15130 Federal Register / Vol. 76, No. 53 / Friday, March 18, 2011 / Proposed Rules 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Part 655 

Wage and Hour Division 

29 CFR Part 503 

RIN 1205–AB58 

Temporary Non-Agricultural 

Employment of H–2B Aliens in the 

United States 

AGENCY: Employment and Training 

Administration, and Wage and Hour 

Division, Labor. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: The Department of Labor (the 

Department or DOL) proposes to amend 

its regulations governing the 

certification of the employment of 

nonimmigrant workers in temporary or 

seasonal non-agricultural employment 

and the enforcement of the obligations 

applicable to employers of such 

nonimmigrant workers. This Notice of 

Proposed Rulemaking (NPRM or 

proposed rule) proposes to revise and 

solicits comments on the process by 

which employers obtain a temporary 

labor certification from the Department 

for use in petitioning the Department of 

Homeland Security (DHS) to employ a 

nonimmigrant worker in H–2B status. 

The Department also proposes to create 

new regulations to provide for increased 

worker protections for both U.S. and 

foreign workers and enhanced 

enforcement under the H–2B program. 

DATES: Interested persons are invited to 

submit written comments on the 

proposed rule on or before May 17, 

2011. Interested persons are invited to 

submit comments on the proposed H– 

2B registration form mentioned herein; 

comments must be received on or before 

May 17, 2011. 

ADDRESSES: You may submit comments, 

identified by Regulatory Information 

Number (RIN) 1205–AB58, by any one 

of the following methods: 

• Federal e-Rulemaking Portal 

www.regulations.gov. Follow the Web 

site instructions for submitting 

comments. 

• Mail or Hand Delivery/Courier: 

Please submit all written comments 

(including disk and CD–ROM 

submissions) to Michael Jones, Acting 

Administrator, Office of Policy 

Development and Research, 

Employment and Training 

Administration, U.S. Department of 

Labor, 200 Constitution Avenue NW., 

Room N–5641, Washington, DC 20210. 

Please submit your comments by only 

one method. Comments received by 

means other than those listed above or 

that are received after the comment 

period has closed will not be reviewed. 

The Department will post all comments 

received on http://www.regulations.gov 

without making any change to the 

comments, including any personal 

information provided. The http:// 

www.regulations.gov Web site is the 

Federal e-rulemaking portal and all 

comments posted there are available 

and accessible to the public. The 

Department cautions commenters not to 

include their personal information such 

as Social Security Numbers, personal 

addresses, telephone numbers, and email addresses in their comments as 

such submitted information will become 

viewable by the public on the http:// 

www.regulations.gov Web site. It is the 

commenter’s responsibility to safeguard 

his or her information. Comments 

submitted through http:// 

www.regulations.gov will not include 

the commenter’s e-mail address unless 

the commenter chooses to include that 

information as part of his or her 

comment. 

Postal delivery in Washington, DC, 

may be delayed due to security 

concerns. Therefore, the Department 

encourages the public to submit 

comments through the http:// 

www.regulations.gov Web site. 

Docket: For access to the docket to 

read background documents or 

comments received, go the Federal 

eRulemaking portal at http:// 

www.regulations.gov. The Department 

will also make all the comments it 

receives available for public inspection 

during normal business hours at the 

Employment and Training 

Administration (ETA) Office of Policy 

Development and Research at the above 

address. If you need assistance to review 

the comments, the Department will 

provide you with appropriate aids such 

as readers or print magnifiers. The 

Department will make copies of the rule 

available, upon request, in large print 

and as an electronic file on computer 

disk. The Department will consider 

providing the proposed rule in other 

formats upon request. To schedule an 

appointment to review the comments 

and/or obtain the rule in an alternate 

format, contact the Office of Policy 

Development and Research at (202) 

693–3700 (VOICE) (this is not a toll-free 

number) or 1–877–889–5627 (TTY/ 

TDD). 

FOR FURTHER INFORMATION CONTACT: For 

further information on 20 CFR part 655, 

subpart A, contact William L. Carlson, 

PhD, Administrator, Office of Foreign 

Labor Certification, ETA, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Room C–4312, 

Washington, DC 20210; Telephone (202) 

693–3010 (this is not a toll-free 

number). Individuals with hearing or 

speech impairments may access the 

telephone number above via TTY by 

calling the toll-free Federal Information 

Relay Service at 1–800–877–8339. 

For further information on 29 CFR 

part 503, contact Mary Ziegler, Director, 

Division of Regulations, Legislation, and 

Interpretation, Wage and Hour Division, 

U.S. Department of Labor, 200 

Constitution Avenue, NW., Room 

S–3510, Washington, DC 20210; 

Telephone (202) 693–0406 (this is not a 

toll-free number). Individuals with 

hearing or speech impairments may 

access the telephone number above via 

TTY by calling the toll-free Federal 

Information Relay Service at 1–800– 

877–8339. 

SUPPLEMENTARY INFORMATION: 

I. Revisions to 20 CFR Part 655 Subpart 

A 

A. Statutory Standard and Current 

Department of Labor Regulations 

Section 101(a)(15)(H)(ii)(b) of the 

Immigration and Nationality Act (INA 

or the Act) defines an H–2B worker as 

a nonimmigrant admitted to the U.S. on 

a temporary basis to perform temporary 

non-agricultural labor or services for 

which ‘‘unemployed persons capable of 

performing such service or labor cannot 

be found in this country.’’ 8 U.S.C. 

1101(a)(15)(H)(ii)(b). Section 214(c)(1) of 

the INA requires DHS to consult with 

appropriate agencies before approving 

an H–2B visa petition. 8 U.S.C. 

1184(c)(1). The regulations for the U.S. 

Citizenship and Immigration Services 

(USCIS), the agency within DHS which 

adjudicates requests for H–2B status, 

require that an intending employer first 

apply for a temporary labor certification 

from the Secretary of Labor (the 

Secretary). That certification informs 

USCIS that U.S. workers capable of 

performing the services or labor are not 

available, and that the employment of 

the foreign worker(s) will not adversely 

affect the wages and working conditions 

of similarly employed U.S. workers. 8 

CFR 214.2(h)(6). A certification from the 

Secretary currently is not required for 

H–2B employment on Guam, for which 

certification from the Governor of Guam 

is required. 8 CFR 214.2(h)(6)(iii). 

The Department’s regulations at 20 

CFR part 655, Subpart A, ‘‘Labor 

Certification Process for Temporary 

Employment in Occupations other than 


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Agriculture or Registered Nursing in the 

United States (H–2B Workers),’’ govern 

the H–2B labor certification process, as 

well as the enforcement process to 

ensure U.S and H–2B workers are 

employed in compliance with H–2B 

labor certification requirements. 

Applications for labor certification are 

processed by the Office of Foreign Labor 

Certification (OFLC) in ETA, the agency 

to which the Secretary of Labor has 

delegated her responsibilities described 

in the USCIS H–2B regulations. 

Enforcement of the attestations made by 

employers in the course of submission 

of H–2B applications for labor 

certification is conducted by the Wage 

and Hour Division (WHD) within the 

Department of Labor, to which DHS on 

January 16, 2009 delegated enforcement 

authority granted to it by the INA. 8 

U.S.C. 1184(c)(14)(B). 

Under the current regulations, an 

employer seeking to fill job 

opportunities through the H–2B 

program must demonstrate that it has a 

temporary need for the services or labor, 

as defined by one of four regulatory 

standards: (1) A one-time occurrence; 

(2) a seasonal need; (3) a peakload need; 

or (4) an intermittent need. 8 CFR 

214.2(h)(6)(ii)(B). Generally, that period 

of time will be limited to 1 year or less 

but, in the case of a one-time 

occurrence, could last up to 3 years, 

consistent with the standard under DHS 

regulations at 8 CFR 214.2(h)(6) as well 

as current Department regulations. See 

20 CFR 655.6(b). 

Before 2008, the Department’s 

regulatory scheme was minimal; the 

process was governed primarily through 

program guidance issued by ETA, with 

enforcement by WHD only of 

independently applicable laws such as 

the Fair Labor Standards Act (FLSA). 

Before 2007, ETA processing was 

governed primarily by General 

Administration Letter No. 1–95, 60 FR 

7216, Feb. 7, 1995, which laid out the 

processing of applications, first at the 

State Workforce Agency (SWA), then at 

the Federal level. Applications were 

filed first with the SWA, allowing them 

to review the applications, oversee the 

conduct of recruitment of potential U.S. 

workers, review the results, and then 

forward the application to OFLC with a 

recommendation of whether to approve 

or deny the application. ETA issued 

Training and Employment Guidance 

Letter (TEGL) No. 21–06, 72 FR 19961, 

Apr. 20, 2007, to replace the previous 

guidance for the processing of H–2B 

applications. 

In January 2005, DHS and the 

Department issued companion NPRMs 

to significantly revise each agency’s 

H–2B processing procedures. 70 FR 

3984, Jan. 27, 2005; 70 FR 3993, Jan. 27, 

2005. This set of proposed rules 

suggested an attestation-based approach 

to adjudication, sending applications 

directly to USCIS with enhanced 

enforcement by the Department. The 

two agencies received significant 

opposition to these proposals. The 

Department withdrew its proposed rule 

as a result of these comments. See 

http://www.reginfo.gov/public/do/

eAgendaViewRule?ruleID=221117. 

In 2008, the Department again 

proposed regulations employing an 

attestation-based filing model. See 73 

FR 29942, May 22, 2008. In this 

proposed model, SWAs no longer 

oversaw recruitment, instead allowing 

the employer to conduct its recruitment 

with no direct Federal or state oversight. 

This attestation-based model meant that 

OFLC could only review certain aspects 

of compliance with the regulations 

through post-certification audits rather 

than through the recruitment process, 

although the recruitment process itself 

was not dissimilar and the employers 

were performing the same activities as 

they would be with a SWA’s assistance 

and oversight. The proposed regulation 

also provided for enforcement by WHD 

through investigation and findings, 

leading to the imposition of civil money 

penalties and other actions. These 

regulations were proposed in light of (1) 

considerable workload increases for 

both the Department and the SWAs (an 

approximate 30 percent increase in 

applications in Fiscal Year (FY) 2007 

over those received in FY 2006, and a 

similar increase during the first half of 

FY 2008); (2) limited appropriations 

funding for program-related operations, 

both at the Federal and SWA levels; and 

(3) frequent and increasing comments 

from the user community that the 

process was cumbersome, complicated, 

time-consuming, and inefficient. These 

proposed regulations were a substantial 

shift from the administration of the 

program which provided for greater 

SWA involvement in the application 

and recruitment process. The 

Department received substantial 

comment on the proposed rule, and 

issued a Final Rule on December 19, 

2008 (the 2008 Final Rule), which 

became effective January 18, 2009. See 

73 FR 78020, Dec. 19, 2008. 

Under the current attestation-based 

processing model, before filing an 

application to seek H–2B workers, an 

employer must first recruit U.S. workers 

to ensure an adequate test of the labor 

market for the position. In addition, the 

employer must offer and subsequently 

pay throughout the period of 

employment a wage that is equal to or 

higher than the prevailing wage for the 

occupation in the area of intended 

employment; provide terms and 

conditions of employment that are not 

less favorable than those offered to the 

foreign worker(s); and contact any 

previously laid-off workers. 

One important change in the 2008 

Final Rule was its inclusion of 

enforcement authority for the 

Department. Before 2008, the 

Department had no H–2B specific 

enforcement authority or process to 

ensure employer compliance with H–2B 

labor certifications. Congress vested 

DHS with that enforcement authority in 

2005. See 8 U.S.C. 1184, as amended by 

the Emergency Supplemental 

Appropriations Act for Defense, the 

Global War on Terror, and Tsunami 

Relief of 2005, Public Law 109–13, 119 

Stat. 231. That legislation authorized 

DHS to delegate this enforcement 

authority to the Department and DHS 

subsequently made that delegation. The 

2008 Final Rule instituted an H–2B 

regulatory enforcement regime based 

upon DHS’s delegation. 

On August 30, 2010, the U.S. District 

Court for the Eastern District of 

Pennsylvania in Comite ́ de Apoyo a los 

Trabajadores Agricolas (CATA) v. Solis, 

Civil No. 2:09–cv–240–LP, 2010 WL 

3431761 (E.D. Pa. Aug. 30, 2010), 

invalidated various provisions of the 

Department’s 2008 Final Rule and 

remanded the case to the Department to 

correct its errors. The court ruled that 

the Department had violated the 

Administrative Procedure Act when it 

did not adequately explain its reasoning 

for using skill levels as part of the 

H–2B prevailing wage determination 

process, and that it failed to consider 

comments relating to the choice of 

appropriate data sets in deciding to rely 

on Occupational Employment Statistics 

survey data rather than Davis Bacon Act 

and Service Contract Act wage data in 

setting the prevailing wage rates. The 

court ordered the Department to 

‘‘promulgate new rules concerning the 

calculation of the prevailing wage rate 

in the H–2B program that are in 

compliance with the Administrative 

Procedure Act no later than 120 days 

from the date of this order.’’ CATA v. 

Solis, Civil No. 2:09–cv–240–LP, 2010 

WL 3431761 (E.D. Pa. Aug. 30, 2010). 

The Department began a separate 

rulemaking process to address the 

prevailing wage calculation and, on 

January 19, 2011, finalized its new 

prevailing wage calculation 

methodology in Wage Methodology for 

the Temporary Non-agricultural 

Employment H–2B Program Final Rule, 

76 FR 3452 (Jan. 19, 2011). This NPRM 

does not address the matters in the 

Prevailing Wage Final Rule, and 


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commenters should not address those 

matters in this proceeding. However, 

commenters may wish to consider the 

content of that rule in fashioning their 

comments to the NPRM since the 

prevailing wage determination system 

set forth in the Prevailing Wage Final 

Rule will be applied to the final rule 

that results from this NPRM. 

Additionally, the court invalidated 

and vacated 20 CFR 655.22(k) insofar as 

that provision permits the clients of job 

contractors to hire H–2B workers 

without submitting an application to the 

Department. As a result, the Department 

no longer accepts H–2B labor 

certification applications filed solely by 

job contractors. 

Lastly, the court invalidated the 

following provisions on the ground that 

the Department did not provide a 

rational explanation of its policy 

choices: (1) 20 CFR 655.15(g) 

concerning the situations in which 

H–2B employers must contact unions as 

a potential source of labor; (2) the 

portion of 20 CFR 655.4 defining ‘‘full 

time’’; and (3) the portion of 20 CFR 

655.4 defining ‘‘job contractor’’ to mean 

an entity that ‘‘will not exercise any 

supervision or control in the 

performance of the services or labor to 

be performed other than hiring, paying, 

and firing the workers.’’ In this NPRM, 

the Department is proposing a new 

provision at section 655.44 specifying 

when H–2B employers must contact 

unions as a potential source of labor and 

a new definition of ‘‘full time’’ at section 

655.5 and 29 CFR 503.4 and is thereby 

proposing to abandon the particular 

union contact and full time provisions 

that were invalidated by the court. The 

Department is also proposing a slightly 

modified definition of job contractor 

based on the invalidated definition; 

however, the Department has provided 

an explanation in section 655.5 of the 

preamble which clarifies the rationale 

for the underlying definition and its 

modification. 

B. The Need for Rulemaking 

The Department has determined for a 

variety of reasons that a new rulemaking 

effort is necessary for the H–2B 

program. The Department believes that 

the policy underpinnings of the 2008 

Final Rule, e.g. streamlining the H–2B 

process to defer many determinations of 

program compliance until after an 

application has been adjudicated, do not 

provide an adequate level of protection 

for either U.S. or foreign workers. These 

protections are essential to meet the 

regulatory mandate to prevent adverse 

effect on wages and working conditions 

for U.S. workers and to ensure access to 

jobs for U.S. workers in order to satisfy 

the statutory requirement that 

certifications be granted only if no U.S. 

workers are available. 

First, there are insufficient worker 

protections in the current attestationbased model in which employers merely 

assert, and do not demonstrate, that they 

have performed an adequate test of the 

U.S. labor market and one which is in 

accordance with the regulations. 

Further, in the first year of the operation 

of the attestation-based system our 

experience indicates that employers are 

attesting to compliance with program 

obligations with which they have not 

complied, and that employers do not 

appear to be recruiting, hiring and 

paying U.S. workers, and in some cases 

the H–2B workers themselves, in 

accordance with established program 

requirements. Cases audited after 

certification by the OFLC in the 2 years 

since the adoption of an attestationbased program demonstrate a pattern of 

non-compliance or avoidance of 

demonstrating compliance. In the first 

round of audits conducted, which was 

primarily a random sample of cases, the 

Department found that 52 percent of 

employers that had attested to 

compliance with regulatory obligations 

were in fact not in compliance with 

those obligations. A second round 

demonstrated a higher level of 

compliance, but in total, the audited 

cases demonstrate a level of compliance 

of only 55 percent. The violations 

included evidence of both H–2B and 

U.S. workers being offered less than 

full-time work; misrepresentations as to 

the work time that was actually offered 

or the number of workers actually 

needed; workers being paid less than 

the prevailing wages; and U.S. workers 

being rejected for other than lawful, jobrelated reasons, such as not having a 

commercial driver’s license when one is 

not required to perform the job. The 

identified violations come from 

different geographical sectors and relate 

to both new and experienced filers. The 

most disturbing evidence of noncompliance is, however, a lack of 

response from many of those audited— 

indicating anything from a company 

that does not exist (evidenced by 

returned mail) to an employer seeking to 

avoid liability by simply not informing 

the Department of its errors. 

There has also been increasing 

evidence in the H–2B program of 

violations rising to the criminal level. 

The Department has seen increasing 

evidence of employers and agents filing 

fraudulent applications—involving 

hundreds or thousands of requested 

employees—for non-existent job 

opportunities. U.S. v. Broyles, 2:09-cr00003–MSD–TEM–23 (E.D. Va. 2010) 

(conspiracy to conspiracy to 

fraudulently obtain H–2B visas), U.S. v. 

Barbugli, 6:10-cr-00177–MSS–DAB, 

6:10-mj-01089–KRS, 6:10-cr-00180– 

MSS–GJK (C.D. Fl. 2010) (three family 

members guilty for operations involving 

a labor staffing company obtaining 

fraudulent H–2B visas through more 

than 11 subsidiary companies), and U.S. 

v. Manuel, 9:10-cr-80057–KAM (S.D. 

FL. 2010) (false statements and 

conspiring to hold approximately 39 

Filipino nationals in forced service to 

work in H–2B status in country clubs 

and hotels in Southeast Florida) 

represent the most recent criminal 

actions involving H–2B applications 

filed for fraudulent job opportunities or 

containing false information at odds 

with the treatment actually received by 

the workers. Moreover, the General 

Accountability Office (GAO) released a 

report in September 2010 summarizing 

a review of ten concluded criminal and 

civil cases covering the previous 5 years 

involving H–2B employers and 

recruiters. These cases demonstrated 

violations of various labor laws or the 

settlement of alleged violations such as 

wage and/or overtime violations; 

charging of fees by employers; and the 

submission of fraudulent 

documentation to obtain visas and other 

government benefits. The Department 

cannot ignore this rise in successful 

criminal and civil prosecutions which 

demonstrate the abuse of the H–2 

program; while the attestation-based 

model may not be a direct cause of the 

types of action resulting in these 

criminal charges, the model provides 

more of an opportunity for such actions 

to occur and remain undetected. 

The steps offered in this proposed 

rule cannot entirely eliminate the 

concerns the Department has with an 

attestation-based application model. 

The evidence of non-compliance under 

such a model is, however, sufficient in 

the Department’s view to warrant steps 

to ensure that employers who comply in 

good faith can do so while those who 

have no intent to uphold their 

obligations have a decreased 

opportunity to defraud the program. In 

eliminating the attestation-based 

application model, the Department also 

increases the efficiency of the program, 

by ensuring applications with potential 

violations can be addressed before 

recruitment or certification, rather than 

requiring the more drastic potential for 

debarment after audit. 

In light of such non-compliance the 

Department has chosen to revisit the use 

of attestations, notwithstanding the use 

of post-certification program integrity 

measures. Increased enforcement such 

as that proposed in this NPRM, although 


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essential to a viable H–2B program, is 

not sufficient to ensure protection of 

workers in H–2B occupations who 

constitute a particularly vulnerable 

subgroup of the workforce. Rather, the 

most reliable method by which the 

Department can ensure compliance with 

the regulatory requirements is through 

the review of compliance through 

documentation provided to the 

Department in advance of the 

certification determination, rather than 

during the audit process. In addition to 

communicating to all the parties to the 

process the need to comply with those 

obligations, this review deters bad 

actors in the program from making false 

statements and also reinforces program 

requirements for those who are new to 

the program or unable to adequately 

discern their program obligations. To 

the extent that employers have 

incorrectly attested to compliance with 

program requirements through 

ignorance or misunderstanding of those 

requirements, the compliance-based 

model will identify those problems in 

the review of the application and offer 

the employer an opportunity to correct 

its error without penalty or delay in 

meeting its date of need. 

Although the Department still seeks to 

maintain an efficient system, it has in 

this new rule struck a balance between 

reducing processing times and 

protecting U.S. worker access to these 

job opportunities. The structured time 

frames for the processing of applications 

set forth in the proposed rule help the 

agency to strike that vital balance. We 

would emphasize that the return to the 

certification model which was used in 

the program for its entire history until 

January 2009, and which was recently 

reintroduced into the H–2A program, 

creates no significant additional 

burdens on employers. It does not 

change the nature of the obligations 

with which employers must comply, or 

the documentation that employers must 

maintain, but merely adjusts the timing 

and circumstances under which that 

documentation, the evidence of 

compliance with those obligations, must 

be produced for review. While this 

change produces no additional burden 

on employers, it will substantially 

enhance overall program integrity by 

allowing the Department to identify 

potential problematic applications at the 

earliest possible time. It is also much 

less onerous on employers to be 

required to amend a deficient or 

incomplete application before it is 

certified, than to subject the employer to 

the potential for back pay, civil money 

penalties or debarment if the 

deficiencies in the application are not 

identified until the job opportunity is 

gone. 

The Department, however, is aware 

that in certain instances, employers 

would prefer a continuation of an 

attestation-based application process. 

Using an attestation-based application, 

applications would be streamlined and 

employers may be able to obtain some 

cost savings from not being required to 

duplicate and send documentation 

demonstrating compliance along with 

the application. Many employers have 

indicated to the Department the 

preference for a streamlined application 

system, with more of an emphasis on 

enforcement for compliance on the back 

end. This is the model that was put into 

place in the 2008 Final Rule and has 

support of many employers. 

The Department remains concerned, 

however, whether its goals of ensuring 

compliance (both up-front compliance 

by those unfamiliar with program 

requirements and for those engaged in 

deliberate disregard for program 

obligations) can be met through 

increased program compliance 

assistance and post-certification 

enforcement. This is particularly true in 

a temporary worker program, where 

non-compliance would likely be 

identified through enforcement efforts 

well after the impacted H–2B workers 

have returned to their home country or 

the U.S. workers were already denied 

employment. 

While a compliance demonstration 

model remains the Department’s 

preferred alternative and as such is 

reflected in the proposed regulatory 

text, the Department proposes dual 

consideration of an alternative retaining 

the current attestation-based application 

system. The Department is interested in 

receiving comments on the alternative 

of maintaining the current or some 

modification of the current attestationbased program design. Specifically, the 

Department is seeking comments on 

whether it should develop certain 

attestations which can be required of all 

employers (such as an attestation for 

certain kinds of recruitment), or for only 

certain program compliance 

requirements. In order to provide 

information to address the Department’s 

concerns, comments on any attestation 

alternative should focus on the 

following: 

1. What kind of specific guidance 

could the Department provide that 

would benefit a first-time (or sporadic) 

employer in the H–2B program to avoid 

mistakes in making attestations of 

compliance with program obligations? 

2. What kind of guidance would 

benefit frequent users of the program 

with respect to repetitive errors in 

recruitment? What kind of guidance 

would be beneficial in avoiding errors 

in unique situations for these users? 

3. Could pre-certification audits 

augment a post-certification audit in an 

attestation-based program model? If not, 

how would you propose the Department 

obtain information in the absence of 

supervised activity in order to arrive at 

certification while ensuring compliance 

with program obligations? 

4. What additional sanctions could be 

taken against employers to ensure 

compliance with program requirements, 

given the potential for fraud in the H– 

2B program? 

5. What other kinds of actions could 

the Department take to prevent an H–2B 

employer from filing attestations that do 

not meet program requirements? 

Accordingly, in order to adequately 

protect U.S. and H–2B workers, the 

Department proposes the changes 

discussed below, including the proposal 

of a new 29 CFR part 503 to set forth 

WHD’s investigative and enforcement 

roles. The Department is engaging in 

this new rulemaking to provide the 

public with notice and opportunity to 

comment on the H–2B program. 

The NPRM seeks to help employers 

meet legitimate short-term temporary 

labor needs where and when there are 

no available U.S. workers. Over the 

years as the program has evolved, 

stakeholders in diverse industries 

throughout the country repeatedly have 

expressed concerns that some 

employers were inappropriately using 

H–2B workers for job opportunities that 

were permanent, thereby denying U.S. 

workers the opportunity for long-term 

employment. These employers’ actions 

are at the detriment of other employers 

with a legitimate temporary need that 

are ultimately denied access to the 

program due to the statutory limitation 

on available visas. By preventing 

employers with a long-term permanent 

need from participating in the H–2B 

program, the Department would provide 

employers with genuine unmet 

temporary needs with a greater 

opportunity to participate in the 

program. Similarly, the proposed 

requirement that employers provide a 

single date of need or start date for the 

workers ensures that employers with 

legitimate temporary needs will have a 

better chance of receiving available 

visas in years in which the demand 

exceeds the supply. 

The Department’s proposal to 

bifurcate the current application process 

into a registration phase which 

addresses the employer’s temporary 

need and an application phase which 

addresses the labor market test will 

enable the Department to prevent 


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employers without a legitimate 

temporary need from even filing an 

application. The current process where 

the adjudication of temporary need is 

concurrent with the evaluation of the 

labor market test often results in delays 

in processing employer applications for 

H–2B labor certifications. The 

Department believes that bifurcating 

this process will facilitate the timely 

processing of applications. This 

bifurcation allows the employers to 

conduct the labor market test closer to 

the date of need without the 

simultaneous adjudication of temporary 

need. Because the registration may be 

valid for up to 3 years, employers will 

be able to commence the process at the 

second phase without having to reestablish temporary need for the second 

and third years of registration, absent 

significant change in conditions, saving 

employer and public resources from readjudication of an obvious legitimate 

need. Additionally, removing employers 

without demonstrable temporary need 

from the application process further 

enables the Department and the SWAs 

to focus their limited resources on 

administering in a timely manner the 

labor market test. A registration process 

enables the Department to better serve 

the employers with legitimate 

temporary need, as well as the public by 

being able to focus on ensuring that U.S. 

workers are afforded full access to these 

job opportunities. 

As part of the Department’s 

commitment to openness and public 

input, DOL reached out to stakeholders, 

including employers, labor unions, 

advocates and other Federal agencies to 

learn more about their experiences with 

the H–2B program and hear their views 

on how the program can be improved to 

meet temporary labor needs, while 

ensuring U.S. worker access to the job 

opportunities and providing sufficient 

worker protections to both U.S. and H– 

2B workers. These listening sessions 

included targeted immigration sessions 

at the full-day Stakeholder Forum 

convened by WHD in Washington, DC 

and attended by hundreds of 

representatives from business, labor and 

other stakeholders, as part of its annual 

strategic planning process. These 

meetings provided the Department with 

a wealth and diversity of experience and 

views that helped better inform the 

drafting process. The Department hopes 

that the interested parties review this 

proposal and continue to engage and 

provide feedback and comments that are 

essential to ensuring an effective and 

workable final rule. 

II. Discussion of 20 CFR Part 655, 

Subpart A 

A. Introductory Sections 

1. Section 655.1 Scope and Purpose of 

Subpart A 

This proposed provision informs 

program users of the statutory basis and 

regulatory authority for the H–2B labor 

certification process. This provision 

describes the Department’s role in 

receiving, reviewing, adjudicating, and 

upholding the integrity of an 

Application for Temporary Employment 

Certification. 

2. Section 655.2 Authority of 

Agencies, Offices and Divisions in the 

Department of Labor 

The Department proposes in this 

provision to describe the authority of 

and division of activities related to the 

H–2B program among the Department’s 

agencies. It discusses the authority of 

OFLC, the office within ETA that 

exercises the Secretary’s responsibility 

for determining the availability of U.S. 

workers and whether the employment of 

H–2B nonimmigrant workers will 

adversely affect the wages and working 

conditions of similarly employed 

workers. It also discusses the authority 

of WHD, the agency responsible for 

investigation and enforcement of the 

terms and conditions of H–2B labor 

certifications, as delegated by the DHS. 

3. Section 655.3 Territory of Guam 

As in the 2008 Final Rule, under the 

proposed rule, the granting of H–2B 

labor certifications and the enforcement 

of the H–2B visa program in Guam will 

continue to reside with the Governor of 

Guam, pursuant to DHS regulations. 

However, this regulation proposes that 

the determination of all prevailing 

wages should be housed in the 

Department, including those for Guam. 

The function determining a prevailing 

wage for construction workers on Guam 

has most recently been housed with 

USCIS, which consults with the 

Governor of Guam as to the admission 

of H–2B construction workers on Guam. 

8 CFR 214.2(h)(6)(iii). DHS and the 

Department are in agreement that 

issuing prevailing wages for all workers, 

including construction workers, would 

more appropriately be performed by the 

Department, specifically by the OFLC, 

because OFLC already provides 

prevailing wage determinations for all 

other U.S. jurisdictions. The 

Department, therefore, is proposing that 

the process for obtaining a prevailing 

wage in proposed section 655.12 also 

apply to H–2B job opportunities in 

Guam. Employment opportunities in 

Guam would, under the proposed rule, 

be subject to the same process and 

methodology for calculating prevailing 

wages as any other jurisdiction within 

the Department’s purview. 

4. Section 655.4 Special Procedures 

The proposed rule continues the 

Department’s authority to establish, 

continue, revise, or revoke special 

procedures that establish variations for 

processing certain H–2B Applications 

for Temporary Employment 

Certification. These are situations where 

the Department recognizes that 

variations from the normal H–2B labor 

certification processes are necessary to 

permit access to the program for specific 

industries or occupations. These 

variations permit access to the program 

for those who would otherwise be 

unable to readily comply with the 

program’s established processes, such as 

by allowing itinerary employment for 

reforestation employers and certain 

employers in the entertainment 

industry. Under the proposed rule, as 

with the 2008 Final Rule, special 

procedures already in place on the 

effective date of the regulations will 

remain in force until otherwise 

modified or withdrawn by the 

Department. 

5. Section 655.5 Definition of Terms 

Although the Department proposes a 

number of changes to the definitions 

section from the definitions contained 

in the 2008 Final Rule, many of the 

changes are to clarify meanings in minor 

ways that do not substantively change 

the meaning of the term. However, some 

substantive changes to definitions are 

also proposed. 

The Department proposes to add a 

reference to the definition of 

‘‘agricultural labor or services’’ from its 

own regulations governing H–2A 

temporary agricultural employment in 

order to assist in clarifying what nonagricultural employment is, by defining 

what it is not. The distinction between 

agricultural and non-agricultural 

employment is defined in part by the 

H–2A temporary agricultural 

regulations, drawn from the express 

authorization of the Department to 

define what constitutes agricultural 

labor or services. The Department is also 

offering a definition of ‘‘non-agricultural 

labor or services’’ as any type of 

employment that is not agricultural in 

nature. 

The Department proposes to add the 

definition of ‘‘area of substantial 

unemployment’’ to the H–2B program. 

As will be discussed more fully below, 

employers seeking H–2B workers in 

areas of substantial unemployment may 


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be subject to enhanced recruitment 

based on the Certifying Officer’s (CO) 

discretion. Further discussions of how 

the Department has derived the 

definition of ‘‘area of substantial 

unemployment’’ can be found in ETA’s 

Training and Employment Guidance 

Letter No. 1–08, Aug. 20, 2008. 

The Department proposes to amend 

the definition of an ‘‘attorney’’ to reflect 

the scope of activities attorneys can 

perform under the program. 

The Department proposes to amend 

the definition of ‘‘Certifying Officer’’ to 

clarify that the Administrator, OFLC is 

the National CO. 

The Department proposes to include 

the definition of ‘‘corresponding 

employment’’ under these H–2B 

regulations to more accurately reflect 

the DHS regulatory requirement that, as 

a condition for approval of H–2B 

petitions the Secretary certify that the 

employment of the alien in such labor 

or services will not adversely affect the 

wages and working conditions of 

similarly employed U.S. workers. 8 CFR 

214.2(h)(6). To ensure that U.S. workers 

are not adversely affected by the 

employment of H–2B workers, the 

Department proposes to require that 

employers provide to workers engaged 

in corresponding employment at least 

the same protections and benefits as 

those provided to H–2B workers (except 

for border crossing and visa fees which 

would not be applicable). Like the 

definition of corresponding employment 

in the H–2A program, ‘‘corresponding 

employment’’ is defined as the 

employment of workers who are not 

H–2B workers by an employer whose 

H–2B Application was approved by 

OFLC in any work included in the job 

order, or any work performed by the 

H–2B workers during the validity period 

of the job order. Workers in 

‘‘corresponding employment’’ may be 

either workers hired during the 

recruitment process on an H–2B job 

order or workers who already work for 

an employer who perform the same 

work as H–2B workers. 

Historically, there has been a 

recognition that U.S. workers should not 

be treated less favorably than temporary 

foreign workers. For example, a 1980 

Senate Judiciary Report on Temporary 

Worker Programs stated that U.S. 

employers were required to offer 

domestic workers wages equal to foreign 

workers as a prerequisite for labor 

certification. See Congressional 

Research Service: ‘‘Report to the Senate 

Committee on the Judiciary: Temporary 

Worker Programs: Background and 

Issues, 53 (1980).’’ Current § 655.22(a) 

reflects this principle, requiring that the 

terms and conditions of offered 

employment cannot be less favorable 

than those offered to H–2B workers. 

This provides for equal treatment of 

workers hired during the H–2B 

recruitment process. However, the 

current regulation does not encompass 

all workers who may be engaged in 

work performed by H–2B workers 

during the validity of the job order. 

Courts have consistently upheld the 

Department’s interpretation that the 

wages and benefits offered or provided 

to H–2A agricultural workers must also 

be provided to domestic workers. See 

Farmer v. Employment Security 

Comm’n of N.C., 4 F.3d 1274, 1276, nn. 

2, 3, 4 (4th Cir. 1993) (H–2A employers 

must make certain benefits available to 

all temporary agricultural laborers); see 

also Williams v. Usery, 531 F.2d 305, 

306 (5th Cir. 1976) (the Secretary’s 

authority is limited to making an 

economic determination of what rate 

must be paid all workers to neutralize 

any adverse effect resulting from the 

influx of temporary foreign workers). 

Similarly, in the H–2B non-agricultural 

context, paying the prevailing wage rate 

to all workers protects against possible 

wage depression from the introduction 

of foreign workers. 

