be adversely affected by employment of alien workers.”).

Accordingly, DHS regulations require that an H-2B petition for temporary employment in the United States must be accompanied by an approved temporary labor certification from DOL. 8 CFR 214.2(h)(6)(iii)(A) and (iv)(A).
3

The temporary labor certification serves as DOL's advice to DHS with respect to whether a qualified U.S. worker is available to fill the petitioning H-2B employer's job opportunity and whether a foreign worker's employment in the job opportunity will adversely affect the wages or working conditions of similarly employed U.S. workers.
See
8 CFR 214.2(h)(6)(iii)(A) and (D). In addition, as part of DOL's certification, DHS regulations require DOL to “determine the prevailing wage applicable to an application for temporary labor certification in accordance with the Secretary of Labor's regulation at 20 CFR 655.10.” 8 CFR 214.2(h)(6)(iii)(D).

3
The regulation establishes a different procedure for the Territory of Guam, under which a petitioning employer must apply for a temporary labor certification with the Governor of Guam. 8 CFR 214.2(h)(6)(iii)(A).

DHS relies on DOL's advice in this area, as DOL is the appropriate government agency with expertise in labor questions and historic and specific expertise in addressing labor protection questions related to the H-2B program. This advice helps DHS fulfill its statutory duty to determine, prior to approving an H-2B petition, that unemployed U.S. workers capable of performing the relevant service or labor cannot be found in the United States. 8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b); 8 U.S.C. 1184(c)(1), INA section 214(c)(1). DHS has therefore made DOL's approval of a temporary labor certification a condition precedent to the acceptance of the H-2B petition. 8 CFR 214.2(h)(6)(iii) and (vi). Following receipt of an approved DOL temporary labor certification and other required evidence, USCIS may adjudicate an employer's complete H-2B petition.
Id.

Consistent with the above-referenced authorities, since at least 1968,
4

DOL has established regulatory procedures to certify whether a qualified U.S. worker is available to fill the job opportunity described in the employer's petition for a temporary nonagricultural worker, and whether a foreign worker's employment in the job opportunity will adversely affect the wages or working conditions of similarly employed U.S. workers.
See
20 CFR part 655, subpart A. This interim final rule establishes the process by which employers obtain a temporary labor certification and the protections that apply to H-2B workers and corresponding workers. As part of DOL's temporary labor certification process, which is a condition precedent for employers seeking to apply for H-2B workers under DHS regulations, 8 CFR 214.2(h)(6)(iii)(D) and (iv), DOL sets the minimum wage that employers must offer and pay foreign workers admitted to the United States in H-2B nonimmigrant status.
See
20 CFR 655.10. The companion final wage rule issued simultaneously with this interim final rule establishes DOL's methodology for setting the wage, consistent with the INA and existing DHS regulations.

4
DHS has required a temporary labor certification as a condition precedent to adjudication of an H-2B petition for temporary employment in the United States since 2008. 73 FR 78103. DOL, however, has promulgated regulations governing its adjudication of employer applications for temporary labor certification since 1968.
See
33 FR 7570 (May 22, 1968) (DOL final rule on certification of temporary foreign labor for industries other than agriculture and logging). Until 1986, there was a single H-2 temporary worker classification applicable to both temporary agricultural and non-agricultural workers. In 1986, Congress revised the INA to create two separate programs for agricultural (H-2A) and non-agricultural (H-2B) workers.
See
INA 101(a)(15)(H)(ii), 66 Stat. 163 (June 27, 1952); Immigration Reform and Control Act of 1986, Pub. L. 99-603, sec. 301, 100 Stat. 3359. Under the 1968 final rule, DOL considered, “such matter[s] as the employer's attempts to recruit workers and the appropriateness of the wages and working conditions offered.” 33 FR at 7571.

As discussed above, DHS has determined that the most effective implementation of the statutory labor protections in the H-2B program requires that DHS consult with DOL for its advice about matters with which DOL has unique expertise, particularly questions about testing the U.S. labor market and the methodology for setting the prevailing wage in the H-2B program. The most effective method for DOL to provide this consultation is by the agencies setting forth in regulations the standards that DOL will use to provide that advice. These rules set the standards by which employers demonstrate to DOL that they have tested the labor market and found no or insufficient numbers of qualified, available U.S. workers, and set the standards by which employers demonstrate to DOL that the offered employment does not adversely affect U.S. workers. By setting forth this structure in regulations, DHS and DOL ensure the provision of this advice by DOL is consistent, transparent, and provided in the form that is most useful to DHS.

In addition, effective January 18, 2009, pursuant to 8 U.S.C. 1184(c)(14)(B), INA section 214(c)(14)(B), DHS transferred to DOL its enforcement authority for the H-2B program.
See, e.g.,
8 CFR 214.2(h)(6)(ix) (stating that DOL may investigate employers to enforce compliance with the conditions of, among other things, an H-2B petition and a DOL-approved temporary labor certification). Under this authority, and after consultation with DHS, DOL established regulations governing enforcement of employer obligations and the terms and conditions of H-2B employment. Accordingly, this interim final rule sets forth enforcement provisions.

As discussed in greater detail below, DOL's authority to issue its own legislative rules to carry out its duties under the INA has been challenged in litigation. On April 1, 2013, the U.S. Court of Appeals for the Eleventh Circuit upheld a district court decision that granted a preliminary injunction against enforcement of the 2012 H-2B rule, 77 FR 10038, on the ground that the employers were likely to prevail on their allegation that DOL lacks H-2B rulemaking authority.
Bayou Lawn & Landscape Servs.
v.
Sec'y of Labor,
713 F.3d 1080 (11th Cir. 2013). As a result of the preliminary injunction in
Bayou,
DOL continued to operate the H-2B program under the predecessor 2008 rule. On remand, the district court issued an order vacating the 2012 H-2B rule, and permanently enjoined DOL from enforcing the rule on the ground that DOL lacks rulemaking authority in the H-2B program.
Bayou Lawn & Landscape Servs.
v.
Sec'y of Labor,
No. 3:12-cv-183 (N.D. Fla. Dec. 18, 2014) (
Bayou II
). The
Bayou II
decision is currently on appeal to the Eleventh Circuit. On the other hand, on February 5, 2014, the U.S. Court of Appeals for the Third Circuit held that “DOL
has
authority to promulgate rules concerning the temporary labor certification process in the context of the H-2B program, and that the 2011 Wage Rule was validly promulgated pursuant to that authority.”
La. Forestry Ass'n
v.
Perez,
745 F.3d 653, 669 (3d Cir. 2014) (emphasis added).

To ensure that there can be no question about the authority for and validity of the regulations in this area, DHS and DOL (the Departments), together, are issuing this interim final rule. By proceeding together, the Departments affirm that this rule is fully consistent with the INA and implementing DHS regulations and is

vital to DHS's ability to faithfully implement the statutory labor protections attendant to the program.
See
8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b); 8 U.S.C. 1184(c)(1), INA section 214(c)(1); 8 CFR 214.2(h)(6)(iv). This interim final rule implements a key component of DHS's determination that it must consult with DOL on the labor market questions relevant to its adjudication of H-2B petitions. This interim final rule also executes DHS's and DOL's determination that implementation of the consultative relationship may be established through regulations that determine the method by which DOL will provide the necessary advice to DHS. Finally, this interim final rule sets forth enforcement procedures and remedies pursuant to DHS's delegation of enforcement authority to DOL.
See
8 U.S.C. 1184(c)(14)(B), INA section 214(c)(14)(B); 8 CFR 214.2(h)(6)(ix).

B. The 2008 Rule and the CATA Litigation

In 2008, DOL issued regulations governing DOL's role in the H-2B temporary worker program. Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes, 73 FR 78020 (Dec. 19, 2008) (the 2008 rule). The 2008 rule established, among other things, the framework for DOL to receive, review and issue H-2B labor certifications. The 2008 rule also established a methodology for determining the wage that a prospective H-2B employer must pay, the recruitment standards for testing the domestic labor market, and the mechanism for processing prevailing wage requests.
Id.
In addition, the 2008 rule governed the enforcement process to make certain U.S. and H-2B workers are employed in compliance with H-2B labor certification requirements.

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,
No. 2:09-cv-240, 2010 WL 3431761 (E.D. Pa. Aug. 30, 2010) (
CATA I
), invalidated various provisions of the 2008 rule and remanded it to DOL. In response to
CATA I,
DOL's 2012 H-2B rule, which was ultimately enjoined in
Bayou,
revised the particular provisions that were invalidated by the Court, including specifying when H-2B employers must contact unions as a potential source of labor, and providing a new definition of full-time and a modified definition of job contractor.
5

See CATA I,
2010 WL 3431761 at *26-27.

5
Also in response to
CATA I,
which held that part of the methodology to set the prevailing wage was invalid because it was not adequately explained, 2010 WL 3431761 at *19, DOL issued separately a rule governing the methodology to set the H-2B prevailing wage.
See
Wage Methodology for the Temporary Non-agricultural Employment H-2B Program, on January 19, 2011, 76 FR 3452 (the 2011 Wage Rule). Shortly before the 2011 Wage Rule came into effect, Congress issued an appropriations rider effectively barring implementation of the 2011 Wage Rule, and the same rider was issued in every appropriations enactment until January 2014. During the period DOL was unable to implement the 2011 Wage Rule, DOL extended the effective date of the 2011 Wage Rule so that it would not come into effect while the agency was without the appropriations necessary to implement it. DOL was never able to implement the 2011 Wage Rule and continued to rely on the 2008 Rule. Therefore, the court in 2013 vacated the problematic provision (20 CFR 655.10(b)(2)) and ordered the DOL to come into compliance in 30 days.
Comite de Apoyo a los Trabajadores Agricolas
v.
Solis,
933 F. Supp. 2d 700 (E.D. Pa. 2013) (
CATA II
).