Further, under the current H–2B 

regulations, since employees hired 

during the current ten-day recruitment 

period in § 655.15(e) are entitled to the 

same offered terms and conditions of 

employment as the foreign workers 

hired for those positions, a longtime 

employee earning less than the 

advertised wage would be entitled to 

quit his current employment and reapply for the same job with the same 

employer to obtain the higher wage rate 

offered to H–2B workers and U.S. 

workers hired during that recruitment 

period. This would be disruptive for the 

employer and could create an additional 

administrative burden for the SWAs for 

any workers being referred through 

them. It also puts too high a premium 

on longtime employees understanding 

their rights under the regulations, and 

feeling secure enough—rare in low-wage 

employment—to quit a job with the 

expectation of being immediately 

rehired. Under this NPRM, longtime 

U.S. workers would be entitled to the 

wage rates paid to H–2B employees 

without having to quit their jobs and be 

rehired. 

The H–2B program must ensure that 

U.S. workers are not adversely affected 

by the presence of H–2B workers in the 

labor market. A primary means of 

providing this protection is to ensure 

that the jobs are available to U.S. 

workers under the same wages, benefits, 

and terms and conditions of 

employment provided to temporary 

foreign workers. The problem we seek to 

address with this aspect of 

corresponding employment are H–2B 

employers who place H–2B workers in 

occupations and/or at job sites outside 

the scope of the labor certification and 

in violation of the regulations, thereby 

bypassing many of the protections U.S. 

workers otherwise enjoy under the 

program, such as domestic recruitment 

requirements, wage protections, and the 

right to be employed if available and 

qualified. We invite comments that 

propose alternatives to including in the 

definition of corresponding employment 

U.S. workers employed in occupations 

which are beyond the scope of the labor 

certification but at job sites where H–2B 

workers are placed and that will still 

ensure that U.S. worker protections are 

not undermined. 

An employer employing H–2B 

workers and/or workers in 

corresponding employment under an 

Application for Temporary Employment 

Certification has agreed as part of the 

Application for Temporary Employment 

Certification that it will abide by the 

conditions in this section. The 

Department also invites members of the 

public to provide comments on whether 

and how each new proposed condition, 

including the application of 

transportation benefits, the three-quarter 

guarantee and the definition of full-time 

employment, should apply to H–2B 

workers and U.S. workers in 

corresponding employment. 

The Department proposes to retain the 

definition of ‘‘employee’’ from the 2008 

Final Rule, with minor clarifying edits. 

This definition is based on the common 

law, as set forth in the Supreme Court’s 

holding in Nationwide Mutual 

Insurance v. Darden, 503 U.S. 318, 

322–324 (1992). The proposed clarifying 

edits would conform the definition to 

one used in most other Departmentadministered temporary foreign worker 

programs. To provide clarity, the 

Department proposes a definition of the 

term ‘‘H–2B worker’’ as an individual 

authorized to be in the United States to 

perform H–2B non-agricultural services 

or labor. 

The Department proposes to amend 

the definition of ‘‘full time’’ in the 

H–2B program to mean 35 or more 

hours per week. The proposed increase 

in the number of hours from 30 to 35 to 

constitute full-time employment 

conforms more closely to the available 

data on full-time employment. This will 

also provide greater clarity for 

employers than the current regulation, 

which defines full time to mean 30 

hours or more per week with a vague 

exception for unidentified local or 


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1Bureau of Labor Statistics, Employment 

Situation, Table B–2: Average weekly hours and 

overtime of all employees on private nonfarm 

payrolls by industry sector, seasonally adjusted, 

Dec. 2010. http://www.bls.gov/news.release/empsit.

t18.htm. 

2Bureau of Labor Statistics, Employment 

Situation, Table A–24: Persons at work in 

agriculture and related and in nonagriculture 

industries by hours of work, Dec. 2010. http://www.

bls.gov/web/empsit/spseea24.pdf. 

3Bureau of Labor Statistics, Employment 

Situation, Table A–24: Persons at work in 

agriculture and related and in nonagriculture 

industries by hours of work, Dec. 2010. http:// 

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

industry standards. The proposal also 

restores the pre-2008 level of 35 hours. 

The District Court in CATA v. Solis, 

Civil No. 2:09–cv–240–LP, 2010 WL 

3431761 (E.D. Pa. Aug. 30, 2010), 

invalidated the definition in the 2008 

H–2B Final Rule of full time as 30 hours 

a week, which was a change from the 

proposed definition of full time as 35 

hours a week primarily because, in the 

court’s view, the Department did not 

‘‘consider[ ] the relevant factors and 

articulate[ ] a rational connection 

between the facts found and the choice 

made.’’ CATA, 2010 WL 3431761 at * 14 

(quotation and citation omitted). 

In accord with the CATA decision, 

the Department believes that the 

regulatory definition of full-time work 

should be supported by empirical data. 

In response to these data, the 

Department’s position regarding the 

definition of full time has evolved. 

Though the 2008 Final Rule established 

a 30-hour work week as the standard for 

full time employment, the CATA court 

correctly pointed out that the 2008 Final 

Rule contained no meaningful rationale 

for that determination. After reviewing 

available information, the Department 

now believes that a 35-hour work week 

is more representative of the actual 

needs of employers and expectations of 

workers. First, the most recent statistics 

available from BLS indicate that the 

average hours worked during a week, 

including both full and part time 

employment was 34.3 hours during 

December 2010, 1 and that the average 

weekly hours worked of workers who 

usually work full time is 42.4 hours. 2

These statistics make clear that full time 

U.S. workers are employed for at least 

35 hours per week. The last two years 

of experience under the current rule are 

consistent with the direction of BLS 

data. Though an exhaustive statistical 

analysis of hours requested is not 

feasible, it is clear that a substantial 

majority of H–2B employers recruit 

workers for 35 or more hours of work 

each week. All of the approximately 30 

investigations undertaken by the WHD 

since enforcement authority was 

transferred from DHS have identified 

work weeks of at least 35 hours (with 

some even indicating possible 

overtime). In addition, as noted in the 

preamble to the current H–2B 

regulations, landscapers—one of the 

largest groups of H–2B workers— 

typically work 35-hour weeks. See 73 

FR 78038 (Dec. 19, 2008). Defining a 

workweek as at least 35 hours is 

consistent with existing H–2A 

regulations, and it is closer to the 40 

hours per week standard used in the 

H–1B program. Furthermore, the use of 

the 35-hour week may increase the 

possibility of recruiting U.S. workers 

who may find the additional hours of 

work more attractive. 

The Department anticipates that this 

change will not impose substantial cost 

on most employers. Since the data and 

experience referenced above indicated 

that a substantial majority of H–2B 

employers already employ workers for 

35 hours or longer each week, the 

proposed rule will have no impact on a 

large proportion of the employer 

population. Furthermore, 66 percent of 

employers in FY2010 requested at least 

ten employees to work in the same 

occupation in the same area of intended 

employment, suggesting that some 

employers can avoid any adverse impact 

by requesting fewer workers and 

scheduling each to work several more 

hours per week. The Department seeks 

comments on costs to employers and 

other stakeholders of an increase from 

30 to 35 hours per week. 

Alternatively, the Department 

considered proposing a 40-hour 

threshold. This level is more in line 

with what the U.S. labor market 

generally considers as full time. Forty 

hours is also reflective of data actually 

captured by the December 2010 BLS 

Current Population Survey (CPS) 

concluding that the average workweek 

of non-agricultural workers who usually 

work full time is 42.4 hours long.3 The 

Department is currently proposing 35 

hours instead of 40 because 35 hours is 

more consistent with the Department’s 

historical practice for the H–2B 

program, and should therefore not pose 

difficulty for the regulated community. 

However, the Department welcomes 

comments regarding whether extending 

the definition of a full-time workweek to 

at least 40 hours is more protective of 

U.S. workers and whether it conforms 

better to employer standards and needs. 

The Department proposes to amend 

the definition of an ‘‘H–2B petition’’ to 

clarify that the petition includes the 

certified Application for Temporary 

Employment Certification and its 

attachments. This more closely reflects 

the Department of Homeland Security’s 

current H–2B regulations, in which a 

certified Application for Temporary 

Employment Certification is required. 

In this NPRM, the Department 

proposes to amend the definition of a 

‘‘job contractor.’’ The U.S. District Court 

for the Eastern District of Pennsylvania 

in CATA v. Solis, Civil No. 2:09–cv– 

240–LP, 2010 WL 3431761 (E.D. Pa. 

Aug. 30, 2010) invalidated the 

definition of ‘‘job contractor’’ under the 

2008 Final Rule, concluding that the 

Department did not provide a rational 

explanation for its adoption of the 

language in the final rule that the job 

contractor ‘‘will not exercise any 

supervision or control in the 

performance of the services or labor to 

be performed other than hiring, paying, 

and firing the workers.’’ The court found 

the Department’s explanation deficient 

because the Department stated that this 

language was to ‘‘make clear that the job 

contractor, rather than the contractor’s 

client, must control the work of the 

individual employee.’’ However, as the 

court stated, this language ‘‘did precisely 

the opposite—it clarified that it is the 

contractor’s client who ‘must control the 

work of the individual employee.’ The 

explanation is therefore not rationally 

connected to the change, which will 

accordingly be invalidated as arbitrary.’’ 

Accordingly, the Department would 

like to resolve any confusion and clarify 

that the phrase ‘‘the job contractor will 

not exercise any supervision or control 

in the performance of the services or 

labor to be performed other than hiring, 

paying and firing the workers’’ was 

intended to clarify that an employer 

meets the definition of job contractor 

where the job contractor’s client, rather 

than the job contractor, exercises 

primary supervision or control over the 

work of the individual employee. 

The Department is proposing to 

amend the definition of job contractor to 

include the phrase ‘‘substantial, direct 

day-to-day’’ before ‘‘supervision or 

control’’ to clarify that an entity 

exercising some limited degree of 

supervision or control over the H–2B 

workers would still be considered a job 

contractor, while an entity exercising 

substantial, direct day-to-day 

supervision or control over the H–2B 

workers would not be considered a job 

contractor. This revised definition better 

reflects the activities of job contractors 

in the H–2B program. 

The Department is not of the view 

that employers engaged in reforestation 

activities that have historically used the 

program will be impacted by this 

proposed action because their activities 

generally should not fall under the 

definition of a job contractor. 

Reforestation employers provide on site, 


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4While the CATA decision did not impose an 

outright prohibition on the participation of job 

contractors in the H–2B program, the Court left 

open the possibility that the Department may accept 

a labor certification application from a job 

contractor if its employer-client(s) also filed 

applications. However, the regulation at 20 CFR 

655.20(e) only allows for one H–2B labor 

certification application to be filed for worksite(s) 

within one area of intended employment for each 

job opportunity with an employer. The H–2B 

regulations though recognize joint employment and 

do not prohibit the filing of a single labor 

certification by joint employers. Therefore, under 

the current regulations, a job contractor and its 

employer-client(s) could very well file a single 

application as joint employers and thus be in 

compliance with both the CATA decision (which 

prohibits allowing only the job contractor to file the 

application) and § 655.20(e) (which prohibits the 

filing of multiple applications for a single job 

opportunity). 

day-to-day supervision and direction of 

workers and are therefore not job 

contractors for the purposes of this 

proposed rule. 

The Department also proposes an 

amended definition of the ‘‘offered 

wage.’’ The amended definition makes 

clear the employer’s obligation to pay 

all affected workers at least the highest 

of the prevailing wage, or the Federal, 

State, or local minimum wage. 

The Department proposes to revise 

the definition of ‘‘strike.’’ The term is 

used in the same way as in the 

Department’s 2010 H–2A regulations. 

The proposed definition is broader than 

the current definition and includes any 

concerted work stoppage as a result of 

a labor dispute or any concerted 

interruption or slowdown of operation. 

The Department also proposes to 

define several terms not previously 

defined in the 2008 Final Rule. The 

Department intends by these new 

definitions to provide interested parties 

with an understanding of terms that are 

either new or are commonly used in the 

H–2B program. As discussed more fully 

later in this preamble, the Department is 

including a definition of ‘‘H–2B 

Registration.’’ See discussion of 

§ 655.11. Other terms have been 

proposed to provide program users with 

insight to better achieve program 

compliance, including ‘‘job offer’’ and 

‘‘job order.’’ The Department proposes 

these definitions to ensure that 

employers understand the difference 

between the offer that is made to 

workers, which must contain all the 

material terms and conditions of the job, 

and the order that is the published 

document used by SWAs in the 

dissemination of the job opportunity. 

The Department is including a 

proposed definition of a ‘‘Federal 

holiday’’ to provide clarity for 

employers about which holidays are 

included for purposes of tracking 

timelines that are used in this 

regulation. The Department proposes to 

move several definitions to the 

definition section, such as the 

‘‘Administrator, OFLC,’’ that have 

appeared in different sections in 

previous regulations to provide one 

place for the definition of those terms. 

The Department also proposes the 

removal of certain definitions that are 

obsolete in or inapplicable to the H–2B 

program. The terms ‘‘representative’’ and 

‘‘eligible worker’’ for example, are 

proposed to be eliminated, as they are 

no longer used. 

6. Section 655.6 Temporary Need 

The Department proposes an 

interpretation of temporary need that is 

directly reflective of the DHS definition 

of that term and of the Department’s 

experience in the H–2B program. The 

DHS regulations define temporary need 

as a need for a limited period of time, 

where the employer must ‘‘establish that 

the need for the employee will end in 

the near, definable future.’’ 8 CFR 

214.2(h)(6)(ii)(B). The proposed 

interpretation is consistent with this 

approach. 

The Department proposes to exclude 

job contractors from being considered 

for participation in the H–2B program. 

Job contractors are defined in this 

regulation as entities that employ 

workers they supply to other entities 

and that are generally only engaged in 

the hiring, firing and payment of the 

workers they supply; they do not 

control the day-to-day performance of or 

directly supervise the services or labor 

of those workers. Furthermore, they 

have an ongoing business of supplying 

workers to other entities, even if that 

entity’s need for the services is 

temporary. It is the Department’s view 

that a job contractor’s ongoing need is 

by its very nature permanent rather than 

temporary and therefore the job 

contractor does not qualify to 

participate in the program. The 

contractor may have many clients, each 

of whom has a temporary need, but the 

contractor’s need for the employees it 

seeks to fulfill its contracts is ongoing 

and therefore of a potentially permanent 

duration. Accordingly, the contractor’s 

need would not be temporary. 

This conclusion is consistent with the 

Board of Immigration Appeals’ seminal 

decision in Matter of Artee, 18 I. & N. 

Dec 366, Interim Decision 2934, 1982 

WL 190706 (BIA 1982). Matter of Artee 

established that a determination of 

temporary need rests on the nature of 

the underlying need for the duties of the 

position. The Board of Alien Labor 

Certification Appeals (BALCA) has 

recently further clarified the definition 

of temporary need in Matter of 

Caballero Contracting & Consulting LLC 

2009–TLN–00015 (April 9, 2009), 

finding that ‘‘the main point of Artee 

* * * is that a job contractor cannot use 

[solely] its client’s needs to define the 

temporary nature of the job where 

focusing solely on the client’s needs 

would misrepresent the reality of the 

application.’’ BALCA, in Matter of Cajun 

Constructors, Inc. 2009–TLN–00096 

(October 9, 2009), also decided that an 

employer that by the nature of its 

business works on a project until 

completion and then moves on to 

another, has a permanent rather than a 

temporary need. The Department 

concurs that a job contractor that 

provides workers to an employer on a 

temporary basis, but has an ongoing 

need for such workers, is an entity with 

a permanent and not a temporary need. 

As a result of the order issued by the 

U.S. District Court for the Eastern 

District of Pennsylvania in CATA v. 

Solis, Civil No. 2:09–cv–240–LP, 2010 

WL 3431761 (E.D. Pa. Aug. 30, 2010), 

the Department has stopped accepting 

labor certification applications 

submitted by job contractors. In the 

CATA decision, the court interpreted 

DHS’ regulations to require every 

employer client of a ‘‘job contractor’’ as 

defined in the regulations at 20 CFR 

655.4, to file a visa petition (and thus 

the underlying labor certification as 

well); therefore, requiring only job 

contractors to file a labor certification 

application would be contrary to DHS 

regulations. The proposal to eliminate 

job contractors altogether from the H–2B 

program, based on the determination 

that job contractors have a permanent 

need, effectively achieves the same 

result as the court’s ruling in CATA 

since the Department has yet to receive 

a labor certification application from a 

job contractor that meets both the 

requirements of the CATA decision and 

the existing H–2B regulations.4

The Department’s proposal regarding 

job contractors is based on our 

determination that job contractors, by 

their nature, have a permanent need for 

workers and therefore are not statutorily 

permitted to seek to employ H–2B 

workers. As stated above, the 

Department understands that in some 

circumstances the use of a job contractor 

may be advantageous to employers; job 

contractors presumably save some 

employers from the administrative 

functions of direct employment and 

provide their clients with useful, 

perhaps even cost-saving, service. 

However, the advantages provided to 

employers by using these services are 

not a legitimate basis for use of the H– 

2B program. Based on the Department’s 

determination that job contractors have 


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a permanent need for workers, it cannot 

transgress the temporary parameters of 

the program to permit employers with 

permanent job opportunities to apply 

for temporary workers. The Department 

recognizes that by taking this position, 

the result may be that some employers 

who have been clients of such job 

contractors, and who have not 

previously participated in the program, 

may now seek to do so. We encourage 

those employers to submit information 

to us about their changed circumstances 

as a result of this proposal, including 

the potential costs or savings that may 

result. 

DHS categorizes and defines 

temporary need into four classifications: 

Seasonal need; peakload need; 

intermittent need; and one-time 

occurrence. A one-time occurrence may 

be for a period of up to 3 years. The 

other categories are limited to 1 year or 

less in duration. 

The Department proposes to define 

temporary need as less than 9 months, 

except in the case of a one-time 

occurrence. The definition is in keeping 

with the DHS definition of temporary 

need, in which the ‘‘period of time will 

be one year or less, but in the case of 

a one-time event could last up to 3 

years.’’ 8 CFR 214.2(h)(6)(ii)(B). The 

Department believes its proposed time 

period is an appropriate interpretation 

of the ‘‘or less’’ limitation contained in 

the DHS regulations, a limitation it has 

always previously applied in this 

program. This interpretation is 

necessary to ensure that the program is 

available only for employers with truly 

temporary or seasonal needs. The 

current approach that permits 

temporary certifications for periods up 

to 10 months encompasses job 

opportunities that the Department 

believes are permanent in nature and 

not consistent with Congressional intent 

to limit H–2B visas to employers with 

temporary or seasonal needs. If work is 

performed during all four seasons of the 

year, either it is not temporary or 

seasonal, consistent with statutory 

intent, or it is not the same work (for 

example, landscape workers who also 

perform snow removal duties) and thus 

would require separate applications. 

Employers that have recurring needs 

that are longer than 9 months should 

not have access to the H–2B temporary 

worker program for those job 

opportunities. 

In addition, the Department’s 

experience in administering the H–2B 

program indicates that some employers 

are not appropriately characterizing the 

nature of their peakload need, 

specifically where this need is based on 

a short-term, as opposed to seasonal, 

demand. Peakload need is based on 

‘‘seasonal or short-term demand’’ for 

which the employer needs to 

supplement its normal workforce. 8 CFR 

214.2(h)(6)(ii)(A)(3). The Department is 

concerned that employers who cannot 

demonstrate a seasonal need 

mischaracterize a permanent need as a 

short-term temporary need, relying on a 

perceived short-term demand. 

Employers such as landscaping or 

construction companies frequently 

conduct year-round activities at a 

sustained level for the maximum 

allowable period of time for certification 

that would otherwise constitute a 

permanent need but for the two months 

when the H–2B workers return to their 

home countries. The slowdown in work 

is attributed more to the absence of H– 

2B workers, as opposed to an actual 

decrease in the demand for labor or 

services. 

The Department is seeking comments 

and ideas from the public on factors or 

criteria that the Department should 

consider in determining whether the 

employer has a genuine peakload need 

based on short-term demand. In 

particular, the Department seeks 

comments on whether the Department 

should restrict the definition of shortterm demand to one that is the direct 

result of climatic, environmental or 

other natural conditions. The 

Department would also appreciate 

comments on other alternatives limiting 

short-term demand to a specific time 

period, such as 6 months. 

7. Section 655.8 Requirements for 

Agents 

The Department has long accepted 

applications from agents acting on 

behalf of employers in the H–2B 

program. However, in administering the 

H–2B program, the Department has 

become concerned about the role of 

agents in the program, especially as to 

whether their presence and 

participation have contributed to 

problems with program compliance, 

such as the passing on of prohibited 

costs to employees. The Department 

invites the public to provide ideas and 

suggestions on the appropriate role of 

agents in the H–2B program. In 

particular, the Department seeks 

comments on whether the Department 

should continue to permit the 

representation of employers by agents in 

the H–2B program. 

Alternatively, if the Department were 

to continue to accept applications from 

agents, the Department seeks comments 

on any additional requirements that 

should be applied to agents to 

strengthen program integrity. At a 

minimum, the Department proposes to 

require agents to provide copies of 

current agreements defining the scope of 

their relationships with employers to 

demonstrate that a bona fide 

relationship exists between an agent and 

employer. Where the agent is required 

under MSPA to have a Certificate of 

Registration, the agent must also 

provide a current copy which identifies 

the specific farm labor contracting 

activities that the agent is authorized to 

perform. 

8. Section 655.9 Disclosure of Foreign 

Worker Recruitment 

The Department proposes to require 

the employer and its attorney and/or 

agents to provide a copy of any 

agreements with a foreign labor 

contractor or recruiter whom it engages 

or plans to engage in the international 

recruitment of H–2B workers under an 

Application for Temporary Employment 

Certification. The disclosure of the 

terms and conditions of the agreement 

will assist the Department in 

determining whether the underlying 

transaction raises any program 

compliance concerns, including 

whether prohibited fees are being paid 

or passed on by the foreign labor 

contractor or recruiter. Additionally, 

information about the identity of the 

international recruiters will assist the 

Department in more appropriately 

directing its audits and investigations. 

By disclosing to the public the names of 

the foreign labor contractors and 

recruiters used by employers and their 

attorneys and/or agents participating in 

the H–2B program, the Department 

seeks to provide greater transparency 

regarding the H–2B worker recruitment 

process. In particular, the Department 

intends to use this list of foreign labor 

contractors and recruiters to facilitate 

information sharing between the 

Department and public, so that where 

the Department believes it is 

appropriate, it can more closely 

examine applications or certifications 

involving a particular labor contractor 

or recruiter identified by members of the 

public to have engaged in improper 

behavior. 

B. Prefiling Procedures 

1. Section 655.11 Registration of H–2B 

Employers 

The Department proposes requiring 

all employers to participate in a 

registration process that will allow the 

Department to assess the employer’s 

claim of temporary need for nonagricultural temporary foreign workers 

before the employer is permitted to file 

an Application for Temporary 

Employment Certification to employ H– 


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2B workers. As discussed more fully 

below, the Department intends to use 

this process to ensure, in a manner that 

will facilitate the adjudication of 

applications, that each employer that 

seeks to employ temporary foreign 

workers in the H–2B category has a real 

and justifiable temporary need. 

The Department proposes this 

registration step for a number of 

reasons. First, a registration process will 

streamline the adjudication of 

applications by ensuring an up-front 

determination of the employer’s 

temporary need. The classification of an 

employer’s need is a key issue in the 

current adjudicatory model, with 

significant resources employed in, and 

substantial frustration resulting from, 

the determination of whether an 

employer’s need can be classified as 

temporary, and within that definition, 

whether it can be classified as a onetime, seasonal, intermittent, or peakload 

need. By requiring advance 

determination of the temporary need 

question, employers and workers 

seeking jobs can be assured of an 

application process that is closer in time 

to the dates of need and more focused 

on determining the availability of U.S. 

workers. 

Second, the registration process will 

ensure a more efficient process to repeat 

users of the program. A registration 

approval that may be issued for a period 

of up to 3 years will allow employers to 

concentrate on their recruitment efforts 

in later years, while allowing the 

Department to focus on first-time or 

infrequent users whose program 

knowledge may be lacking. Slight 

variances in employers’ underlying 

need will also be tolerated while 

significant variances (for example, an 

increase in the number of requested H– 

2B positions of more than 20 percent; a 

change of more than 14 days in the 

beginning or ending date of need; or a 

change in the nature of the job 

classification) will result in having to 

redetermine temporary need in 

accordance with § 655.11. 

Under the proposed rule, an employer 

must file an H–2B Registration no fewer 

than 120 and no more than 150 calendar 

days before the date of initial need for 

H–2B workers. The H–2B Registration 

must be accompanied by supporting 

documentation showing the number of 

positions the employer desires to fill in 

the first year of registration; the period 

of time for which the employer needs 

the workers; and that the employer’s 

need for the services or labor is nonagricultural, temporary and justified as 

either a one-time occurrence, a seasonal 

need, a peakload need, or an 

intermittent need, as defined by DHS in 

8 CFR 214.2(h)(6)(ii)(B) and interpreted 

in § 655.6. The employer is also 

required to sign the H–2B Registration, 

as is the employer’s attorney or agent, if 

applicable. 

Under the proposed rule, upon 

receiving a non-transferrable H–2B 

Registration and the accompanying 

documentation, the CO will, at a 

minimum, review the request for 

completeness and makes a 

determination based on whether the job 

classification and duties are nonagricultural; whether the employer’s 

need for the services or labor to be 

performed is temporary in nature; 

whether the number of worker positions 

is justified; and whether the request 

represents a bona fide job opportunity. 

The Department’s proposal requires 

the CO to send any notice or request 

related to an H–2B Registration that 

requires a response from the employer 

by means assuring next day delivery, 

and that the employer’s response be sent 

by similar means by the due date 

specified by the CO. The Department 

acknowledges that in many cases 

electronic mail may be the fastest way 

to relay correspondence and other 

information, and it may elect to use that 

method of transmission in order to 

ensure the fastest delivery. The proposal 

also allows employers to elect to use 

that method of delivery in their 

responses. 

The proposed rule authorizes the CO 

to issue a Request for Further 

Information (RFI) if the CO determines 

the H–2B Registration cannot be 

approved as submitted. The CO may 

issue the RFI for a number of reasons, 

including but not limited to an 

incomplete or inaccurate ETA Form 

9155; a job classification and duties that 

do not qualify as non-agricultural; the 

failure to demonstrate temporary need; 

and/or positions that do not constitute 

bona fide job opportunities. The RFI 

will inform the employer why the H–2B 

Registration is not sufficient for the CO 

to grant the registration; direct the 

employer to submit supplemental 

information or documentation in 

response to the RFI within 7 business 

days from the date of the RFI, and 

inform the employer that the CO will 

issue a Notice of Decision after 

reviewing the information submitted in 

response to the RFI. The RFI further 

informs the employer that a failure to 

comply with the RFI, including not 

providing all requested documentation 

within the specified timeframe, will 

result in a denial of the H–2B 

Registration. The proposed rule 

authorizes the CO to issue one or more 

additional RFIs before issuing a Notice 

of Decision on the employer’s H–2B 

Registration, if needed. 

If the CO approves the H–2B 

Registration, the CO will send the 

decision to the employer, and a copy to 

the employer’s attorney or agent, if 

applicable, notifying the employer that 

it is eligible to file an Application for 

Temporary Employment Certification to 

employ H–2B workers in the 

occupational classification for the 

anticipated number of positions and 

period of need stated on the approved 

H–2B Registration. Under the 

Department’s proposal, the CO is 

authorized to approve an H–2B 

Registration for a period of up to 3 

consecutive years for that occupation 

and area of intended employment. If the 

CO denies the request, the decision 

informs the employer why the request 

was denied, offers the employer an 

opportunity to request administrative 

review under § 655.61, and informs the 

employer that if it does not request 

administrative review within 10 

business days, the denial of the H–2B 

Registration will be final. 

The Department proposes requiring 

all employers that file an H–2B 

Registration to retain any documents 

and records not otherwise submitted 

proving compliance with this subpart. 

An employer whose H–2B Registration 

is approved is required to retain all 

records for a period of 3 years from the 

final date of applicability of the H–2B 

Registration. An employer whose H–2B 

Registration is denied or withdrawn is 

also required to retain all records for 3 

years, to be measured from the date of 

the final registration decision or 

withdrawal by the employer. The 

Department’s regulatory mandate to 

ensure that qualified workers in the 

United States are not available and that 

the alien’s employment will not 

adversely affect wages and working 

conditions of similarly employed U.S. 

workers serves as the basis for the 

Department’s authority to require 

employers to retain records relating to 

their H–2B Registration, even if the 

employer’s H–2B Registration is 

ultimately withdrawn or denied. While 

it is extremely unlikely that the 

Department would audit any employer 

who initiated activity but did not 

actually file an application, these 

records would be potentially invaluable 

to the Department in evaluating future 

H–2B Registrations filed by the 

employer as to whether the employer 

has a temporary need that meets the 

requirements of the H–2B program. 

For instance, in the first year, an 

employer files an H–2B Registration in 

which the employer claims it has a 

seasonal need with dates of need from 


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5The EO 12866 analysis estimates the cost per 

employer to comply with document retention 

requirements to be not in excess of $21.99. 

February to November. The Department 

grants the H–2B Registration, but the 

employer subsequently withdraws its 

H–2B Registration. In the second year, 

the same employer files an H–2B 

Registration for the identical job 

opportunity, except that its dates of 

need are now from April to December. 

Due to the changes in dates of need, the 

Department may have some concerns as 

to the legitimacy of the employer’s 

temporary need and thus may request 

the employer to provide documentation 

of temporary need in support of both its 

previous and current year’s H–2B 

Registration. Especially given that any 

burden that would be placed on an 

employer would be minimal 5— i.e., the 

employer merely would be required to 

retain documents for 3 years—making 

these records available to the 

Department clearly is worthwhile to 

uphold the integrity of the H–2B labor 

certification program and to ensure 

optimal employment opportunities for 

U.S. workers and no adverse effect on 

the wages and working conditions of 

U.S. workers. 

2. Section 655.12 Use of Registration 

of H–2B Employers 

The Department proposes to permit 

an employer to file an Application for 

Temporary Employment Certification 

upon approval of its H–2B Registration, 

and for the duration of the registration’s 

validity period, which may be up to 3 

consecutive years from the date of 

issuance. The employer, however, may 

not use the same approved H–2B 

Registration to file an Application for 

Temporary Employment Certification if 

the employer’s need for workers has 

increased by more than 20 percent (or 

50 percent for employers requesting 

fewer than 10 workers); if the beginning 

or ending date of need for the job 

opportunity has changed by more than 

14 calendar days; if the nature of the job 

classification and/or duties has 

changed; and/or if the temporary nature 

of the employer’s need for services or 

labor is no longer temporary. If these 

changes occur, the proposed rule 

requires the employer to file a new H– 

2B Registration. Limiting the use of the 

employer’s approved H–2B Registration 

in this way ensures the integrity of the 

registration process by requiring 

employers to submit a new H–2B 

Registration when the employer’s 

circumstances change significantly. 

3. Section 655.10 Prevailing Wage 

The Department proposes a modified 

process for obtaining a prevailing wage. 

In order to provide clarity, the proposed 

rule simplifies how an employer 

requests prevailing wage determinations 

(PWD). Under the proposed rule 

employers must request PWDs from the 

NPWC before posting their job orders 

with the SWA and the PWD must be 

valid on the day the job orders are 

posted. Employers should continue to 

request a PWD in the H–2B program at 

least 60 days before the date on which 

the determination is needed. 

As discussed above, the 

determination of a prevailing wage has 

been the subject of another rulemaking, 

necessitated by the court’s decision in 

CATA v. Solis, Civil No. 2:09–cv–240– 

LP, 2010 WL 3431761 (E.D. Pa. Aug. 30, 

2010), which culminated in the 

publication of the Wage Methodology 

for the Temporary Non-agricultural 

Employment H–2B Program Final Rule, 

76 FR 3452, Jan. 19, 2011. This NPRM 

does not address or seek to amend the 

prevailing wage methodology 

established under that final rule. 

4. Section 655.13 Review of PWDs 

The Department proposes changes to 

the process for the review of PWDs for 

purposes of clarity and consistency. The 

proposed rule reduces the number of 

days within which the employer must 

request review of a PWD by the NPWC 

Director from 10 calendar days to 7 

business days from the date of the PWD. 

The proposed rule revises the language 

of the 2008 Final Rule to reflect that the 

NPWC Director will review 

determinations. For similar reasons, the 

proposed rule specifies that the 

employer has 10 business days from the 

date of the NPWC Director’s final 

determination within which to request 

review by BALCA. No other substantive 

changes were made to this section. 

C. Application for Temporary 

Employment Certification Filing 

Procedures 

1. Section 655.15 Application Filing 

Requirements 

This provision sets out the basic 

requirements with which employers 

need to comply in order to file an 

Application for Temporary Employment 

Certification once they have an 

approved H–2B Registration. Under the 

proposed rule, the Department has 

returned to a post-filing recruitment 

model in order to ensure better and 

more thorough compliance by H–2B 

employers with program requirements. 

The Department’s experience in 

administering the H–2B program since 

the implementation of the 2008 Final 

Rule suggests that the lack of oversight 

by the Department and the SWAs during 

the pre-filing recruitment process has 

resulted in failures to comply with 

program requirements. The recruitment 

model described below will enhance 

coordination between OFLC and the 

SWAs, better serve the public by 

providing U.S. workers more access to 

available job opportunities, and assist 

the employer in obtaining the qualified 

personnel that it requires in a timelier 

manner. The proposed rule allows the 

Department to work more closely with 

the SWAs by requiring the employer to 

file the Application for Temporary 

Employment Certification and a copy of 

the job order with the Chicago NPC at 

the same time it files the job order with 

the SWA. The employer must submit 

this filing no more than 90 days and no 

fewer than 75 days before its date of 

need. The proposed process continues 

to employ the SWAs’ significant 

knowledge of the local labor market, job 

requirements, and local prevailing 

practices by authorizing the SWA to 

review the contents of the job order for 

compliance and submit to the CO any 

deficiencies pursuant to § 655.16. The 

Department continues to require 

employers to file separate applications 

when there are different dates of need 

for the same job opportunity within an 

area of intended employment. This 

prohibition against staggered entries 

based on a single date of need is 

intended to ensure that employers 

provide U.S. workers the maximum 

opportunity to consider the job 

opportunity and is consistent with 

USCIS policies. The Department 

recognizes that there may be industries 

whose participation in the H–2B 

program may be constrained as a result 

of this revised timeframe in years in 

which the statutory cap of 33,000 visas 

for the six-month intervals beginning 

October 1 and April 1 is at issue. 

However, this is largely a function of the 

statutory cap on the available visas over 

which the Department has no control. 

While the Department has begun 

efforts to establish an online format for 

the submission of an Application for 

Temporary Employment Certification, 

as such a system depends upon the 

resolution of issues in this rulemaking, 

it cannot be immediately implemented 

when a final rule becomes effective. 

Thus there will have to be a period 

during which paper submissions remain 

the means by which applications must 

be filed. Therefore, the Department 

proposes to continue to require filing of 

an Application for Temporary 

Employment Certification in a paper 


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format until such time as an electronic 

system can be fully implemented. The 

Department proposes to continue to use 

Form ETA 9142 to collect the necessary 

information; however, the form’s 

appendices will be slightly modified to 

reflect changes from the 2008 Final Rule 

(such as a change of tense to note prerecruitment filing). As in the 2008 Final 

Rule, the proposed rule requires the 

Application for Temporary Employment 

Certification to contain original 

signatures. 