In response to the vacatur and 30-day compliance order in
CATA II,
and the Eleventh Circuit's decision in
Bayou Lawn & Landscape Servs.,
discussed
supra,
DOL and DHS promulgated an interim final rule, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, part 2, 78 FR 24047 (Apr. 24, 2013) (2013 IFR), which again revised the wage methodology. The Departments issued the 2013 IFR jointly to dispel questions that arose as a result of
Bayou
about the respective roles of the two agencies and the validity of DOL's regulations as an appropriate way to implement the interagency consultation specified in section 214(c)(1) of the INA, 8 U.S.C. 1184(c)(1). Finally, the U.S. Court of Appeals for the Third Circuit vacated on substantive and procedural APA grounds 20 CFR 655.10(f), which permitted employers to submit employer-conducted surveys.
Comite de Apoyo a los Trabajadores Agricolas
v.
Perez,
774 F.3d 173, 191 (3d Cir. 2014) (
CATA III
). For a complete history of the regulations governing the methodology to set the prevailing wage in the H-2B program, see the companion rule published in this issue of the
Federal Register
, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program (2015), which finalizes the 2013 IFR following public input on the proper H-2B wage methodology.

C. The Perez Vacatur, Good Cause To Proceed Without Notice and Comment Rulemaking, and Request for Comments

1. The Perez Vacatur and Its Impact on Program Operations

On March 4, 2015, the U.S. District Court for the Northern District of Florida, which previously had vacated DOL's 2012 H-2B rule and enjoined its enforcement in
Bayou II,
vacated the 2008 rule and permanently enjoined DOL from enforcing it.
Perez
v.
Perez,
No. 14-cv-682 (N.D. Fla. Mar. 4, 2015). As in its decision in
Bayou II
vacating the 2012 H-2B rule, the court in
Perez
found that DOL lacked authority under the INA to independently issue legislative rules governing the H-2B program.
Perez,
slip op. at 6. Based on the vacatur order and the permanent injunction in
Perez,
DOL immediately ceased operating the H-2B program because it no longer has any existing regulation establishing the processes necessary to issue temporary labor certifications. Shortly after the court issued its decision, DOL posted a notice on its Web site informing the public that “effective immediately, DOL can no longer accept or process requests for prevailing wage determinations or applications for labor certification in the H-2B program.”
6

As a result of the
Perez
vacatur order, DOL was unable to process any H-2B temporary employment certification applications or issue any H-2B certifications as advice to DHS, which effectively shut down the H-2B program for all employers filing new H-2B temporary employment certification applications with DOL. In addition, the
Perez
vacatur order eliminated the crucial regulatory provision that the “employer must request a prevailing wage determination from the NPC in accordance with the procedures established by this regulation” set out at 20 CFR 655.10(a), thus leaving DOL unable to process any prevailing wage requests or issue any prevailing wage determinations.
7

6
Employment and Training Administration,
Announcements, http://www.foreignlaborcert.doleta.gov
(Mar. 4, 2015).

7
The court order in
Perez
did not vacate the 2013 IFR, and the court's judgment on DOL's independent regulatory authority did not have a direct impact on the 2013 IFR, which was issued jointly by DOL and DHS. However, the 2013 IFR did only one thing: it made a single change to § 655.10(b)(2) to eliminate the use of skill levels in setting wages based on the OES. The 2013 IFR left untouched all the other provisions in the 2008 wage methodology, and those provisions remained in full force and effect in the 2008 rule following the publication of the 2013 IFR. As a result, the
Perez
order vacated virtually all of § 655.10, except for § 655.10(b)(2), which was promulgated in the 2013 IFR. Thus, the vacatur eliminated DOL's wage methodology (except for § 655.10(b)(2)) as well as the procedures for requesting and obtaining prevailing wages. Together with the vacatur of § 655.10(f) in
CATA III,
this ruling left DOL without a complete methodology or any procedures to set prevailing wages in the H-2B program until the court's stay. As explained
infra,
the
Perez
court has stayed its vacatur order until May 15, 2015, and at the expiration of the stay, DOL will once again be without a complete methodology or any procedures to set and issue the prevailing wage in the H-2B program.

At the time of the
Perez
vacatur order on March 4, 2015, DOL had pending over 400 requests to set the prevailing wage for an H-2B occupation, and almost 800 applications for H-2B temporary labor certification representing approximately 16,408 workers. In order to minimize disruption to the H-2B program and to prevent economic dislocation to employers and employees in the industries that rely on H-2B foreign workers and to the general economy of

the areas in which those industries are located, on March 16, 2015, DOL filed an unopposed motion requesting a temporary stay of the
Perez
vacatur order. On March 18, 2015, the court entered an order temporarily staying the vacatur of the H-2B rule until and including April 15, 2015. On April 15, 2015, at the request of proposed intervenors, the court entered a second order extending the temporary stay up to and including May 15, 2015. The court in
Perez
has requested briefing on several issues, including whether the plaintiff had standing to challenge the 2008 rule. The court's extension of the stay on April 15 occurred late in the day, after DOL had already initiated processes necessary to provide for an orderly cessation of the H-2B program and after DOL had already posted a notice to the regulated community on its Web site that the H-2B program would be closed again the next day. On April 16, 2015, following the court's stay extension, DOL immediately posted a new notice on its Web site that it would continue to operate the H-2B program and resume normal operations.

DHS is charged with adjudicating petitions for a nonimmigrant worker (commonly referred to as Form I-129 petitions or, in this rule, “H-2B petitions”), filed by employers seeking to employ H-2B workers, but, as discussed earlier, Congress directed the agency to issue its decisions relating to H-2B petitions “after consultation with appropriate agencies of the Government.” 8 U.S.C. 1184(c)(1), INA section 214(c)(1). Legacy INS and now DHS have historically consulted with DOL on U.S. labor market conditions to determine whether to approve an employer's petition to import H-2B workers.
See
73 FR 78104, 78110 (DHS) (Dec. 19, 2008); 55 FR 2606, 2617 (INS) (Jan. 26, 1990). DOL plays a significant role in the H-2B program because DHS “does not have the expertise needed to make any labor market determinations, independent of those already made by DOL.” 73 FR at 78110;
see also
55 FR at 2626. Without consulting with DOL, DHS lacks the expertise to adequately make the statutorily mandated determination about the availability of United States workers to fill the proposed job opportunities in the employers' Form I-129 petitions.
See
8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b); 78 FR 24047, 24050 (DHS-DOL) (Apr. 24, 2013). DHS regulations therefore require employers to obtain a temporary labor certification from DOL before filing a petition with DHS to import H-2B workers.
See
8 CFR 214.2(h)(6)(iii)(A), (C), (iv)(A). In addition, as part of DOL's certification, DHS regulations require DOL to “determine the prevailing wage applicable to an application for temporary labor certification in accordance with the Secretary of Labor's regulation at 20 CFR 655.10.” 8 CFR 214.2(h)(6)(iii)(D).

DOL has fulfilled its consultative role in the H-2B program through the use of legislative rules to structure its advice to legacy INS and now DHS for several decades.
See
33 FR 7570-71 (DOL) (May 22, 1968); 73 FR 78,020 (DOL) (Dec. 19, 2008). Before DOL issued the 2008 rule, it supplemented its regulations with guidance documents that set substantive standards for wages and recruitment and structured the manner in which the agency processed applications for H-2B labor certification.
See
73 FR at 78021-22. One district court has held that DOL's pre-2008 H-2B guidance document was a legislative rule that determined the rights and obligations of employers and employees, and DOL's failure to issue the guidance through the notice and comment process was a procedural violation of the APA. As a result, the court invalidated the guidance.
See CATA I,
2010 WL 3431761, at *19, 25. Similarly, the U.S. Court of Appeals for the D.C. Circuit has held that DOL violated the procedural requirements of the APA when it established requirements that “set the bar for what employers must do to obtain approval” of the H-2A labor certification application, including wage and housing requirements, in guidance documents.
Mendoza
v.
Perez,
754 F.3d 1002, 1024 (D.C. Cir. 2014) (setting substantive standards for labor certification in the H-2A program requires legislative rules subject to the APA's notice and comment procedural requirements). The APA therefore prohibits DOL from setting substantive standards for the H-2B program through the use of guidance documents that have not gone through notice-and-comment rulemaking. As a result, if and when the temporary stay concludes, without this interim final rule, DOL will not be able to provide employers with temporary labor certifications necessary to allow importation of foreign workers under the H-2B program because DOL may not rely on subregulatory guidance standards, and has no prior rule to reinstate. Accordingly, DOL would again be forced to cease H-2B program operations, thus prohibiting DOL from processing temporary employment certification applications and prevailing wage requests, unless a rule was in place.

As with the two weeks in March 2015, the Departments are again facing the prospect of experiencing another program hiatus if and when the temporary stay expires on or before May 15, 2015. DOL's 2008 rule is the only comprehensive mechanism in place for DOL to provide advice to DHS because the 2008 rule sets the framework, procedures, and applicable standards for receiving, reviewing, and issuing H-2B prevailing wages and temporary labor certifications. The 2008 rule sets the recruitment standards for testing the domestic labor market and provides the rules for processing prevailing wage requests. DHS is precluded by its own regulations from accepting any H-2B petition without a temporary labor certification from DOL.
See
8 CFR 214.2(h)(6)(iii)(C). Moreover, without advice from DOL, DHS lacks the capability to test the domestic labor market or determine whether there are available U.S. workers to fill the employer's job opportunity. As a result, if and when the stay concludes as currently scheduled on or before May 15, 2015, the vacatur of DOL's 2008 rule will require DOL to once again cease operating the H-2B program, and DOL will again be unable to process employers' requests for temporary employment certification applications until the agencies can put in place a new mechanism for fulfilling the statutory directive to ensure that the importation of foreign workers will not harm the domestic labor market.
See
8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b). Moreover, if the temporary stay is lifted, the vacatur of DOL's 2008 rule will void the enforcement regime by which DOL has carried out its statutorily-delegated enforcement authority.
See
8 U.S.C. 1184(c)(14)(B), INA section 214(c)(14)(B).