2. Section 655.16 Filing of the Job 

Order at the SWA 

The proposed rule requires the 

employer to submit the job order 

directly to the SWA at the same time as 

it files the Application for Temporary 

Employment Certification and a copy of 

the job order with the NPC, no more 

than 90 calendar days and no fewer than 

75 calendar days before the employer’s 

date of need. Ensuring that the 

recruitment of U.S. workers occurs 

closer in time to the actual job 

availability makes the recruitment more 

realistic and more likely to result in 

greater opportunities for U.S. workers. 

The proposed rule continues to use the 

SWAs’ experience with the local labor 

market, job requirements, and prevailing 

practices by requiring the SWA to 

review the contents of the job order for 

compliance with § 655.18 and notify the 

CO of any deficiencies within 4 

business days of its receipt of the job 

order. The proposed rule differs from 

the 2008 Final Rule in that it prohibits 

the SWA from posting the job order 

before receiving a Notice of Acceptance 

from the CO directing it to do so. It is 

the Department’s belief that the 

cooperative relationship between the 

CO and the SWA continues to ensure 

program integrity. Additionally, by 

requiring such concurrent filing and 

review, the CO can simultaneously 

address job order deficiencies identified 

by the NPC and the SWA in a single 

Notice of Deficiency before the 

employer conducts its recruitment. This 

coordination will ensure greater 

program integrity and efficiency. 

Upon placement of the job order in 

intra and interstate clearance, the SWA 

must keep the job order on its active file 

and continue to refer U.S. workers who 

apply (or on whose behalf an 

application is made) for the job 

opportunity until 3 days before the date 

of need, when it is assumed that the last 

H–2B worker has departed for the place 

of employment, unless informed 

otherwise by the employer, as provided 

in proposed § 655.40. This ensures the 

job order is afforded maximum visibility 

for the most relevant period of time— 

the time during which workers are most 

likely to apply for an imminent job 

opening, and when employers are most 

in need of workers. This is a substantial 

change from the current practice of 

keeping the job order open only for a 

short time, but the Department believes 

the change will ensure that U.S. workers 

are apprised of the job opening and 

provided a meaningful opportunity to 

apply when they are most likely to do 

so and most likely to accept the offered 

employment. 

3. Section 655.17 Emergency 

Situations 

Under the proposed rule, an employer 

may file an H–2B Registration and/or an 

Application for Temporary Employment 

Certification fewer than 75 days before 

the start date where an employer has 

good and substantial cause and there is 

sufficient time for the employer to 

undertake an adequate test of the labor 

market. This is a change from the 

current regulations which do not allow 

for emergency filings. This affords 

employers flexibility while maintaining 

the integrity of the application and 

recruitment processes. To meet the good 

and substantial cause test, the employer 

must provide to the CO detailed 

information describing the reason(s) 

which led to the emergency request. 

Such cause may include the substantial 

loss of U.S. workers due to Acts of God 

or pandemic health issues, damage to 

facilities resulting from weather or other 

conditions, or new contracts that require 

earlier start dates. However, the CO’s 

denial of an H–2B Registration in 

accordance with the procedures under 

§ 655.11 does not constitute good and 

substantial cause necessitating a waiver 

request. 

4. Section 655.18 Content of the Job 

Order 

The job order is essential for 

providing U.S. workers sufficient 

information to make informed 

employment decisions. The Department 

proposes to require employers to inform 

applicants in the job order not only of 

the typical information provided in 

advertisements, but also of several key 

assurances and obligations to which the 

employer is committing to by filing an 

Application for Temporary Employment 

Certification for H–2B workers. The job 

order must also be provided to H–2B 

workers with its pertinent terms in a 

language the worker understands. 

a. Prohibition Against Preferential 

Treatment (§ 655.18(a)). Under the 

proposed rule, the employer is 

responsible for providing to U.S. 

workers at least the same level of 

benefits, wages, and working conditions 

that are being or will be offered or paid 

to H–2B workers, similar to the 

requirements under current § 655.22(a). 

The additional requirement is that this 

guarantee must be set forth in the job 

order to be sure that all workers are 

aware of their rights. 

b. Bona Fide Job Requirements 

(§ 655.18(b)). The Department proposes 

to require that the job qualifications and 

requirements listed in the job order be 

bona fide and consistent with those 

required by employers that do not use 

H–2B workers for the same or 

comparable occupations in the same 

area of intended employment, 

consistent with the requirements in 

current § 655.22(a). The intent of this 

provision is to prevent employers from 

artificially making the job opportunity 

unattractive to U.S. workers, thereby 

increasing the need for H–2B workers. 

c. Benefits, Wages, and Working 

Conditions Covered Under (§ 655.18(c)– 

(g)). The Department proposes to require 

the employer to list all of the following 

benefits, wages, and working conditions 

in the job order: the rate of pay, 

frequency of pay, deductions that will 

be made, and that the job opportunity is 

full-time. These requirements are 

generally consistent with those required 

in current § 655.17 and § 655.22; where 

changes were made, they are discussed 

in the preamble to § 655.20. These 

disclosures are critical to a potential 

applicant’s decision whether to accept 

the opportunity. 

d. Three-Fourths Guarantee 

(§ 655.18(h)). The Department proposes 

to require that H–2B employers 

guarantee payment of wages for at least 

three-fourths of the contract period and 

proposes to require the employer to list 

this guarantee in the job order. 

Currently, there is no minimum number 

of hours that employers are required to 

provide to H–2B workers. The NPRM 

proposes to require that employers 

guarantee the worker employment for a 

total number of work hours equal to at 

least three-fourths of the workdays of 

each 4-week period, beginning with the 

first workday after the arrival of the 

worker at the place of employment or 

the advertised contractual date of need, 

whichever is later, and which ends on 

the expiration date specified in the job 

order or in any extensions. Again, 

awareness of this guarantee would be 

critical to a U.S. worker’s ability to 

evaluate the job opportunity and thus 

influence the decision to accept the 

employer’s job offer. These proposed 

requirements are similar to the threefourths guarantee in the H–2A program; 

however, that program assesses the 

guarantee based upon the entire contract 

period rather than based upon 4-week 


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periods. Recent experience enforcing 

the H–2B regulations demonstrates that 

workers are often provided much less 

work than that promised in the job order 

and this occurrence has convinced the 

Department that this protection is 

necessary. 

e. Transportation and Visa Fees 

(§ 655.18(i)). The proposed rule requires 

the job order to disclose that the 

employer will provide, pay for, or fully 

reimburse the worker for inbound and 

outbound transportation and daily 

subsistence costs. This requirement 

applies to both U.S. workers who are 

not reasonably able to return to their 

residence within the same workday and 

H–2B workers when traveling to and 

from the employer’s place of 

employment. Additionally, if 

applicable, the job order must disclose 

that the employer will provide daily 

transportation to the workers to the 

worksite. The job order also must 

disclose that the employer will 

reimburse the H–2B workers for visa 

and related fees. 

f. Employer-Provided Items 

(§ 655.18(j)). The proposed rule requires 

the job order to indicate that the 

employer will provide workers with all 

tools, supplies, and equipment needed 

to perform the job at no cost to the 

employee. This requirement, which is 

consistent with current § 655.22(g) 

which requires all deductions to be 

reasonable, gives the workers additional 

protection against improper deductions 

from wages, and assures them that they 

will not be required to pay for items 

necessary to perform the job. 

g. Board, Lodging, or Facilities 

(§ 655.18(k)). While not required to offer 

such benefits, if the employer intends to 

provide H–2B workers with room and 

board or other such facilities or offer 

assistance in securing such lodging, it 

must be disclosed in the job order and 

offered to all U.S. worker-applicants 

who cannot reasonably return to their 

residence within the same workday. 

This requirement is intended to ensure 

that the employer offers, to the extent 

practicable, the U.S. workers the same 

benefits, wages, and working conditions 

as those offered to the H–2B workers. If 

the employer intends to make a 

deduction from cash wages for the 

reasonable costs of board, lodging or 

other facilities, it must disclose that in 

the job order. 

Some employers qualify under 

existing special procedures to use a 

single Application for Temporary 

Employment Certification to recruit and 

employ itinerant workers in multiple 

areas of intended employment on the 

same job order. Consistent with case law 

interpreting the primary benefit 

principle under the Fair Labor 

Standards Act, in the situation where 

employees must move from one 

temporary work location to another, the 

employee’s temporary housing while at 

a particular work location is primarily 

for the benefit of the employer. See 

Masters v. Maryland Management Co., 

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

v. DeBord, 1978 WL 1705 (E.D. Okla. 

1978); Bailey v. Pilots’ Association for 

the Bay and River Delaware, 406 F. 

Supp. 1302 (E.D. Pa. 1976). Similarly, 

the transportation required to move the 

employees from one work location to 

the next work location, as well as the 

daily transportation between the 

temporary housing and the worksite, is 

primarily for the employer’s benefit. See 

29 CFR 531.32(c); 29 CFR 778.217(b)(3). 

Therefore, employers operating under 

the special procedures mechanism to 

employ itinerant workers will be 

required to pay for housing and 

transportation expenses that are 

primarily for the benefit of the 

employer, and the employer’s job order 

will have to advise potential employees 

of this obligation. 

D. Assurances and Obligations 

1. Section 655.20 Assurances and 

Obligations of H–2B Employers 

Proposed § 655.20 would replace 

current § 655.22 and contains the 

employer obligations that WHD will 

enforce. The Department proposes to 

modify, expand, and clarify current 

requirements to ensure that an 

employer’s need for H–2B workers is 

genuine because no qualified U.S. 

workers are available, and that the 

employment of H–2B workers will not 

adversely affect the wages and working 

conditions of U.S. workers. Requiring 

compliance with the following 

enhanced conditions of employment is 

the most effective way to meet these 

goals. As discussed in the preamble to 

§ 655.5, workers engaged in 

corresponding employment are entitled 

to the same protections and benefits 

provided to H–2B workers. 

a. Rate of Pay (§ 655.20(a)). Proposed 

§ 655.20(a) draws from several different 

provisions of existing § 655.22. For 

example, the Department proposes to 

modify the current § 655.22(e) on the 

employer’s responsibility to pay the 

offered wage throughout the worker’s 

authorized period of employment to 

include the requirement that the 

payment must be made ‘‘free and clear.’’ 

Further discussion of ‘‘free and clear’’ 

appears below. 

The proposed section also adds a 

requirement that productivity standards 

that are a condition of job retention 

must be specified in the job order and 

must be no more than normally required 

by non-H–2B employers for the 

occupation in the area of intended 

employment. The Department maintains 

that imposition of productivity 

standards should be evaluated by the 

SWA prior to acceptance of the 

Application for Temporary Employment 

Certification in order to ensure that 

there is no adverse effect on the working 

conditions of similarly employed U.S. 

workers. 

The Department recognizes that some 

occupations for which H–2B workers 

are sought have traditionally been piecerate jobs and the Application for 

Temporary Employment Certification 

allows an employer to compute pay on 

a piece-rate basis. The proposed section 

allows piece rates to serve as the basis 

for computing wages only if the piece 

rate paid is at least equal to the piece 

rate normally paid to workers 

performing the same activity in the area 

of intended employment. Consistent 

with current § 655.22(g)(1), in every 

workweek the piece rate must result in 

wages at least equal to what the weekly 

earnings would have been had the 

worker’s pay been computed based 

upon the offered hourly wage. If the 

piece rate earnings do not equal at least 

the required amount, this proposed 

paragraph requires that the employer 

supplement the worker’s wages on a 

workweek basis to meet the offered 

wage. Finally, the proposal eliminates 

the current option of paying wages on 

a monthly basis. 

b. Wages Free and Clear and 

Deductions (§§ 655.20(b) and 655.20(c)). 

The Department’s experience 

demonstrates that some employers may 

seek to reduce their wage liability by 

imposing unauthorized deductions on 

gross wages. The proposed obligations 

in paragraphs (b) and (c) of this section 

seek to ensure payment of the offered 

wage by requiring that wage payments 

be final, unconditional, and ‘‘free and 

clear’’ and by limiting deductions which 

reduce wages to below the required rate. 

Specifically, authorized deductions are 

limited to those: required by law; made 

under a court order; that are for the 

reasonable cost or fair value of board, 

lodging, or facilities furnished (only if 

disclosed in the job order); or that are 

amounts paid to third parties authorized 

by the employee or a collective 

bargaining agreement. Deductions for 

costs that are primarily for the benefit of 

the employer are never reasonable. 

Unauthorized or impermissible 

deductions include those not specified 

in the job order; ‘‘kick backs’’ paid to the 

employer or employer representative; 

and amounts paid to third parties which 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 76, No. 53 / Friday, March 18, 2011 / Proposed Rules 15143 

6Testimony of Daniel Angel Castellanos 

Contreras before the House Committee on Oversight 

and Government Reform Domestic Policy 

Subcommittee, 2, (2009, Apr. 23) http://oversight.

house.gov/images/stories/documents/

20090423085101.pdf. 

7Testimony of Miguel Angel Jovel Lopez before 

the House Committee on Oversight and Government 

Reform Domestic Policy Subcommittee, 2. (2009, 

Apr. 23) http://oversight.house.gov/images/stories/

documents/20090423085606.pdf. 

8American University Washington College of 

Law International Human Rights Law Clinic and 

Centro de los Derechos del Migrante, Inc. Picked 

Apart: The Hidden Struggles of Migrant Worker 

Women In the Maryland Crab Industry.2, July 2010. 

http://www.wcl.american.edu/clinical/documents/

20100714_auwcl_ihrlc_picked_apart.pdf?rd=1. 

are unauthorized, unlawful, or from 

which the employer or its foreign labor 

contractor, recruiter, agent worker, or 

affiliated person benefits to the extent 

such deductions reduce the actual wage 

to below the required wage. The FLSA 

and 29 CFR part 531 provide 

appropriate guidance in determining the 

permissibility of deductions, as 

indicated in the proposed paragraph. 

c. Job Opportunity is Full-Time 

(§ 655.20(d)). In proposed § 655.20(d), 

the Department redefines full-time 

employment as at least 35 hours per 

week, an increase from the current level 

of 30 hours. A 35-hour workweek more 

accurately reflects the nature of fulltime work and strikes an appropriate 

balance between the employer’s needs 

and the employment and income needs 

of both U.S. and foreign workers. 

Additionally, consistent with the FLSA, 

this NPRM adds the requirement that 

the workweek will be a fixed and 

regularly recurring period of 168 hours 

or seven consecutive 24-hour periods 

which may start on any day or hour of 

the day. Accordingly, wages would be 

computed based on this workweek. This 

requirement establishes a clear period 

for determining whether the employer 

has paid the required wages, which will 

aid in enforcement. 

d. Job Qualifications and 

Requirements (§ 655.20(e)). Proposed 

§ 655.20(e) clarifies the existing 

§ 655.22(h) by stating that each job 

qualification and requirement listed in 

the job order must be consistent with 

normal and accepted qualifications 

required by non-H–2B employers for 

similar occupations in the same area of 

intended employment. OFLC will 

determine what is normal and accepted 

during the pre-certification process. The 

proposed paragraph also allows the CO 

to require the employer to substantiate 

any job qualifications specified in the 

job order. 

e. Three-Fourths Guarantee 

(§ 655.20(f)). The Department has 

determined that the three-fourths 

guarantee required in the H–2A program 

provides protection that is necessary in 

the H–2B program as well. The 

guarantee has been required under the 

H–2A program since its inception in 

1987; in the 2008 Final Rule, the 

Department defended the requirement: 

‘‘The Department believes the rule 

provides essential protection for both 

U.S. and H–2A workers, in that it 

ensures their commitment to a 

particular employer will result in real 

jobs that meet their reasonable 

expectations.’’ 73 FR 77152 (Dec. 18, 

2008). 

Recent experience in enforcing the 

H–2B regulations demonstrates that 

workers are often provided much less 

work than that promised in the job 

order, which has convinced the 

Department that this protection is 

necessary. For example, the 

Department’s enforcement experience 

has revealed employers that stated on 

their H–2B applications that they would 

provide 40 hours of work per week 

when, in fact, their workers averaged far 

fewer hours of work. Indeed, in some 

weeks the workers did not work at all. 

In addition to the Department’s recent 

experience enforcing the H–2B 

regulations, the Department is aware of 

testimony involving cases in which 

unscrupulous employers which have 

obtained H–2B labor certification have 

overstated the period of need and/or the 

number of hours for which the workers 

are needed. For example, H–2B workers 

testified at a hearing before the 

Domestic Policy Subcommittee, House 

Committee on Oversight and 

Government Reform, on April 23, 2009 

that there were several weeks in which 

they were offered no work; others 

testified that their actual weekly 

hours—and hence their weekly 

earnings—were less than half of the 

amount they had been promised in the 

job order. Daniel Angel Castellanos 

Contreras, a Peruvian engineer, was 

promised 60 hours per week at $10–$15 

per hour. According to Mr. Contreras, 

‘‘The guarantee of 60 hours per week 

became an average of only 20 to 30 

hours per week—sometimes less. With 

so little work at such low pay [$6.02 to 

$7. 79 per hour] it was impossible to 

even cover our expenses in New 

Orleans, let alone pay off the debt we 

incurred to come to work and save 

money to send home.’’ 6 Miguel Angel 

Jovel Lopez, a plumber and farmer from 

El Salvador, was recruited to do 

demolition work in Louisiana with a 

guaranteed minimum of 40 hours of 

work per week. Mr. Lopez testified, 

‘‘Instead of starting work, however, I was 

dropped off at an apartment and left for 

two weeks. Then I was told to attend a 

two week training course. I waited three 

more weeks before working for one day 

on a private home and then sitting for 

three more weeks.7 Testimony at the 

same hearing by three attorneys who 

represent H–2B workers stated that 

these witnesses’ experiences were not 

aberrations but were typical. Hearing on 

The H–2B Guestworker Program and 

Improving the Department of Labor’s 

Enforcement of the Rights of 

Guestworkers, 111th Cong. (Apr. 23, 

2009). 

Furthermore, a 2010 report by the 

American University Washington 

College of Law International Human 

Rights Law Clinic and the Centro de los 

Derechos del Migrante, Inc. documented 

the prevalence of work shortages for 

women working on H–2B visas in the 

Maryland crab industry. The researchers 

found that ‘‘[s]everal women 

interviewed spent days and weeks 

without work when crabs were scarce. 

During this time most continued to 

make rent payments, and struggled to 

send money to family back in Mexico.’’ 8

WHD enforcement experience from 

the H–2A program provides further 

evidence supporting the need to extend 

guaranteed minimum work protections 

to H–2B workers who in many ways are 

similarly situated to their H–2A 

counterparts. Though the three-fourths 

guarantee is already in place in the H– 

2A program, WHD has found employers 

substantially violating its provisions. 

For instance, as recently as January 

2011, WHD assessed $1/3 million in 

back wages from a vegetable farm 

employer which failed to provide to 244 

workers—148 of whom were U.S. 

workers—at least 75 percent of the work 

hours promised. This case is currently 

in litigation. 

Few legal options exist for H–2B 

workers who feel their work contracts 

have been violated. An initial barrier to 

legal recourse is purely practical: H–2B 

workers are not eligible for services 

from federally-funded legal aid 

programs. As a result, most H–2B 

workers have no access to lawyers or 

information about their legal rights. 

Furthermore, the H–2B job order, which 

specifies the terms and conditions of 

employment, including work hours, 

may not be enforceable through private 

litigation. See Garcia v. Frog Island 

Seafood, Inc., 644 F.Supp.2d 696, 716– 

18 (E.D.N.C. 2009) (holding H–2B job 

orders would not be treated as 

enforceable contracts). A guaranteed 

number of hours, enforceable by WHD, 

may well be the only protection H–2B 

workers have if employers misrepresent 

the amount of work the worker will 

actually be provided. 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
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In an effort to combat such abuses, 

§ 655.20(f) proposes to require a 

guaranteed offer of employment for a 

total number of work hours equal to at 

least three-fourths of the workdays of 

each 4-week period. The Department 

proposes to use successive 4-week 

periods to measure the three-fourths 

guarantee instead of measuring the 

three-fourths guarantee over the course 

of the entire time period of need (as in 

the H–2A three-quarters guarantee), in 

order to ensure that work is offered 

during the entire time period certified 

by the Department. Four-week 

increments will aid the Department in 

enforcing the statutory and regulatory 

temporary need requirement. When 

employers file applications for H–2B 

certifications, they represent that they 

have a need for full-time temporary 

work during the entire time period for 

which they request certification from 

the Department. Using a 4-week period 

will prevent employers from requesting 

workers for nine months, for example, if 

they really only have a need for their 

services for seven months. Thus, a 4- 

week period will help to ensure that 

employers do not assert that they need 

workers throughout the winter months 

if the work cannot be conducted in such 

weather and there is little or no work for 

the workers to perform until spring. 

Using a 4-week period also prevents an 

employer from inappropriately stating, 

for example, that it needs workers until 

October 31st, if its season is over and 

there generally is little or no work after 

September 30th, in the hopes that the 

employees will simply leave the job 

before the end of the period so the 

employer will be relieved of its 

obligation to pay for their return 

transportation. When a worker accepts a 

job offer that promises full-time work 

for a set period of time and foregoes 

other opportunities to make that 

commitment, the worker has a right to 

be provided with the promised amount 

of work for the entire period for which 

work was promised. The hours are not 

fungible, and should not be provided 

primarily in the middle of the period of 

need in order to meet the three-fourths 

guarantee. 

These 4-week periods would begin 

the first workday after the worker’s 

arrival at the place of employment or 

the advertised contractual first date of 

need, whichever is later, and would end 

on the expiration date specified in the 

job order or in any extensions. The 

Department believes that this guarantee 

will impose no burden on employers 

that have accurately stated their need 

for workers, even if the employer’s 

calculation of the amount of available 

work is off by as much as 25 percent. 

Therefore, the three-fourths guarantee 

offers the appropriate level of protection 

for workers who are employed by 

unscrupulous employers, without any 

penalty or burden to compliant 

employers. 

The proposed system provides for a 

workday to be based on the workday 

hours stated in the employer’s job order 

and require the guarantee in each 4- 

week period. The 4-week period would 

be based on the employer’s workweek. 

If a worker arrives and starts work after 

the first day of the employer’s 

workweek, resulting in a partial 

workweek, then the initial 4-week 

guarantee period could result in a 

period of as long as 4 weeks and 6 days. 

Similarly, the worker might cease 

employment before the end of a final 4- 

week period, resulting in a guarantee 

period as short as one workday. In such 

cases, the guarantee is increased for the 

initial period and decreased for the last 

period on a pro rata basis. 

Under the proposed guarantee, the 

employer would be required to pay the 

worker three-fourths of the wages the 

worker would have earned in any 4- 

week period if the employer had offered 

the worker the number of hours 

specified in the job offer. In contrast to 

the guarantee provided under the H–2A 

program, this proposal does not exclude 

hours offered on the worker’s Sabbath 

and Federal holidays from the threefourths guarantee requirement in 

recognition of the fact that many H–2B 

workers are employed in the hospitality 

industry that need those workers 

available during those times. 

The Department recognizes that 

workers may fail or refuse to work hours 

which have been offered by the 

employer. Consequently, the proposed 

section allows the employer to count 

any hours offered consistent with the 

job order that a worker freely and 

without coercion chooses not to work, 

up to the maximum number of daily 

hours on the job order, in the 

calculation of guaranteed hours. The 

proposed section also allows the 

employer to offer the worker more than 

the specified daily work hours, but the 

employer may not require the employee 

to work such hours or count them as 

offered if the employee chooses not to 

work the extra hours. However, the 

employer may include all hours actually 

worked when determining whether the 

guarantee has been met. Furthermore, as 

detailed in § 503.16(g), the CO can 

terminate the employer’s obligations 

under the guarantee in the event of fire, 

weather, or another Act of God that 

makes the fulfillment of the job order 

impossible. 

As indicated above, the purpose of the 

guarantee is to ensure that employers do 

not misuse the program by overstating 

their need for full-time, temporary 

workers, such as by carelessly 

calculating the starting and ending dates 

of their temporary need, the hours of 

work needed per week, or the total 

number of workers required to do the 

work available. The Department 

believes that the guarantee will motivate 

employers to carefully consider the 

extent of their workforce needs before 

applying for certification, thus 

discouraging employers from applying 

for unnecessary workers or from 

promising work which may not exist. To 

the extent that employers more 

accurately describe the amount of work 

available and the periods during which 

work may be more or less available, it 

gives both U.S. and foreign workers a 

better chance to realistically evaluate 

the desirability of the offered job. Not 

only will this result in workers working 

most of the hours promised in the job 

order but it may also make the capped 

H–2B visas available to other employers 

whose businesses need to use H–2B 

workers. The three-fourths guarantee is 

a reasonable deterrent to such potential 

carelessness and a necessary protection 

for workers, while still providing 

employers with flexibility relating to the 

required hours, given that many 

common H–2B occupations involve 

work that can be affected by weather 

conditions. 

An hour guarantee is necessary to 

protect the integrity of the H–2B 

program and to protect the interests of 

both workers and employers in the H– 

2B program. At the same time, the 

Department invites the public to suggest 

alternative guarantee systems that may 

better serve those goals. In particular, 

the Department seeks comments on 

whether a 4-week increment is the best 

period of time for measuring the threefourths guarantee or whether a shorter 

or longer time period would be more 

appropriate. 

f. Impossibility of Fulfillment 

(§ 655.20(g)). In proposed § 655.20(g), 

the Department acknowledges that 

circumstances beyond the control of the 

employer or the worker, such as a 

natural disaster or a fire, might result in 

the need to terminate a worker’s 

employment before the expiration date 

of a job order. Therefore, the new 

language in this paragraph allows 

employers to terminate a job order in 

certain circumstances when approved 

by the CO. In such an event, the 

employer would be required to meet the 

three-fourths guarantee discussed in 

paragraph (f) of this section based on the 

starting date listed in the job offer or 


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9The transportation cost is estimated to be $286 

each way, $10.64 daily for subsistence, and $150 for 

visa fees. For a more detailed discussion of the 

estimated cost of transportation, see Section IV. 

Administrative Information, A. Executive Order 

12866 of this preamble. 

first workday after the arrival of the 

worker, whichever is later, and ending 

on the work termination date. The 

employer would also be required to 

attempt to transfer the H–2B worker (if 

permitted under the INA) or worker in 

corresponding employment to another 

comparable job. Absent such transfer, 

the employer would have to comply 

with the proposed transportation 

requirements in paragraph (j) of this 

section. 

g. Frequency of Pay (§ 655.20(h)). The 

proposed § 655.20(h) adds the 

requirements that the employer indicate 

the frequency of pay in the job order 

and that workers be paid every 2 weeks 

or according to the prevailing practice 

in the area of intended employment, 

whichever is more frequent. Further, 

wages must be paid when due. Allowing 

the employer to pay less frequently than 

every 2 weeks and to not make timely 

payment of wages imposes an undue 

burden on workers who traditionally are 

paid low wages and live paycheck to 

paycheck. 

h. Earnings Statements (§ 655.20(i)). 

Proposed § 655.20(i) adds requirements 

for the employer to maintain accurate 

records of worker earnings and provide 

the worker on or before each payday an 

appropriate earnings statement. This 

proposed paragraph also lists the 

information that the employer must 

include in such a statement. Providing 

such statements to employees will 

enhance program integrity because 

employees will have a timely and clear 

understanding of the basis for their pay, 

and such statements will provide the 

Department with additional information 

in any investigation or audit. 

i. Transportation and Visa Fees 

(§ 655.20(j)). The Department proposes 

changes relating to transportation and 

visa costs in § 655.20(j). The Department 

has determined that the cost of 

transporting workers from remote 

locations to the worksite is an expense 

that primarily benefits employers who 

choose to use the H–2B program and it 

is the Department’s intention to ensure 

that the cost of transporting workers 

from remote locations to the worksite 

are not passed on to the employees. 

The NPRM would require an 

employer to provide, pay for, or 

reimburse the worker in the first 

workweek the cost of transportation and 

subsistence from the place from which 

the worker has come to the place of 

employment. Similarly, at the end of the 

employment, the NPRM would require 

the employer to provide or pay for the 

U.S. or foreign worker’s return 

transportation and daily subsistence 

from the place of employment to the 

place in the worker’s home country 

from which the worker departed to work 

for the employer, if the worker has no 

immediate subsequent approved H–2B 

employment. If the worker has been 

contracted to work for a subsequent and 

registered employer, the last H–2B 

employer to employ the worker would 

be required to provide or pay the U.S. 

or foreign worker’s return 

transportation. Therefore, prior 

employers would not be obligated to 

pay for return transportation costs. 

Employers also would be required to 

pay or reimburse the worker for the H– 

2B worker’s visa, visa processing, border 

crossing, and other related fees 

including those fees mandated by the 

government (but not for passport 

expenses or other charges primarily for 

the benefit of the workers). 

The proposed changes are consistent 

with the Department’s interpretation of 

the FLSA, explained in Field Assistance 

Bulletin No. 2009–2 (Aug 21, 2009), that 

H–2B workers’ transportation and visa 

costs are primarily for the benefit of the 

employer. The employer benefits 

because it obtains foreign workers 

where the employer has certified that 

there are not sufficient able, willing and 

qualified U.S. workers available to 

perform the work. Transporting these 

workers from remote locations to the 

workplace is primarily for the benefit of 

the employer who has sought authority 

to bring in workers from foreign 

countries. 

The Bulletin explained that an 

employer must bear such expenses if 

shifting them to the employee would 

bring the employee’s effective rate of 

pay below the FLSA minimum wage. H– 

2B employers covered by the FLSA 

must, therefore, pay such expenses to 

meet FLSA requirements. See Arriaga v. 

Florida Pacific Farms, LLC, 305 F.3d 

1228 (11th Cir. 2002); but see 

Castellanos-Contreras v. Decatur Hotels, 

LLC,_F.3d, 2010 WL 3816016 (5th Cir. 

2010). Moreover, the current (and 

proposed) H–2B regulations specifically 

require employers to comply with all 

applicable Federal, State, and local 

employment-related laws. 

The Department’s proposal would 

require the employer to pay these 

expenses if payment by the employee 

would bring the employee’s rate of pay 

below the offered wage. The proposed 

requirement protects U.S. workers from 

adverse effect by protecting the integrity 

of the offered wage. Without these 

protections, the employer, who is 

obligated to pay the ‘‘offered wage’’ 

which is generally higher than the FLSA 

minimum wage, could take deductions 

from wages that could reduce the 

effective wage to the FLSA minimum. 

The following illustrates the benefits 

of this proposal. Under the current 

regulation the employer is not obligated 

to reimburse H–2B workers for inbound 

transportation, visa, visa processing, 

border crossing, and other related costs 

even though the Department has 

determined that under the FLSA these 

costs are primarily for the benefit of the 

employer. Further, the only restriction 

on deductions from pay are found in 

current 20 CFR 655.22(g)(1), which 

states, 

The job offer must specify all deductions 

not required by law that the employer will 

make from the worker’s paycheck. All 

deductions must be reasonable. However, an 

employer subject to the FLSA may not make 

deductions that would violate the FLSA. 

In this illustration, the employer, a 

landscaping contractor in Orange 

County, FL, provides a disclosure to the 

employee that the employer will 

advance the $800 9 for inbound 

transportation, visa, visa processing, 

and other related fees as well as the 

return transportation cost, and deduct 

the costs from the employee’s paycheck 

until fully repaid. The employee, from 

Mexico, is hired to work for a 

landscaping company for 12 weeks and 

the Level 1 prevailing wage, as 

determined by OES, is $8.90 per hour. 

The employee works 40 hours and is 

entitled to be paid $356.00. Since the 

employer disclosed that he would 

advance the transportation costs and 

visa related fees and recoup those costs 

through deductions from the worker’s 

pay, the worker is paid $290.00, the 

amount equivalent to the FLSA 

minimum wage for 40 hours work. The 

worker would be paid $290 instead of 

$356.00 each of the subsequent 11 

workweeks until the $800 is recouped 

by the employer. This is so even though 

the WHD has determined that the 

transportation and visa-related cost for 

H–2B workers is primarily for the 

benefit of the employer. Further, the 

Department has determined that in 

order to protect the labor market from 

the adverse effects on wages caused by 

the presence of temporary foreign 

workers in this labor market the 

minimum wage that must be paid by H– 

2B employers is $8.90. Without a 

provision requiring the employer to pay 

the transportation cost and visa-related 

fees the wage provisions of the H–2B 

program are severely compromised, 

providing an economic incentive for 

employers to hire foreign workers who 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
15146 Federal Register / Vol. 76, No. 53 / Friday, March 18, 2011 / Proposed Rules 

can be paid the FLSA wage instead of 

the ‘‘offered wage’’ in contravention of 

the Department’s obligations to prevent 

adverse effect under the program. 

This NPRM also adds daily 

subsistence costs during inbound and 

outbound travel as an expense the 

employer is required to cover in 

addition to the actual transportation, 

consistent with a similar provision 

under the H–2A program. Because U.S. 

workers living far away from an area of 

intended employment may accept an H– 

2B job opportunity, the proposed rule 

provides the same treatment for U.S. 

workers who are unable to return to 

their residence each workday. 

Finally, the Department proposes that 

all employer-provided transportation— 

including transportation to and from the 

worksite, if provided—meet applicable 

safety, licensure, and insurance 

standards. Under this proposed rule, all 

transportation and subsistence costs 

covered by the employer (even costs not 

required by this section) must be 

disclosed in the job order. 

The proposed requirement that the 

employer pay inbound and outbound 

transportation, subsistence, visa, visa 

processing, border crossing, and related 

fees in this provision applies to H–2B 

workers, including those who have 

traveled to the place of employment but 

have not started work due to their 

displacement by a U.S. worker. See 

Proposed § 655.40 (U.S. worker 

recruitment period terminates on the 

third day preceding the employer’s date 

of need or the date the last foreign 

worker departs for the employment, 

whichever is later). DHS regulations 

currently allow H–2B workers to enter 

the U.S. ten days before their 

employment start date. 8 CFR 

214.2(h)(13)(i). Thus, there may be a gap 

in time between the time when an H– 

2B worker enters the country intending 

to work for the employer (up to 10 days 

before the date of need) and the time 

when the employer is no longer 

obligated to hire qualified U.S. workers 

for these job opportunities (three days 

before the employer’s date of need or 

the date the last foreign worker departs, 

if later). Because employers have the 

ability to control the travel of H–2B 

workers from the point of visa issuance 

to the worksite, the Department expects 

that employers will delay the H–2B 

worker’s departure date until the 

required recruitment period has ended. 

In the rare event that an H–2B worker 

enters the country before the U.S. 

worker recruitment period has ended 

and the position has been filled by a 

U.S. worker, the employer must 

reimburse the foreign worker for these 

costs and/or provide payment for the 

cost of return transportation at the time 

the worker presents for employment. 

j. Employer-Provided Items 

(§ 655.20(k)). The Department proposes 

to add a new requirement under 

§ 655.20(k), consistent with the 

requirement under the FLSA regulations 

at 29 CFR part 531, that the employer 

provide to the worker without charge all 

tools, supplies, and equipment 

necessary to perform the assigned 

duties. The employer may not shift to 

the employee the burden to account for 

damage to, loss of, or normal wear and 

tear of, such items. This proposed 

provision gives workers additional 

protections against improper deductions 

of the employer’s business expenses 

from required wages. 

k. Disclosure of the Job Order and 

Notice of Worker Rights (§§ 655.20(l) 

and 655.20(m)). Worker notification is a 

vital component of worker protection 

and program compliance. Proposed 

§§ 655.20(l) and 655.20(m) would 

enhance worker notifications. Proposed 

§ 655.20(l) requires that the employer 

provide a copy of the job order to H–2B 

workers no later than the time of 

application for a visa and to workers in 

corresponding employment no later 

than the first day of work. The job order 

will contain information about the terms 

and conditions of employment and 

employer obligations as provided in 

proposed § 655.18 and must be in a 

language understandable to the workers. 