2. Good Cause To Proceed Without Notice and Comment and With an Immediate Effective Date

The APA authorizes agencies to issue a rule without notice and comment upon a showing of good cause. 5 U.S.C. 553(b)(B). The APA's good cause exception to public participation applies upon a finding that those procedures are “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). Although the term is not defined in the APA, the accompanying Senate report described “impracticable” as “a situation in which the due and required execution of the agency functions would be unavoidably prevented by its undertaking public rule-making proceedings.” S. Rep. No. 752, 79th Cong., 1st Sess. 200 (1945). The “ `[p]ublic interest' supplements . . . `impracticable' [and] requires that

public rule-making procedures shall not prevent an agency from operating.”
Id.

Under the APA's “good cause” exception to notice and comment, an agency can take steps to minimize discontinuity in its program after the court has vacated a rule.
Mid-Tex Elec. Coop.
v.
FERC,
822 F.2d 1123, 1131-34 (D.C. Cir. 1987) (upholding good cause to issue a post-remand interim rule);
see also Shell Oil Co.
v.
EPA,
950 F.2d 741, 752 (D.C. Cir. 1991) (observing that where the agency had a regulatory void as the result of a vacatur of its rule, it should consider issuing an interim rule under the good cause exception because of the disruptions posed by discontinuity in the regulations);
Action on Smoking and Health
v.
Civil Aeronautics Bd.,
713 F.2d 795, 800 (D.C. Cir. 1983) (same). Moreover, courts find “good cause” under the APA when an agency is moving expeditiously to eliminate uncertainty or confusion that, left to linger, could cause tangible harm or hardship to the agency, the program, program users, or other members of the public.
See, e.g.,

Mid-Tex,
822 F.2d at 1133-34 (agency had good cause to promote continuity and prevent “irremedial financial consequences” and “regulatory confusion”);
Nat'l Fed'n of Fed. Employees
v.
Devine,
671 F.2d 607, 609, 611 (D.C. Cir. 1982) (agency had good cause based on emergency circumstances, including uncertainty created by pending litigation about significant aspects of the program, and potential harm to agency, to program, and to regulated community);
Am. Fed'n of Gov't Emp., AFL-CIO
v.
Block,
655 F.2d 1153, 1157 (D.C. Cir. 1981) (agency had good cause where absence of immediate guidance from agency would have forced reliance upon antiquated guidelines, causing confusion among field administrators and economic harm and disruption to industry and consumers);
Woods Psychiatric Inst.
v.
United States,
20 Cl. Ct. 324, 333 (1990), aff'd, 925 F.2d 1454 (Fed. Cir. 1991) (agency had good cause when program would continue to suffer administrative difficulties that had previously resulted in litigation and might continue to result in litigation due to uncertainty and confusion over scope of benefits, program standards, and eligibility requirements). Based on these legal standards and for the reasons set forth below, the Departments conclude that it is impracticable and contrary to the public interest to issue this rule under the APA's standard notice and comment procedures. DOL and those employers and employees who are involved in the H-2B program have already experienced one regulatory lapse and anticipate another, which provides a sound foundation for the Departments' good cause to proceed without notice and comment. Moreover, even in the absence of another regulatory lapse, confusion and disarray will persist in the H-2B program as a result of uncertainty about the rules governing the program, which includes ambiguity about DOL's ability to enforce protections afforded to U.S. and foreign workers, and this provides further good cause to proceed with this interim final rule without notice and public comment.

As an initial matter, DOL has already had to cease operating the H-2B program for two weeks in March 2015, and faces this prospect again at the expiration of the stay on or before May 15, 2015. Given the expectation of another regulatory void, were the Departments to follow the standard APA procedures, resumption of the H-2B program would be substantially delayed by the Departments' issuance of a notice of proposed rulemaking and request for comment, the time-consuming process involved in analyzing and responding to comments, and the publication of a final rule. Despite the fact that the statutory cap on H-2B visas has been reached for FY 2015, employers would normally now start the process for applying for temporary employment certifications for FY 2016 by: Filing requests for Prevailing Wage Determinations (PWDs); performing the required recruitment of U.S. workers; and submitting applications for temporary employment certification. In the absence of a rule, employers would not be able to take such actions.
8

Therefore, DHS and DOL must act swiftly to enable the agencies to meet their statutory obligations under the INA and to prevent further economic dislocation to employers and employees in anticipation of another regulatory void that will occur upon resumption of the
Perez
vacatur order.

8
Moreover, there may be petitions on behalf of H-2B workers who are exempt from, or have already been counted toward, the H-2B visa cap. These petitions will be affected if employers of these cap-exempt workers are unable to apply for temporary employment certifications.

Moreover, the on-again-off-again nature of H-2B program operations has created substantial confusion, uncertainty and disarray for the agencies and the regulated community. The original vacatur order in
Perez
effectively required the agency to immediately cease operation of the H-2B program, leaving unresolved hundreds of time-sensitive pending applications for prevailing wages and certifications. Two weeks later, following the court's stay of the vacatur and upon resumption of the H-2B program, those cases pending on the date of the vacatur created a backlog of applications, while, at the same time, employers began filing new applications for prevailing wages and certifications. DOL worked diligently and quickly to address the backlog and simultaneously keep up with new applications. Then, facing the expiration of the stay on April 15, 2015, DOL once again prepared to cease H-2B operations, which included posting a notice to the regulated community on its Web site that day announcing another closure, which was then obviated at the last minute by the court's extension of the stay late in the day on April 15. The next day, DOL announced that despite its earlier announcement, it would continue to operate the H-2B program as a result of the stay extension. These circumstances, which are beyond the Departments' ability to control, have resulted in substantial disorder and upheaval for the Departments, as well as employers and employees involved in the H-2B program.

This uncertainty and confusion is particularly applicable to DOL's ability to enforce rights and obligations under the H-2B program. Even if the temporary stay were to continue beyond May 15 or the court in
Perez
dismisses the case (for example, finding that the plaintiff lacked standing), it is necessary to dispense with notice and comment to ensure that DOL has the continued ability to take enforcement actions to protect H-2B and U.S. workers. As discussed above, employers have challenged DOL's independent regulatory authority in the H-2B program, and courts have issued decisions both affirming and repudiating that authority.
Compare La. Forestry Ass'n
v.
Perez,
745 F.3d at 669,
Bayou,
713 F.3d at 1084,
and Perez,
at slip op. at 6. As a result, one circuit has already found that DOL lacked independent regulatory authority to issue DOL's 2012 H-2B rule, and a district court has ruled similarly with respect to the 2008 rule, which DOL relied on to fill the regulatory void created in 2012. Based on these adverse precedents, the 2008 rule—the only vehicle under which DOL can presently administer and enforce the H-2B program—will remain vulnerable to challenges by employers in current and future enforcement proceedings based on the ground that the regulations DOL is seeking to enforce are void because DOL exceeded its statutory authority in

unilaterally issuing the 2008 rule.
9

In this regard, the statute of limitations under the APA would not likely be available to DOL in such challenges because, even where the statute of limitations for a facial challenge has run, a litigant may challenge statutory authority for a rule in an enforcement proceeding when the rule is applied to it.
10

See Wong
v.
Doar,
571 F.3d 247, 263 n. 15 (2d Cir. 2009) (statute of limitations for a substantive challenge “begins to run at the time of the adverse agency action on the particular claim”);
Indep. Cmty. Bankers of Am.
v.
Bd. of Governors of Fed. Reserve Sys.,
195 F.3d 28, 34 (D.C. Cir. 1999) (“We have frequently said that a party against whom a rule is applied may, at the time of application, pursue substantive objections to the rule, including claims that an agency lacked the statutory authority to adopt the rule, even where the petitioner had notice and opportunity to bring a direct challenge within statutory time limits.”);
see also Coal River Energy LLC
v.
Jewell,
751 F.3d 659, 664 (D.C. Cir. 2014) (“A substantive defense is one based on an argument that a regulation is not authorized by a statute or the Constitution, as opposed to a claim under the APA regarding the method used in promulgating the regulation, such as that it was issued without adequate notice, or that the government inadequately responded to comments.”). Therefore, employers subject to enforcement under the 2008 rule have an available defense that DOL is without regulatory authority to enforce rights and obligations in the H-2B program, leaving DOL in an untenable position with respect to its ability to require adherence to program standards. In the absence of this interim final rule, which immediately replaces the 2008 rule, uncertainty, confusion and attendant legal vulnerability arise each time DOL attempts to enforce the provisions of the 2008 rule, putting critical protections for U.S. and H-2B workers in jeopardy.

9
Such challenges cannot be adjudicated before DOL Administrative Law Judges, but may be brought in federal district court.
See
2008 rule, 20 CFR 655.75(d) (“The administrative law judge shall not render determinations as to the legality of a regulatory provision or the constitutionality of a statutory provision.”);
see also Prince
v.
Westinghouse Savannah River Co.,
ARB No. 10-079, slip op. at 9 (ARB Nov. 17, 2010) (“ `The Board shall not have jurisdiction to pass on the validity of any portion of the Code of Federal Regulations that has been duly promulgated by the Department of Labor and shall observe the provisions thereof, where pertinent, in its decisions.' ”) (quoting Secretary's Order No. 1-2010 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board), sec. 5(c)(48), 75 FR 3924 (Jan. 15, 2010)).

10
The default six-year statute of limitations for civil claims against the government applies to challenges under the APA, and so the statute of limitations for facial challenges to the 2008 Rule, published December 19, 2008, has run.
See
28 U.S.C. 2401(a);
Harris
v.
FAA,
353 F.3d 1006, 1009 (D.C. Cir. 2004) (“Unless another statute prescribes otherwise, a suit challenging final agency action [under the APA] must be commenced within six years after the right of action first accrues.”)

Accordingly, even if the
Perez
decision is ultimately dismissed on standing or other grounds or if the stay is subsequently extended, the court's earlier decision—finding on the merits that DOL lacked regulatory authority to issue the 2008 rule—has created significant confusion about the continued viability of the 2008 rule. To leave the 2008 rule in place while the Departments pursue a new notice-and-comment rulemaking would prolong for many months the regulatory confusion about the 2008 rule's status and DOL's authority to enforce worker protections and wages required under the 2008 rule and 2013 IFR. In the interim, in response to a challenge to any enforcement action under the 2008 rule, DOL may be required to defend the validity of the 2008 rule. Such challenges could lead to inconsistent outcomes, producing further instability in the program. Given the potential for harm to U.S. and foreign workers if DOL is unable to effectively protect their rights, and uncertainty and confusion about the status of the 2008 rule in the regulated community, the Departments conclude that it is impracticable and contrary to the public interest to conduct a rulemaking proceeding under the APA's notice and comment requirements, and that they have good and substantial cause to issue this rule immediately.

Finally, the Departments also have good cause to forego notice and comment because, as explained below, this rule has already been subject to one full round of notice and comment. On March 18, 2011, DOL proposed a regulation and sought public input on all issues addressed in this interim final rule during a 60-day comment period. 76 FR 15130. As noted below, DOL received over 800 comments from a wide variety of stakeholders, and adapted the final rule in 2012 based on those comments. 77 FR 10038 (Feb. 21, 2012). The public has by now had notice and an opportunity to comment on virtually every provision in this interim final rule. The only new provisions in this interim final rule involve transition filing procedures at § 655.4, which are necessary to instruct those program users who have already begun the employment certification process on the procedures to follow under the new regulatory system; electronic filing procedures at § 655.15(c) to permit easier submissions for H-2B program users; the rules that apply to Administrative Law Judge proceedings involving determinations under 8 U.S.C. 1184(c), section 214(c) of the INA, at 29 CFR 503.40(b); and implementation of the Congressional mandate in § 655.15(f) to permit employers in the seafood industry flexibility with respect to the entry into the U.S. by their H-2B nonimmigrant workers. The first three provisions (§§ 655.4, 655.15(c), 503.40(b)) are procedural in nature, and the last provision incorporates a statutory requirement that DOL and DHS have already implemented. The rulemaking record from the 2011-2012 proceeding remains fresh, and no new information relevant to policy decisions made during that proceeding has come to light. Therefore, the Departments have satisfied the APA's notice-and-comment requirements where, after one full period of notice and comment for a rule, we reinstate a virtually identical rule without an additional notice and comment period.
See Am. Mining Cong.
v.
EPA,
907 F.2d 1179, 1191-1192 (D.C. Cir. 1990);
Am. Fed'n of Gov't Employees
v.
OPM,
821 F.2d 761, 764 (D.C. Cir. 1987). Accordingly, the Departments have good and sufficient reason to rely on the APA's good cause exception, 5 U.S.C. 553(b)(B), to issue without notice and comment this new interim final rule.

The APA also authorizes agencies to make a rule effective immediately upon a showing of good cause instead of imposing a 30-day delay. 5 U.S.C. 553(d)(3). The good cause exception to the 30-day effective date requirement is easier to meet than the good cause exception for notice and comment.
Riverbend Farms, Inc.
v.
Madigan,
958 F.2d 1479, 1485 (9th Cir. 1992);
Am. Fed'n of Gov't Employees, AFL-CIO
v.
Block,
655 F.2d 1153, 1156 (D.C. Cir. 1981);
U.S. Steel Corp.
v.
EPA,
605 F.2d 283, 289-90 (7th Cir. 1979). An agency can show good cause for eliminating the 30-day waiting period when it demonstrates urgent conditions the rule seeks to correct or unavoidable time limitations.
U.S. Steel Corp.,
605 F.2d at 290;
United States
v.
Gavrilovic,
511 F.2d 1099, 1104 (8th Cir. 1977). For the same reasons set forth above, we also conclude that the Departments have good cause to dispense with the 30-day effective date requirement given the continuing disruption, uncertainty, and confusion that a 30-day delay would cause in the H-2B program. 5 U.S.C. 553(d)(3).

The Departments underscore that although we are implementing this interim final rule in advance of a period

of public comment and without a 30-day delay in the effective date, we seek public input on every aspect of this interim final rule (even though virtually every provision herein has already gone through one round of notice and comment), and will assess that input and determine whether changes are appropriate. As a result, the public participation process will be preserved in this rulemaking proceeding, and we act only under the compulsion of the emergency conditions described above.

3. Request for Comments on All Aspects of This Interim Final Rule

Although this rule is being issued as an interim final rule, the Departments request public input on all aspects of the rule. The regulated community should be familiar with the provisions adopted in this interim final rule because they are largely the same as the provisions adopted in the 2012 H-2B rule, Temporary Non-agricultural Employment of H-2B Aliens in the United States, 77 FR 10038 (Feb. 21, 2012). As part of the rulemaking proceeding that culminated in the 2012 H-2B rule, DOL received, reviewed, and considered 869 comments on its proposal. Commenters represented a broad range of constituents of the H-2B program, including small business employers, U.S. and H-2B workers, worker advocacy groups, State Workforce Agencies (SWAs), agents, law firms, employer and industry advocacy groups, union organizations, members of the U.S. Congress, and interested members of the public. Those comments resulted in DOL's adjustment to or further explanation of that rule, and are incorporated here as well. As a result, to the extent that any provision of part 655 of title 20 or part 503 of title 29 of the Code of Federal Regulations adopted in this rulemaking proceeding requires further interpretation or justification, we refer the public to the explanations of the regulations contained in the prior rulemaking docket. That prior notice and comment proceeding does not foreclose public input in this proceeding, during which the Departments will jointly consider the public comments and revise this interim final rule as appropriate. The Departments invite the public to submit comments on all of the issues, requirements, and procedures addressed in this interim final rule; we will accept and consider these comments prior to issuing a final rule.

III. Revisions to 8 CFR Part 214

Deletion of 8 CFR 214.2(h)(9)(iii)(B)(2)

DHS currently requires all H-2B petitions to be accompanied by an approved temporary labor certification.
See
8 CFR 214.2(h)(6)(iv)(A) (stating that an H-2B petition for temporary employment in the United States, except for temporary employment on Guam, must be accompanied by an approved temporary labor certification from the Secretary of Labor); 8 CFR 214.2(h)(6)(v) (stating that an H-2B petition for temporary employment on Guam must be accompanied by an approved temporary labor certification issued by the Governor of Guam). These regulatory provisions were enacted as part of DHS's 2008 notice and comment rulemaking on this topic.
See
DHS Proposed Rule, 73 FR 49109, 48110 (Aug. 20, 2008); DHS Final Rule, 73 FR 78104, 78104 (Dec. 19, 2008).

Due to a drafting oversight, when enacting the requirements above, DHS inadvertently left untouched the provisions at 8 CFR 214.2(h)(9)(iii)(B)(
2
), which should have been deleted. These provisions can only be read to apply to the time, before 2008, when DHS would accept petitions without a temporary labor certification. The 2008 DHS Proposed Rule (73 FR 49109) and DHS Final Rule (73 FR 78104) make it clear that DHS intended to require a temporary labor certification to be submitted with an H-2B petition, and thus 8 CFR 214.2(h)(9)(iii)(B)(
2
) cannot be read to have any effect. Finally, the provision requiring that all H-2B petitions must be accompanied by a temporary labor certification went through notice and comment rulemaking. Thus, the deletion of 8 CFR 214.2(h)(9)(iii)(B)(
2
) should be subject to the good cause exception under 5 U.S.C. 553(b)(B) as such deletion is a housekeeping matter and a minor technical amendment, which makes notice and comment unnecessary.

For these reasons, DHS will rescind 8 CFR 214.2(h)(9)(iii)(B)(
2
) in this interim final rule, consistent with 5 U.S.C. 553(b)(B).

IV. Revisions to 20 CFR Part 655, Subpart A

A. Introductory Sections

1. § 655.1 Scope and Purpose of Subpart A

This provision informs program users of the statutory basis and regulatory authority for the H-2B temporary 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. DHS regulations at 8 CFR 214.2(h)(6)(iii)(D) recognize the Secretary of Labor as an appropriate authority with whom DHS consults regarding the H-2B program, and recognize the Secretary of Labor's authority, in carrying out that consultative function, to issue regulations regarding the issuance of temporary labor certifications. The purpose of these regulations is for the Secretary of Labor to determine that: (1) There are not sufficient U.S. workers who are qualified and who will be available to perform the temporary services or labor for which an employer desires to import foreign workers; and (2) the employment of the H-2B worker(s) will not adversely affect the wages and working conditions of U.S. workers similarly employed.
See
8 CFR 214.2(h)(6)(iv)(A). It is through the regulatory provisions set forth below that DOL ensures that the criteria for its labor certification determinations are met.

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

This section describes the authority of and division of activities related to the H-2B program among DOL agencies. It discusses the authority of the Office of Foreign Labor Certification (OFLC), the office within ETA that exercises the Secretary of Labor's responsibility for determining the availability of qualified 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 the Wage and Hour Division (WHD), the agency responsible for investigation and enforcement of the terms and conditions of H-2B labor certifications, as delegated by DHS.
11

11
Applications for temporary labor certification are processed by OFLC in the ETA, the agency to which the Secretary of Labor has delegated his responsibilities as described in the DHS 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 WHD within DOL, to which DHS on January 18, 2009 delegated enforcement authority granted to it by the INA. 8 U.S.C. 1184(c)(14)(B), INA section 214(c)(14)(B); 8 CFR 214.2(h)(6)(ix).

3. § 655.3 Territory of Guam

Under DHS regulations and pursuant to DHS's consultative relationship with the Governor of Guam related to the H-2B visa program on Guam, the granting of H-2B labor certifications and the enforcement of the H-2B visa program on Guam resides with the Governor of Guam. 8 CFR 214.2(h)(6)(v). Subject to

DHS approval, the Governor of Guam is authorized to set the prevailing wage for H-2B job opportunities on Guam. 8 CFR 214.2(h)(6)(v)(E) and (F). To further uniformity of standards through the United States, the Departments have concluded that it would be more appropriate for OFLC to issue H-2B prevailing wages for all workers on Guam, because OFLC already provides prevailing wage determinations (PWDs) for all other U.S. jurisdictions. Therefore, the process for obtaining a prevailing wage in § 655.10 would also apply to H-2B job opportunities on Guam, subject to the transfer of the authority to set the prevailing wage for a job opportunity on Guam to DOL in title 8 of the Code of Federal Regulations. Should such transfer occur, employment opportunities on Guam accordingly would be subject to the same process and methodology for calculating prevailing wages as any other jurisdiction within OFLC's purview. DHS will separately conduct rulemaking intended to make DOL responsible for issuing prevailing wage rates for all H-2B workers on Guam.