Proposed § 655.20(m) requires that the 

employer post a notice in English of 

worker rights and protections in a 

conspicuous location and post the 

notice in other appropriate languages if 

such translations are provided by the 

Department. 

l. No Unfair Treatment (§ 655.20(n)). 

Proposed § 655.20(n) adds new language 

on nondiscrimination and 

nonretaliation protections which are 

basic to statutes that the Department 

enforces. Worker rights cannot be 

secured unless there is protection from 

all forms of intimidation or 

discrimination resulting from any 

person’s attempt to report or correct 

perceived violations of H–2B 

provisions. As provided in proposed 29 

CFR 503.20, make-whole relief is 

available for victims of discrimination 

and retaliation under this paragraph. 

m. Comply with the Prohibitions 

Against Employees Paying Fees 

(§ 655.20(o)). Proposed § 655.20(o) 

amends current § 655.22(j) by expanding 

the list of persons who may not seek 

reimbursement from workers for any 

costs associated with obtaining H–2B 

employment certification or 

employment, and by repeating the new 

requirement in proposed § 655.20(b) 

that wages must be paid free and clear. 

This paragraph also clarifies that H–2B 

employers or their agents may recoup 

costs that are the responsibility of, and 

primarily for, the benefit of the worker. 

Passport fees, currently included in 

§ 655.22(g)(2), are noted here as an 

example of a cost that is primarily for 

the benefit of the worker. 

n. Contracts with Third Parties to 

Comply with Prohibitions (§ 655.20(p)). 

In § 655.20(p), the Department proposes 

to amend current § 655.22(g)(2) to 

require that an employer that engages 

any agent or recruiter must prohibit in 

a written contract the agent or recruiter 

from seeking or receiving payments 

from prospective employees. The 

contract must be made available to the 

CO, WHD or other Federal party, upon 

request. The Department also proposes 

to eliminate the reference to DHS 

regulations at 8 CFR 214.2(h)(5)(xi)(A) 

to avoid confusion in light of the 

proposed provisions concerning the 

employer responsibilities for 

transportation and visa costs in 

§ 655.20(j). Similarly, the current 

sentence allowing an employer to 

recover visa costs is removed, consistent 

with proposed § 655.20(j)(2). 

o. Prohibition Against Preferential 

Treatment of H–2B Workers 

(§ 655.20(q)). Proposed § 655.20(q) is 

similar to § 655.22(a) of the current rule, 

which prohibits employers from 

providing better terms and conditions of 

employment to H–2B workers than to 

U.S. workers. The language has been 

modified to reflect the change to a 

certification process from the current 

attestation-based process. 

p. Non-Discriminatory Hiring 

Practices, Recruitment Requirements, 

and Continuing Requirement to Hire 

U.S. Workers (§§ 655.20(r), 655.20(s), 

and 655.20(t)). The current regulations 

require that the employer recruit and 

hire qualified U.S. workers during a 

limited 10-day period before filing the 

Application for Temporary Employment 

Certification. The Department firmly 

believes that this represents inadequate 

time and effort to ensure that there are 

no or insufficient qualified U.S. workers 

to fill the employer’s temporary 

employment needs. To remedy this 

inadequacy, the Department proposes to 

extend the employer’s recruitment and 

hiring obligations by making the 

changes in §§ 655.20(r), 655.20(s), and 

655.20(t), as described below. 

First, consistent with current 

§ 655.22(c), proposed § 655.20(r) 

reaffirms the Department’s commitment 

to ensuring that U.S. workers have 

priority for H–2B job opportunities by 

stating that U.S. workers who apply 

must either be offered the job or rejected 


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10As provided in the discussion of § 655.11, each 

employer filing an Application for Temporary 

Employment Certification will be required under 

the proposed rule to establish temporary need 

through the registration process. However, in 

limited circumstances where the employer has 

applied for a temporary labor certification on an 

emergency basis under emergency procedures in 

§ 655.17 without an approved H–2B Registration, 

the CO may be required to also make a 

determination regarding temporary need. 

only for lawful, job-related reasons, and 

by prohibiting discrimination. The 

proposal clarifies that this hiring 

obligation remains in effect throughout 

the period set forth in proposed 

paragraph (t). 

Second, proposed § 655.20(s) requires 

that the employer conduct required 

recruitment as described in proposed 

§§ 655.40–46. 

Last, proposed § 655.20(t) extends the 

period during which the employer must 

hire qualified U.S. workers referred by 

the SWA or who respond to recruitment 

to 3 days before the date of need or the 

date the last H–2B worker departs for 

the workplace for the certified job 

opportunity, whichever is later. 

q. No strike or lockout (§ 655.20(u)). 

The Department proposes in § 655.20(u) 

to modify the ‘‘no strike or lockout’’ 

language in the current regulations at 

§ 655.22(b) to enhance worker 

protections. Currently, requests for H– 

2B workers are not certified if the 

workers would be filling positions that 

are open due to a strike, lockout, or 

work stoppage. Under the proposed 

paragraph the CO would deny an H–2B 

certification if there is a strike or 

lockout at the worksite. Under the 

current regulation, an unscrupulous 

employer might be able to transfer U.S. 

workers to fill positions vacated by 

striking workers, thus employing H–2B 

workers in the positions those U.S. 

workers vacated. 

r. No Recent or Future Layoffs 

(§ 655.20(v)). Proposed § 655.20(v) 

modifies the dates of impermissible 

layoffs of U.S. workers currently 

described in § 655.22(i). The period 

during which an H–2B employer must 

not lay off any similarly employed U.S. 

worker continues to begin 120 days 

before the date of need but would be 

extended from 120 days after the date of 

need to the end of the certification 

period. The Department also proposes 

adding the requirement that H–2B 

workers must be laid off before any U.S. 

worker in corresponding employment. 

These restrictions are essential in order 

to further the purpose of protecting U.S. 

workers. 

s. Contact with Former U.S. 

Employees (§ 655.20(w)). Proposed 

§ 655.20(w) requires employers to 

contact former U.S. employees who 

worked with them within the last year, 

including any who were laid off within 

120 days before the date of need. This 

expands the current requirement that 

employers contact only former 

employees who were laid off during the 

120 days preceding the date of need and 

for an additional 120 days after date of 

need. 

t. Area of Intended Employment and 

Job Opportunity (§ 655.20(x)). Proposed 

§ 655.20(x) modifies current § 655.22(l) 

by additionally prohibiting the 

employer from placing a worker in a job 

opportunity not specified on the 

Application for Temporary Employment 

Certification. This clarifies that an H–2B 

worker is only permitted to work in the 

job and in the location that OFLC 

approves unless the employer obtains a 

new certification. 

u. Abandonment/Termination of 

Employment (§ 655.20(y)). In proposed 

§ 655.20(y), the Department addresses a 

worker’s voluntary abandonment of a 

job or termination. This NPRM proposes 

retaining, in slightly amended form, 

current § 655.22(f) by requiring written 

notification to the OFLC and to DHS 

when a worker separates from 

employment before the certified end 

date. DHS has published in its own 

regulations at 8 CFR 214.2(h)(6)(i)(F) 

and its instructions at 73 FR 77816 (Dec. 

19, 2008). Clarifications of how an 

employer in such circumstances must 

comply with proposed transportation 

and subsistence requirements under 

paragraph (j) and the three-fourths 

guarantee under paragraph (f) of this 

section are also added to proposed 

§ 655.20(y). Specifically, the employer 

would be relieved of providing return 

transportation expenses if an employee 

voluntarily abandons employment, and 

the three-fourths guarantee period 

would end with the last full 4-week 

period before the separation if an 

employee either voluntarily abandons 

employment or is terminated for cause. 

v. Compliance with Applicable Laws 

(§ 655.20(z)). In proposed § 655.20(z), 

the Department proposes to retain 

existing provisions in § 655.22(d) with 

minor revisions and to add a provision 

prohibiting the employer from holding 

or confiscating workers’ passports, 

visas, or other immigration documents 

in accordance with the William 

Wilberforce Trafficking Victims 

Protection Reauthorization Act of 2008. 

E. Processing of an Application for 

Temporary Employment Certification 

1. Section 655.30 Processing of an 

Application and Job Order 

Under the proposed rule, upon receipt 

of an Application for Temporary 

Employment Certification and copy of 

the job order, the CO at the NPC will 

promptly conduct a comprehensive 

review of all documentation submitted 

by the employer to verify employer 

compliance with program requirements. 

This process differs from the application 

processing model under the 2008 Final 

Rule where the CO initially reviews 

only attestations. 

An additional difference between the 

2008 Final Rule and the proposed rule 

in the review of the Application for 

Temporary Employment Certification is 

that under the proposed rule, the CO’s 

review of the Application for Temporary 

Employment Certification, in most 

cases,10 will no longer entail a 

determination of temporary need, i.e., 

whether the employer has established a 

need for the non-agricultural services or 

labor to be performed that is temporary 

in nature. Instead, under the proposed 

rule, this aspect of the CO’s review will 

be limited to verifying that the employer 

previously submitted a request for and 

was granted H–2B Registration, and that 

the terms of the Application for 

Temporary Employment Certification 

have not significantly changed from 

those approved under the H–2B 

Registration. 

The proposed rule also requires the 

use of next day delivery methods, 

including electronic mail, for any notice 

or request sent by the CO requiring a 

response from the employer and the 

employer’s response to such a notice or 

request. This proposed section also 

communicates a long-standing program 

requirement that the employer’s 

response to the CO’s notice or request 

must be sent by the due date or the next 

business day if the due date falls on a 

Saturday, Sunday or a Federal holiday. 

2. Section 655.31 Notice of Deficiency 

Under the proposed rule, the CO will 

be required to issue a formal Notice of 

Deficiency where the CO determines 

that the Application for Temporary 

Employment Certification and/or job 

order contain errors or inaccuracies, or 

fails to comply with applicable 

regulatory and program requirements. 

The proposed provision requires the CO 

to issue the Notice within 7 business 

days from the date on which the NPC 

receives the employer’s Application for 

Temporary Employment Certification 

and job order. This timeline is designed 

to ensure that the SWA has sufficient 

time to conduct its own review of the 

job order and notify the CO within 4 

business days of any deficiencies as 

provided in § 655.16, as well as the 

timely processing of an employer’s 


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Application for Temporary Employment 

Certification. 

Once the CO issues a Notice of 

Deficiency to the employer, the CO will 

provide the SWA and the employer’s 

attorney or agent, if applicable, a copy 

of the notice. The Notice of Deficiency 

will include the specific reason(s) why 

the Application for Temporary 

Employment Certification and/or job 

order is deficient, identify the type of 

modification necessary in order for the 

CO to issue a Notice of Acceptance, and 

provide the employer with an 

opportunity to submit a modified 

application and/or job order within 10 

business days from the date of the 

Notice of Deficiency. The Notice will 

also inform the employer that it may, 

alternatively, request administrative 

review before an Administrative Law 

Judge (ALJ) within 10 business days of 

the date of the Notice of Deficiency and 

instruct the employer regarding how to 

file a request for such review in 

accordance with the administrative 

review provision under this subpart. 

Finally, the Notice of Deficiency will 

inform the employer that failing to 

timely submit a modified Application 

for Temporary Employment 

Certification and/or job order, or request 

administrative review will cause the CO 

to deny that employer’s Application for 

Temporary Employment Certification. 

The Notice of Deficiency is similar to 

the Request for Information (RFI) 

process used by the CO under the 2008 

Final Rule. The concurrent submission 

of the job order to the CO and the SWA 

will ensure the thorough examination of 

the employer’s job requirements and 

enable employers to timely and 

effectively comply with all program 

requirements. 

3. Section 655.32 Submission of a 

Modified Application or Job Order 

As previously stated, the CO will 

deny any Application for Temporary 

Employment Certification where the 

employer neither submits a 

modification nor requests a timely 

administrative review. A denial of an 

Application for Temporary Employment 

Certification for failure to timely submit 

a sufficiently responsive modification or 

request for review as prescribed above 

will be final and cannot be appealed. 

This proposal differs from the 2008 

Final Rule, in which the CO has 

discretion to deny the employer’s 

application or require supervised 

recruitment if the employer fails to 

comply with an RFI. 

In addition, the proposed rule 

requires the CO to deny an Application 

for Temporary Employment 

Certification and/or job order if the 

modification(s) made by the employer 

do not comply with the requirements for 

certification under § 655.50. The 

proposed rule grants the employer the 

right to appeal the denial of the 

modified Application for Temporary 

Employment Certification and/or job 

order via the administrative review 

procedures set forth in § 655.61 of this 

proposed rule. 

Under the proposed rule, if the CO 

accepts the modification(s) and issues a 

Notice of Acceptance, the CO will 

require the SWA to modify the job order 

in accordance with the accepted 

modification(s), as necessary. The 

Department proposes this explicit 

requirement to ensure the integrity of 

the simultaneous submission process 

and ensure that any material terms and 

conditions of employment and 

employer obligations contained in the 

job order correspond to the terms, 

conditions and obligations contained in 

an accepted Application for Temporary 

Employment Certification. 

In addition to requiring modification 

before the acceptance of an Application 

for Temporary Employment 

Certification, the Department proposes 

to permit the CO to require the 

employer to modify a job order at any 

time before the final determination to 

grant or deny the Application for 

Temporary Employment Certification if 

the CO determines that the offer of 

employment does not contain all the 

applicable minimum benefits, wages, 

and working conditions. Where the CO 

requires a later modification, the CO 

will update the electronic job registry to 

reflect the necessary modification(s) and 

direct the SWA(s) in possession of the 

job order to replace the job order in their 

active files with the modified job order. 

The employer also is required to 

disclose the modified job order to all 

workers who were recruited under the 

original job order or Application for 

Temporary Employment Certification. 

This requirement is also new in the 

proposed rule and is intended to ensure 

that U.S. workers have access to 

meaningful employment opportunities 

and that workers remain informed about 

the benefits, wages and working 

conditions offered by the employer. 

4. Section 655.33 Notice of Acceptance 

Under the proposed rule, the 

Department requires the CO to issue a 

formal notice accepting the employer’s 

application for processing. Upon 

accepting the Application for 

Temporary Employment Certification 

and job order, the CO will send a Notice 

of Acceptance to the employer (and the 

employer’s attorney or agent, if 

applicable), with a copy to the SWA, 

within 7 business days from the CO’s 

receipt of the Application for 

Temporary Employment Certification or 

modification, provided that the 

Application for Temporary Employment 

Certification and job order meet all the 

program and regulatory requirements. 

The Notice of Acceptance under the 

proposed rule will direct the employer 

to recruit U.S. workers in accordance 

with employer-conducted recruitment 

provisions in §§ 655.40–655.47, as well 

as to conduct any additional 

recruitment in accordance with the CO’s 

directions, consistent with § 655.46. The 

Notice of Acceptance will advise the 

employer that it must conduct such 

recruitment of U.S. workers within 14 

calendar days from the date of the 

notice and informs the employer that 

such employer-conducted recruitment is 

required in addition to SWA circulation 

of the job order in intrastate and 

interstate clearance under § 655.16. The 

Notice of Acceptance also requires the 

employer to submit a written report of 

its recruitment efforts as specified in 

§ 655.48. 

The Notice of Acceptance directs the 

SWA: (1) To place the job order in intraand interstate clearance, including (i) 

circulating the job order to the SWAs in 

all other States listed on the employer’s 

Application for Temporary Employment 

Certification and job order, as 

anticipated worksites and (ii) to any 

States where the CO directs the SWA to 

circulate the job order; (2) to keep the 

job order on its active file and continue 

to refer U.S. workers to the employer 

until the end of the recruitment period 

defined in § 655.40(c); and (3) to 

transmit the same instructions to all 

other SWAs to which it transmits the 

job order. Under the proposed rule, the 

Notice of Acceptance advises the 

employer of its obligation to notify all 

SWAs in possession of its job order if 

the last H–2B worker has not departed 

for the place of employment by the third 

day preceding the employer’s date of 

need. This indicates to the SWA when 

to stop referring potential U.S. workers 

to the employer. In order to increase the 

exposure of U.S. workers to H–2B job 

opportunities, the Notice of Acceptance 

also requires the SWA(s) to circulate a 

copy of the job order to certain labor 

organizations, where the job 

classification is traditionally or 

customarily unionized, as described in 

greater detail in § 655.44. 

The elements of the Notice of 

Acceptance described in the proposed 

rule reflect an enhanced process for the 

recruitment of U.S. workers. The 

Department expects these additional 

requirements will provide timely and 

meaningful notice of job opportunities 


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and thus increase the likelihood that 

U.S. workers will learn of and apply for 

the available job opportunities. 

5. Section 655.34 Electronic Job 

Registry 

The Department proposes posting 

employers’ H–2B job orders, including 

modifications and/or amendments 

approved by the CO, on an electronic 

job registry to disseminate the job 

opportunities to the widest audience 

possible. The electronic job registry was 

initially created to accommodate the 

posting of H–2A job orders, but the 

Department proposes to expand the 

registry to include H–2B job orders. The 

job orders will be posted by the CO on 

the job registry after acceptance of an 

Application for Temporary Employment 

Certification for the duration of the 

recruitment period, as provided in 

§ 655.40(c). Once the recruitment period 

has concluded, the job order will be 

maintained on the registry in inactive 

status so that the information is 

available for a variety of purposes. It is 

expected, for example, that the 

continued accessibility of inactive 

orders will increase the transparency of 

the H–2B process and provide 

information, for example, for those 

currently seeking such information from 

the Department through Freedom of 

Information Act (FOIA) requests. 

Posting job orders on the electronic 

job registry will serve as an effective, 

useable tool for alerting U.S. workers to 

jobs for which H–2B workers are being 

recruited. The electronic job registry 

will be accessible to the public through 

the Department’s resources, including 

its One-Stop Career Centers, as well as 

through a link to the job registry on the 

OFLC’s Web site http:// 

www.foreignlaborcert.doleta.gov/. 

6. Section 655.35 Amendments to an 

Application or Job Order 

The Department proposes to permit 

an employer to request to amend its 

Application for Temporary Employment 

Certification and/or job order to increase 

the number of workers, to change the 

period of employment, or to make other 

changes to the application, before the 

CO makes a final determination to grant 

or deny an Application for Temporary 

Employment Certification. The 

Department’s proposed rule would 

permit an employer to seek amendments 

to the application and/or job order only 

before certification, not after 

certification. These provisions are being 

proposed to provide clarity to 

employers and workers alike of the 

limitations on and processes for 

amending an application and the need 

to inform any U.S. workers already 

recruited of the changed job 

opportunity. The Department recognizes 

that employers can face changed 

circumstances from varying sources— 

from climactic conditions to cancelled 

contracts—and is providing some 

flexibility to assess and respond to such 

changes. At the same time, the 

Department proposes certain limitations 

to ensure that these job opportunities 

are not misrepresented as a result of 

such amendments. 

Specifically, under the proposed rule, 

the employer may request an 

amendment of the Application for 

Temporary Employment Certification 

and/or job order to increase the number 

of workers initially requested. However, 

the Department is limiting such 

amendments to increase the number of 

workers to no more than 20 percent (50 

percent for employers requesting fewer 

than 10 workers), consistent with 

§ 655.11, that does not permit the use of 

an H–2B Registration in connection with 

the filing of an Application for 

Temporary Employment Certification if 

the number of workers required by the 

employer exceeds the number listed on 

the approved H–2B Registration by 20 

percent. 

In addition, the proposed rule permits 

minor changes to the period of 

employment at any time before the CO’s 

final determination. However, the 

Department advises that such 

amendments to the period of 

employment may not exceed 14 days 

and may not cause the total period to 

exceed a total of 9 months, except in the 

event of a demonstrated one-time 

occurrence. This limitation to 14 days is 

consistent with the 14-day period in 

§ 655.11 and is designed to ensure that 

the employer had a legitimate need 

before commencing the registration 

process and accurately estimated its 

date of need. 

The regulation proposes that the 

employer may request an amendment of 

the Application for Temporary 

Employment Certification or job order at 

any time before the CO’s final 

determination. The CO will approve 

these changes if the CO determines the 

proposed amendment(s) are justified 

and will not negatively affect the CO’s 

ability to make a timely labor 

certification determination, as required 

under § 655.50, including the ability to 

thoroughly test the labor market. 

Changes will not be approved which 

affect the underlying approval for the 

job registration. 

The proposed rule provides that the 

employer must request any 

amendment(s) to the Application for 

Temporary Employment Certification 

and/or job order in writing and that any 

such amendment(s) will not be effective 

until approved by the CO. Once the CO 

approves an amendment to the 

Application for Temporary Employment 

Certification or job order, the CO will to 

submit to the SWA any necessary 

change to the job order or the amended 

job order and update the electronic job 

registry to reflect the approved 

amendment(s). 

The Department’s proposed rule 

allows amendments to the Application 

for Temporary Employment 

Certification and/or job order only 

before certification and does not permit 

the employer to request or the CO to 

amend a certified Application for 

Temporary Employment Certification. 

This provision strikes a balance between 

the employer’s need for flexibility in the 

application process and the 

Department’s intent to make a 

determination based on the employer’s 

actual need. 

F. Recruitment Requirements 

1. Section 655.40 Employer-Conducted 

Recruitment 

Unlike the 2008 Final Rule, this 

proposal requires employers to conduct 

recruitment only after filing an 

Application for Temporary Employment 

Certification and receiving a Notice of 

Acceptance from the CO. The 

Department proposes this approach so 

that the employer must demonstrate 

rather than simply attest that there are 

not sufficient qualified U.S. workers 

who would be available to fill the job 

opportunities for which the employer 

seeks to hire H–2B workers. 

The Department proposes that the 

employer conduct such recruitment of 

U.S. workers within 14 calendar days 

from the date of the Notice of 

Acceptance, unless the CO provides 

different instructions to the employer in 

the Notice. This allows the employer 

time within which to initiate and 

complete required recruitment as well 

as ensures that U.S. workers are notified 

of job opportunities as they become 

available. The Department further 

proposes that the employer offer 

employment to all U.S. applicants who 

meet the requirements of the job 

opportunity and will be available to fill 

the positions. 

An employer is obligated to accept all 

qualified U.S. applicants referred for 

employment by the SWA until the third 

day preceding the employer’s date of 

need or the date the last foreign worker 

departs for the employment, whichever 

is later. This timeframe increases the 

opportunity for U.S. workers to fill the 

available positions without 

unnecessarily burdening the employer. 


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Where applicable, the employer must 

inform the appropriate SWA(s) in 

writing of a later date of departure so 

that the SWA knows when to stop 

referring potential U.S. workers to the 

employer. Where the employer neglects 

to inform the SWA of the date of 

departure of its H–2B workers as 

required, the employer may be subject 

to debarment, and/or other remedies. 

The Department is considering 

whether employers must inform the 

Department not only of the date of the 

last departure, but also of the actual 

number of H–2B workers hired under 

the approved Application for 

Temporary Employment Certification. 

In addition, the Department is interested 

in knowing whether the H–2B workers 

were hired from a foreign country or 

were already present in the U.S. This 

will provide the Department and other 

Federal agencies with essential 

information on actual utilization of the 

program. 

Like the 2008 Final Rule, the 

proposed rule clarifies that employers 

are not required to conduct employment 

interviews. However, where the 

employer wishes to conduct interviews 

with U.S. workers, it must do so by 

telephone or at a location where 

workers can participate at little or no 

cost to the workers. This ensures that 

employers do not use the interview 

process to discourage U.S. workers from 

applying. 

Finally, the Department proposes to 

require the employer to list in its 

recruitment report filed in accordance 

with § 655.48, the names of all U.S. 

applicants referred for employment, 

whether the applicant was accepted or 

rejected, and the reason why the 

applicant was rejected, if applicable. 

2. Section 655.41 Advertising 

Requirements 

The employer’s advertisements and 

recruitment activities are essential to 

providing U.S. workers with sufficient 

information to make informed 

employment decisions. In order to 

ensure a fair test of the labor market, the 

Department proposes to require that all 

employer advertisements contain terms 

and conditions of employment no less 

favorable than those offered to the H–2B 

workers and reflect, at a minimum, the 

terms and conditions in the job order. 

The remainder of this proposed 

section sets out the minimum content 

requirements for all advertisements. In 

addition to the requirements outlined in 

the 2008 Final Rule, the Department 

proposes to require that the 

advertisements include the assurances 

and obligations in the job order. These 

requirements include, but are not 

limited to: a statement referring to the 

three-fourths guarantee in § 655.20(f); a 

statement that transportation and 

subsistence to and from the place from 

which the employee has come to work 

for the employer will be provided; a 

statement that work tools, supplies, and 

equipment will be provided to the 

worker without charge; and if 

applicable, a statement that the 

employer is providing daily 

transportation to and from the worksite. 

In addition, the Department proposes 

that an employer with multiple wage 

offers, such as one in an itinerant or 

other occupation for which special 

procedures apply, must list the range of 

applicable wage offers in its 

advertisements/recruitment. The 

inclusion of such information will 

ensure that employers disclose all 

pertinent wage information and that 

U.S. workers are adequately informed 

about the wage rate for each job 

opportunity. 

Sections 655.42 through 655.46 of the 

proposed rule outline the required 

recruitment steps. In addition to the 

involvement of the SWAs and the 

placement of two newspaper 

advertisements required under the 2008 

Final Rule, the Department proposes to 

require the employer contact former 

U.S. employees, contact labor 

organizations in traditionally unionized 

occupations and industries, and post the 

availability of the job opportunity at the 

place of anticipated employment. These 

additional requirements will increase 

the likelihood that U.S. workers will 

learn of and potentially apply for the 

available job opportunities. 

Additionally, many of these 

recruitment steps are aimed to increase 

the exposure of the job to the audience 

most likely to include, or to be able to 

locate, qualified workers—those closely 

associated to the job opportunity, either 

through direct contact with the 

employer (i.e., former workers) or 

through secondary contact (i.e., persons 

who hear about the job from current 

employees who see the posting notice at 

the worksite or from a community-based 

organization or a labor organization in 

the particular industry or occupation of 

the job opportunity). Employers using 

the H–2B program have consistently 

noted that U.S. workers do not seek out 

the jobs for which they must then seek 

foreign labor. Particularly in an 

economy in which the national 

unemployment rate has consistently 

exceeded 9 percent over the past two 

years, the Department assumes that 

some group of these available jobs 

would be taken by U.S. workers but for 

adequate notification of their existence. 

The concomitant downturn in the use of 

H–2B visas reflects the accuracy of the 

Department’s assumption; even with 

recruitment far less than proposed by 

this NPRM, H–2B visa usage has been 

significantly decreased, as U.S. workers 

seek out these jobs. 

3. Section 655.42 Newspaper 

Advertisements 

Newspapers remain an important 

means to recruit U.S. workers. The 

Department is seeking comments on 

alternative advertising media that will 

reach the greatest number of U.S. 

workers. 

The Department is continuing to 

require the employer to advertise in a 

newspaper of general circulation for the 

area of intended employment that is 

appropriate to the occupation and the 

workers likely to apply for the job 

opportunity. The employer’s 

advertisements must run on 2 separate 

days, which may be consecutive, one of 

which must be a Sunday, unless the job 

opportunity is located in a rural area in 

which there is no newspaper with a 

Sunday edition. In such cases, the CO 

may permit the employer to substitute 

the Sunday advertisement with an 

advertisement in a newspaper with a 

regularly published daily edition that 

has the widest circulation in the area of 

intended employment. The Department 

further proposes to require that the 

content of each newspaper 

advertisement comply with the 

advertising requirements in § 655.41. 

The employer will be required to 

maintain copies of the newspaper pages, 

tear sheets or other proof of publication 

for 3 years after final determination to 

grant or deny the Application for 

Temporary Employment Certification, 

consistent with document retention 

requirements under § 655.56. 

The Department proposes to no longer 

allow the employer to replace one of the 

newspaper advertisements with an 

advertisement in a professional, trade, 

or ethnic newspaper. The Department 

has concluded that newspapers of 

general circulation are more likely to 

reach the broader audiences who are 

more apt to be interested in most H–2B 

job opportunities and thus would be 

more appropriate as a recruitment 

requirement for all employers. However, 

the Department recognizes that 

advertisements in professional, trade, or 

ethnic newspapers may be appropriate 

for some applications, depending for 

instance, on the particular occupation 

and area of employment. Accordingly, 

the Department is instead proposing to 

permit the CO to require the employer 

to advertise in such publication(s) as 

part of any required additional 


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employer-conducted recruitment under 

§ 655.46 of this subpart. 

4. Section 655.43 Contact With Former 

U.S. Employees 

In this section, the Department 

proposes to require the employer to 

contact by mail or other effective means 

its former U.S. workers who were 

employed by the employer in the same 

occupation and the place of 

employment during the previous year to 

that listed in the Application for 

Temporary Employment Certification. 

This expands the 2008 Final Rule 

requirement beyond former U.S. 

workers that have been laid off within 

120 days of the employer’s date of need. 

Employers will not be required to 

contact those U.S. workers who were 

dismissed for cause or who abandoned 

the worksite prior to the completion of 

the last employment period. Each 

employer must provide its former U.S. 

employees a full disclosure of the terms 

and conditions of the job order, and 

solicit their return to the job. Employers 

will be required to maintain 

documentation to be submitted in the 

event of an audit or investigation 

sufficient to prove contact with its 

former employees consistent with 

document retention requirements under 

§ 655.56. This documentation may 

consist of a copy of a form letter sent to 

all former employees, along with 

evidence of its transmission (postage 

account, address list, etc.) 

Since under the current regulations, 

most employers have a period of need 

of 10 months, the employer’s former 

U.S. workers would be the same group 

of workers as those who were laid off at 

the end of work period. While the 

proposed requirement focuses on a 

longer period of time than the current 

requirement, it is unlikely that it will 

impose a significantly greater burden on 

employers. If an employer hires workers 

throughout the year to work for the 

period of its temporary need, it is 

unlikely that it will lay those workers 

off until the period of temporary need 

ends. Most, if not all workers who leave 

during the period of temporary need 

will have either quit or been terminated 

for cause, and the employer is not 

required to contact those workers. If for 

some reason, the employer did lay off 

some workers who were hired to work 

during the employer’s period of 

temporary need, before the end of the 

period of need—e.g., additional workers 

who were hired for a period of peakload 

need within the longer period of 

temporary need, the Department 

believes that it would be most 

appropriate to give those workers the 

first opportunity to take the jobs. 

Generally, however, there will be little 

practical difference between the 

operation of the current regulation and 

the operation of the proposed regulation 

except perhaps for seasonal jobs. In a 

seasonal program, reaching back to 

contact former employees who were 

employed over a cycle of a full year 

would be the minimum amount of time 

necessary to capture all of the seasonal 

activities for which H–2B workers are 

sought. For example, an oceanfront 

resort employer hires workers at the 

start of its season in May and releases 

them in September. The employer then 

seeks H–2B workers the following 

March, more than 60 days before the 

usual date of need. Reaching that 

particular workforce requires the 

employer to reach back to the time those 

employees were hired—the previous 

May—to ensure that the group of 

employees most likely to return to the 

employment are given the opportunity 

to do so. 

5. Section 655.44 Contact With Labor 

Organizations 

Where union representation is 

prevalent in the occupation or industry, 

the proposed rule would require the 

employer to formally contact the local 

union to inquire about the availability of 

qualified U.S. workers to fill the job 

opportunities for which the employer 

seeks to hire H–2B workers. The 

Department proposes to return to the 

long-standing practice of the CO 

directing employers to seek union 

assistance to fill H–2B jobs, because 

unions have traditionally been 

recognized as a reliable source for 

referrals of U.S. workers. While the 

Department has significant experience 

with occupations and industries that are 

typically unionized, we seek in 

particular comment on the 

circumstances or criteria that would 

trigger an employer’s obligation to 

contact the local union to seek U.S. 

workers. 

The employer must maintain 

documentation to be submitted in the 

event of an audit or investigation, 

consistent with document retention 

requirements under § 655.56, 

demonstrating that it contacted the 

applicable organization and that the 

union either did or did not respond to 

the employer’s request for referrals. 

Such documentation may consist of a 

copy of the letter sent to the 

organization and an attestation from the 

contacting employee of the employer 

documenting the lack of a response, or 

the contents of any response received. If 

the union did respond to the employer’s 

request, the employer’s recruitment 

report must also include the number 

and disposition of U.S. workers who 

were referred. 

6. Section 655.45 Contact With 

Bargaining Representative and Posting 

Requirements and Other Contact 

Requirements 

The proposed rule requires all 

employers that are party to a CBA to 

provide written notice to the bargaining 

representative(s) of the employer’s 

employees in the job classification in 

the area of intended employment. 

Where the employees in an occupation 

have a bargaining representative, the 

representative should be made aware of 

any job opportunities in that 

occupation. Seeking union assistance 

will help the employer in finding 

qualified U.S. workers who are available 

for the job opportunity for which the 

employer seeks to employ H–2B 

workers. 

The Department proposes requiring 

the employer to maintain 

documentation demonstrating 

compliance with this requirement, 

consistent with document retention 

requirements under § 655.56. 

Additionally, the employer’s 

recruitment report must confirm that the 

employer contacted the bargaining 

representative(s), including whether the 

organization referred qualified U.S. 

worker(s) and if so, how many workers 

were referred and their disposition. 

Where there is no bargaining 

representative(s) of the employer’s 

employees, the proposed rule requires 

the employer to provide notice to the 

employer’s employees of the job 

opportunities by posting their 

availability for at least 10 consecutive 

business days in at least 2 conspicuous 

locations at the place(s) of anticipated 

employment, or in some other manner 

that provides reasonable notice. This 

requirement is new under the proposed 

rule, and is intended to ensure that each 

employer’s existing U.S. workers receive 

timely notice of the job opportunities, 

therefore increasing the likelihood that 

those workers will apply for the 

available positions for the subsequent 

temporary period of need and that other 

U.S. workers, including former workers, 

will be more likely to learn of the job 

opportunities through word of mouth. 

The Department seeks comment on 

whether this requirement will maximize 

the number of U.S. workers who will be 

recruited to fill the vacancies for which 

H–2B workers are sought and other 

ways such notification may be effective. 

The Department is also proposing to 

have employers contact communitybased organizations to be designated by 

the CO in the Notice of Acceptance, to 

disseminate the notice of the job 


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opportunity. Community-based 

organizations are an effective means of 

reaching out to domestic workers 

interested in specific occupations. The 

contact is to be performed when 

designated specifically by the CO, as 

appropriate to the job opportunity and 

the area of intended employment. 

The Department proposes to require 

that the employer to maintain 

documentation consistent with 

document retention requirements under 

§ 655.56, sufficient to prove compliance 

with this requirement. The 

documentation may consist of a copy of 

the posted notice and a statement 

identifying where and when the notice 

was posted. 

7. Section 655.46 Additional 

Employer-Conducted Recruitment 

Where the CO determines that the 

employer-conducted recruitment, 

described in §§ 655.42 through 655.45, 

is not sufficient to attract qualified U.S. 

workers who would be available to 

accept employment, the proposed rule 

authorizes the CO to require the 

employer to engage in additional 

recruitment activities. The Department 

believes that such additional 

recruitment may be necessary in such 

areas to ensure that unemployed U.S. 

workers, who may be capable of (and 

desirous of) performing the job duties, 

are afforded maximum access to those 

opportunities. The Department’s 

intention in requiring additional 

recruitment including, where 

appropriate, in areas of substantial 

unemployment (ASU), is predicated on 

the belief that more recruitment will 

result in more opportunities for U.S. 

workers. Areas of substantial 

unemployment by their nature have a 

higher likelihood of worker availability; 

the Department’s recognition of worker 

availability in these areas is a strong 

indicator that these open job 

opportunities may have a more 

receptive potential populations. This 

recruitment will be conducted in 

addition to and occur within the same 

time period as the circulation of the job 

order and other mandatory employerconducted recruitment described above 

and would not by itself result in any 

delay in certification. 