4. Special Procedures

Special procedures in DOL's temporary labor certification programs were based upon a determination that variations from the normal labor certification processes were necessary to permit the temporary employment of foreign workers in specific industries or occupations when qualified U.S. workers were not available and the employment of foreign workers would not adversely affect the wages or working conditions of similarly employed U.S. workers. The 2008 rule provided authority for DOL to “establish or to devise, continue, revise or revoke” special procedures in the H-2B program. 20 CFR 655.3 (2009). The regulation concerning the H-2A temporary agricultural worker program at 20 CFR 655.102 establishes in a virtually identical fashion, as did the 2008 H-2B rule, DOL's authority in the H-2A program to “establish, continue, revise, or revoke special procedures” for certain H-2A occupations. In
Mendoza
v.
Perez,
754 F.3d 1002, 1022 (D.C. Cir. 2014), the D.C. Circuit concluded that 20 CFR 655.102 was “a grant of unconstrained and undefined authority [, and the] purpose of the APA would be disserved if an agency with a broad statutory command . . . could avoid notice-and-comment rulemaking simply by promulgating a comparably broad regulation . . . and then invoking its power to interpret that statute and regulation in binding the public to a strict and specific set of obligations.” Accordingly, the court in
Mendoza
held that for herding occupations the special procedures issued under 20 CFR 655.102 were rules subject to the APA's notice and comment requirements because they possess all the hallmarks of a legislative rule and could not be issued through subregulatory guidance. 754 F.3d at 1024 (“The [special procedures] are necessarily legislative rules because they `effect[ ] a [substantive] change in existing law or policy,' and `effectively amend[ ] a prior legislative rule.”) (citations omitted).

In light of
Mendoza,
the Departments are not including in this interim final rule a provision to allow for the creation of special procedures that establish variations for processing certain H-2B
Applications for Temporary Employment Certification,
similar to a provision included in the 2008 H-2B rule. Special procedures currently in place on the effective date of this interim final rule will remain in force until we otherwise modify or withdraw them, and DOL will review such procedures expeditiously.

5. § 655.4 Transition Filing Procedures

Generally, DOL will process all applications in accordance with the rules in effect on the date the application was submitted. Accordingly, DOL will continue to process all applications for PWDs and for certification submitted prior to the effective date of this rule in accordance with the 2008 rule and the 2013 IFR. Further, DOL will process all applications for PWDs and for certification submitted on or after the effective date of this rule in accordance with this interim final rule and the companion wage final rule issued simultaneously.

This rule will permit employers submitting an
Application for Temporary Employment Certification
on or after the effective date of this rule and who have a start date of need prior to October 1, 2015, to rely on the emergency processing provisions in § 655.17. Such an
Application for Temporary Employment Certification
must include a signed and dated copy of the new Appendix B associated with the ETA Form 9142B containing the requisite program assurances and obligations under this rule. In the case of a job contractor filing as a joint employer with its employer-client, the NPC must receive a separate attachment containing the employer-client's business and contact information (
i.e.,
sections C and D of the ETA Form 9142B) as well as a separate signed and dated copy of the Appendix B for its employer-client, as required by § 655.19.

For these employers with a start date of need before October 1, 2015, the NPC will also waive the regulatory filing timeframe under § 655.15 and process the
Application for Temporary Employment Certification
and job order in a manner consistent with the handling of applications under § 655.17 for emergency situations, including the recruitment of U.S. workers on an expedited basis, and make a determination on certification as required by § 655.50. The recruitment of U.S. workers on an expedited basis will consist of placing a new job order with the SWA serving the area of intended employment that contains the job assurances and contents set forth in § 655.18 for a period of not less than 10 calendar days. In addition, employers who have not placed any newspaper advertisements under the 2008 rule must place one newspaper advertisement, which may be published on any day of the week, meeting the advertising requirements of § 655.41, during the period of time the SWA is actively circulating the job order for intrastate clearance. If the Chicago NPC grants a temporary labor certification, the employer will receive an original certified ETA Form 9142B and a Final Determination letter. Upon receipt of the original certified ETA Form 9142B, the employer or its agent or attorney, if applicable, must complete the footer on the original Appendix B, retain the original Appendix B, and submit a signed copy of Appendix B, together with the original certified ETA Form 9142B directly to USCIS. Under the document retention requirements in § 655.56, the employer must retain a copy of the certified ETA 9142B and the original signed Appendix B.

For the convenience of the employer submitting a new
Application for Temporary Employment Certification
with a start date of need prior to October 1, 2015 and who did not submit an
Application for a Prevailing Wage Determination
prior to the effective date of this rule, such an employer may submit a completed
Application for a Prevailing Wage Determination
to the NPC with its emergency
Application for Temporary Employment Certification
requesting a prevailing wage determination for the job opportunity. Upon receipt, the NPC will transmit, on behalf of the employer, a copy of the
Application for a Prevailing Wage Determination
to the NPWC for processing and issuance of a prevailing wage determination using the wage methodology established in § 655.10 of the companion wage rule.

For employers submitting new applications with a start date of need

before October 1, 2015, DOL will also waive the requirements in §§ 655.8 and 655.9 of this interim final rule, requiring the employer, and its attorney or agent, as applicable, to provide copies of all agreements with any agent and/or foreign labor recruiter(s), executed in connection with the H-2B temporary employer certification application.
12

In addition, due to the expedited timeframes for recruiting U.S. workers associated with H-2B temporary employment certification applications processed under these transition procedures, DOL will not place for public examination a copy of the job order posted by the state workforce agency (SWA) on DOL's electronic job registry, as specified under § 655.34. However, DOL will implement the new electronic job registry requirement under § 655.34 for all temporary employment certification applications filed with the Chicago NPC where the employer has a start date of need on or after October 1, 2015.

12
DOL will not publish agent or foreign recruiter names until it makes any necessary updates to its system of records notice required by the Privacy Act (5 U.S.C. 552a).

For all employers submitting new applications for employment certification, regardless of the start date of need, DOL will require a period of time to operationalize the registration process for H-2B employers required in § 655.11. As a result, DOL will announce separately in the
Federal Register
the initiation and implementation of the registration requirements in § 655.11(j). In the meantime, on the effective date of this interim final rule and until such announcement is made in the
Federal Register
, H-2B temporary employment certification applications filed with the NPC will be exempt from the registration requirements of § 655.11, and adjudication of the employer's temporary need will occur during the processing of the application. The exemption will terminate after a separate announcement in the
Federal Register
, which will provide the public with notice of when DOL will initiate the registration process.

Finally, employers with a prevailing wage determination issued by the NPWC, or who have a pending or granted
Application for Temporary Employment Certification
on the effective date of this rule may seek a supplemental prevailing wage determination (SPWD) in order to obtain a prevailing wage based on an alternate wage source under the new rule. The SPWD will apply during the validity period of the certification, except that such SPWD will be applicable only to those H-2B workers who are not yet employed in the certified position on the date of the issuance of the SPWD. The SPWD will not be applicable to H-2B workers who are already employed in the certified position at the time of the issuance of the SPWD, and it will not apply to United States workers recruited and hired under the original job order. For seafood employers whose workers' entry into the United States may be staggered under § 655.15(f), an SPWD issued under this provision will apply only to those H-2B workers who have not yet entered the United States and are therefore not yet employed in the certified position at the time of the issuance of the SPWD. In order to receive an SPWD under this provision, the employer must submit a new ETA Form 9141 to the NPWC that contains in Section E.a.5 Job Duties the original PWD tracking number (starting with P-400), the H-2B temporary employment certification application number (starting with H-400), and the words “Request for a Supplemental Prevailing Wage Determination.” Electronic submission through the iCERT Visa Portal System is preferred. Upon receipt of the request, the NPWC will issue to the employer, or if applicable, the employer's attorney or agent, an SPWD in an expedited manner and provide a copy to the Chicago NPC.

6. § 655.5 Definition of Terms

The Departments have made a number of changes to the definitions contained in the 2008 rule. Many of the changes clarify definitions in minor ways that do not substantively change the meaning of the term. However, we have also made some substantive changes to definitions, and we discuss below those definitions.

a. “Area of Substantial Unemployment”

This new term reflects the established definition of area of substantial unemployment in use within ETA as it relates to Workforce Investment Act (WIA) fund allocations, and is the existing definition of area of substantial unemployment within ETA. ETA uses this definition to identify areas with concentrated unemployment and to focus WIA funding for services to facilitate employment in those areas. ETA employs this term both as a way to improve labor market test quality and for the sake of operational simplicity. This existing definition provides the appropriate standard for identifying areas of concentrated unemployment where additional recruitment could result in U.S. worker employment. Also, the process of collecting data and designating an area of substantial unemployment using the existing definition is already established, as discussed in ETA's Training and Employment Guidance Letter No. 5-11, Aug. 12, 2011,
13

providing OFLC with a ready resource for identifying areas to focus additional recruitment. Finally, using this definition of area of substantial unemployment in the interim final rule enables an employer to check the list of areas of substantial unemployment ETA publishes to determine whether its job opportunity may fall within an area of substantial unemployment and, as appropriate, be subject to enhanced recruitment.

13
TEGL 5-11—Designation of Areas of Substantial Unemployment (ASUs) under the Workforce Investment Act (WIA) for Program Year (PY) 2012 has been added to the ETA Advisory Web site and is available at
http://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3069.
With some exceptions, the provisions of the recently enacted Workforce Innovation and Opportunity Act (WIOA), Public Law 113-128, 128 Stat. 1425 (2014), will supersede WIA as of July 1, 2015. WIOA contains a statutory definition of “area of substantial unemployment” that is identical to the definition of this term in WIA.
See
29 U.S.C. 3162(b)(2)(B), 3172(b)(1)(B)(v)(III).

b. “Corresponding Employment”

In this interim final rule, “corresponding employment” means the employment of workers who are not H-2B workers by an employer that has a certified H-2B
Application for Temporary Employment Certification
when those workers are performing either substantially the same work included in the job order or substantially the same work performed by the H-2B workers. The definition contains exceptions for two categories of incumbent employees (certain employees who have worked full-time for at least one year and certain employees covered by a collective bargaining agreement).