The Department is not limiting 

additional recruitment only to job 

opportunities located in ASUs because 

additional recruitment might also be 

necessary where local employment 

patterns indicate a sudden increase in 

worker availability—e.g., a plant 

closure. The Department also is not 

making additional recruitment an 

absolute requirement, even in situations 

where the job opportunity is located in 

an ASU. This is essential to permit the 

Department to be able to determine the 

appropriate level of recruitment based 

on the specific situation. The Certifying 

Officers, with advice from the SWAs 

who are familiar with local employment 

patterns and real-time market 

conditions, are well-positioned to judge 

where additional recruitment may or 

may not be required. 

For example, it may be reasonable to 

require additional recruitment for a job 

that requires little training or experience 

in an ASU, since a larger group of 

available workers would be qualified for 

the job. However, it may not be 

reasonable to require additional 

recruitment where the employer is 

unlikely to find qualified workers 

among the unemployed U.S. worker 

population, for example where the job is 

specialized and the local population is 

not known to have that expertise. The 

CO may have cause to require additional 

recruitment in other situations as well. 

This may depend upon area-specific 

conditions, natural disasters, or similar 

events that give rise to additional 

workers being available. For example, 

workers may be available as the result 

of a plant closure or change in a 

seasonal event. While the CO will not 

have time to review and determine a 

course of action in every single 

application, it is expected that the 

existence of such situations, known to 

the SWA and made known to the CO, 

would be used as factors in determining 

whether to impose such additional 

recruitment and what type of 

recruitment would best reach the 

population known to be available for 

H–2B job opportunities. 

The CO will describe in the Notice of 

Acceptance the types of additional 

recruitment efforts the employer will be 

required to undertake. Additional 

recruitment methods may include, but 

will not be limited to: additional print 

advertising; advertising on the 

employer’s Web site or another Web 

site; contact with community-based 

organizations that have contact with 

potential worker populations; additional 

contact with labor unions; contact with 

faith-based organizations; and radio 

advertisements. In recognition of the 

invaluable SWA experience and 

expertise with local labor markets, the 

CO will consult with the SWA to 

determine the types of additional 

recruitment that may be appropriate for 

a particular job opportunity in the area 

of employment. 

The Department invites stakeholders 

and other interested members of the 

public to provide comments on these 

proposed additional recruitment 

methods, and provide the Department 

with examples of the types of 

recruitment typically conducted in 

specific industries, occupations, or job 

classifications. This information will 

assist the Department in developing 

appropriate additional recruitment 

sources and criteria. 

The Department is also proposing that 

the CO specify in the Notice of 

Acceptance the documentation or other 

supporting evidence the employer will 

be required to maintain as proof that the 

employer satisfied any additional 

recruitment requirements, consistent 

with document retention requirements 

under § 655.56. 

8. Section 655.47 Referrals of U.S. 

Workers 

The Department proposes to require 

SWAs to refer for employment 

individuals who have been informed of 

the details of the job opportunity and 

indicate that they are qualified and will 

be available for employment. Unlike 

under the 2008 Final Rule, which 

permitted potential applicants access to 

job order entries in each SWA’s 

electronic system and self-referral to a 

specific job opportunity, SWA staff will 

provide all material terms and 

conditions contained in the job order to 

each applicant in order to ensure that 

the U.S. worker understands the job 

requirements and duties as well as the 

employer’s obligations, including the 

additional worker protections proposed 

by this NPRM. 

9. Section 655.48 Recruitment Report 

Consistent with the requirements of 

the 2008 Final Rule, the Department 

proposes to continue to require the 

employer to submit to the NPC a 

written, signed recruitment report. 

However, the Department proposes 

requiring the employer to send the 

recruitment report on a date specified 

by the CO in the Notice of Acceptance 

instead of at the time of filing the 

Application for Temporary Employment 

Certification. This change is in line with 

the proposed recruitment model under 

which the employer does not begin its 

recruitment until directed by the CO in 

the Notice of Acceptance. 

The remainder of this section sets out 

the information that the employer must 

include in the recruitment report. The 

Department proposes to require the 

employer to report on recruitment steps 

undertaken and their results. The 

proposed rule provides a detailed list of 

the specific information that must be 

included in the employer’s recruitment 

report. 

The Department proposes to require 

the employer to update the recruitment 

report throughout the recruitment 


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period to ensure that the employer 

accounts for contact with each 

prospective U.S. worker. The employer 

does not need to submit the updated 

recruitment report but is required to 

retain it and make it available in the 

event of a post-certification audit, 

another Federal agency investigation, or 

upon request by DOL. 

G. Labor Certification Determinations 

1. Section 655.50 Determinations 

The Department proposes to retain the 

same requirements under this provision 

as provided in the 2008 Final Rule. 

2. Section 655.51 Criteria for 

Certification 

The Department anticipates that the 

determination process for approving or 

denying each Application for 

Temporary Employment Certification 

will be simplified under the proposed 

rule through the pre-filing 

determination of temporary need. In the 

majority of cases, the Department’s 

determination should rest on a finding 

that the employer has a valid H–2B 

Registration and has demonstrated full 

compliance with the requirements of 

this subpart. As under the 2008 Final 

Rule, in ensuring that the employer met 

its recruitment obligations with respect 

to U.S. workers, the CO will treat as 

available all those individuals who were 

rejected by the employer for any reason 

other than a lawful, job-related reason. 

Additionally, the Department proposes 

to clarify that it will not grant 

certifications to employers that have 

failed to comply with final agency 

orders under the program. 

3. Section 655.52 Approved 

Certification 

The Department proposes that the CO 

use next day delivery methods, and 

preferably, electronic mail, to send the 

Final Determination letter to the 

employer. The Department is doing so 

in an effort to expedite the transmittal 

of information and introduce efficiency 

and cost savings into the application 

determination process. The proposed 

rule provides that the CO will send the 

approved certification to the employer, 

with a copy to the employer’s attorney 

or agent, if applicable. This is a 

departure from the 2008 Final Rule, 

which calls for the delivery of the 

original certification to the employer’s 

attorney. The Department’s proposed 

change in procedure is the result of 

years of OFLC program experience 

evidencing complications in the 

relationship between employers and 

their agents or attorneys. The 

Department does not intend to be 

involved in, or interfere with, the 

employer’s relationship with its 

attorney or agent. However, the 

Department believes that because it is 

the employer that must attest to the 

assurances and obligations contained in 

the Application for Temporary 

Employment Certification and be 

ultimately responsible for upholding 

those assurances and obligations, the 

employer should receive and maintain 

the original approved certification. 

4. Section 655.53 Denied Certification 

The proposed rule retains the general 

provisions for denying certifications 

from the 2008 Final Rule, except that 

the Department proposes that the CO 

will send the Final Determination letter 

by means guaranteeing next day 

delivery to the employer, with a copy to 

the employer’s attorney or agent. 

Otherwise, the proposed rule continues 

to require the Final Determination letter 

to state the reason(s) that the 

certification was denied, cite the 

relevant regulatory provisions and/or 

special procedures that govern, and 

provide the applicant with information 

sufficient to appeal the determination. 

5. Section 655.54 Partial Certification 

The proposed rule retains the 2008 

Final Rule provision explicitly 

providing that the CO may issue a 

partial certification, reducing either the 

period of need or the number of H–2B 

workers requested, or both. The 

proposed rule clarifies that the CO may 

reduce the number of workers certified 

by subtracting the number of qualified 

and available U.S. workers who have 

not been rejected for lawful job-related 

reasons from the total number of 

workers requested. 

The proposed rule also continues to 

permit the employer to request 

administrative review. 

6. Section 655.55 Validity of 

Temporary Employment Certification 

The Department proposes to retain the 

provision that a temporary employment 

certification is only valid for the period 

specified. While the proposed rule 

continues to prohibit the employer from 

transferring the labor certification to 

another employer, the Department 

proposes to allow the employer to 

transfer the approved labor certification 

to a successor in interest in case of a 

merger or acquisition where the new 

employer is willing to continue to 

employ the workers certified and take 

on all of the legal obligations associated 

with the labor certification. 

7. Section 655.56 Document Retention 

Requirements of H–2B Employers 

The Department proposes to add a 

section that delineates document 

retention requirements, including the 

period of time during which documents 

must be retained. Adding this section 

provides a single place in which to find 

all document retention requirements, 

thus eliminating the need to search for 

them in various sections of the 

regulatory text as currently necessary 

under the 2008 Final Rule. 

These document retention 

requirements apply to all employers 

filing an Application for Temporary 

Employment Certification, regardless of 

whether such applications have been 

certified, denied, or withdrawn. These 

records are invaluable to the 

Department in evaluating future 

applications filed by the employer as to 

whether it has demonstrated that no 

U.S. workers are available and that the 

alien’s employment will not adversely 

affect wages and working conditions of 

similarly employed U.S. workers. In 

many such instances, the documents 

would allow the employer to 

demonstrate that it has met its 

obligations with respect to US workers 

that may have been recruited as well as 

other program requirements. 

H. Post Certification Activities 

Proposed §§ 655.60 through 655.63 

concern actions an employer may take 

after an Application for Temporary 

Employment Certification has been 

adjudicated, including making a request 

for extension of certification, appealing 

a decision of the CO, and withdrawing 

an Application for Temporary 

Employment Certification. The 

Department also proposes to institute a 

new publicly-accessible electronic 

database of employers that have applied 

for H–2B certification that the 

Department will maintain. 

1. Section 655.60 Extensions 

In this proposed section, the 

Department proposes to allow an 

employer to request an extension of the 

period of employment under limited 

circumstances involving weather 

conditions or other factors beyond the 

control of the employer. Under the 

proposed rule, there will be instances 

when an employer will have a 

reasonable need for an extension of the 

time period that was not foreseen at the 

time the employer originally filed the 

Application for Temporary Employment 

Certification. This provision will 

provide flexibility to the employer in 

the event of unforeseen circumstances 

while maintaining the integrity of the 


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certification and the preliminary 

determination of temporary need. 

The Department proposes that the 

employer would make its request to the 

CO in writing and would submit 

documentation showing that the 

extension is needed and that the 

employer could not have reasonably 

foreseen the need. Extensions would be 

available only to employers whose 

original certified period of employment 

is less than the maximum period 

allowable in this subpart and under 

DHS H–2B regulations. The extension 

may not result in a total work period 

exceeding 9 months under the proposed 

definition of temporary need for 

employers whose recurring need is 

seasonal, peakload, or intermittent, or 

3 years for employers that have a onetime occurrence of temporary need, 

except in extraordinary circumstances. 

Extensions will only be granted if the 

employer demonstrates that the need for 

the extension arose from unforeseeable 

circumstances, such as weather 

conditions or other factors beyond the 

control of the employer (including 

unforeseen changes in market 

conditions). 

Upon receipt of the employer’s 

request, the CO will inform the 

employer of its decision to grant or deny 

the request in writing. The employer 

may appeal the CO’s denial of an 

extension under the administrative 

review provision of the proposed rule. 

The employer’s assurances and 

obligations under the original approved 

temporary employment certification 

will continue to apply to workers 

recruited in connection with the 

Application for Temporary Employment 

Certification during the extended period 

of employment. The employer must 

meet its obligations which are based on 

the workers’ partial or full completion 

of the extended work period. 

The Department proposes to require 

that the employer provide all its H–2B 

and corresponding U.S. workers a copy 

of the extension immediately upon 

approval. This requirement is intended 

to ensure that workers remain informed 

of all aspects of the job opportunity with 

the employer. Obtaining such an 

extension may require the employer to 

file an amended petition with USCIS to 

cover any additional periods of time 

granted. 

2. Section 655.61 Administrative 

Review 

This proposed section sets forth the 

procedures for BALCA review of a 

decision of a CO. The substance of this 

section is the same as that in the 2008 

Final Rule. However, the proposed 

section does not refer to the particular 

decision of the CO that may be 

appealed, such as the denial of the 

temporary labor certification. Rather, 

the proposed rule refers generally to the 

decisions of the CO that may be 

appealed, where authorized in this 

subpart. These decisions are identified 

in the sections of the rule that discuss 

the CO’s authority and procedure for 

making that particular decision. 

Additionally, the proposed rule 

increases from 5 business days to 

7 business days: The time in which the 

CO will assemble and submit the appeal 

file in § 655.61(b); the time in which the 

CO may file in § 655.61(c); and the time 

BALCA should provide a decision upon 

the submission of the CO’s brief in 

§ 655.61(f). 

3. Section 655.62 Withdrawal of an 

Application for Temporary Employment 

Certification 

Under the proposed rule, an employer 

may withdraw an Application for 

Temporary Employment Certification 

before it is adjudicated. 

4. Section 655.63 Public Disclosure 

This proposed section would codify 

the Department’s practice of 

maintaining, apart from the electronic 

job registry, an electronic database 

accessible to the public containing 

information on all employers that apply 

for H–2B labor certifications. The 

database will continue to include 

information such as the number of 

workers the employer requests on an 

application, the date an application is 

filed, and the final disposition of an 

application. The continued accessibility 

of such information will increase the 

transparency of the H–2B program and 

process and provide information for 

those currently seeking such 

information from the Department 

through Freedom of Information Act 

(FOIA) requests. 

I. Integrity Measures 

Proposed §§ 655.70 through 655.73 

have been grouped together under the 

heading Integrity Measures, describing 

those actions the Department proposes 

to take to ensure that an Application for 

Temporary Employment Certification 

filed with the Department in fact 

complies with the requirements of this 

subpart. 

1. Section 655.70 Audits 

This section outlines the proposed 

process under which the Department 

will conduct audits of adjudicated 

applications. These provisions are 

similar to the 2008 Final Rule. The 

Department’s regulatory mandate to 

ensure that qualified workers in the 

United States are not available and that 

the alien’s employment will not 

adversely affect wages and working 

conditions of similarly employed U.S. 

workers serves as the basis for the 

Department’s authority to audit 

adjudicated applications, even if the 

employer’s application was ultimately 

withdrawn or denied. Adjudicated 

applications include those that have 

been certified, denied, or withdrawn 

after certification. There is real value in 

the Department’s ability to audit those 

applications because they could be used 

to establish a record of employer 

compliance or non-compliance with 

program requirements and to better 

inform the Department in its 

determinations to investigate or debar 

an employer or its agent or attorney. 

Under the proposed rule, the OFLC 

has the discretion to choose which 

Application for Temporary Employment 

Certification will be audited. When an 

Application for Temporary Employment 

Certification is selected for audit, the 

proposed rule calls for the CO to send 

a letter to the employer and if 

appropriate, its attorney or agent, listing 

the documentation the employer must 

submit and the date by which the 

documentation must be sent to the CO. 

An employer’s failure to comply with 

the audit process may result in the 

revocation of its certification or in 

debarment, under proposed §§ 655.72 

and 655.73, or require assisted 

recruitment in future filings of an 

Application for Temporary Employment 

Certification, as set forth in § 655.71. 

The CO may provide any findings made 

or documents received in the course of 

the audit to DHS or other enforcement 

agencies, as well as WHD. The CO may 

also refer any findings that an employer 

discriminated against an eligible U.S. 

worker to the Department of Justice, 

Civil Rights Division, Office of Special 

Counsel for Unfair Immigration Related 

Employment Practices. 

2. Section 655.71 CO-Ordered Assisted 

Recruitment 

The proposed rule permits the OFLC 

to determine that a violation that does 

not warrant debarment has occurred 

and, as a result, require the employer to 

participate in assisted recruitment. This 

provision will also assist those 

employers that due to either program 

inexperience or confusion, have made 

mistakes in their Application for 

Temporary Employment Certification 

that indicate a need for further 

assistance from the Department. 

Under this provision the CO will 

notify the employer (and its attorney or 

agent, if applicable) in writing of the 

requirement to participate in assisted 


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recruitment for any future filed 

Application for Temporary Employment 

Certification for a period of up to 2 

years. The assisted recruitment will be 

at the discretion of the CO, determined 

upon the unique circumstances of the 

employer. 

The assisted recruitment may consist 

of, but is not limited to, requiring the 

employer to conduct additional 

recruitment, reviewing the employer’s 

advertisements before posting and 

directing the employer where such 

advertisements are to be placed and for 

how long, requesting and reviewing 

copies of all advertisements after they 

have been posted, proof of contact with 

past U.S. workers, and proof of SWA 

referrals of U.S. workers. If an employer 

fails to comply with the requirements of 

this section, the employer’s application 

will be denied and the employer may be 

debarred from future program 

participation. 

The Department invites stakeholders 

and other interested members of the 

public to provide comments and 

suggestions of industry specific 

recruitment and advertising sources to 

be used by the CO in administering 

assisted recruitment in the H–2B 

program under this section. 

3. Section 655.72 Revocation 

The Department proposes to include a 

provision which would allow the 

Administrator, OFLC to revoke an 

approved H–2B temporary labor 

certification. Under the proposed 

section, the Administrator, OFLC may 

revoke certification if he/she finds that 

the issuance of the temporary 

employment certification was not 

justified due to fraud or willful 

misrepresentation of a material fact in 

the application process, as defined in 

proposed § 655.73(d). The 

Administrator, OFLC may also revoke 

certification if he/she finds that the 

employer substantially failed to comply 

with any term or condition of the 

approved temporary employment 

certification, as further defined in 

proposed § 655.73(d) and (e). Last, the 

Administrator, OFLC may also revoke 

certification if he/she finds that the 

employer failed to cooperate with a DOL 

investigation or with a DOL official 

performing an investigation, inspection, 

audit, or law enforcement function, or 

that the employer failed to comply with 

one or more sanctions or remedies 

imposed by WHD, or with one or more 

decisions or orders of the Secretary, 

with respect to the H–2B program. 

The proposed procedures for 

revocation begin with the 

Administrator, OFLC sending the 

employer a Notice of Revocation. Upon 

receiving the Notice of Revocation, the 

employer has two options: it may 

submit rebuttal evidence to the CO or 

appeal the revocation under the 

procedures in proposed § 655.61. If the 

employer does not file rebuttal evidence 

or an appeal within 10 business days of 

the date of the Notice of Revocation, the 

Notice will be deemed final agency 

action and will take effect immediately 

at the end of the 10-day period. 

If the employer chooses to file rebuttal 

evidence, and the employer timely files 

that evidence, the Administrator, OFLC 

will review it and inform the employer 

of his final determination on revocation 

within 10 business days of receiving the 

rebuttal evidence. If the Administrator, 

OFLC determines that the certification 

should be revoked, the Administrator, 

OFLC will inform the employer of its 

right to appeal under proposed § 655.61. 

The employer must file the appeal of the 

Administrator, OFLC’s determination 

within 10 business days, or the 

Administrator, OFLC’s decision 

becomes the final decision of the 

Secretary and will take effect 

immediately after the 10-day period. 

If the employer chooses to appeal 

either in lieu of submitting rebuttal 

evidence, or after the Administrator, 

OFLC makes a determination on the 

rebuttal evidence, the appeal will be 

conducted under the procedures 

contained in proposed § 655.61. The 

timely filing of either the rebuttal 

evidence or an administrative appeal 

stays the revocation pending the 

outcome of those proceedings. If the 

labor certification is ultimately revoked, 

the Administrator, OFLC will notify 

DHS and the Department of State. 

Proposed § 655.72(c) lists an 

employer’s continuing obligations if the 

employer’s H–2B certification is 

revoked. The obligations include 

reimbursement of actual inbound 

transportation, visa, and other expenses 

(if they have not been paid), the 

worker’s outbound transportation 

expenses, payment to the worker of the 

amount due under the three-fourths 

guarantee as required by proposed 

§ 655.20(f), and any other wages, 

benefits, and working conditions due or 

owing to the worker under this subpart. 

4. Section 655.73 Debarment 

The Department proposes to revise 

the existing debarment provision to 

strengthen the enforcement of H–2B 

labor certification requirements and to 

clarify the basis under which debarment 

may be applied. Proposed § 655.73(a) 

states that the Administrator, OFLC may 

debar an employer if s/he finds that the 

employer: willfully misrepresented a 

material fact in its H–2B Registration, 

approved Application for Temporary 

Employment Certification, or H–2B 

Petition; substantially failed to meet any 

of the terms and conditions of H–2B 

Registration, approved Application for 

Temporary Employment Certification, 

or H–2B Petition; or willfully 

misrepresented a material fact to the 

Department of State during the visa 

application process. Proposed 

§ 655.73(a) defines a ‘‘substantial 

failure’’ to mean a willful failure to 

comply that constitutes a significant 

deviation from the terms and conditions 

of such documents. The Administrator, 

OFLC may not issue future labor 

certifications to an employer 

represented by an agent or attorney who 

the Administrator, OFLC finds has 

participated in an employer’s 

substantial violation. The Department is 

proposing that the Administrator, OFLC 

may not debar an employer, attorney, or 

agent for less than 1 year or more than 

5 years from the date of the 

Department’s final debarment decision. 

Proposed § 655.73(d) provides the 

standard for determining whether a 

violation was willful. Proposed 

§ 655.73(e) describes the factors that the 

Administrator, OFLC may consider in 

determining whether a violation 

constitutes a significant deviation from 

the terms and conditions of the H–2B 

Registration, approved Application for 

Temporary Employment Certification, 

or H–2B Petition. 

This list of factors is not exclusive, 

but it offers some guidance as to what 

the Administrator, OFLC generally 

considers when determining whether a 

violation would warrant debarment. The 

factors are the same factors used by 

WHD to determine whether a violation 

is significant under 29 CFR 503.19(c). 

Proposed § 655.73(f) provides a 

comprehensive but not exhaustive list of 

violations that would meet the 

standards in §§ 655.73(d)–(e) and 

therefore warrant debarment. The text of 

proposed § 655.73(f) is a modified list of 

debarrable violations from the 2008 

Final Rule. The most significant 

differences are that a single act, as 

opposed to a pattern or practice of such 

actions, would be sufficient to merit 

debarment and that the following 

violations would be considered 

debarrable: 

• Improper layoff or displacement of 

U.S. workers or workers in 

corresponding employment at 

§ 655.73(f)(4); 

• A violation of the requirements of 

§ 655.20(o) or (p) concerning fee shifting 

and related matters at § 655.73(f)(10); 

• A violation of any of the antidiscrimination provisions listed in 29 

CFR 503.16 and § 655.73(f)(11); 


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• Failure to comply with the assisted 

recruitment period; and 

• A material misrepresentation of fact 

during the registration or application 

process. 

Although many of the debarrable 

violations in the 2008 Final Rule are 

described as ‘‘significant failures,’’ while 

many of the violations listed under 

proposed § 655.73(f) are simply 

described as ‘‘failures,’’ the 

Administrator, OFLC will consider 

whether all violations are sufficiently 

significant to warrant debarment based 

on the criteria in proposed § 655.73(e) or 

meet the definition of willful at 

§ 655.73(d). 

The independent debarment authority 

of the WHD is a new feature of the 

proposed rule. See proposed 29 CFR 

503.24 and the corresponding preamble. 

Because OFLC and WHD have 

concurrent debarment authority, some 

changes have been proposed to the 

OFLC debarment procedures to ensure 

that the procedures are consistent with 

the WHD debarment procedures. 

However, an important distinction 

between the OFLC and WHD debarment 

procedures is that the WHD debarment 

procedures do not provide for a 30-day 

rebuttal period because WHD 

debarments arise from investigations 

during which the employer has ample 

opportunity to submit any evidence and 

arguments in its favor. 

Proposed § 655.73(g) describes the 

procedures that will be followed in the 

event of an OFLC debarment. These 

procedures are substantively the same 

as the debarment procedures contained 

in the 2008 Final Rule, with the 

following exceptions: 

In § 655.73(g)(2), the Department 

proposes that an employer be provided 

30 calendar days from the date the 

Notice is issued to submit rebuttal 

evidence and that the Administrator, 

OFLC be provided 30 calendar days 

from the date of receiving the rebuttal 

evidence to issue a final determination. 

In § 655.73(g)(4), the Department 

proposes that the ALJ will prepare his 

or her decision following a debarment 

hearing within 60 days after completion 

of the hearing and closing of the record. 

This time constraint is consistent with 

the proposed debarment hearing 

procedures of WHD. 

In § 655.73(g)(6), the Department 

proposes to remove the language that 

provides that ‘‘[i]f the [Administrative 

Review Board (ARB)] fails to provide a 

decision within 90 days from the notice 

granting the petition, the ALJ’s decision 

will be the final decision of the 

Secretary.’’ Given the serious 

consequences of debarment, the 

Department did not want to eliminate a 

party’s appeal rights simply because the 

ARB failed to act in the time frame 

provided. 

Proposed § 655.73(h) clarifies that 

while WHD and OFLC will have 

concurrent debarment jurisdiction, the 

two agencies will coordinate their 

activities so that a specific violation for 

which debarment is imposed will be 

cited in a single debarment proceeding. 

Last, proposed § 655.73(i) provides 

that an employer, agent, or attorney who 

is debarred by OFLC or WHD from the 

H–2B program will also be debarred 

from all other foreign labor certification 

programs administered by the 

Department for the time period in the 

final debarment decision. Many 

employers, agents and attorneys 

participate in more than one foreign 

labor certification program administered 

by the Department. However, under the 

current regulation, a party that is 

debarred under the H–2B program may 

continue to file applications under the 

Department’s other foreign labor 

programs. This proposal will allow the 

Department to refuse to accept 

applications filed by or on behalf of a 

debarred party under the H–2B program 

in any of the Department’s foreign labor 

certification programs. 

Addition of 29 CFR Part 503 

Effective January 18, 2009, pursuant 

to INA section 214(c)(14)(B), DHS 

transferred to the Secretary enforcement 

authority for the provisions in section 

214(c)(14)(A)(i) of the INA which govern 

petitions to admit H–2B workers. The 

2008 Final Rule contains the regulatory 

provisions governing ETA’s processing 

of the employer’s Application for 

Temporary Employment Certification 

and the WHD’s enforcement 

responsibilities in ensuring that the 

employer has not willfully 

misrepresented a material fact or 

substantially failed to meet a condition 

of such application. 

The Department has carefully 

reviewed the 2008 Final Rule and 

proposes substantive changes to both 

the certification and enforcement 

processes to enhance protection of U.S. 

and H–2B workers. 

This proposed rule would add a new 

part, 29 CFR part 503, to further define 

and clarify the protections for workers. 

This proposal and the proposed changes 

in 20 CFR part 655, subpart A add 

workers in corresponding employment 

to the protected worker group, impose 

additional recruitment obligations and 

employer obligations for laid off U.S. 

workers, and increase wage protections 

for H–2B workers and workers in 

corresponding employment. 

Additionally, the Department proposes 

to enhance the WHD’s enforcement role 

in administrative proceedings following 

a WHD investigation. 

To ensure consistency and clear 

delineation of responsibilities between 

Department agencies implementing and 

enforcing H–2B provisions, this new 

part 503 has been written in close 

collaboration with ETA and is being 

published concurrently with ETA’s 

proposals in 20 CFR part 655, subpart A 

to amend the employer certification 

process. 

A. General Provisions and Definitions 

Proposed §§ 503.0 through 503.8 

provide general background information 

about the H–2B program and its 

operation. Proposed §§ 503.1 and 503.2 

are similar to the current regulations at 

20 CFR 655.1 and 655.2. Proposed 

§ 503.3 describes how the Department 

will coordinate both internally and with 

other agencies. 

1. Section 503.4 Definition of Terms 

Under this proposed section, 

definitions are identical to those 

contained in proposed 20 CFR part 655, 

Subpart A, except that this proposed 

section contains only those definitions 

that are applicable to this part. The 

preamble to 20 CFR part 655, subpart A 

contains the relevant discussion of those 

definitions. 

2. Section 503.5 Temporary Need 

Under this proposed section, the 

provision of temporary need is identical 

to the requirements set forth in 

proposed 20 CFR 655.6. 

3. Section 503.6 Waiver of Rights 

Prohibited 

The Department proposes to add new 

language that would prohibit any 

employer from seeking to have workers 

waive or modify any rights granted them 

under these regulations. This proposed 

paragraph would, with limited 

exceptions, void any agreement 

purporting to waive or modify such 

rights. This proposed language is 

consistent with similar prohibitions 

against waiver of rights under other 

laws, such as the Family and Medical 

Leave Act, see 29 CFR 825.220(d), and 

the H–2A program, see 29 CFR 501.5. 

4. Section 503.7 Investigation 

Authority of Secretary 

The Department proposes to retain the 

current authority established under 20 

CFR 655.50, affirming WHD’s authority 

to investigate employer compliance 

with these regulations and WHD’s 

obligation to protect the confidentiality 

of complainants. This proposed section 


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also discusses the reporting of 

violations. 

5. Section 503.8 Accuracy of 

Information, Statements, Data 

Under this proposed section, making 

false representations to the government 

would make an entity subject to 

penalties, including a fine of up to 

$250,000 and/or up to 5 years in prison. 

B. Enforcement Provisions 

1. Section 503.15 Enforcement 

Under this proposed section, the type 

of workers entitled to protection by 

WHD enforcement is expanded to 

include workers in corresponding 

employment, including those hired 

outside the 10-day recruitment period as 

covered in the current rule. This is 

necessary to ensure that U.S. workers 

are not adversely affected by the 

employment of H–2B workers. 

2. Section 503.16 Assurances and 

Obligations of H–2B Employers 

Under this section, the Department 

proposes requirements for employers 

seeking to participate in the H–2B 

program. These provisions are identical 

to those discussed in proposed 20 CFR 

655.22, with the exception of an 

additional paragraph (aa), Cooperation 

with Investigators. In this proposed 

paragraph, the Department adds to the 

employer obligations the existing 

requirement in 20 CFR 655.50(c) that 

the employer cooperate in any 

administrative or enforcement 

proceedings. The provision states that 

the employer will cooperate with any 

employee of the Secretary exercising or 

attempting to exercise the authority 

delegated to the Department. Adding 

this provision to the list of employer 

obligations will facilitate enforcement if 

an employer fails to cooperate and this 

failure is determined to be a violation, 

consistent with the standards in 

§ 503.19. The requirements for employer 

cooperation are set forth more fully in 

§ 503.25. 

The preamble to 20 CFR part 655, 

subpart A contains the relevant 

discussion of the other assurances and 

obligations for employers participating 

in the H–2B program. 

3. Section 503.17 Documentation 

Retention Requirements of H–2B 

Employers 

The NPRM proposes to consolidate in 

§ 503.17 the documentation retention 

requirements previously found 

throughout 20 CFR part 655, subpart A. 

This proposal requires the retention and 

availability of certain documentation 

demonstrating compliance with the 

program’s requirements. Documents 

must be retained in hard copy for a 

period of 3 years from the certification 

date if the Application for Temporary 

Employment Certification was 

approved, 3 years from the 

determination date if it was denied, or 

3 years from the day the Department 

received the letter of withdrawal if it 

was withdrawn. The proposed rule 

contains several new document 

retention requirements. 

Under paragraph (c)(2)(iii) of this 

section, employers are required to retain 

evidence of contact with former U.S. 

workers as specified under proposed 20 

CFR 655.43. Under paragraph (c)(2)(v) of 

this section, employers are required to 

retain a copy of the posting of the job 

opportunity in circumstances where 

there is no bargaining representative, as 

specified in proposed 20 CFR 655.45(b). 

Under paragraph (c)(2)(vi) of this 

section, employers are required to retain 

evidence of additional employerconducted positive recruitment 

activities as specified in proposed 20 

CFR 655.46. 

Paragraph (c)(11) of this section 

requires employers to retain the 

approved H–2B Petition, as defined 

under proposed § 503.4, including all 

accompanying documents. Under 

paragraph (c)(5) of this section, 

employers are required to retain records 

of each worker’s earnings, hours 

worked, and other information as 

specified under proposed § 503.16(i). 

Paragraph (c)(7) of this section 

concerns proposed § 503.16(w), which 

requires that employers contact and 

offer the H–2B job opportunity to former 

U.S. workers employed during the 

previous year in the occupation and at 

the place of employment, including 

those laid off within 120 days of the 

date of need. The employer must retain 

evidence of contact with each U.S. 

worker, documentation that each U.S. 

worker had been offered the job, and 

documentation that each U.S. worker 

who was not hired either turned down 

the offer or was rejected for legal 

reasons. 

Under paragraph (c)(8) of this section, 

employers are required to retain the 

written contract prohibiting a foreign 

labor contractor from receiving 

prohibited payments as specified in 

proposed § 503.16(p). Under paragraph 

(c)(9) of this section, employers are 

required to retain the written notice 

informing OFLC that an H–2B worker or 

worker in corresponding employment 

has separated from employment before 

the end date specified in the approved 

Application for Temporary Employment 

Certification (see proposed § 503.16(y)). 

Proposed paragraph (c)(10) of this 

section keeps the requirement currently 

found under 20 CFR 655.15(e) related to 

retaining a copy of the job order. The 

Department would also require 

employers to retain a copy of the H–2B 

Registration and Application for 

Temporary Employment Certification. 

The proposed rule retains the 

requirement currently in 20 CFR 

655.50(c) that employers make all 

records available within 72 hours 

following notice from the 

Administrator, WHD. 

The Department believes it is 

important to require that such records 

be maintained and made available, as in 

other enforcement programs, so that in 

the event of an investigation the 

Department is able to determine 

compliance or, in the event of 

violations, the nature and extent of the 

violations. The Department believes that 

this proposed rule would not be 

burdensome to employers as this section 

does not require employers to create any 

new documents but simply to preserve 

those documents that are already 

required for applying for participation 

in the H–2B program. 

4. Section 503.18 Validity of 

Temporary Employment Certification 

The Department proposes to include 

clarifying edits to the current 20 CFR 

655.34 (a) and (b), providing the time 

frame and scope for which an 

Application for Temporary Employment 

Certification is valid. 

5. Section 503.19 Violations 

Under this proposed section, the 

Department specifies the violations it 

may cite as a result of an investigation. 

These violations are similar to those in 

20 CFR 655.60, as they conform to the 

statutory provisions in 8 U.S.C. 

1184(c)(14)(A). Specifically, proposed 

paragraph (a)(1) of this section retains 

the provision that the Department must 

determine whether a willful 

misrepresentation of a material fact 

occurred and specifies that such 

misrepresentation must have occurred 

on the H–2B Registration, the 

Application for Temporary Employment 

Certification, or the H–2B Petition. 

Similar to the current provisions at 20 

CFR 655.60(b) and 655.65(d), proposed 

paragraph (a)(2) of this section specifies 

that the Department must determine 

whether the employer substantially 

failed to meet any of the conditions of 

the H–2B Registration, Application for 

Temporary Employment Certification, 

or H–2B Petition, and defines a 

‘‘substantial failure’’ to mean a willful 

failure to comply that constitutes a 

significant deviation from the terms and 

conditions of such documents. 


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Under proposed paragraph (a)(3) of 

this section, the Department clarifies 

that a willful misrepresentation of a 

material fact to Department of State 

during the visa application process is 

also considered to be a violation, similar 

to 20 CFR 655.60(c). This corrects an 

inadvertent drafting error in the 2008 

Final Rule. 

Proposed paragraph (b) of this section 

sets out when a violation qualifies as 

willful. Proposed paragraph (c) of this 

section provides guidance on 

determining whether a failure to comply 

constitutes a significant deviation from 

the terms and conditions of the H–2B 

Registration, Application for Temporary 

Employment Certification, or H–2B 

Petition, and provides a non-exhaustive 

list of factors that the Administrator, 

WHD may consider. The factors are the 

same factors used by OFLC to determine 

whether to initiate debarment under 

proposed 20 CFR 655.73 and are similar 

to the factors used by WHD to determine 

the amount of CMPs to be assessed 

under proposed § 503.23. 

6. Section 503.20 Sanctions and 

Remedies—General 

The proposed rule addresses the 

Department’s authority to pursue 

sanctions and remedies in response to 

an employer violation that meets the 

standards set forth in proposed § 503.19, 

and identifies actions the Department 

can take if the Administrator, WHD 

determines that a violation has 

occurred. Most remedies available to 

WHD have not changed. They include, 

but are not limited to, payment of back 

wages, including recovery of prohibited 

fees paid or impermissible deductions; 

enforcement of the provisions of the job 

order; assessment of CMPs; make-whole 

relief for any person who has been 

discriminated against; and 

reinstatement and make-whole relief for 

any U.S. worker who has been 

improperly rejected for employment, 

laid off, or displaced. In addition, this 

NPRM would give WHD concurrent 

debarment authority with ETA to 

prohibit employers, attorneys and 

agents from participating in the H–2B 

program for certain substantial and 

willful violations. This new authority is 

addressed in detail in proposed § 503.24 

below. The minimum debarment period 

would be 1 year and the maximum 

would be 5 years. Finally, the proposed 

rule specifies that the employer or, if 

applicable, the successor in interest, is 

liable for all the remedies as a result of 

a violation. 

7. Section 503.21 Concurrent Actions 

Under this proposed section, the 

Department clarifies the different roles 

and responsibilities of OFLC and WHD, 

and notes that both agencies have 

concurrent jurisdiction to impose 

debarment. Section 503.3(c) is intended 

to protect the employer from being 

debarred by both entities for a single 

violation. 

8. Section 503.22 Representation of the 

Secretary 

The proposed rule identifies the 

Solicitor of Labor and authorized 

representatives as the parties who 

would represent WHD and the Secretary 

in all administrative hearings under 8 

U.S.C. 1184(c)(14) and these proposed 

regulations. 

9. Section 503.23 Civil Money Penalty 

Assessment 

The Department proposes to retain 

most of the language currently in 20 

CFR 655.65(b), (d) and (g) on CMP 

assessments and the maximum amount 

of penalties that may be assessed per 

violation, which remains unchanged at 

$10,000, the statutory limit under 8 

U.S.C. 1184(c)(14)(A). The assessment of 

the maximum penalties available would 

not be mandatory, but rather based on 

regulatory guidelines in proposed 

§ 503.23(e) and the facts of each 

individual case. Higher penalty amounts 

would be reserved for willful failures 

resulting in harm to U.S. workers. The 

Department believes that its authority to 

assess CMPs will help ensure that 

employers meet their obligations under 

the H–2B program. 

The NPRM also contains additional 

and clarifying language specifying the 

violations that are subject to CMP 

assessment if they meet the standards 

described in § 503.19. The Department 

proposes to include the following 

provisions: 

Paragraph (a) of this section clarifies 

that WHD may find a separate violation 

for each failure to pay an individual 

worker properly or to honor the terms 

or conditions of a worker’s employment; 

Paragraph (b) of this section proposes 

that employers that violate wage 

requirements are subject to CMPs and 

defines the amount of wage-related 

penalties; 

Paragraph (c) of this section proposes 

that WHD may assess CMPs for 

employers that improperly terminate or 

fail to hire qualified U.S. workers and 

defines the amount of these penalties; 

Paragraph (d) of this section proposes 

that WHD may assess CMPs for any 

other violation that meets the standards 

described in § 503.19; and 

Paragraph (e) of this section retains 

the language from 20 CFR 655.65(g) 

regarding the factors that would 

influence the amount of CMPs the 

Department assesses. These factors 

continue to include, among others, the 

harm to U.S. workers; the number of H– 

2B workers, workers in corresponding 

employment, or improperly rejected 

U.S. applicants affected; the employer’s 

commitment to future compliance; and 

whether the violation brought the 

employer financial gain. 

10. Section 503.24 Debarment 

The NPRM proposes strengthening 

and streamlining the enforcement of the 

H–2B program’s requirements by 

extending to WHD the authority already 

held by OFLC to debar H–2B employers. 

The independent debarment authority 

of WHD is a new feature of the proposed 

rule. 

Proposed § 503.24(a) states that the 

Administrator, OFLC will not issue 

future labor certifications to an 

employer if the Administrator, WHD 

finds that the employer committed a 

violation that meets the standards of 

§ 503.19. Proposed § 503.24 provides a 

comprehensive but not exhaustive list of 

violations that could warrant debarment 

where the standards set forth in § 503.19 

are met, and is similar to the list of 

debarrable violations from the 2008 

Final Rule, at 20 CFR 655.31. The most 

significant differences are that the 

Department now proposes that a single 

act, as opposed to a pattern or practice 

of such actions, would be sufficient to 

merit debarment and that the following 

violations may be considered 

debarrable: 

Improper layoff or displacement of 

U.S. workers or workers in 

corresponding employment 

(§ 503.24(a)(iv)); 

A violation of the requirements of 

§ 503.16(o) and (p) concerning 

prohibited fees (§ 503.24(a)(viii)); 

A violation of any of the antidiscrimination provisions listed in 

§ 503.16(r) (§ 503.24(a)(ix)); and 

A willful misrepresentation of a 

material fact during the registration or 

application process. 

Proposed § 503.24(b) provides that the 

Administrator, OFLC may not issue 

future labor certifications to an 

employer represented by an agent or 

attorney who the Administrator, WHD 

finds has participated in an employer’s 

violation. The Department proposes in 

§ 503.24(c) that the Administrator, 

OFLC may not debar an employer, 

attorney, or agent for less than 1 year or 

more than 5 years from the date of the 

Department’s final debarment decision. 

Proposed § 503.24(d) describes the 

procedures that will be followed in the 

event of WHD debarment, crossreferencing the administrative 

proceedings provided in Subpart C. 


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Proposed § 503.24(e) clarifies that 

while WHD and OFLC will have 

concurrent debarment jurisdiction, the 

two agencies may coordinate their 

activities so that a specific violation for 

which debarment is imposed will be 

cited in a single debarment proceeding. 

Because OFLC and WHD would have 

concurrent debarment jurisdiction, 

some changes have been proposed to 

OFLC’s debarment procedures (see 

proposed language at 20 CFR 655.73 and 

the corresponding preamble) to ensure 

that OFLC’s and WHD’s debarment 

procedures are consistent with each 

other. However, an important 

distinction between the OFLC and WHD 

debarment procedures is that the WHD 

debarment procedures do not provide 

for a 30-day rebuttal period because 

WHD debarments arise from 

investigations during which the 

employer has ample opportunity to 

submit any evidence and arguments in 

its favor. 

Last, proposed § 503.24(f) provides 

that an employer, agent, or attorney who 

is debarred by OFLC or WHD from the 

H–2B program will also be debarred 

from all other foreign labor programs 

administered by the Department for the 

same period of time set forth in the final 

debarment decision. Many employers, 

agents, and attorneys participate in 

more than one foreign labor certification 

program administered by the 

Department. However, under the current 

regulation, a party that is debarred 

under the H–2B program may continue 

to file applications under the 

Department’s other foreign labor 

certification programs. This proposal 

will allow the Department to refuse to 

accept applications filed by or on behalf 

of a debarred party under the H–2B 

program in any of the Department’s 

foreign labor certification programs. 

11. Section 503.25 Failure To 

Cooperate With Investigators 

The proposed rule defines and 

expands the penalties for an employer’s 

(or its agent’s or attorney’s) failure to 

cooperate with a WHD investigation. 

WHD’s remedies for such a failure 

would include recommending 

revocation to OFLC of an employer’s 

existing Application for Temporary 

Employment Certification, and/or 

debarring an employer from future 

certifications for up to 5 years, and/or 

assessing CMPs. The proposed 

debarment maximum of 5 years is an 

increase from the current maximum of 

3 years. 

12. Section 503.26 Civil Money 

Penalties—Payment and Collection 

The Department proposes to revise 

the language instructing employers how 

to submit payment of any CMPs owed. 

This section is administrative in nature 

and does not propose any substantive 

changes. 

C. Administrative Proceedings 

The NPRM proposes generally to 

adopt the applicable administrative 

proceedings in current 20 CFR 655.70– 

655.80. The NPRM proposes few 

significant changes to the administrative 

proceedings from the 2008 Final Rule. 

Many of the changes were made to bring 

clarity to the administrative proceedings 

that will govern H–2B hearings, and to 

achieve general consistency with the 

procedural requirements applicable to 

H–2A proceedings. 

In § 503.50, the Department proposes 

that the ALJ will prepare a decision 

following a debarment hearing within 

60 days after completion of the hearing 

and closing of the record. This time 

constraint is consistent with the newlyproposed debarment hearing procedures 

of the OFLC. In § 503.55 the Department 

proposes to remove the language from 

the 2008 Final Rule, 20 CFR 

655.31(e)(5)(iii)(D), that provides that 

‘‘[i]f the ARB fails to provide a decision 

within 90 days from the notice granting 

the petition, the ALJ’s decision will be 

the final decision of the Secretary.’’ 

In proposed §§ 503.40, 503.41(a), 

503.42(a), and 503.50(e), the term 

‘‘unpaid wages’’ is replaced with the 

term ‘‘monetary relief’’ to reflect the fact 

that WHD may seek to recover other 

types of relief, such as if an employer 

requires an H–2B employee to pay 

his/her own visa fees and other related 

government-mandated fees. 

Section 503.43(c) proposes to change 

the number of days an employer has to 

request an administrative hearing from 

15 calendar days after the determination 

to 30 calendar days after the date of the 

determination. Under § 503.48(b) the 

NPRM proposes to change the time 

requirement for the ALJ to notify all 

parties of the date, time, and place of 

the hearing from 14 calendar days to 30 

calendar days. 

IV. Administrative Information 

A. Executive Order 12866 

Under Executive Order (E.O.) 12866, 

the Department must determine whether 

a regulatory action is significant and, 

therefore, subject to the requirements of 

the E.O. and to review by the Office of 

Management and Budget (OMB). 

Section 3(f) of the E.O. defines an 

economically significant regulatory 

action as an action that is likely to result 

in a rule that: (1) Has an annual effect 

on the economy of $100 million or 

more, or adversely and materially affects 

a sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local or 

tribal governments or communities (also 

referred to as economically significant); 

(2) creates serious inconsistency or 

otherwise interferes with an action 

taken or planned by another agency; 

(3) materially alters the budgetary 

impacts of entitlement grants, user fees, 

or loan programs, or the rights and 

obligations of recipients thereof; or 

(4) raises novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the E.O. 

The Department has determined that 

this NPRM is not an economically 

significant regulatory action under 

section 3(f)(1) of E.O. 12866. Regardless 

of whether the benefits of a rule exceed 

its costs, the rule is still considered 

economically insignificant under E.O. 

12866. This regulation would not 

adversely affect the economy or any 

sector thereof, productivity, 

competition, jobs, the environment, or 

public health or safety in a material 

way. In fact, this NPRM is intended to 

provide employers with clear and 

consistent guidance on the requirements 

for participation in the H–2B worker 

program. The Department, however, has 

determined that this NPRM is a 

significant regulatory action under sec. 

3(f)(4) of the E.O. and, accordingly, 

OMB has reviewed this NPRM. 

1. Need for Regulation 

The Department has determined for a 

variety of reasons that a new rulemaking 

effort is necessary for the H–2B 

program. The Department believes that 

the policy underpinnings of the 2008 

Final Rule, e.g. streamlining the H–2B 

process to defer many determinations of 

program compliance until after an 

application has been adjudicated, does 

not provide an adequate level of 

protection for either U.S. or foreign 

workers. 

The Department believes that there 

are insufficient worker protections in 

the current attestation-based model in 

which employers attest, but do not fully 

demonstrate, that they have performed 

an adequate test of the U.S. labor 

market. Even in the first year of the 

operation of the attestation-based 

system, it has come to the Department’s 

attention that employers are attesting to 

compliance with program obligations 

with which they have not complied, and 

that employers are not recruiting U.S. 

workers in accordance with established 


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11For the purposes of the cost-benefit analysis, 

the 10-year period starts on October 1, 2010. 

policies. The Department obtained this 

information in the processing and 

auditing of cases and in complaints 

from U.S. workers brought since the 

effective date of the 2008 Final Rule. 

The identified violations come from 

different geographical sectors and relate 

to both new and experienced filers. In 

light of such non-compliance, the 

Department has chosen to revisit the use 

of attestations, even with the use of 

post-certification program integrity 

measures. We would emphasize that the 

return to the certification model which 

was used in the program for its entire 

history until January 2009, and which 

was recently reintroduced into the 

H–2A program, creates no significant 

additional burdens on employers. It 

does not change the nature of the 

obligations with which employers must 

comply, or the documentation that 

employers must maintain, but merely 

adjusts the timing and circumstances 

under which that documentation, the 

evidence of compliance with those 

obligations, must be produced. While 

this change produces no additional 

burden on employers, it will 

substantially enhance overall program 

integrity by allowing the Department to 

identify potential problematic 

applications at the earliest possible 

time. It is also much less onerous on 

employers to be required to amend a 

deficient or incomplete application 

before it is certified, than to subject the 

employer to the potential for back pay, 

civil money penalties or debarment, if 

the deficiencies in the application are 

not identified and the job opportunity 

was not properly made available to U.S. 

workers. 

For these reasons, discussed in more 

detail above, the Department is 

proposing the changes contained in the 

NPRM. 

2. Alternatives 

The Department has considered a 

number of alternatives: (1) To propose 

the policy changes contained in this 

NPRM; (2) to take no action, that is, to 

leave the 2008 Final Rule intact; and 

(3) to propose a number of other options 

discussed in more detail below. We 

believe that this NPRM retains the best 

features of the 2008 Final Rule and 

proposes additional provisions to best 

achieve the Department’s policy 

objectives, consistent with its mandate 

under the H–2B program. We request 

comments from the public on the best 

alternatives that would balance the 

needs of businesses with providing 

adequate protections to U.S. and H–2B 

workers. We are also interested in any 

available information regarding the 

number of U.S. workers that would 

benefit from increased opportunity for 

jobs. 

The Department considered 

alternatives to a number of program 

proposals. First, the Department 

considered another alternative to the 

definition of full-time work (40 hours 

instead of the proposed 35 hours), as 

discussed in more detail in the 

preamble to proposed § 655.5. 

Second, this NPRM allows certain 

deductions from a worker’s earnings for 

the provision of items that are primarily 

for the benefit of the H–2B employer, as 

long as they do not bring the worker’s 

actual wages paid below the H–2B 

required wage level. This is a departure 

from the rule under the FLSA, which 

specifies the Federal minimum wage as 

the floor beneath which such 

deductions cannot lower a worker’s 

wages paid. In drafting this NPRM, the 

Department considered using the 

Federal minimum wage as the floor, but 

believes that the H–2B offered wage 

provides a stronger protection for U.S. 

workers. These protections are essential 

to meet the regulatory mandate to 

prevent adverse effect on wages and 

working conditions for U.S. workers. 

Using the FLSA wage level would 

provide a disincentive to hire U.S. 

workers who earn a market-driven rate 

that is likely to be higher than the 

Federal minimum. This ultimately 

would contradict the Secretary’s 

mandate under the H–2B program to 

protect the employment of U.S. workers 

and preserve their wages and working 

conditions. Therefore, the Department 

rejected this alternative because it does 

not achieve the policy objectives of the 

rule and undercuts the Secretary’s 

fulfillment of her obligations under the 

program. 

Third, this NPRM introduces a threefourths guarantee requirement modeled 

generally on that used in the H–2A 

program. The Department considered 

retaining the language of the H–2A 

requirement, under which employers 

must guarantee to offer the worker 

employment for a total number of work 

hours equal to at least three-fourths of 

the workdays of the total length of the 

contract. The Department rejected this 

alternative because, while this would 

provide workers with significant 

protection, it would not be sufficient to 

discourage the submission of imprecise 

dates of need and/or imprecise numbers 

of employees needed and would 

therefore fail to protect U.S. and H–2B 

workers from periods of unforeseen 

underemployment. 

The Department believes that the 

proposal, which calculates the hours of 

employment offered in 4-week periods, 

better ensures that workers’ 

commitment to a particular employer 

will result in real jobs that meet their 

reasonable expectations. We do not 

believe the proposal will create any 

additional burden on employers who 

have accurately represented their period 

of need and number of employees 

needed, and will provide an additional 

incentive for applicants to correctly 

state all of their needs on the 

Application for Temporary Employment 

Certification. 

Finally, the Department considered 

omitting the proposed registrations of 

H–2B employers and instead retaining 

the current practice for the adjudication 

of the employer’s temporary need and 

the labor market analysis to occur 

simultaneously. While this might be 

more advantageous for employers new 

to the program, it delays the vast 

majority of employers who are recurring 

users with relatively stable dates of need 

and who would benefit from separate 

adjudication of need and adequacy of 

recruitment. Moreover, all employers 

and potential workers benefit from a 

recruitment process close in time to the 

actual date of need which a registration 

process, by pre-determining temporary 

need, expressly permits. Therefore, the 

Department rejected the alternative of 

simultaneous adjudication because it 

undercuts the Secretary’s fulfillment of 

her obligations under the program. 

3. Economic Analysis 

The Department derives its estimates 

by comparing the baseline, that is, the 

program benefits and costs under the 

2008 Final Rule, against the benefits and 

costs associated with the 

implementation of the provisions 

proposed in this NPRM. The benefits 

and costs of the provisions of this 

NPRM are estimated as incremental 

impacts relative to the baseline. Thus, 

benefits and costs attributable to the 

2008 Final Rule are not considered as 

benefits and costs of this NPRM. We 

explain how the actions of workers, 

employers, and government agencies 

resulting from the NPRM are linked to 

the expected benefits and costs. 

The Department sought to quantify 

and monetize the benefits and costs of 

this NPRM where feasible. Where we 

were unable to quantify benefits and 

costs—for example, due to data 

limitations—we describe them 

qualitatively. The analysis covers 10 

years (2011 through 2020) to ensure it 

captures major benefits and costs that 

accrue over time.11 We have sought to 

present benefits and costs both 


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12The specific provisions associated with transfer 

payments are: Wages paid to corresponding U.S. 

workers, payments for transportation and 

subsistence to and from the place of employment, 

and visa-related fees. 

13The Department does not require employers to 

signify on an H–2B Application for Temporary 

Employment Certification the number of employees 

that they employ in that occupation in that area of 

intended employment. Nor does the Department 

have such information from concluded 

investigations. 

14Source for total employment: ftp://ftp.bls.gov/ 

pub/suppl/empsit.ceseeb1.txt. 

15Source for total employment by industry: 2007 

Economic Census. 

16The number of visas available under the H–2B 

program is 66,000, assuming no statutory increases 

in the number of visas available for entry in a given 

year. We also assume that half of all such workers 

(33,000) in any year stay at least one additional 

year, and half of those workers (16,500) will stay 

a third year, for a total of 115,500 H–2B workers in 

a given year. The scale factor was derived by 

dividing 115,500 by the total number of workers 

certified per year on average during FY 2007–2009 

(236,706). 

undiscounted and discounted at 

7 percent and 3 percent. 

In addition, the Department provides 

an assessment of transfer payments 

associated with certain provisions of the 

proposed rule.12 Transfer payments, as 

defined by OMB Circular A–4, are 

payments from one group to another 

that do not affect total resources 

available to society. Transfer payments 

are associated with a distributional 

effect, but do not result in additional 

benefits or costs to society. The 

proposed rule would alter the transfer 

patterns and increase the transfers from 

employers to workers. The primary 

recipients of transfer payments reflected 

in this analysis are U.S. workers and 

H–2B workers. The primary payors of 

transfer payments reflected in this 

analysis are H–2B employers, and under 

the proposed rule, those employers who 

choose to participate are likely to be 

those that have the greatest need to 

access the H–2B program. When 

summarizing the benefits or costs of 

specific provisions of this proposed 

rule, we present the 10-year averages to 

reflect the typical annual effect. 

Several provisions of the proposed 

rule extend to workers in corresponding 

employment, defined in the proposed 

rule as those non-H–2B workers who 

perform work for an H–2B employer, 

where such work is included in the job 

order that H–2B workers perform during 

the period of the job order and any other 

work performed by H–2B workers. 

Corresponding workers would be 

entitled to the same wages that the 

employer provides to H–2B workers, 

along with transportation and 

subsistence payments (for U.S. workers 

who cannot reasonably return to their 

residence each workday) and the 

disclosure of the job order. In addition, 

as a result of the enhanced recruiting 

proposed in this rule, including the new 

national job registry, certain costs may 

be avoided as employers are able to find 

U.S. workers in lieu of some H–2B 

workers. The Department believes that 

the costs associated with the 

employment of a U.S. worker would be 

relatively lower than the costs 

associated with the employment of an 

H–2B worker, as the costs of visa and 

border crossing fees will be avoided. 

We cannot identify data on the 

number of corresponding workers at 

work sites on which H–2B workers are 

requested or the current hourly wages of 

those workers. The Department does not 

collect data regarding what we have 

defined as corresponding employees, 

and therefore cannot identify the 

numbers of workers to whom the 

obligation would attach.13 Nor can the 

Department identify what such workers 

are currently being paid, and so cannot 

quantify what impacts, if any, the 

requirement to pay the prevailing wage 

would signify for such workers. Wages 

for such workers might not be changed 

because, on average, they likely earn the 

average wage for that particular 

occupation in that area of intended 

employment. However, the Department 

has been informed by employers that in 

many industries in which H–2B workers 

are sought, such as amusement and 

landscaping services, there are few if 

any corresponding employees—the very 

reason such employers seek H–2B 

workers to maintain an adequate 

workforce. The Department requests the 

public to propose possible sources of 

data or information on the number of 

corresponding workers at work sites for 

which H–2B workers are requested and 

the current hourly wages of those 

workers. 

Employment in the H–2B program 

represents a very small fraction of the 

total employment in the U.S. economy, 

both overall and in the industries 

represented in the program. The H–2B 

program is capped at 66,000 visas 

issued per year (33,000 of which are 

made available biannually), which 

represents approximately 0.05 percent 

of total nonfarm employment in the U.S. 

economy (130.9 million).14 According to 

H–2B program data for FY 2007–2009, 

the average annual numbers of H–2B 

workers certified in the top five 

industries were as follows: 

Construction—30,242; Amusement, 

Gambling, and Recreation—14,041; 

Landscaping Services—78,027; 

Janitorial Services—30,902; and Food 

Services and Drinking Places—22,948. 

These employment numbers represent 

the following percentages of the total 

employment in each of these industries: 

Construction—0.4 percent (30,242/ 

7,265,648); Amusement, Gambling, and 

Recreation—0.9 percent (14,041/ 

1,506,120); Landscaping Services—13.2 

percent (78,027/589,698); Janitorial 

Services—3.3 percent (30,902/933,245); 

and Food Services and Drinking 

Places—0.2 percent (22,948/ 

9,617,597).15 These percentages 

decrease further when scaled to the 

actual number of entries permitted each 

year: Construction—0.2 percent (14,756/ 

7,265,648); Amusement, Gambling, and 

Recreation—0.5 percent (6,851/ 

1,506,120); Landscaping Services—6.5 

percent (38,073/589,698); Janitorial 

Services—1.6 percent (15,079/933,245); 

and Food Services and Drinking 

Places—0.1 percent (11,197/ 

9,617,597).16 As these data illustrate, the 

H–2B program represents a small 

fraction of the total employment even in 

each of the top five industries in which 

H–2B workers are found. As a result of 

the limited magnitude of the H–2B 

program, the Department believes that 

the proposed rule does not rise to the 

level of an economically significant 

regulatory action. 

4. Subject-by-Subject Analysis 

The Department’s analysis below 

considers the expected impacts of the 

proposed NPRM provisions against the 

baseline (i.e., the 2008 Final Rule). 

Sections ‘‘a’’ through ‘‘c’’ below represent 

additional compensation for both H–2B 

and workers in corresponding 

employment including the application 

of H–2B wages to corresponding U.S. 

workers, transportation and subsistence 

to and from the place of employment, 

and payment of visa and border crossing 

fees. Sections ‘‘d’’ through ‘‘g’’ represent 

provisions aimed at expanding efforts to 

recruit U.S. workers. These provisions 

include an enhanced U.S. worker 

referral period, additional recruiting 

directed by the Certifying Officer (CO), 

contacting labor organizations, and an 

electronic job registry. Sections ‘‘h’’ 

through ‘‘k’’ represent provisions to 

enhance transparency and worker 

protections. These provisions include 

disclosure of the job order, enhancing 

worker protections through the 

elimination of attestation-based 

certifications, document retention, 

departure time notification, job posting 

requirements, and notice of worker 

rights. Section ‘‘l’’ is a proposed 

provision aimed at reducing the 

administrative burden on State 

Workforce Agencies (SWAs) by 

eliminating employment verification. 


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17For the purpose of this analysis, H–2B workers 

are considered temporary residents of the U.S. 

18The top 10 countries of origin and the number 

of certified H–2B workers during FY 2007–2009 

were as follows: Mexico, 134,226; Jamaica, 17,068; 

Guatemala, 6,530; Philippines, 4,963; Romania, 

3,251, South Africa, 3,239; United Kingdom, 2,511; 

Canada, 2,371; Israel, 1,784; and Australia, 1,577. 

The H–2B visa program is capped at 66,000 new 

visas per year. To estimate the number of new 

entrants from each country, we scaled the total 

number of certified workers from each country by 

the total number of new visas allowed from FY 

2007 to FY 2009 (66,000 new visas × 3 years) 

divided by the total number of H–2B workers 

certified from FY 2007 to FY 2009. 

19The one-way travel costs used for each country 

are as follows: Mexico, $179; Jamaica, $285; 

Guatemala, $484; Philippines, $973; Romania, 

$1,147; South Africa, $1,168; United Kingdom, 

$726; Canada, $165; Israel, $908; and Australia, 

$1,648. The transportation cost for Mexico is based 

on the cost of a bus trip from Mexico City, Mexico, 

to Ciudad Juarez, Mexico (source: http:// 

www.ticketbus.com.mx) and a bus trip from El Paso, 

Texas, to St. Louis, Missouri (source: http:// 

www.greyhound.com). The transportation cost for 

Canada is based on the cost of a bus trip from 

Ottawa, Ontario, to St. Louis, Missouri (source: 

http://www.greyhound.com). The airfare costs for 

the remaining countries are based on the cost of a 

flight from the capital city of the country in 

question to St. Louis, Missouri (source: http:// 

www.kayak.com). 

20Source: 20 CFR 655. The one-way travel days 

applied to each country of origin is as follows: 

Mexico, 1; Jamaica, 1; Guatemala, 1; Philippines, 2; 

Romania, 1, South Africa, 2; United Kingdom, 1; 

Canada, 1; Israel, 1; and Australia, 2. 

21The top 10 countries of origin and the number 

of certified H–2B workers during FY 2007–2009 

were as follows: Mexico, 134,226; Jamaica, 17,068; 

Guatemala, 6,530; Philippines, 4,963; Romania, 

3,251, South Africa, 3,239; United Kingdom, 2,511; 

Canada, 2,371; Israel, 1,784; and Australia, 1,577. 

We use these values to weight the country-specific 

consular fees to obtain the weighted average 

consular fee of $27.15. 

For each of these subjects, the 

relevant benefits, costs, and transfers 

that may apply are discussed.17

a. Application of H–2B Wages to 

Corresponding Workers 

The NPRM requires that workers in 

corresponding employment are paid the 

same wages as paid to foreign workers 

under the H–2B program. However, the 

Department cannot identify a reliable 

source of data to estimate the number of 

corresponding workers at work sites on 

which H–2B workers are requested, nor 

can it identify the current hourly wages 

of those workers. Therefore, the 

Department cannot quantify the 

impacts, if any, associated with this 

provision. The Department requests the 

public to propose possible sources of 

data or information on the number of 

corresponding workers at work sites for 

which H–2B workers are requested and 

the current hourly wages of those 

workers. 

In standard economic models of labor 

supply and demand, any possible 

increase in wages paid to corresponding 

workers under this provision would 

result in a transfer from participating 

employers to corresponding workers. In 

addition, standard models show that the 

higher labor costs would lead to a 

reduction in the quantity of labor 

demanded. However, in a practical 

sense, the macroeconomic effect of 

reductions in the demand for 

corresponding workers is expected to be 

minimal. Because employers cannot 

replace U.S. workers laid off 120 days 

before the date of need or through the 

period of certification with H–2B 

workers, the Department concludes that 

there would be no reduction in the 

employment of corresponding workers 

among participating employers. When 

employers supplement their usual 

workforce levels with H–2B workers, 

this hiring activity leaves the 

employment levels of similarly 

employed U.S. workers unaffected. 

b. Transportation and Subsistence to 

and From the Place of Employment 

Transfers 

The NPRM proposes to require H–2B 

employers to provide workers—both H– 

2B workers and workers in 

corresponding employment who are 

unable to return to their permanent 

residences—with transportation and 

daily subsistence from the place from 

which the worker has come to work for 

the employer, whether in the U.S. or 

abroad, to the place of employment. The 

employer must also provide the worker 

with the cost of return transportation 

and daily subsistence from the worker’s 

place of employment to the place from 

which the worker, disregarding 

intervening employment, departed to 

work for the employer. These impacts 

represent transfers from H–2B 

employers to workers because they 

represent distributional effects, not a 

change in society’s resources. 

To estimate the transfer related to 

transportation, we first calculate the 

weighted average cost of transportation 

for the top ten countries of origin, by 

estimated number of certified H–2B 

workers who were new entrants.18 For 

workers from Mexico and Canada, we 

assume that they travel to and from the 

place of employment by bus. For the 

remainder of the H–2B workers, we 

assume air travel. We estimate the 

weighted average one-way travel cost 

per employee to be approximately $286 

per H–2B worker.19 We estimate the 

roundtrip transportation costs by 

multiplying the weighted average oneway cost by two and by the annual 

number of H–2B workers entering the 

U.S. (66,000). The Department estimates 

average annual transfer of transportation 

expenditures to be approximately $37.8 

million. We do not know to what extent 

employers are currently paying for this 

cost in order to secure these workers or 

because of their obligations under the 

Fair Labor Standards Act. To the extent 

that this is the case, this transportation 

transfer estimate is an upper-bound 

estimate. 

We estimate the transfer related to 

subsistence payments by multiplying 

the annual number of H–2B workers 

entering the U.S. (66,000) by the 

subsistence per diem ($10.64), the 

weighted average one-way travel time 

for the top ten H–2B countries (1.055 

days), and the number of one-way trips 

per worker (two).20 The Department 

estimates the average annual transfer 

induced by subsistence payments to be 

approximately $1.5 million. 

This provision applies not only to 

H–2B workers, but also to workers in 

corresponding employment on H–2B 

worksites who are recruited from a 

distance at which the workers cannot 

reasonably return to their residence 

within the same workday. We were 

unable to identify adequate data to 

estimate the number of corresponding 

workers and, thus, we are unable to 

quantify this transfer. DOL would 

appreciate public input that would help 

to quantify these costs. 

c. Visa and Border Crossing Fees 

Under the 2008 Final Rule, visarelated fees—including fees required by 

the Department of State for scheduling 

and/or conducting an interview at the 

consular post—are permitted to be paid 

by the temporary worker. The NPRM, 

however, proposes to require visa fees to 

be paid by the employer. Requiring 

employers to bear the full cost of their 

decision to hire foreign workers is a 

necessary step toward preventing the 

exploitation of foreign workers with its 

concomitant adverse effect on U.S. 

workers. Government-mandated fees, 

such as visa-related fees and border 

crossing fees, are integral to the 

employer’s choice to use the H–2B 

program to bring temporary foreign 

workers into the U.S. 

Transfers 

The reimbursement of visa 

application fees, fees for scheduling 

and/or conducting an interview at the 

consular post, and border crossing fees 

by employers is a transfer from 

employers to H–2B workers. The 

Department estimates the cost of visa 

fees by adding the cost per H–2B visa 

($150) and the weighted average 

consular fee ($27.15) 21 and multiplying 

the resulting sum by the annual number 


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22The visa fee of $150 went into effect on June 

4, 2010. Source: http://www.state.gov/r/pa/prs/ps/ 

2010/05/142155.htm. 

23 In this NPRM, cost savings are defined as costs 

that would be incurred under the 2008 Final Rule 

that will not be incurred as a result of this NPRM 

because its provisions increase the likelihood that 

U.S. workers will be hired for these jobs. Because 

the provisions of this NPRM could increase the cost 

of recruiting and transporting a foreign worker to 

the U.S. job site relative to a U.S. worker, these are 

avoided costs from the perspective of the employer. 

24Similarly, when U.S. workers shift from current 

employment to fill jobs with H–2B employers, 

additional workers from the pool of the 

unemployed will inevitably fill the vacant 

positions. 

25To obtain the average cost of a newspaper 

advertisement, we averaged the advertisement rates 

for the following newspapers: the Augusta 

Chronicle, the Austin Chronicle, the Huntsville 

Times, the Los Alamos Monitor, the San Diego 

Union-Tribune, and the Advertiser Times (Detroit, 

Michigan). Other means of recruiting are possible 

under this NPRM (such as listings on Monster.com 

and Career Builder), but they may be more costly. 

26The hourly compensation rate for an 

administrative assistant/executive secretary is 

calculated by multiplying the hourly wage of $20.03 

(as published by the Department’s OES survey, 

O*NET Online) by 1.43 to account for private-sector 

employee benefits (Source: BLS). Thus, the loaded 

hourly compensation rate for an administrative 

assistant/executive secretary is $28.64. 

27 It is possible that there will be additional costs 

incurred by employers from interviewing additional 

applicants that are referred to H–2B employers by 

job advertisements. The Department does not have 

valid data on referrals resulting from job 

advertisements and, thus, is unable to quantify this 

impact. 

of H–2B workers entering the U.S. 

(66,000).22 The annual average transfer 

of visa-related fees from H–2B 

employers to H–2B workers is $11.7 

million. 

d. Enhanced U.S. Worker Referral 

Period 

Under the NPRM, employers must 

continue to accept SWA referrals of 

qualified and available U.S. workers. 

Employers must hire any qualified U.S. 

worker referred up until the later of 3 

days before the date of need or when the 

employer’s last H–2B worker departs for 

the employer’s place of business. 

i. Benefits 

This NPRM proposes to increase the 

amount of time that employers must 

accept referrals for temporary nonagricultural opportunities from qualified 

U.S. workers. The NPRM also proposes 

to increase the types of recruitment to 

ensure that U.S. workers are provided 

with a more robust opportunity to have 

access to the job opportunities that are 

the subject of labor certification 

applications. These include a greater 

number of ads than is required under 

the current regulation; the posting of 

jobs on an electronic job registry; 

contact with union representation 

where the industry of job classification 

is traditionally unionized; notice to the 

current workforce or to current union 

members where one is in place in the 

workforce; and contact with the former 

U.S. workforce. The enhanced referral 

period expands the time during which 

jobs are available to U.S. workers. 