The first category not included in the definition of corresponding employment covers incumbent employees:

1. Who have been continuously employed by the H-2B employer to perform substantially the same work included in the job order or substantially the same work performed by the H-2B workers during the 52 weeks prior to the period of employment certified on the
Application for Temporary Employment Certification;

2. who have worked or been paid for at least 35 hours per week in at least 48 of the prior 52 workweeks; and

3. who have worked or been paid for an average of at least 35 hours per week over the prior 52 weeks.

The second and third conditions of this exception must be demonstrated on the employer's payroll records, and the employees' terms and working

conditions of employment must not be substantially reduced during the period of employment covered by the job order.

In determining whether this standard was met, the employer may take credit for any hours that were reduced by the employee voluntarily choosing not to work due to personal reasons such as illness or vacation. Second, not included in the definition are incumbent employees covered by a collective bargaining agreement or an individual employment contract that guarantees both an offer of at least 35 hours of work each workweek and continued employment with the H-2B employer at least through the period of employment covered by the job order, except that the employee may be dismissed for cause.

To qualify as corresponding employment, the work must be performed during the period of the job order, including any approved extension thereof. Any work performed by U.S. workers outside the specific period of the job order does not qualify as corresponding employment. Accordingly, the interim final rule does not require employers to offer their U.S. workers (part-time or full-time workers) corresponding employment protections outside of the period of the job order. If, for example, a U.S. worker is in corresponding employment with H-2B workers, the employer must provide corresponding employment protections during the time period of the job order but may choose
not to do so
during the time period outside of the job order.

The interim final rule includes these workers within the definition of corresponding employment in order to fulfill the DHS regulatory requirement that an
H-2B Petition
will not be approved unless the Secretary of Labor certifies that the employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers. 8 CFR 214.2(h)(6)(iv). Congress has long intended that similarly employed U.S. workers should not be treated less favorably than temporary foreign workers. For example, a 1980 report on temporary worker programs stated that U.S. employers were required to offer domestic workers wages equal to foreign workers as a prerequisite for labor certification.
See
Congressional Research Service: “Report to the Senate Committee on the Judiciary: Temporary Worker Programs: Background and Issues” 53 (1980);
see also
H.R. Rep. No. 99-682, pt. 1 at 80 (1986) (“The essential feature of the H-2 program has been and would continue to be the requirement that efforts be made to find domestic workers before admitting workers from abroad. A corollary rule, again preserved in the bill, is that the importation of foreign workers will not be allowed if it would adversely affect the wages and working conditions of domestic workers similarly employed”). The 2008 rule reflected this principle, in part, by requiring that the terms and conditions of offered employment cannot be less favorable than those offered to H-2B workers. 20 CFR 655.22(a) (2009). Thus, the 2008 rule provided for equal treatment of workers newly hired during the 10-day H-2B recruitment process.

The 2008 rule, however, did not protect U.S. workers who engage in similar work performed by H-2B workers during the validity period of the job order, because it did not protect any incumbent employees. Therefore, for example, a U.S. employee hired three months previously performing the same work as the work requested in the job order, but earning less than the advertised wage, would have been required to quit the current employment and re-apply for the same job with the same employer to obtain the higher wage rate offered to H-2B workers. This was disruptive for the employer and created an additional administrative burden for the SWAs with respect to any workers being referred through them. It also overestimated employees' understanding of their rights under the regulations, and placed workers in insecure situations by requiring them to quit their jobs with the hope of being immediately rehired in order to avail themselves of the regulation's protections. Therefore, the interim final rule does not require incumbent employees to jump through this unnecessary hoop; U.S. workers generally will be entitled to the wage rates paid to H-2B employees without having to quit their jobs and be rehired.

As set out above, there are only two categories of incumbent U.S. employees who will be excluded from the definition of corresponding employment. The first category covers those incumbents who have been continuously employed by the H-2B employer for at least the 52 weeks prior to the date of need, who have averaged at least 35 hours of work or pay over those 52 weeks, and who have worked or been paid for at least 35 hours in at least 48 of the 52 weeks, and whose terms and conditions of employment are not substantially reduced during the period of the job order. The employer may take credit for any hours that were reduced because the employee voluntarily chose for personal reasons not to work hours that the employer offered, such as due to illness or vacation. Thus, for example, assume an employee took six weeks of unpaid leave due to illness, and the employer offered the employee 40 hours of work each of those weeks. In that situation, the employer could take credit for all those hours in determining the employee's average number of hours worked in the prior year and could take credit for each of those six weeks in determining whether it provided at least 35 hours of work or pay in 48 of the prior 52 weeks. Similarly, if the employer provided a paid day off for Thanksgiving and an employee worked the other 32 hours in that workweek, the employer would be able to take credit for all 40 hours when computing the average number of hours worked and count that week toward the required 48 weeks. In contrast, assume another situation where the employer offered the employee only 15 hours of work during each of three weeks, and the employee did not work any of those hours. The employer could only take credit for the hours actually offered when computing the average number of hours worked or paid during the prior 52 weeks, and it would not be able to count those three weeks when determining whether it provided at least 35 hours of work or pay for the required 48 weeks.

The second category of incumbent workers excluded from the definition of corresponding employment includes those covered by a collective bargaining agreement or individual employment contract that guarantees both an offer of at least 35 hours of work each week and continued employment with the H-2B employer at least through the period of the job order (except that the employee may be dismissed for cause). As noted above, incumbent employees in the first category are year-round employees who began working for the employer before the employer filed an
Application for Temporary Employment Certification.
They work 35 hours per week for the employer, even during its slow season. The Departments recognize that there may be some weeks when, due to personal factors such as illness or vacation, the employee does not work 35 hours. The employer may still treat such a week as a week when the employee worked 35 hours for purposes of the corresponding employment definition, so long as the employer offered at least 35 hours of work and the employee voluntarily declined to work, as demonstrated by the employer's payroll records. Thus, these workers have valuable job security that is lacked by H-2B workers and those hired during

the recruitment period or the period of the job order. Such full-time, year-round employees may have other valuable benefits as well, such as health insurance or paid time off. Similarly, employees covered by a collective bargaining agreement or an individual employment contract with a guaranteed weekly number of hours and just-cause provisions also have valuable job security; they may also have benefits beyond those guarantees provided by the H-2B program. These valuable terms and conditions of employment may account for any difference in wages between what they receive and what H-2B workers receive. Therefore, these U.S. workers are excluded from corresponding employment if they continue to be employed full-time at substantially the same terms and conditions throughout the period covered by the job order, except that they may be dismissed for cause.

The interim final rule's inclusion of other workers within the definition of corresponding employment is important because the 2008 rule did not protect U.S. workers in the situation where an H-2B employer places H-2B workers in occupations and/or at job sites outside the scope of the labor certification, in violation of the regulations. For example, if an employer submits an application for workers to serve as landscape laborers, but then assigns the H-2B workers to serve as bricklayers constructing decorative landscaping walls, the employer has bypassed many of the H-2B program's protections for U.S. workers. The employer has deprived such U.S. workers of their right to protections such as domestic recruitment requirements, the right to be employed if available and qualified, and the prevailing wage requirement. The interim final rule guards against this abuse of the system and protects the integrity of the H-2B process by ensuring that the corresponding U.S. workers employed as bricklayers receive the prevailing wage for that work.

The 2008 rule also did not protect U.S. workers in cases where employers placed H-2B workers at job sites outside the scope of the labor certification. For example, an employer may submit an application for workers to serve as landscape laborers in a rural county in southern Illinois, but instead violate its obligations by assigning its H-2B workers to work as landscape laborers in the Chicago area. Because the employer did not fulfill its recruitment obligations in the Chicago area, U.S. workers were not aware of the job opportunity, they could not apply and take advantage of their priority hiring right, and the prevailing wage assigned was not the correct rate for the Chicago area. Such a violation of the employer's attestations would result both in the absence of a meaningful test of the labor market for available U.S. workers and U.S. workers being adversely affected by the presence of underpaid H-2B workers. The interim final rule's definition of corresponding employment ensures that the employer's incumbent landscape laborers who work where the H-2B workers actually are assigned to work will receive the appropriate prevailing wage rate. Paying the proper wage to such workers is necessary to protect against possible adverse effects on U.S. workers due to wage depression from the introduction of foreign workers. Therefore, the definition of corresponding employment in the interim final rule is necessary to fulfill the responsibility to provide temporary labor certifications only in appropriate circumstances.

c. “Full-Time”

The definition of “full-time” means 35 or more hours of work per week. In accord with the decision in
CATA I,
which invalidated the 2008 rule's definition of full-time employment because DOL did not consider and articulate relevant factors supporting the 30-hour definition, 2010 WL 3431761 at *14, we have continued to carefully consider all pertinent information in determining the threshold number of hours for full-time employment, including national labor market statistics, empirical evidence from a random sample of approved applications, and other employment laws. All available evidence suggests that the 2008 rule's definition of 30 hours or more per workweek was not an accurate reflection of full-time employment. DOL's enforcement experience confirms that the vast majority of H-2B temporary employment certification applications that are the subject of investigations are certified for 35 or more hours per week. Under the H-2A nonimmigrant visa program applicable to agricultural workers, DOL defines full-time as 35 hours per week. The 35-hour floor allows employers access to the H-2B program for a relatively small number of full-time jobs that would not have been eligible under a higher criterion (for example, a 40-hour standard). H-2B employers are and will remain required to accurately represent the actual number of hours per week associated with the job, recruit U.S. workers on the basis of those hours, and pay for all hours of work. Therefore, the employer is obligated to disclose and offer those hours of employment—whether 35, 40, 45, or more—that accurately reflect the job being certified. Failure to do so could result in a finding of violation of these regulations.

d. “Job Contractor”

This term means a person, association, firm, or a corporation that meets the definition of an employer and that contracts services or labor on a temporary basis to one or more employers, which is not an affiliate, branch or subsidiary of the job contractor and where the job contractor will not exercise substantial, direct day-to-day supervision and control in the performance of the services or labor to be performed other than hiring, paying and firing the workers. The following examples illustrate the differences between an employer that is a job contractor and an employer that is not. Employer A is a temporary clerical staffing company. It sends several of its employees to Acme Corporation to answer phones and make copies for a week. Although Employer A has hired these employees and will be issuing paychecks to these employees for the time worked at Acme Corporation, Employer A will not exercise substantial, direct day-to-day supervision and control over its employees during their performance of services at Acme Corporation. Rather, Acme Corporation will direct and supervise the Employer A employees during that week. Under this particular set of facts, Employer A would be considered a job contractor. By contrast, Employer B is a landscaping company. It sends several of its employees to Acme Corporation once a week to do mowing, weeding, and trimming around the Acme campus. Among the employees that Employer B sends to Acme Corporation are several landscape laborers and one supervisor. Employer B's supervisor instructs and supervises the laborers as to the tasks to be performed on the Acme campus. Under this particular set of facts, Employer B would not be considered a job contractor.