Therefore, taken along with the other 

provisions of the rule, it improves the 

information between employers and 

workers about available jobs, increasing 

the likelihood that U.S. workers can be 

hired for those jobs. As more U.S. 

workers are hired as a result of this 

NPRM, employers would avoid visarelated costs for H–2B positions that 

would now be filled with U.S. workers. 

H–2B employers would minimize 

additional costs of international 

recruitment.23 The Department is not 

able to quantify this effect, however, 

due to a lack of adequate data. 

These benefits also apply to sections 

‘‘e’’ through ‘‘g’’ below, which discuss 

additional provisions aimed at 

improving the recruitment of U.S. 

workers. 

ii. Costs 

The extension of the referral period 

proposed in this NPRM will likely result 

in more U.S. workers being interested in 

the jobs, which will require more SWA 

staff time to process additional referrals. 

The Department does not have estimates 

of the additional number of U.S. 

workers who will be interested in the 

jobs and, thus, is unable to estimate the 

costs associated with this provision. 

iii. Transfers 

If more U.S. workers are hired as a 

result of the NPRM (because employers 

who previously applied for H–2B visas 

choose to hire U.S. workers rather than 

participate in the H–2B program, or 

because H–2B employers can attract 

more U.S. workers as a result of 

enhanced recruitment measures), those 

workers who were previously 

unemployed will no longer make claims 

for new or continued unemployment 

insurance benefits.24 Other things 

constant, we expect the States to 

experience a reduction in 

unemployment insurance expenditures 

as a consequence of more U.S. workers 

being hired. This reduction in 

unemployment insurance benefits will 

be passed on to employers to a certain 

extent. The Department, however, is not 

able to quantify these transfer payments 

due to an inability to estimate the likely 

increase in number of U.S. workers 

employed in jobs that would otherwise 

have been held by H–2B workers. 

The Department believes that the 

costs associated with the employment of 

a U.S. worker will be lower than the 

costs associated with an H–2B worker, 

as the costs of transportation and 

subsistence will likely be reduced, if not 

avoided entirely. The cost of visa fees 

will be entirely avoided if U.S. workers 

are hired. We have not identified 

appropriate data to estimate any 

increase in the number of U.S. workers 

that might be hired as a result of the 

NPRM provisions. 

e. Additional Recruiting Directed by the 

Certifying Officer 

Under the proposed rule, the 

employer may be directed by the CO to 

conduct additional recruitment where 

the CO has determined that there may 

be available and qualified U.S. workers, 

including where the job opportunity is 

located in an area of substantial 

unemployment. We estimate this cost by 

multiplying the number of employer 

applicants by the average cost of a 

newspaper advertisement ($25.09) and 

by our estimate that 50 percent of 

H–2B employers can be expected to be 

directed by the CO to conduct 

additional recruitment for a total annual 

average cost for additional job 

advertisement of approximately $0.06 

million.25

We also add the labor cost to post the 

advertisement. We estimate this cost by 

multiplying the number of employer 

applicants by the estimated time 

required to post the advertisement (0.08 

hours, or 5 minutes), the scaled hourly 

compensation rate of an administrative 

assistant/executive secretary ($28.64),26

and our estimate that 50 percent of 

H–2B employers can be expected to be 

directed by the CO to conduct 

additional recruiting for a total annual 

average labor cost of $0.01 million. 

Thus, we estimate the total average 

annual cost of CO-directed recruiting at 

approximately $0.07 million.27

f. Contacting Labor Organizations 

The NPRM proposes to require the 

employer to contact the local union to 

locate able, willing, and qualified U.S. 

workers when the employer seeks to 

hire for a position in an occupation or 

industry where union representation is 

prevalent. The employer must provide 

written notice of the job opportunity to 

the representative(s) of any of the 

employer’s employees in the job 

classification and geographic area in 

which the work will be performed. This 

provision of the proposed rule expands 

the requirement from the baseline 

established by the 2008 Final Rule 

because it requires the employer to 

contact the local union if the job is 


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28Unionization data for the following 

occupations were used: Arts, entertainment, sports, 

and media; food preparation and serving related; 

building and grounds cleaning and maintenance; 

personal care and service; farming, fishing, and 

forestry; construction and extraction; and 

installation, maintenance, and repair. These 

occupational categories represent the majority of 

H–2B occupations. Source: http://www.bls.gov/

webapps/legacy/cpslutab3.htm. 

29Our analysis accounts for the fact that the cost 

of development and implementation has been 

incurred by the electronic job registry developed for 

the H–2A Program. 

30For registry maintenance activities, the 

Department assumes that 376 hours will be required 

for the following labor categories: Program Manager, 

Computer Systems Analyst II & III, Computer 

Programmer III & IV, Computer Programmer 

Manager, Data Architect, Web Designer, Database 

Analyst, Technical Writer II, Help Desk Support 

Analyst, and Production Support Manager. Finally, 

the Department uses the following loaded rates 

based on an Independent Government Cost Estimate 

(ICGE) produced by OFLC and inclusive of direct 

labor and overhead costs for each labor category: 

Program Manager, $138.34; Computer Systems 

Analyst II, $92.14; Computer Systems Analyst III, 

$109.84; Computer Programmer III, $89.63; 

Computer Programmer IV, $107.72; Computer 

Programmer Manager, $123.88; Data Architect, 

$104.99; Web Designer, $124.76; Database Analyst, 

$77.80; Technical Writer II, $84.81; Help Desk 

Support Analyst, $55.28; Production Support 

Manager, $125.76. The Department multiplies the 

assumed number of hours by the appropriate labor 

rates to obtain a first-year cost of $561,364 and a 

cost in subsequent years of $464,341. We average 

the costs over the 10-year analysis period to obtain 

an average annual cost of $474,044. 

31The new cost of disclosure of job orders does 

not apply to reforestation employers because the 

Migrant and Seasonal Agricultural Worker 

Protection Act presently requires reforestation 

employers to make this disclosure. According to 

H–2B program data for FY 2000–FY2007, 88.3 

percent of H–2B workers work in an industry other 

than reforestation. 

32The source of the percentage of H–2B workers 

who do not speak English is the ‘‘Yearbook of 

Immigration Statistics’’, 2007–2009 (http:// 

www.dhs.gov/xlibrary/assets/statistics/yearbook/). 

The source for the translation cost per page is 

http://www.languagescape.com. 

customarily unionized, even if there is 

no union or CBA with the employer. 

We estimate two components of the 

cost to contact labor organizations: labor 

and materials. We estimate the labor 

cost by multiplying the number of 

employer applicants by the scaled 

hourly labor compensation of an 

administrative assistant/executive 

secretary ($28.64), the time needed to 

type, print, and mail out the letter (0.25 

hours, or 15 minutes), and the percent 

of workers in the relevant occupations 

that were represented by unions from 

2007 to 2009 (12.3 percent).28 We 

estimate the average annual labor costs 

of writing and mailing letters to be $0.01 

million. 

The second cost component of 

contacting labor organizations is the 

material costs. We calculate this cost by 

summing the cost of a sheet of paper 

($0.02), an envelope ($0.04), and 

postage ($0.44), and multiplying the 

resulting sum by the number of 

employer applicants and the percent of 

workers in the relevant occupations that 

were represented by unions from 2007 

to 2009 (12.3 percent). We estimate the 

total average annual material cost to be 

less than $1,000. 

In total, the Department estimates the 

average annual cost of contacting labor 

organizations to be $0.01 million per 

year. 

g. Electronic Job Registry 

Under the proposed rule, the 

Department will post and maintain 

employers’ H–2B job orders, including 

modifications approved by the CO, in a 

national and publicly accessible 

electronic job registry. The job registry 

will serve as a public repository of 

H–2B job orders for the duration of the 

referral period. The job orders will be 

posted in the registry by the CO upon 

the acceptance of each submission. The 

posting of the job orders will not require 

any additional effort on the part of 

H–2B employers or SWAs. 

i. Benefits 

The job registry will improve the 

visibility of H–2B jobs to U.S. workers. 

In conjunction with the longer referral 

period under the proposed rule, the job 

registry will expand the availability of 

information about these jobs to U.S. 

workers and, therefore, improve their 

employment opportunities. In addition, 

the establishment of a job registry will 

provide greater transparency with 

respect to the Department’s 

administration of the H–2B program to 

the public, members of Congress, and 

other stakeholders. Transferring these 

job orders into electronic records for the 

job registry will result in an improved 

and more complete record of job 

opportunities for which H–2B workers 

are sought. Employers seeking 

temporary workers, in turn, will likely 

experience an increase in job 

applications from U.S. workers and 

would not need to incur additional 

expenses, including visa and border 

crossing fees, of hiring H–2B workers. 

The Department, however, is not able to 

estimate the increase in job applications 

resulting from the job registry and, thus, 

is unable to quantify this benefit. 

ii. Costs 

The establishment of an electronic job 

registry in this NPRM represents an 

increased cost to the Department for 

maintaining the job registry.29 We 

estimate average annual costs of 

maintaining an electronic job registry to 

be approximately $0.5 million.30

h. Disclosure of Job Order 

The NPRM proposes to require an 

employer to provide a copy of the job 

order to an H–2B worker outside of the 

U.S. no later than the time at which the 

worker applies for the visa, or to a 

worker in corresponding employment 

no later than on the day that work starts. 

The job order must be translated to a 

language understood by the worker. For 

an H–2B worker changing employment 

from an H–2B employer to a subsequent 

H–2B employer, the copy must be 

provided no later than the time the 

subsequent H–2B employer makes an 

offer of employment. 

We estimate two cost components for 

the disclosure of job orders: the cost of 

reproducing the document containing 

the terms and conditions of 

employment, and the cost of translation. 

We obtain the cost of reproducing the 

terms and conditions document by 

multiplying the number of H–2B 

workers (66,000) by the number of pages 

to be photocopied (3), the cost per 

photocopy ($0.12), and the percent of 

certified H–2B workers that are not 

involved in reforestation (88.3 

percent).31 The Department estimates 

average annual costs of reproducing the 

document containing the terms and 

conditions of employment to be 

approximately $0.02 million. 

For the cost of translation, the 

Department assumes that an employer 

hires all of its H–2B workers from a 

country or set of countries that speak 

the same foreign language; thus, only 

one translation is necessary per 

employer needing translation. We 

obtain the cost of translation by 

multiplying the number of H–2B 

employers by the percent of H–2B 

workers who do not speak English 

(83.92 percent, for the top ten countries 

of origin), the number of pages of the 

terms and conditions (3), and the 

translation cost per page ($21.00).32 We 

estimate average annual translation 

costs of approximately $0.2 million. 

i. Elimination of Attestation-Based 

Model 

The 2008 Final Rule used an 

attestation-based model: employers 

conducted the required recruitment in 

advance of application filing and, based 

on the results of that effort, applied for 

certification from the Department for a 

number of foreign workers to fill the 

remaining openings. Employers simply 

attested that they had undertaken the 

necessary activities and made the 

required assurances to workers. The 

Department has determined that there 

are insufficient worker protections in 

the attestation-based model. In 


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33Source: http://www.staples.com. 

34We collected long distance call charges from 

both AT&T and Verizon and averaged them. Source: 

http://www.wireless.att.com/learn/international/ 

long-distance/in-the-us.jsp and http:// 

www22.verizon.com/longdistance/business_east/ 

plan_ttw_brates.jsp. 

eliminating the attestation-based model, 

the NPRM shifts the recruitment process 

to after the application is filed so that 

employers have to demonstrate—and 

not merely attest—that they have 

performed an adequate test of the labor 

market. Therefore, the primary effect of 

eliminating the attestation based-model 

is a change in the timing of recruitment 

more so than a change in substantive 

requirements. 

i. Benefits 

The return to a certification model in 

which employers demonstrate 

compliance with program obligations 

prior to certification will improve 

worker protections. Greater compliance 

will, in turn, provide improved 

administration of the program and 

conserve Government resources at both 

the State and Federal levels. It will also 

result in cost savings to employers, 

subjecting them to fewer requests for 

additional information and denials of 

applications and saving them both time 

and the expense of responding to such 

inquiries. It will also result in the 

intangible benefit of more H–2B visas 

being available to those employers who 

have conducted bona fide recruitment 

around an actual date of need. The 

Department, however, is not able to 

estimate the impacts resulting from the 

elimination of the attestation-based 

model and is unable to quantify these 

benefits. 

ii. Costs 

The elimination of the attestationbased model will impose minimal costs 

on employers because they will only 

need to include additional information 

in their recruitment report, including 

information on additional recruitment 

conducted, means of posting, contact 

with former U.S. workers, and contact 

with labor organizations where the 

occupation is customarily unionized. 

We estimate two costs for the 

elimination of the attestation-based 

model: the material cost of reproducing 

and mailing the documents, and the 

labor cost to reproduce and mail the 

documents. To estimate the cost of 

reproducing and mailing the 

documents, we multiply the number of 

H–2B employers (3,966) by the 

additional number of pages that must be 

submitted (3) and the additional postage 

required to ship those pages ($0.17). We 

estimate this cost to be less than $0.01 

million (or 3,966 × 3 × $0.17 = $2,023) 

per year. To estimate the labor cost of 

reproducing and mailing the 

documents, we multiply the number of 

H–2B employers (3,966) by the time 

needed to reproduce and mail the 

documents (0.08 hours, or 5 minutes) 

and the scaled hourly labor 

compensation of an administrative 

assistant/executive secretary ($28.64). 

We estimate this cost to be less than 

$0.01 million (or 3,966 × 0.08 × $28.64 

= $9,087) per year. 

j. Document Retention 

Under the NPRM, H–2B employers 

must retain documentation in addition 

to that required by the 2008 Final Rule. 

The Department assumes that each 

H–2B employer will purchase a filing 

cabinet ($21.99) in which to store the 

additional documents starting in the 

first year of the rule.33 To obtain the cost 

of storing documents, we multiply the 

number of H–2B employers by the cost 

per drawer for a total one-time cost of 

$0.09 million. 

k. Departure Time Determination 

The NPRM proposes to require 

employers to provide notice to the local 

SWA of the time at which the last 

H–2B worker departs for the place of 

employment, if the last worker has not 

departed by 3 days before the date of 

need. The cost of this provision is the 

sum of the time required for the 

employer to place a phone call to the 

H–2B workers’ representative to verify 

when the last H–2B worker will depart 

for the place of employment, the cost of 

the long-distance phone call, the time 

required to prepare and mail a letter to 

the SWA (one call per employer), and 

the cost of paper, an envelope, and 

postage. 

To estimate the cost of placing the 

phone calls, we multiply the number of 

H–2B employers by the time needed to 

contact an H–2B worker representative 

(0.08 hours, or 5 minutes) and the 

scaled hourly compensation rate of an 

administrative assistant/executive 

secretary ($28.64). To this product, we 

add the product of the number of H–2B 

employers and the average cost of a long 

distance phone call to the top 10 

countries ($3.23) to obtain total average 

annual costs of contacting H–2B 

workers equal to $0.02 million.34

Once the H–2B employer has 

determined when the last H–2B worker 

will depart his or her home, the 

employer must notify the local SWA in 

writing, but only if the last worker has 

not departed by three days prior to the 

date of need. The Department estimates 

the cost of preparing and mailing a letter 

to the SWA by summing the labor costs 

to prepare and mail a letter and the cost 

of paper, an envelope, and postage. We 

estimate the labor cost by multiplying 

the number of H–2B employers by the 

percentage of H–2B applicants that will 

be required under this provision to 

ensure the contact with the SWA 

(10 percent), the scaled hourly labor 

compensation of an administrative 

assistant/executive secretary, and the 

sum of the time needed to draft the 

main content of a letter (0.25 hours, or 

15 minutes) and the time needed to type 

the letter and prepare it for mailing 

(0.08 hours, or 5 minutes). This 

calculation yields average annual labor 

costs of $0.01 million. 

We estimate the material costs of 

contacting the SWA by multiplying the 

number of H–2B employers by the 

percentage of H–2B employers that we 

assume will be required to contact the 

SWA (10 percent) and by the sum of the 

cost of a sheet of paper ($0.02), the cost 

of an envelope ($0.04), and the postage 

per envelope ($0.44). We estimate the 

total annual average material costs to be 

less than $1,000 per year. 

In total, the Department estimates the 

total average annual costs of departure 

time determination to be approximately 

$0.03 million per year. 

l. Reduced SWA Administrative Burden 

by Eliminating Employment Verification 

Under this NPRM, SWAs will no 

longer be responsible for conducting 

employment eligibility verification 

activities. These activities include 

completion of Form I–9 and vetting of 

application documents by SWA 

personnel. 

i. Benefits 

Under the 2008 Final Rule, SWAs are 

required to complete Form I–9 for nonagricultural job orders, and inspect and 

verify the employment eligibility 

documents furnished by the applicants. 

Under this NPRM, SWAs will no longer 

be required to complete this process, 

resulting in cost savings. Due to a lack 

of data on the number of SWA referrals, 

we are not able to quantify this benefit. 

m. Other 

During the first year that the rule 

would be in effect, employers would 

need to learn about the new processes 

and requirements. We estimate this cost 

by multiplying the number of H–2B 

employer applicants by the time 

required to read the new rule and any 

educational and outreach materials that 

explain the H–2B application process 

under the rule (3 hours) by the average 

compensation of a human resources 


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35The hourly compensation rate for a human 

resources manager is calculated by multiplying the 

hourly wage of $42.95 (as published by the 

Department’s OES survey, O*NET Online) by 1.43 

to account for private-sector employee benefits 

(Source: BLS). Thus, the loaded hourly 

compensation rate for a human resources manager 

is $61.42. 

manager ($61.42).35 In the first year of 

the rule, this amounts to approximately 

$1.2 million in labor costs for an average 

annual cost of $0.12 million. 

The NPRM proposes to require 

employers to post the availability of the 

job opportunity in two conspicuous 

locations at the place of anticipated 

employment (where there is no union 

representative) for at least 10 

consecutive days. This provision entails 

additional reproduction costs. To obtain 

the total cost incurred due to the job 

posting requirement, we multiply the 

number of employer applicants by the 

cost per photocopy ($0.12) and the 

number of postings per place of 

employment (2), which amounts to 

approximately $2,000 per year. 

In addition, the NPRM proposes to 

require employers to post and maintain 

in a conspicuous location at the place of 

employment, a poster provided by the 

Secretary which sets out the rights and 

protections for workers. Employers must 

post the poster in English and, to the 

extent necessary and as provided by the 

Secretary, foreign language(s) common 

to a significant portion of the workers if 

they are not fluent in English. To 

estimate the cost of producing workers’ 

rights posters, we multiply the number 

of H–2B employers by the cost per 

poster ($0.12). In total, the cost of 

producing workers’ rights posters is less 

than $1,000 per year. 

5. Summary of Cost-Benefit Analysis 

Exhibit 1 presents a summary of the 

costs associated with this NPRM. 

Because of data limitations on the 

number of corresponding workers and 

U.S. workers expected to fill positions 

currently held by H–2B workers, the 

Department was not able to monetize 

any costs to the rule that would arise as 

a result of deadweight losses associated 

with higher employment costs under the 

proposed rule. However, because the 

size of the H–2B program is limited, the 

Department expects that any 

deadweight loss would be small. The 

monetized costs displayed are the yearly 

summations of the calculations 

described above. 

EXHIBIT 1—SUMMARY OF MONETIZED

COSTS

Year Monetized costs 

($millions/year) 

1 2011 .......................... 2.10 

2 2012 .......................... 0.81 

3 2013 .......................... 0.81 

4 2014 .......................... 0.81 

5 2015 .......................... 0.81 

6 2016 .......................... 0.81 

7 2017 .......................... 0.81 

8 2018 .......................... 0.81 

9 2019 .......................... 0.81 

10 2020 .......................... 0.81 

Undiscounted total ..... 9.35 

Total with 7 percent 

discounting ............. 6.42 

Total with 3 percent 

discounting ............. 7.89 

Totals may not sum due to rounding. 

The 10-year monetized costs of this 

NPRM range from $6.87 million to $8.04 

million (with 7 percent and 3 percent 

discounting, respectively). 

Because the Department was not able 

to monetize any benefits for this NPRM 

due to the lack of adequate data, the 

monetized costs exceed the monetized 

benefits both at a 7 percent and a 3 

percent discount rate. 

The Department did not identify data 

to provide monetary estimates of several 

important benefits to society, including 

increased employment opportunities for 

U.S. workers and enhancement of 

worker protections for U.S. and H–2B 

workers. These important benefits result 

from the following provisions of this 

NPRM: Transportation to and from the 

place of employment, payment of visa 

and border crossing fees, the enhanced 

U.S. worker referral period, additional 

recruiting directed by the CO, 

contacting labor organizations, the 

electronic job registry, and the job 

posting requirement. 

Because the enhanced referral period 

expands the time during which jobs are 

available to U.S. workers, it increases 

the likelihood that U.S. workers are 

hired for those jobs. In addition, the job 

registry will improve the visibility of 

H–2B jobs to U.S. workers. Thus, the job 

registry will benefit U.S. workers by 

expanding the period during which 

these jobs are available to U.S. workers 

and, therefore, improving their 

employment opportunities. In addition, 

the establishment of a job registry will 

provide greater transparency with 

respect to the Department’s 

administration of the H–2B program to 

the public, members of Congress, and 

other stakeholders. These benefits, 

however, are difficult to quantify due to 

data limitations. 

Several unquantifiable benefits result 

in the form of cost savings. As more U.S. 

workers are hired as a result of this 

NPRM, employers will experience cost 

savings in the form of avoided visa and 

border crossing fees for H–2B positions 

that are now filled with U.S. workers. 

Under the 2008 Final Rule, SWAs are 

required to complete Form I–9 for nonagricultural job orders, and inspect and 

verify the employment eligibility 

documents furnished by the applicants. 

Under this NPRM, SWAs will no longer 

be required to complete this process, 

resulting in cost savings to SWAs. We 

were not able to quantify these cost 

savings due to a lack of data regarding 

the number of I–9 verifications SWAs 

have been performing for H–2B 

referrals. 

The Department has concluded that 

after consideration of both the 

quantitative and qualitative impacts of 

this NPRM, the societal benefits of the 

rule justify the societal costs. 

B. Regulatory Flexibility Analysis 

The Regulatory Flexibility Act of 

1980, as amended (RFA), requires 

agencies to prepare regulatory flexibility 

analyses and make them available for 

public comment when proposing 

regulations that will have a significant 

economic impact on a substantial 

number of small entities. See 5 U.S.C. 

603. If the rule is not expected to have 

a significant economic impact on a 

substantial number of small entities, the 

RFA allows an agency to certify such, in 

lieu of preparing an analysis. See 

5 U.S.C. 605. For the reasons explained 

in this section, the Department believes 

this NPRM is not likely to impact a 

substantial number of small entities 

and, therefore, an Initial Regulatory 

Flexibility Analysis is not required by 

the RFA. 

However, in the interest of 

transparency and to provide a full 

opportunity for public comment, we 

have prepared the following Initial 

Regulatory Flexibility Analysis to assess 

the impact of this regulation on small 

entities, as defined by the applicable 

Small Business Administration (SBA) 

size standards. We specifically request 

comments on the following burden 

estimates, including the number of 

small entities affected by the 

requirements, and whether alternatives 

exist that will reduce the burden on 

small entities. The Chief Counsel for 

Advocacy of the Small Business 

Administration was notified of a draft of 

this rule upon submission of the rule to 

OMB under E.O. 12866, as amended, 

‘‘Regulatory Planning and Review’’ 


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36Source: ftp://ftp.bls.gov/pub/suppl/ 

empsit.ceseeb1.txt. 37Source for total employment by industry: 2007 

Economic Census. 38The number of visas available under the H–2B 

program is 66,000, assuming no statutory increases 

in the number of visas available for entry in a given 

year. We also assume that half of all such workers 

(33,000) in any year stay at least one additional 

year, and half of those workers (16,500) will stay 

a third year, for a total of 115,500 H–2B workers in 

a given year. The scale factor was derived by 

dividing 115,500 by the total number of workers 

certified per year on average during FY 2007–2009 

(236,706). 

39H–2B workers are not the only workers affected 

by this NPRM. Rather, certain provisions of the 

NPRM also extend to workers in corresponding 

employment, as addressed in section 4 of this 

analysis. While including the number of workers in 

corresponding employment would produce a more 

accurate determination of the portion of total 

employment affected by the H–2B program, the 

Department has not identified a reliable source of 

data to estimate the number of workers in 

corresponding employment at work sites on which 

H–2B workers are requested. 

40According to H–2B program data, the average 

annual number of firms (of all sizes) and H–2B 

workers certified for these industries during 

FY2007–2009 were as follows: Landscaping 

Services, Firms—2,754, Workers—78,027; Janitorial 

Services, Firms—788, Workers—30,902; Food 

Services and Drinking Places, Firms—851, 

Workers—22,948; Amusement, Gambling, and 

Recreation, Firms—227, Workers—14,041; and 

Construction, Firms—860, Workers—30,242. 

(58 FR 51735, Oct. 4, 1993; 67 FR 9385, 

Feb. 28, 2002; 72 FR 2763, Jan. 23, 

2007). 

Because employers seeking to 

participate in the H–2B program are 

derived from virtually all segments of 

the economy and across industries, 

those participating businesses are a 

small portion of the national economy 

overall. A Guide for Government 

Agencies: How to Comply with the RFA, 

Small Business Administration, at 20 

(‘‘the substantiality of the number of 

businesses affected should be 

determined on an industry-specific 

basis and/or the number of small 

businesses overall’’). Accordingly, the 

Department believes that the rule will 

not impact a substantial number of 

small entities in a particular industry or 

segment of the economy. 

Employment in the H–2B program 

represents a very small fraction of the 

total employment in the U.S. economy, 

both overall and in the industries 

represented in the H–2B program. The 

H–2B program is capped at 66,000 visas 

issued per year, which represents 

approximately 0.05 percent of total 

nonfarm employment in the U.S. 

economy (130.9 million).36 According to 

H–2B program data for FY 2007–2009, 

the average annual numbers of H–2B 

workers certified in the top five 

industries were as follows: 

Construction—30,242; Amusement, 

Gambling, and Recreation—14,041; 

Landscaping Services—78,027; 

Janitorial Services—30,902; and Food 

Services and Drinking Places—22,948. 

These employment numbers represent 

the following percentages of the total 

employment in each of these industries: 

Construction—0.4 percent (30,242/ 

7,265,648); Amusement, Gambling, and 

Recreation—0.9 percent (14,041/ 

1,506,120); Landscaping Services—13.2 

percent (78,027/589,698); Janitorial 

Services—3.3 percent (30,902/933,245); 

and Food Services and Drinking 

Places—0.2 percent (22,948/ 

9,617,597).37 These percentages 

decrease further when scaled to the 

actual number of entries permitted each 

year: Construction—0.2 percent (14,756/ 

7,265,648); Amusement, Gambling, and 

Recreation—0.5 percent (6,851/ 

1,506,120); Landscaping Services—6.5 

percent (38,073/589,698); Janitorial 

Services—1.6 percent (15,079/933,245); 

and Food Services and Drinking 

Places—0.1 percent (11,197/ 

9,617,597).38 As these data illustrate, the 

H–2B program represents a small 

fraction of the total employment even in 

each of the top five industries in which 

H–2B workers are found.39

1. Description of the reasons that 

action by the agency is being 

considered. 

As discussed in more detail earlier in 

this preamble, the Department has 

determined that a new rulemaking effort 

is necessary for the H–2B program 

because the policy underpinnings of the 

2008 Final Rule, e.g., streamlining the 

H–2B process to defer determinations of 

program compliance until after an 

application has been adjudicated, do not 

provide an adequate level of protection 

for either U.S. or foreign workers. The 

proposed protections are essential to 

meet the regulatory mandate to prevent 

adverse effect on wages and working 

conditions for U.S. workers, including 

measures to ensure access to jobs for 

U.S. workers through enhanced 

recruitment in order to satisfy the 

statutory requirement that certifications 

be granted only if no U.S. workers are 

available. 

Additionally, the NPRM seeks to help 

employers meet legitimate short-term 

temporary labor needs where and when 

there are no available U.S. workers. 

Over the years as the program has 

evolved, stakeholders in diverse 

industries throughout the country 

repeatedly have expressed concerns that 

some employers were inappropriately 

using H–2B workers for job 

opportunities that were permanent, 

thereby denying U.S. workers the 

opportunity for long-term employment. 

These employers’ actions are to the 

detriment of other employers with a 

legitimate temporary need that are 

ultimately denied access to the program 

due to the annual cap on available visas. 

By preventing employers with a longterm permanent need from participating 

in the H–2B program, the Department 

would provide employers with genuine 

unmet temporary needs with a greater 

opportunity to participate in the 

program. 

2. Succinct statement of the objectives 

of, and legal basis for, the proposed rule. 

The Department seeks to help 

employers meet their legitimate shortterm temporary labor needs where and 

when there are no available U.S. 

workers and to increase worker 

protections and strengthen program 

integrity under the H–2B labor 

certification program. The legal basis for 

the proposed rule is the Department’s 

authority, as delegated from DHS under 

its regulations at 8 CFR 214.2(h)(6), to 

grant temporary labor certifications 

under the H–2B program. 

3. Description of, and where feasible, 

an estimate of the number of small 

entities to which the proposed rule will 

apply. 

Definition of a Small Business 

A small entity is one that is 

independently owned and operated and 

that is not dominant in its field of 

operation. The definition of small 

business varies from industry to 

industry to properly reflect industry size 

differences. An agency must either use 

the SBA definition for a small entity or 

establish an alternative definition for 

the industry. The Department has 

conducted a small entity impact 

analysis on small businesses in the five 

industries with the largest number of H– 

2B workers and for which data were 

available, as mentioned above: 

Landscaping Services; Janitorial 

Services (includes housekeeping 

services); Food Services and Drinking 

Places; Amusement, Gambling, and 

Recreation; and Construction. These top 

five industries accounted for almost 75 

percent of the total number of H–2B 

workers certified during FY 2007– 

2009.40

One industry, Forest Services, made 

the initial top-five list but is not 

included in this analysis because the 

only data available for forestry also 

include various agriculture, fishing, and 

hunting activities. Relevant data for 

Forestry only were not available. The 

Department requests the public to 

propose possible sources of data or 

information on the revenues and 

average number of workers of a typical 

small Forestry firm so that the 


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41The SBA small business size standards for 

construction range from $7 million (land 

subdivision) to $33.5 million (general building and 

heavy construction). However, because employers 

representing all types of construction businesses 

may apply for certification to employ H–2B 

workers, the Department used an average of $20.7 

million as the size standard for construction. 

42The Department published a revised final rule 

modifying the methodology by which prevailing 

wage rates are calculated for the H–2B program. 76 

FR 3452, Jan. 10, 2011. However, because that final 

rule is limited to the prevailing wage rate issue, the 

baseline for this proposal remains the 2008 Final 

Rule with regard to the non-prevailing wage rate 

issues in this NPRM. 

43The total number of firms classified as small 

entities in these industries is as follows: 

Landscaping Services, 63,210; Janitorial Services, 

45,495; Food Services and Drinking Places, 293,373; 

Amusement, Gambling, and Recreation, 43,726; and 

Construction, 689,040. 

44Source: 2002 County Business Patterns and 

2002 Economic Census. These data do not 

distinguish between U.S. workers and foreign 

workers. Compare to data obtained from H–2B 

program data for FY 2007–2009, which indicated 

that the average annual number of firms (of all 

sizes) and H–2B workers certified for these 

industries during FY 2007–2009 were as follows: 

Landscaping Services, Firms—2,754, Workers— 

78,027, an average of 28 workers per firm; Janitorial 

Services, Firms—788, Workers—30,902, an average 

of 39 workers per firm; Food Services and Drinking 

Places, Firms—851, Workers—22,948, and average 

of 27 workers per firm; Amusement, Gambling, and 

Recreation, Firms—227, Workers—14,041, an 

average of 62 workers per firm; and Construction, 

Firms—860, Workers—30,242, an average of 35 

workers per firm. 

Department can better account for any 

impacts on this industry. 

We have adopted the SBA small 

business size standard for each of the 

five industries, which is a firm with 

annual revenues equal to or less than 

the following: Landscaping Services, $7 

million; Janitorial Services, $16.5 

million; Food Services and Drinking 

Places, $7 million; Amusement, 

Gambling, and Recreation, $7 million; 

and Construction, $20.7 million.41

4. Description of the projected 

reporting, recordkeeping and other 

compliance. 

The Department has estimated the 

incremental costs for small businesses 

from the baseline. For this proposed 

rule, the baseline is the 2008 Final 

Rule.42 This analysis reflects the 

incremental cost of this rule as it adds 

to the requirements in the 2008 Final 

Rule. Using available data, we have 

estimated the costs of the payment of 

transportation and subsistence to 

workers, visa and border crossing fees, 

the disclosure of job orders, additional 

recruiting directed by the CO, the time 

required to read and review the Final 

Rule, contacting H–2B workers to 

determine their time of departure, 

contacting labor organizations, and 

other impacts. 

Several provisions of the proposed 

rule extend to workers in 

‘‘corresponding employment,’’ defined 

in the NPRM as those non-H–2B 

workers who perform work included in 

the job order that H–2B workers perform 

during the period of the job order and 

any other work performed by H–2B 

workers. These provisions include the 

application of H–2B wages to workers in 

corresponding employment, the 

transportation and subsistence 

payments (for workers who cannot 

reasonably return to their residence 

each workday), and the disclosure of the 

job order. 

The Department receives an average 

of 8,717 applications annually (which is 

not necessarily the same as the number 

of applicants, because one employer 

may file more than one application) for 

the H–2B program, and the Department 

estimates that an average of 6,980 of 

those applications result in petitions for 

H–2B workers that are approved by 

DHS. Even if all 6,980 applications are 

filed by unique small entities, all of 

which were in the top 5 industries, the 

percentage of small entities authorized 

to employ temporary non-agricultural 

workers will be less than 1 percent of 

the total number of small entities in 

these industries.43 Based on this 

analysis, the Department estimates that 

the rule will impact less than 1 percent 

of the total number of small businesses. 

A detailed industry-by-industry analysis 

is provided below. 

To examine the impact of this 

proposed rule on small entities, the 

Department evaluates the impact of the 

incremental costs on a hypothetical 

small entity of average size, in terms of 

the total number of both U.S. and 

foreign workers, in each industry if it 

were to fill 50 percent of its workforce 

with H–2B workers. There are no 

available data to estimate the 

breakdown of the workforce into U.S. 

and foreign workers. Based on 

Economic Census data, the total number 

of workers (including both U.S. and 

foreign workers) for this hypothetical 

small business is as follows: 

Landscaping Services, 2.3 workers; 

Janitorial Services, 11.3 workers; Food 

Services and Drinking Places, 6.3 

workers; Amusement, Gambling, and 

Recreation, 5.0 workers; and 

Construction, 6.3 workers.44

Also using Economic Census data, we 

derived the annual revenues for small 

entities in each of the top five industries 

by multiplying the average number of 

workers by the average revenue per 

worker for each of the industries. The 

Department estimates that small 

businesses in the top five industries 

have the following annual revenues: 

Landscaping Services, $0.181 million; 

Janitorial Services, $0.336 million; Food 

Services and Drinking Places, $0.223 

million; Amusement, Gambling, and 

Recreation, $0.209 million, and 

Construction, $0.884 million. 