Similarly, in the reforestation industry, employers may perform contract work using crews of workers subject to the employer's on-site, day-to-day supervision and control. Such an employer, whose relationship with its employees involves substantial, direct, on-site, day-to-day supervision and control would not be considered a job contractor under this interim final rule. However, if a reforestation employer were to send its workers to another company to work on that company's crew and did not provide substantial, direct, on-site, day-to-day supervision

and control of the workers, that employer would be considered a job contractor under this interim final rule. Note that the provision of services to another company, under a contract alone, does not render an employer a job contractor; rather, each employment situation must be evaluated individually to determine the nature of the employer-employee relationship and, accordingly, whether the petitioning employer is in fact a job contractor.

e. Other Definitions

As discussed under § 655.6, we have decided to permit job contractors to participate in the H-2B program where they can demonstrate their own temporary need, not that of their clients. The particular procedures and requirements that govern their participation are set forth in § 655.19 and provide in greater detail the responsibilities of the job contractors and their clients. Accordingly, we are adding a definition of “employer-client” to this interim final rule to define the characteristics of the employer that is served by the job contractor and the nature of their relationship.

We have included definitions of job offer and job order to make certain 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 definition of job order reflects that it must include some, but not all, of the material terms and conditions of employment as reflected in § 655.18, which identifies the minimum content required for job orders. The definition of job offer requires an employer's job offer to contain all material terms and conditions of employment.

We have included the definition of strike so that the term is defined more consistently with DOL's 2010 H-2A regulations. The definition recognizes a range of protected concerted activity and clearly notifies employers and workers of their obligations when workers engage in these protected activities.

7. § 655.6 Temporary Need

We will interpret temporary need in accordance with the DHS definition of that term and our experience in the H-2B program. The DHS regulations define temporary need as a need for a limited period of time, where the employer must “establish that the need for the employee will end in the near, definable future.” 8 CFR 214.2(h)(6)(ii)(B). The interim final rule, as discussed in further detail below, is consistent with this approach.

a. Job Contractors: We generally conclude that a person or entity that is a job contractor, as defined under § 655.5, has no individual need for workers. Rather, its need is based on the underlying need of its employer-clients. Job contractors generally have an ongoing business of supplying workers to other entities, even if the receiving entity's need for the services is temporary. However, we recognize that we should exclude from the program only those job contractors who have a definitively permanent need for workers, and that job contractors who only have a need for the services or labor to be performed several months out of the year have a genuine temporary need and should not be excluded. Therefore, § 655.6 permits only those contractors that demonstrate their own temporary need, not that of their employer-clients, to continue to participate in the H-2B program.

Job contractors will only be permitted to file applications based on seasonal need or a one-time occurrence. In other words, in order to participate in the H-2B program, a job contractor would have to demonstrate, just as all employers seeking H-2B workers based on seasonal need have always been required to demonstrate: 1) If based on a seasonal need that the services or labor that it provides are traditionally tied to a season of the year, by an event or pattern and is of a recurring nature; or 2) if based on a one-time occurrence, that the employer has not employed workers to perform the services or labor in the past and will not need workers to perform the services in the future or that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker. For a job contractor with a seasonal need, the job contractor must specify the period(s) or time during each year in which it does not employ the services or labor. The employment is not seasonal if the period during which the services or labor is not provided is unpredictable or subject to change or is considered a vacation period for the contractor's permanent employees. For instance, a job contractor that regularly supplies workers for ski resorts from October to March but does not supply any workers performing the same services or labor needed by the ski resorts outside of those months would qualify as having a temporary need that is seasonal for such workers.

We are allowing job contractors to be certified based only on seasonal or one-time need because it is extremely difficult, if not impossible, to identify appropriate peakload or intermittent needs for job contractors with clients who have variable needs. The seminal Immigration and Naturalization Service (INS) decision,
Matter of Artee,
18 I. & N. Dec 366 (Comm'r 1982), established that a determination of temporary need rests on the nature of the underlying need for the duties of the position. To the extent that a job contractor is applying for a temporary labor certification, the job contractor whose need rests on that of its clients has itself no independent need for the services or labor to be performed. The Board of Alien Labor Certification Appeals (BALCA) has further clarified the definition of temporary need in
Matter of Caballero Contracting & Consulting LLC,
2009-TLN-00015 (Apr. 9, 2009), finding that “the main point of
Artee
. . . is that a job contractor cannot use [solely] its client's needs to define the temporary nature of the job where focusing solely on the client's needs would misrepresent the reality of the application.” The BALCA, in
Matter of Cajun Constructors, Inc.
2009-TLN-00096 (Oct. 9, 2009), also decided that an employer by the nature of its business works on a project until completion and then moves on to another has a permanent rather than a temporary need. The limited circumstances under which job contractors may continue to participate in the H-2B program will be subject to the requirements in § 655.19, which sets forth the procedures and requirements governing the filing of applications by job contractors. Contractors have no temporary need apart from the underlying need of the employer on whose behalf they are filing the
Application for Temporary Employment Certification.
When considering any employer's
H-2B Registration,
DOL will require that employer to substantiate its temporary need by providing evidence required to support such a need.

b. Duration of Temporary Need. For the reasons described below, DOL is defining temporary need, except in the event of a one-time occurrence, as 9 months in duration, a decrease from the 10-month limitation under DOL's 2008 rule. This definition is consistent with the definition of temporary need in DHS regulations, which provides that “[g]enerally, that period of time will be limited to 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) (emphasis provided). This interim final rule further provides, consistent with 8 CFR 214.2(h)(6)(ii)(B), that in the case of “extraordinary circumstances,” DOL

may extend a temporary labor certification for a period beyond nine months, but not to exceed a total period of twelve months.

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 generally limited to 1 year or less in duration.
See
8 CFR 214.2(h)(6)(ii)(B). DOL's temporary need period falls comfortably within the parameters of the general “one year or less” limitation contained in the DHS regulations. Routinely allowing employers to file seasonal, peakload or intermittent need applications for periods approaching a year would be inconsistent with the statutory requirement that H-2B job opportunities need to be temporary. In our experience, the closer the period of employment is to one year in the H-2B program, the more the opportunity resembles a permanent position. We conclude that a maximum employment period of 9 months establishes the temporariness of the position. Where there are only a few days or even a month or two for which no work is required, the job becomes less distinguishable from a permanent position, particularly one that offers time off due to a slow-down in work activity. Recurring temporary needs of more than 9 months are, as a practical matter, permanent positions for which H-2B labor certification is not appropriate. The approach in the 2008 rule that permitted temporary certifications for periods up to 10 months encompasses job opportunities that we conclude are permanent in nature and inconsistent with congressional intent to limit H-2B visas to employers with temporary or seasonal needs. We conclude that the 9-month limitation that fairly describes the maximum scope of a seasonal need should also be applied to peakload need since there is no compelling rationale for creating a different standard for peakload.

The impact of the change from 10 months, which was the standard in the 2008 rule, to 9 months, may have an adverse impact on some employers. But that impact, standing alone, is not dispositive regarding our legal obligation to protect the wages and working conditions of U.S. workers. DOL previously relied on the standard articulated in
Matter of Vito Volpe Landscaping,
Nos. 91-INA-300, 91-INA-301, 92-INA-170, 91-INA-339, 91-INA-323, 92-INA-11 (Sept. 29, 1994), which stated that a period of 10 months was not permanent. The Departments may adopt through rulemaking a new standard that is within their respective responsibilities in administering the program.
See United States
v.
Storer Broad.,
351 U.S. 192, 203 (1956);
Heckler
v.
Campbell,
461 U.S. 458, 467 (1983);
see also

FDA
v.
Brown & Williamson Tobacco Corp.,
529 U.S. 120, 156-57 (2000) (recognizing that “agencies must be given ample latitude to adapt their rules and policies to the demands of changing circumstances”). DOL has determined that 9 months better reflects a recurring seasonal or temporary need and have accordingly adopted a new standard in this interim final rule. The majority of H-2B employer applicants will not be affected by this change. According to DOL H-2B program data for FY 2010-2014, 65.2 percent of certified and partially certified employer applicants had a duration of temporary need less than or equal to 9 months.

Similarly, we have determined that limiting to 9 months the duration of temporary need on a peakload basis would ensure that the employer is not mischaracterizing a permanent need as one that is temporary. For example, since temporary need on a peakload basis is not tied to a season, under the current 10-month standard, an employer may be able to characterize a permanent need for the services or labor by filing consecutive applications for workers on a peakload basis. To the extent that each application does not exceed 10 months, the 2-month inactive period may correspond to a temporary reduction in workforce due to annual vacations or administrative periods. Increasing the duration of time during which an employer must discontinue operations from 2 months to 3 will ensure that the use of the program is reserved for employers with a genuine temporary need. Similarly, a 9-month limitation is appropriate for ensuring that the employer's intermittent need is, in fact, temporary. In addition, under the interim final rule, each employer with an intermittent need will be required to file a separate
H-2B Registration
and
Application for Temporary Employment Certification
to make certain that any disconnected periods of need are accurately portrayed and comply with the 9-month limitation.

c. Peakload need: The Departments will employ the definition of peakload need established in DHS regulations at 8 CFR 214.2(h)(6)(ii)(B)(
3
).

d. One-Time Occurrence. The Departments will employ the definition of one-time occurrence established in DHS regulations at 8 CFR 214.2(h)(6)(ii)(B)(
1
). The Departments do not intend for the 3-year accommodation of special projects to provide a specific exemption for industries like construction in which many of an employer's projects or contracts may prove a permanent rather than a temporary need. Therefore, we will closely review all assertions of temporary need on the basis of a one-time occurrence to ensure that the use of this category is limited to those circumstances where the employer has a non-recurring need which exceeds the 9-month limitation. For example, an employer who has a construction contract that exceeds 9 months may not use the program under a one-time occurrence if it has previously filed an
Application for Temporary Employment Certification
identifying a one-time occurrence and the prior
Application for Temporary Employment Certification
requested H-2B workers to perform the same services or labor in the same occupation.

8. § 655.7 Persons and Entities Authorized To File

The employer, or its attorney or agent, are persons authorized to file an
H-2B Registration
or an
Application for Temporary Employment Certification.
The employer must sign the
H-2B Registration
or
Application for Temporary Employment Certification
and any other required documents, whether or not it is represented by an attorney or agent.

9. § 655.8 Requirements for Agents

Employer's agents are required to provide copies of current agreements defining the scope of their relationships with employers, or other document demonstrating the agent's authority to represent the employer. DOL will review the documents to make certain that there is evidence that a bona fide relationship exists between the agent and the employer and, where the agent is also engaged in recruitment, to ensure that the agreements include the language required at § 655.20(p) prohibiting the payment of fees by the worker. DOL also reserves the right to further review the agreements in the course of an investigation or other integrity measure. A certification of an employer's application that includes such a submitted agreement in no way indicates a general approval of the agreement or the terms therein. The requirement does not obligate either the agent or the employer to disclose any trade secrets or other proprietary business information. The interim final rule only requires the agent to provide sufficient documentation to clearly demonstrate the scope of the agency relationship. In addition, under this

interim final rule, DOL does not plan at present to post these agreements for public viewing. If, however, DOL does so in the future, DOL will continue to follow all applicable legal and internal procedures including those relating to Freedom of Information Act (FOIA) requests to ensure the protection of private data in such circumstances.

We remind both agents and employers that each is responsible for the accuracy and veracity of the information and documentation submitted, as indicated in the ETA Form 9142B and Appendix B, both of which must be signed by the employer and its agent. As discussed under § 655.73(b), agents who are signatories to ETA Form 9142B may now be held liable for their own independent violations of the H-2B program.

Finally, under this provision, where an agent is required under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) to have a Certificate of Registration, the agent must also provide a current copy of the certificate which identifies the specific farm labor contracting activities that the agent is authorized to perform.

10. § 655.9 Disclosure of Foreign Worker Recruitment

Paragraph (a) requires an employer and its attorney and/or agent to provide DOL a copy of all agreements with any agent or recruiter that it engages or plans to engage in the recruitment of prospective H-2B workers, regardless whether the agent or recruiter is located in the U.S. or abroad. The written contract must contain the contractual prohibition on charging fees, as set forth in § 655.20(p). At the time of collection, DOL will review the agreements to obtain the names of the foreign labor recruiters (for purposes of maintaining a public list, as described below), and to verify that these agreements include the required contractual prohibition against charging fees. DOL may also further review the agreements in the course of an investigation or other integrity measure. Certification of an employer's application that includes such a submitted agreement, however, does not indicate general approval of the agreement or the terms therein. Where the contract is not in English and the required contractual prohibition is not readily discernible, DOL reserves the right to request further information to ensure that the contractual prohibition is included in the agreement. Agreements between the employer and the foreign labor recruiter will not be made public unless required by law. This interim final rule provides for DOL to obtain the agreements, but only share with the public the identity of the recruiters as discussed further below, but not the full agreements.

Paragraph (b) requires an employer and its attorney or agent, as applicable, to disclose to DOL the identity (name) and geographic location of persons and entities hired by or working for the foreign labor recruiter and any of the agents or employees of those persons and entities who will recruit or solicit prospective H-2B workers for the job opportunities offered by the employer. We interpret the term “working for” to encompass any persons or entities engaged in recruiting prospective foreign workers for the H-2B job opportunities offered by the employer, whether they are hired directly by the primary recruiter or are working indirectly for that recruiter downstream in the recruitment chain. This requirement encompasses all agreements, whether written or verbal, involving the whole recruitment chain that brings an H-2B worker to the employer's certified H-2B job opportunity in the United States. Employers, and their attorneys or agents, as applicable, are expected to provide these names and geographic locations to the best of their knowledge at the time the application is filed. DOL expects that, as a normal business practice, when completing the written agreement with the primary recruiting agent or recruiter, the employer/attorney/agent will ask whom the recruiter plans to use to recruit workers in foreign countries, and whether those persons or entities plan to hire other persons or entities to conduct such recruitment, throughout the recruitment chain.

Paragraph (c) provides for DOL's public disclosure of the names of the agents and foreign labor recruiters used by employers, as well as the identities and locations of all the persons or entities hired by or working for the primary recruiter in the recruitment of prospective H-2B workers, and the agents or employees of these entities. Determining the identity and location of persons hired by or working for the recruiter or its agent to recruit or solicit prospective H-2B workers—effectively acting as sub-recruiters, sub-agents, or sub-contractors—serves several purposes. It bolsters program integrity by aiding in the enforcement of certain regulatory provisions. This provision will also bring a greater level of transparency to the H-2B worker recruitment process. By maintaining and making public a list of agents and recruiters, DOL will be in a better position to enforce recruitment violations, and workers will be better protected against fraudulent recruiting schemes because they will be able to verify whether a recruiter is in fact recruiting for legitimate H-2B job opportunities in the United States. As the Government Accountability Office (GAO) explained in a recent report, “[w]ithout accurate, accessible information about employers, recruiters, and jobs during the recruitment process, potential foreign workers are unable to effectively evaluate the existence and nature of specific jobs or the legitimate parties contracted to recruit for employers, potentially making them more vulnerable to abuse.”
H-2A and H-2B Visa Programs: Increased Protections Needed for Foreign Workers,
GAO-15-154 (Mar. 2015). A list of foreign labor recruiters will facilitate information sharing between the Departments and the public, and assist us, other agencies, workers, and community and worker advocates to better understand the roles of recruiters and their agents in the recruitment chain and permit a closer examination of applications or certifications involving recruiters who may be engaged in improper behavior. Information about the identity of the international and domestic recruiters of foreign labor will also assist DOL in more appropriately directing its audits and investigations. Strengthening enforcement of recruitment abuses also ensures that employers who comply with the H-2B program requirements are not undercut by unscrupulous employers, such as those who pass recruitment fees on to workers.

B. Prefiling Procedures

1. § 655.10 Prevailing Wage

The interim final rule requires employers to request PWDs from the NPWC before posting their job orders with the SWA. The PWD must be valid on the day the job orders are posted. We encourage employers to continue to request a PWD in the H-2B program at least 60 days before the date the determination is needed. Under the companion H-2B final wage rule, issued simultaneously with this interim final rule, employer-provided surveys may not be used to set the prevailing wage except in limited circumstances. Paragraph (g) provides that if OFLC determines that an employer-provided survey is not acceptable, it will inform the employer in writing of the reasons the survey is being rejected. Employers may request review of this determination through the appeal process in § 655.13 of this interim final rule. Unlike the 2008 rule, this interim final rule does not allow an employer to

request a redetermination of the rejection of an employer-provided survey from the certifying officer (CO), but may request review by the NPWC Director as specified in § 655.13. DOL has determined that the 2008 procedures, which allowed an employer to request redetermination from the CO before appeal to the NPWC Director, were unnecessarily burdensome and that streamlining this process will allow for more expeditious resolution of prevailing wage requests.

2. § 655.11 Registration of H-2B Employers

The interim final rule bifurcates 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. This provision requires employers to submit an
H-2B Registration
and receive an approval before submitting an
Application for Temporary Employment Certification
and conducting the U.S. labor market test.

Paragraph (a) requires employers to file an
H-2B Registration,
which must be accompanied by 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 is justified as either a one-time occurrence, a seasonal need, a peakload need, or an intermittent need, as described in 8 CFR 214.2(h)(6)(ii)(B) and § 655.6 of this interim final rule. The Departments have found that evaluating temporary need is a fact-intensive process which, in many cases, can take a considerable amount of time to resolve. DOL has a longstanding practice of evaluating temporary need as an integral part of the adjudication of the
Application for Temporary Employment Certification;
the bifurcation of the application process into a registration phase and a labor market test phase shifts the timing of, but does not change the nature of, DOL's review.
See Matter of Golden Dragon Chinese Rest.,
19 I. & N. Dec. 238, 239 (Comm'r 1984). Separating the two processes will give OFLC the time to make a considered decision about temporary need without negatively impacting an employer's ability to have the workers it needs in place in a timely manner. In addition, we anticipate that many employers, with 3 years of registration validity, will benefit from a one-step process involving only the labor market test in their second and third years after registration, which will allow DOL to process these applications more efficiently. We conclude that enforcement alone cannot ensure program integrity; in the move from an attestation-based model to a compliance-based model, the bifurcation of application processing into registration and labor market test phases contributes to program integrity. Job contractors also must register, and provide documentation that establishes their temporary seasonal need or one-time occurrence during the registration process. Although a job contractor must file an
Application for Temporary Employment Certification
jointly with its employer-client, in accordance with § 655.19, a job contractor and its employer-client must each file a separate
H-2B Registration.
Paragraph (b) requires the employer and, as applicable, its agent and/or attorney, to sign the
H-2B Registration.

Paragraph (c) requires employers to file an
H-2B Registration
no less than 120 and no more than 150 calendar days before the date of initial need for H-2B workers, except where the employer submits the
H-2B Registration
in support of an emergency filing, discusse

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2015-09694. Public record. Not legal advice.