The following sections present the 

impacts that this NPRM is estimated to 

have on a small business that chooses to 

hire H–2B workers: these include 

impacts on the application of H–2B 

wages to workers in corresponding 

employment, transportation and 

subsistence costs, visa-related and 

border crossing fees, disclosure of job 

orders, additional recruiting that may be 

directed by the CO, reading and 

reviewing the new processes and 

requirements, contacting labor 

organizations, and other impacts. Note 

that the costs estimated below are not 

costs to all small businesses or to the 

average small business in an industry. 

Most small businesses in the relevant 

industry do not hire H–2B workers and, 

therefore, incur no cost burden from the 

proposed rule. The costs estimated 

apply only to the relatively small 

number of firms that are expected to 

hire H–2B workers. In the estimates 

below, the hypothetical firm that 

chooses to hire H–2B workers is 

assumed to be of the average total 

employment and revenue size for small 

businesses in its industry. 

a. Application of H–2B Wages to 

Workers in Corresponding Employment 

The NPRM requires that workers in 

corresponding employment are paid the 

same wages paid to foreign workers 

under the H–2B program. However, the 

Department has not identified a reliable 

source of data to estimate the number of 

workers in corresponding employment 

at work sites on which H–2B workers 

are requested, and thus, cannot identify 

the current hourly wages of those 

workers. Therefore, the Department 

cannot quantify the impacts, if any, 

associated with this provision. The 

Department requests the public to 

propose possible sources of data or 

information on the number of workers 

in corresponding employment at work 

sites for which H–2B workers are 

requested and the current hourly wages 

of those workers. 

The NPRM will result in additional 

opportunities for U.S. workers to obtain 

a job and is therefore expected to result 

in lower government expenditures on 

unemployment insurance benefit 

claims. The lower unemployment 

insurance benefits reduce government 

expenditures, and these cost reductions 

are passed on to employers as a whole 

to a certain extent. The Department, 

however, is not able to quantify these 

transfer payments with precision. 


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45The H–2B visa program is capped at 66,000 

new visas per year. To estimate the number of new 

entrants from each country, we scaled the total 

number of certified workers from each country by 

the total number of new visas allowed from FY 

2007 to FY 2009 (66,000 new visas × 3 years, or 

198,000 workers) divided by the total number of 

workers from FY 2007 to FY 2009. 

46The top 10 countries of origin by the number 

of certified H–2B workers who entered during FY 

2007–2009 are as follows: Mexico, 134,226; 

Jamaica, 17,068; Guatemala, 6,530; Philippines, 

4,963; Romania, 3,251, South Africa, 3,239; United 

Kingdom, 2,511; Canada, 2,371; Israel, 1,784; and 

Australia, 1,577. 

47The one-way travel costs used for each country 

are as follows: Mexico, $179; Jamaica, $285; 

Guatemala, $484; Philippines, $973; Romania, 

$1,147; South Africa, $1,168; United Kingdom, 

$726; Canada, $165; Israel, $908; and Australia, 

$1,648. The transportation cost for Mexico is based 

on the cost of a bus trip from Mexico City, Mexico, 

to Ciudad Juarez, Mexico (source: http:// 

www.ticketbus.com.mx) and a bus trip from El Paso, 

Texas, to St. Louis, Missouri (source: http:// 

www.greyhound.com). The transportation cost for 

Canada is based on the cost of a bus trip from 

Ottawa, Ontario, to St. Louis, Missouri (source: 

http://www.greyhound.com). The airfare costs for 

the remaining countries are based on the cost of a 

flight from the capital city of the country in 

question to St. Louis, Missouri (source: http:// 

www.kayak.com). 

48The H–2B program is capped at 66,000 new 

visas per year. We estimate the probability that the 

worker is a new entrant by dividing 66,000 by the 

total number of H–2B workers (115,500), which 

includes both new entrants and H–2B workers who 

entered in the previous 2 years. We assume that 

33,000 of the 66,000 workers stay one additional 

year and 16,500 workers stay two additional years, 

for a total of 115,500 H–2B workers in any given 

year. 

49Source: 20 CFR 655. The one-way travel days 

applied to each country of origin is as follows: 

Mexico, 1; Jamaica, 1; Guatemala, 1; Philippines, 2; 

Romania, 1, South Africa, 2; United Kingdom, 1; 

Canada, 1; Israel, 1; and Australia, 2. 

50The top 10 countries of origin and the number 

of certified H–2B workers during FY 2007–2009 

were as follows: Mexico, 134,226; Jamaica, 17,068; 

Guatemala, 6,530; Philippines, 4,963; Romania, 

3,251, South Africa, 3,239; United Kingdom, 2,511; 

Canada, 2,371; Israel, 1,784; and Australia, 1,577. 

We use these values to weight the country-specific 

consular costs to obtain the weighted average 

consular fee of $27.15. 

51The visa fee of $150 went into effect on June 

4, 2010. Source: http://www.state.gov/r/pa/prs/ps/

2010/05/142155.htm. 

52Similar to the transportation and subsistence 

cost discussed in the previous section, this analysis 

accounts for the annual 66,000-person cap on the 

issuance of H–2B visas. 

Difficulty in calculating these transfer 

payments arises primarily from 

uncertainty about the number of U.S. 

workers who will become employed as 

a result of this rule. 

b. Transportation and Subsistence to 

and From the Place of Employment 

The NPRM proposes to require H–2B 

employers to provide workers—both H– 

2B workers and workers in 

corresponding employment unable to 

return each day to their permanent 

residence—with transportation and 

daily subsistence from the place from 

which the worker has come to work for 

the employer, whether in the U.S. or 

abroad, to the place of employment. The 

employer must also provide the worker 

with the cost of return transportation 

and daily subsistence from the worker’s 

place of employment to the place from 

which the worker, disregarding 

intervening employment, departed to 

work for the employer. 

To estimate the cost of transportation, 

we first calculate the weighted average 

cost of transportation for the top ten 

countries of origin, by the estimated 

number of certified H–2B workers who 

were new entrants.45 46 For workers from 

Mexico and Canada, we assume that 

they travel to and from the place of 

employment by bus. For the remainder 

of the H–2B workers, we assume air 

travel. 

We estimate the weighted average 

one-way travel cost per employee to be 

approximately $286 per H–2B worker.47

We estimate the roundtrip 

transportation costs by multiplying the 

weighted average one-way cost by two, 

by the number of H–2B workers per 

average small entity and the probability 

that the worker is a new entrant to the 

country (57 percent).48 The total annual 

average roundtrip transportation costs 

incurred by the average small employer 

in the top five industries are as follows: 

Landscaping Services, $375.89 ($286 × 2 

× 1.2 × 0.57); Janitorial Services, 

$1,846.74 ($286 × 2 × 5.7 × 0.57); Food 

Services and Drinking Places, $1,029.60 

($286 × 2 × 3.2 × 0.57); Amusement, 

Gambling, and Recreation, $817.14 

($286 × 2 × 2.5 × 0.57); and 

Construction, $1,029.60 ($286 × 2 × 3.2 

× 0.57). We do not know to what extent 

employers are currently paying for this 

cost in order to secure these workers or 

because of their obligations under the 

Fair Labor Standards Act. To the extent 

that this is the case, these transportation 

cost estimates are upper-bound 

estimates. 

We estimate the per-worker cost of 

subsistence by multiplying the 

subsistence per diem ($10.64) by the 

weighted average one-way travel time 

for the top ten H–2B countries (1.055 

days), the number of one-way trips 

(two), and the probability that the 

worker is a new entrant to the country 

(57 percent).49 We estimate the average 

annual cost of subsistence to be 

approximately $12.83 ($10.64 × 1.055 × 

2 × 0.57) per H–2B worker. 

This provision applies not only to H– 

2B workers, but also to workers in 

corresponding employment on H–2B 

worksites who are recruited from a 

distance at which the workers cannot 

reasonably return to their residence 

within the same workday. We were 

unable to identify adequate data to 

estimate the number of corresponding 

workers and, thus, we are unable to 

quantify this impact. 

c. Visa-Related and Border Crossing 

Fees 

Under the 2008 Final Rule, visa fees 

are permitted to be paid by the 

temporary worker. The NPRM, however, 

proposes to require visa fees to be paid 

by the employer. Requiring employers 

to bear the full cost of hiring foreign 

workers is a necessary step toward 

preventing the exploitation of foreign 

workers with its concomitant adverse 

effect on domestic workers. 

The Department estimates the cost of 

visa fees by adding the cost per H–2B 

visa ($150) and the weighted average 

consular fee ($27.15) 50 by the average 

number of H–2B employees in small 

entities in each of the top five industries 

and the probability that the worker is a 

new entrant to the country (57 

percent).51 The total annual average visa 

fee costs incurred by the average small 

employer in the top five industries are 

as follows: Landscaping Services, 

$121.17 ($177.15 × 1.2 × 0.57); Janitorial 

Services, $575.56 ($177.15 × 5.7 × 0.57); 

Food Services and Drinking Places, 

$323.12 ($177.15 × 3.2 × 0.57); 

Amusement, Gambling, and Recreation, 

$252.44 ($177.15 × 2.5 × 0.57); and 

Construction, $323.12 ($177.15 × 3.2 × 

0.57).52

d. Disclosure of Job Order 

The NPRM proposes to require an 

employer to provide a copy of the job 

order to an H–2B worker no later than 

the time at which the worker outside of 

the U.S. applies for the H–2B visa or to 

a worker in corresponding employment 

no later than on the day that work starts. 

The job order must be translated to a 

language understood by the worker. For 

an H–2B worker changing employment 

from an H–2B employer to a subsequent 

H–2B employer, the copy must be 

provided no later than the time the 

subsequent H–2B employer makes an 

offer of employment. 

We estimate two cost components of 

the disclosure of job orders: The cost of 

reproducing the document containing 

the terms and conditions of 

employment, and the cost of translation. 

We obtain the cost of reproducing the 

terms and conditions by multiplying the 

number of pages to be photocopied (3) 

by the cost per photocopy ($0.12) and 

the percent of certified H–2B workers 

that are not involved in reforestation 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
15170 Federal Register / Vol. 76, No. 53 / Friday, March 18, 2011 / Proposed Rules 

53The requirement to disclose the job order does 

not result in a new cost to reforestation employers 

because the Migrant and Seasonal Agricultural 

Worker Protection Act presently requires 

reforestation employers to make this disclosure. 

According to H–2B program data for FY2000– 

FY2009, 88.3 percent of H–2B workers work in an 

industry other than reforestation. 

54The source of the percentage of H–2B workers 

who do not speak English is the ‘‘Yearbook of 

Immigration Statistics’’, 2007–2009 

(http://www.dhs.gov/xlibrary/assets/statistics/

yearbook/). The source for the translation cost per 

page is http://www.languagescape.com. 

55To obtain the average cost of a newspaper 

advertisement, we averaged the advertisement rates 

for the following newspapers: The Augusta 

Chronicle, the Austin Chronicle, the Huntsville 

Times, the Los Alamos Monitor, the San Diego 

Union-Tribune, and the Advertiser Times (Detroit, 

Michigan). Other means of recruiting are possible 

under this NPRM (such as listings on Monster.com 

and Career Builder), but they may be more costly, 

while other recruiting means (such as contacting 

community-based organizations) may be less costly. 

56 It is possible that there will be additional costs 

incurred by small employers due to interviewing 

additional applicants who are referred to H–2B 

employers by job advertisements. The Department 

does not have valid data on referrals resulting from 

job advertisements and, thus, is unable to quantify 

this impact. 

57 It is possible that there will be additional costs 

incurred by small employers due to interviewing 

additional applicants who are referred to H–2B 

employers by job advertisements. The Department 

does not have valid data on referrals resulting from 

job advertisements and, thus, is unable to quantify 

this impact. 

58The hourly compensation rate for a human 

resources manager is calculated by multiplying the 

hourly wage of $42.95 (as published by the 

Department’s OES survey, O*NET Online) by 1.43 

to account for private-sector employee benefits 

(Source: BLS). Thus, the loaded hourly 

compensation rate for a human resources manager 

is $61.42. 

59The number of small businesses that will read 

and review the Final Rule is likely to include some 

that will not apply for the program. There are no 

available data to quantify this possible effect. 

60The hourly compensation rate for an 

administrative assistant/executive secretary is 

calculated by multiplying the hourly wage of $20.03 

(as published by the Department’s OES survey, 

O*NET Online) by 1.43 to account for private-sector 

employee benefits (Source: BLS). Thus, the loaded 

hourly compensation rate for an administrative 

assistant/executive secretary is $28.64. 

61We collected long distance call charges from 

both AT&T and Verizon and averaged them. Source: 

htpp://www.wireless.att.com/learn/international/ 

long-distance/in-the-us.jsp and htpp://www22.

verizon.com/longdistance/business_east/plan_ttw_

brates.jsp. 

(88.3 percent).53 We estimate average 

annual reproduction costs per H–2B 

employee per small H–2B employer of 

$0.32 per year (3 × $0.12 × 0.883). We 

then multiply this product by the 

average number of H–2B workers in the 

top five industries to obtain the 

following average annual costs per small 

employer: Landscaping Services, $0.37 

($0.32 × 1.2); Janitorial Services, $1.80 

($0.32 × 5.7); Food Services and 

Drinking Places, $1.00 ($0.32 × 3.2); 

Amusement, Gambling, and Recreation, 

$0.79 ($0.32 × 2.5); and Construction, 

$1.00 ($0.32 × 3.2). 

For the cost of translation, the 

Department assumes that an employer 

hires all of its H–2B workers from a 

country or set of countries that speak 

the same foreign language; thus, only 

one translation is necessary per 

employer needing translation. Using 

DHS data, we determined that 

approximately 83.92 percent of H–2B 

workers from the top ten countries of 

origin do not speak English. We use this 

as a proxy for the probability that an 

H–2B employer will need to translate 

the job order. We obtain the cost of 

translation by multiplying the percent of 

H–2B workers who do not speak English 

(83.92) by the number of pages of the 

terms and conditions (3) and by the 

translation cost per page ($21.00).54 We 

estimate average annual translation 

costs of $52.87 per employer (0.8392 × 

3 × $21.00). 

e. Additional Recruiting Directed by the 

Certifying Officer 

Under the proposed rule, the 

employer may be directed by the CO to 

conduct additional recruitment of the 

CO has determined that there may be 

available and qualified U.S. workers, 

including where the job opportunity is 

located in an area of substantial 

unemployment. There is no such 

provision in the 2008 Final Rule. 

We estimate this cost by multiplying 

the average cost of a newspaper 

advertisement ($25.09) by 0.5 based on 

our estimate that 50 percent of H–2B 

employers can be expected to be 

directed by the CO to conduct 

additional recruitment for a total cost of 

$12.55 ($25.09 × 0.50) per employer.55

We also add the labor cost to prepare 

the advertisement. The latter cost is 

calculated by multiplying the estimated 

time required to post the advertisement 

(0.08 hours, or 5 minutes) by the scaled 

hourly compensation rate of an 

administrative assistant/executive 

secretary ($28.64) 56 and our estimate 

that 50 percent of H–2B employers can 

be expected to be directed by the CO to 

conduct additional recruiting for a total 

labor cost of $1.15 (0.08 × $28.64 × 0.50) 

per employer. Thus, the total annual 

cost of CO-directed recruiting is 

estimated to be $13.69 ($12.55 + $1.15) 

per employer.57

f. Reading and Reviewing the New 

Processes and Requirements 

During the first year that this rule 

would be in effect, employers would 

need to learn about the new processes 

and requirements. We estimate this cost 

for a hypothetical small entity which is 

interested in applying for H–2B workers 

by multiplying the time required to read 

the new rule and any educational and 

outreach materials that explain the 

H–2B application process under the rule 

by the average compensation of a 

human resources manager.58 In the first 

year of the rule, the Department 

estimates that the average small 

business participating in the program 

will spend approximately 3 hours of 

staff time to read and review the new 

processes and requirements, which 

amounts to approximately $184.26 

($61.42 × 3) in labor costs in the first 

year.59

g. Departure Time Determination 

The NPRM proposes to require 

employers to provide notice to the local 

SWA of the time at which the last 

H–2B worker departs for the place of 

employment, if the last worker has not 

departed by 3 days before the date of 

need. The cost of this provision is the 

sum of the time required to place a 

phone call by the employer to the H–2B 

workers’ representative to verify when 

the last H–2B worker will depart for the 

place of employment, the cost of the 

long-distance phone call (one call per 

employer), the time required to prepare 

and mail a letter to the SWA, and the 

cost of paper, an envelope, and postage. 

To estimate the cost of placing the 

phone calls, we multiply the time 

needed to contact a representative of the 

H–2B workers (0.08 hours, or 5 minutes) 

by the scaled hourly compensation rate; 

of an administrative assistant/executive 

secretary ($28.64), which totals $2.39 

(0.08 × $28.64).60 To this product, we 

add the weighted average cost of a long 

distance phone call to the top 10 

countries ($3.23) to obtain total average 

annual costs of contacting H–2B 

workers equal to $5.62 ($2.39 + $3.23).61

Once the H–2B employer has 

determined when the last H–2B worker 

will depart his or her home, if the last 

worker has not departed by three days 

before the date of need, the employer 

must notify the local SWA in writing. 

We estimate the cost of preparing and 

mailing a letter to the SWA by summing 

the labor costs to prepare and mail a 

letter and the cost of paper, an envelope, 

and postage. 

We estimate the labor cost by 

multiplying the scaled hourly labor 

compensation of an administrative 

assistant/executive secretary ($28.64) by 

the percentage of H–2B applicants that 

will be required under this provision to 

ensure contact with the SWA (10 

percent) and the sum of the time needed 

to draft the main content of a letter (0.25 


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62Unionization data for the following 

occupations were used: Arts, entertainment, sports, 

and media; food preparation and serving related; 

building and grounds cleaning and maintenance; 

personal care and service; farming, fishing, and 

forestry; construction and extraction; and 

installation, maintenance, and repair. These 

occupational categories represent the majority of 

H–2B occupations. Source: http://www.bls.gov/ 

webapps/legacy/cpslutab3.htm. 63Source: http://www. staples.com. 

64Source: 2002 County Business Patterns and 

2002 Economic Census. http://www.census.gov/ 

econ/susb/data/susb2002.html. 

hours, or 15 minutes), and the time 

needed to type the letter and prepare it 

for mailing (0.08 hours, or 5 minutes). 

This calculation yields average annual 

labor costs of $0.95 ($28.64 × 0.10 × 

(0.25 + 0.08)). We estimate the material 

costs of contacting the SWA by 

multiplying the percentage of H–2B 

employer applicants that we assume 

will be requested to contact the SWA 

(10 percent) by the sum of the cost of 

a sheet of paper ($0.02), the cost of an 

envelope ($0.04), and the postage per 

envelope ($0.44). We estimate the total 

material costs at $0.05 (0.10 × ($0.02 + 

$0.04 + $0.44)) per letter. 

In total, the Department estimates the 

total average annual costs of departure 

time determination to be approximately 

$6.62 ($5.62 + $0.95 + $0.05) per year. 

h. Contacting Labor Organizations 

The NPRM proposes to require the 

employer to contact the local union to 

locate able, willing, and qualified U.S. 

workers where union representation is 

prevalent in the occupation or where 

the position is currently governed by a 

collective bargaining agreement. The 

employer must provide written notice of 

the job opportunity to the 

representative(s) of any of the 

employer’s employees in the job 

classification and geographic area in 

which the work will be performed. This 

provision of the proposed rule expands 

the requirement from the baseline 

established by the 2008 Final Rule 

because it requires the employer to 

contact the local union if the job is 

customarily unionized even if there is 

no union or CBA with the employer. 

We estimate two components of the 

cost to contact labor organizations: labor 

and materials. We estimate the labor 

cost by multiplying the scaled hourly 

labor compensation of an administrative 

assistant/executive secretary ($28.64) by 

the time needed to draft, type, print, and 

mail out the letter (0.25 hours, or 15 

minutes, to draft, type, and print the 

letter, and 0.08 hours, or 5 minutes, to 

mail the letter) and the percent of 

workers in the relevant occupations that 

were represented by unions from 2007 

to 2009 (12.3 percent).62 We estimate 

the annual average labor costs per letter 

to be $1.18 ($28.64 × (0.25 + 0.08) × 

0.123). 

The second cost component we 

estimate is the material costs. We 

calculate this cost by summing the cost 

of a sheet of paper ($0.02), an envelope 

($0.04), and postage ($0.44), and 

multiplying the resulting sum by the 

percent of workers in the relevant 

occupations that were represented by 

unions from 2007 to 2009 (12.3 percent). 

We estimate the total material costs at 

$0.06 (($0.02 + $0.04 + $0.44) × 0.123) 

per letter. 

In total, the Department estimates the 

cost of contacting labor organizations 

and bargaining representatives to be 

$1.24 ($1.18 + $ 0.06) per employer. 

i. Document Retention 

Under the NPRM, H–2B employers 

must retain documentation beyond that 

required by the 2008 Final Rule. The 

Department assumes that each H–2B 

employer will purchase a filing cabinet 

($21.99) in which to store the additional 

documents starting in the first year of 

the rule.63

j. Elimination of Attestation-Based 

Model 

The 2008 Final Rule uses an 

attestation-based model: employers 

conduct the required recruitment in 

advance of application filing and, based 

on the results of that effort, apply for 

certification from the Department for a 

number of foreign workers to fill the 

remaining openings. Employers 

currently attest that they have 

undertaken the necessary activities and 

made the required assurances to 

workers. The Department has 

determined that there are insufficient 

worker protections in the attestationbased model. In eliminating the 

attestation based-model, the NPRM 

shifts the recruitment process to after 

the application is filed so that 

employers have to demonstrate—and 

not merely attest—that they have 

performed an adequate test of the labor 

market. Therefore, the primary effect of 

eliminating the attestation based-model 

is a change in the timing of recruitment 

more so than a change in substantive 

requirements. 

The elimination of the attestationbased model will impose minimal costs 

on employers because they will only 

need to include additional information 

in their recruitment report, including 

information on additional recruitment 

conducted, means of posting, contact 

with former U.S. workers, and contact 

with labor organizations where the 

union representation is prevalent in the 

occupation. We estimate two costs for 

the elimination of the attestation-based 

model: The material cost to reproduce 

and mail the documents, and the labor 

cost to reproduce and mail the 

documents. To estimate the cost of 

reproducing and mailing the 

documents, we multiply the additional 

number of pages that must be submitted 

(3) by the additional postage required to 

ship those pages ($0.17). We estimate 

this cost to be approximately $0.51 per 

employer. To estimate the labor cost of 

reproducing and mailing the 

documents, we multiply the time 

needed to reproduce and mail the 

documents (0.08 hours, or 5 minutes) by 

the scaled hourly labor compensation of 

an administrative assistant/executive 

secretary ($28.64). We estimate this cost 

to be approximately $2.39 per employer. 

k. Other 

The NPRM proposes to require 

employers to post the availability of the 

job opportunity in at least two 

conspicuous locations at the place of 

anticipated employment for at least 10 

consecutive days. This provision entails 

additional reproduction costs. For the 

job posting requirement, the total cost to 

photocopy the additional job postings 

(two) is $0.24 per employer. 

3. Total Cost Burden for Small Entities 

The Department’s calculations 

indicate that for a hypothetical small 

entity in the top five industries that 

applies for one worker (representing the 

smallest of the small entities that hire 

H–2B workers), the total average annual 

cost of the NPRM is $539. The average 

annual costs for employers in the top 

five industries that hire the average 

number of employees for their 

respective industries are as follows: 

Landscaping Services, $614; Janitorial 

Services, $2,851; Food Services and 

Drinking Places, $1,608; Amusement, 

Gambling, and Recreation, $1,285, and 

Construction, $1,608. 

The proposed rule is not expected to 

have a significant economic impact on 

a hypothetical small entity that applied 

for enough workers to fill 50 percent of 

its workforce. To evaluate this impact, 

the Department calculates the total cost 

burden as a percent of revenue for each 

of the top five industries. The estimated 

revenues for small entities in the top 

five industries that hire one employee 

are as follows: Landscaping Services, 

$79,315; Janitorial Services, $29,839; 

Food Services and Drinking Places, 

$35,365; Amusement, Gambling, and 

Recreation, $41,644; and Construction, 

$140,306.64 The Department then 


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65The source of the numerator (i.e., the number 

of certified H–2B employers) is H–2B program data 

for FY 2007–2009. The source of the denominator 

(i.e., the total number of U.S. businesses meeting 

the SBA small-size criteria) is the 2002 County 

Business Patterns and 2002 Economic Census. 

http://www.census.gov/econ/susb/data/ 

susb2002.html. We multiply the numerator by 0.50 

to reflect our assumption that 50 percent of H–2B 

employers are small businesses. 

divides the total cost burden for small 

entities hiring one worker by the total 

estimated revenue for small entities in 

each of the top five industries. The total 

costs as a percent of revenues for the top 

five industries are as follows: 

Landscaping Services, 0.7 percent 

($539/$79,315); Janitorial Services, 1.8 

percent ($539/$29,839); Food Services 

and Drinking Places, 1.5 percent 

($539/$35,365); Amusement, Gambling, 

and Recreation, 1.3 percent ($539/ 

$41,644); and Construction, 0.4 percent 

($539/$140,306). 

To estimate the revenues for small 

entities hiring the average number of 

employees, the Department multiplies 

the average revenue per employee for 

small entities in the top five industries 

by the average number of employees per 

small entity. The estimated revenues for 

small entities in the top five industries 

that hire the average number of 

employees are as follows: Landscaping 

Services, $182,425 ($79,315 × 2.3); 

Janitorial Services, $337,181 ($29,839 × 

11.3); Food Services and Drinking 

Places, $222,800 ($35,365 × 6.3); 

Amusement, Gambling, and Recreation, 

$208,220 ($41,644 × 5); and 

Construction, $883,928 ($140,306 × 6.3). 

The total cost burden as a percent of 

revenue for small entities hiring the 

average number of workers in the top 

five industries are as follows: 

Landscaping Services, 0.3 percent 

($614/$182,425); Janitorial Services, 0.9 

percent ($2,851/$337,181); Food 

Services and Drinking Places, 0.7 

percent ($1,608/$222,800); Amusement, 

Gambling, and Recreation, 0.6 percent 

($1,285/$208,220); and Construction, 

0.2 percent ($1,608/$883,928). 

Moreover, the small entities that have 

historically applied for H–2B workers 

represent very small proportions of all 

small businesses. The following are the 

percentages of firms that were certified 

for H–2B workers among all small U.S. 

businesses in their respective industries: 

Landscaping Services, 2.2 percent 

[(2,754 × 0.50)/63,210]; Janitorial 

Services, 0.9 percent [(788 × 0.50)/ 

45,595]; Food Services and Drinking 

Places, 0.1 percent [(851 × 0.50)/ 

293,373]; Amusement, Gambling, and 

Recreation, 0.3 percent [(227 × 0.50)/ 

43,726], and Construction, 0.1 percent 

[(860 × 0.50)/689,040].65 Due to the 

statutory annual cap on available visas, 

the percentage of small entities 

receiving H–2B visas, to which the full 

cost burden would apply, would be 

even lower. 

Therefore, the Department believes 

that this proposed rule is expected to 

have a net direct cost impact on a very 

limited number of small nonagricultural employers above the 

baseline of the current costs incurred by 

the program as it is currently 

implemented under the 2008 Final Rule. 

Accordingly, the proposed rule is not 

expected to impact a substantial number 

of small entities. 

5. Identification of All Relevant Federal 

Rules That May Duplicate, Overlap or 

Conflict With the Proposed Rule 

The Department is not aware of any 

relevant Federal rules that duplicate, 

overlap of conflict with the proposed 

rule. 

6. Alternatives Considered as Options 

for Small Businesses 

While we have concluded that this 

proposed regulation will not have a 

significant economic impact on a 

substantial number of small entities, we 

have made every effort to minimize the 

cost burden on the relatively small 

number of businesses that do use the 

program. The Department’s mandate 

under the H–2B program is to set 

requirements for employers that wish to 

hire temporary foreign non-agricultural 

workers. Those requirements are 

designed to ensure that foreign workers 

are used only if qualified domestic 

workers are not available and that the 

hiring of H–2B workers will not 

adversely affect the wages and working 

conditions of similarly employed 

domestic workers. These regulations set 

those minimum standards. To create 

different and likely lower standards for 

one class of employers (e.g., small 

businesses) would essentially sanction 

the very adverse effect that the 

Department is compelled to prevent. 

The Department considered a number 

of alternatives: (1) To propose the policy 

changes contained in this NPRM; (2) to 

take no action, that is, to leave the 2008 

Final Rule intact; and (3) to propose a 

number of other options discussed in 

more detail below. We believe that this 

NPRM retains the best features of the 

2008 Final Rule and proposes additional 

provisions to best achieve the 

Department’s policy objectives, 

consistent with its mandate under the 

H–2B program. We request comments 

from the public on the best alternatives 

that would balance the needs of small 

businesses with providing adequate 

protections to U.S. and H–2B workers. 

We are also interested in any available 

information about the number of U.S. 

workers that would benefit from 

increased opportunity for jobs. 

The Department considered 

alternatives to a number of program 

proposals. First, the Department 

considered defining full-time as 40 

hours a week instead of the proposed 35 

hours a week, as discussed in more 

detail in the preamble to proposed 

§ 655.5. The Department concluded that 

defining full-time as 35 hours is more 

consistent with the Department’s 

historical practice for the H–2B 

program, and should therefore not pose 

difficulty for the regulated community. 

Nevertheless the Department has asked 

for comments as to whether extending 

the definition of a full-time workweek to 

at least 40 hours is more protective of 

U.S. workers and whether it conforms 

better to employer standards and needs. 

Second, while the Department 

proposed to allow certain deductions 

from a worker’s earnings for the 

provision of items that are primarily for 

the benefit of the H–2B employer, as 

long as they do not bring the worker’s 

actual wages paid below the H–2B 

required wage level, the Department 

considered as an alternative using the 

rule under the FLSA, which specifies 

the Federal minimum wage as the floor 

beneath which such deductions cannot 

lower a worker’s wages paid. The 

Department rejected this alternative 

because using the H–2B required wage 

level as the floor rather than the Federal 

minimum wage offers greater protection 

to U.S. workers from adverse effect by 

preserving the integrity of the offered 

wage. Otherwise, the employer, who is 

obligated to pay the ‘‘offered wage’’ 

which is generally higher than the FLSA 

minimum wage, could take deductions 

from wages that could reduce the 

effective wage to the FLSA minimum. 

Third, this NPRM introduces a threefourths guarantee requirement modeled 

generally on that used in the H–2A 

program. The Department considered 

retaining the language of the H–2A 

requirement, under which employers 

must guarantee to offer the worker 

employment for a total number of work 

hours equal to at least three-fourths of 

the workdays of the total length of the 

contract. The Department rejected this 

alternative because, while this would 

provide workers with significant 

protection, it would not be sufficient to 

discourage the submission of imprecise 

dates of need and/or imprecise numbers 

of employees needed and would 

therefore fail to protect U.S. and H–2B 

workers from periods of unforeseen 

underemployment. 

The Department believes that the 

proposal, which calculates the hours of 


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employment offered in 4-week periods, 

better ensures that workers’ 

commitment to a particular employer 

will result in real jobs that meet their 

reasonable expectations. We do not 

believe the proposal will create any 

additional burden on employers who 

have accurately represented their period 

of need and number of workers needed, 

and will provide an additional incentive 

for applicants to correctly state ALL OF 

their needs on the Application for 

Temporary Employment Certification. 

Finally, the Department considered 

not including a separate registration 

process under which H–2B employers 

first file a registration application with 

the Department. This registration 

process, as proposed, is intended to 

resolve the question of whether the 

employer’s need is temporary before the 

employer is required to begin 

recruitment. The Department 

considered instead retaining the current 

practice for the adjudication of the 

employer’s temporary need and the 

labor market analysis to occur 

simultaneously. While this might be 

more advantageous for employers new 

to the program, it delays the vast 

majority of employers who are recurring 

users with relatively stable dates of need 

and who would benefit from separate 

adjudication of need and adequacy of 

recruitment. Moreover, all employers 

and potential workers benefit from a 

recruitment process close in time to the 

actual date of need which a registration 

process, by pre-determining temporary 

need, expressly permits. Therefore, the 

Department rejected the alternative of 

simultaneous adjudication because it 

undercuts the Secretary’s fulfillment of 

her obligations under the program. 

Ultimately, the decision of an 

employer to apply for H–2B workers is 

a voluntary choice. That is, any 

individual employer can avoid the costs 

associated with the NPRM by not 

applying for H–2B workers. 

C. Unfunded Mandates Reform Act of 

1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (2 U.S.C. 1531) 

directs agencies to assess the effects of 

Federal regulatory actions on State, 

local, and tribal governments, and the 

private sector. The proposed rule has no 

Federal mandate, which is defined in 2 

U.S.C. 658(6) to include either a 

‘‘Federal intergovernmental mandate’’ or 

a ‘‘Federal private sector mandate.’’ A 

Federal mandate is any provision in a 

regulation that imposes an enforceable 

duty upon State, local, or tribal 

governments, or imposes a duty upon 

the private sector which is not 

voluntary. A decision by a private entity 

to obtain an H–2B worker is purely 

voluntary and is, therefore, excluded 

from any reporting requirement under 

the Act. 

SWAs are mandated to perform 

certain activities for the Federal 

Government under the H–2B program, 

and receive grants to support the 

performance of these activities. Under 

the 2008 Final Rule the SWA role was 

changed to accommodate the 

attestation-based process. The current 

regulation requires SWAs to accept and 

place job orders into intra and interstate 

clearance, review referrals, and verify 

employment eligibility of the applicants 

who apply to the SWA to be referred to 

the job opportunity. Under the proposed 

rule the SWA would continue to play a 

significant and active role. The 

Department is proposing to continue the 

requirement that employers submit their 

job orders to the SWA having 

jurisdiction over the area of intended 

employment as is the case in the current 

regulation. In addition to providing the 

job order the Department proposes that 

the employer will provide a copy of the 

Application for Temporary Employment 

Certification to the SWA; however, this 

is simply a copy for disclosure purposes 

and would require no additional 

information collection or review 

activities by the SWA. The Department 

is also proposing to continue to require 

SWAs to place job orders into clearance, 

as well as provide employers with 

referrals received in connection with the 

job opportunity. The Department 

recognizes that based on the extended 

recruitment times and the possibility 

that the CO could require additional 

interstate recruitment under this 

proposed rule, SWAs may experience a 

slight increase in their workload. 

However, the Department is proposing 

to eliminate the employment 

verification responsibilities the SWA 

has under the current regulations. With 

the elimination of workload created by 

the employment verification 

requirement SWAs can now apply those 

resources to the additional recruitment 

requirements proposed under this rule. 

SWA activities under the H–2B 

program are currently funded by the 

Department through grants provided 

under the Wagner-Peyser Act. 29 U.S.C. 

49 et seq. The Department anticipates 

continuing funding under the WagnerPeyser Act. As a result of this NPRM 

and the publication of a final regulation, 

the Department will analyze the 

amounts of such grants made available 

to each State to fund the activities of the 

SWAs. 

D. Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA) 

The Department has determined that 

this rulemaking does not impose a 

significant impact on a substantial 

number of small entities under the RFA; 

therefore, the Department is not 

required to produce any compliance 

guides for small entities as mandated by 

the SBREFA. The Department has 

similarly concluded that this proposed 

rule is not a major rule requiring review 

by the Congress under the SBREFA 

because it will not likely result in: (1) 

An annual effect on the economy of 

$100 million or more; (2) a major 

increase in costs or prices for 

consumers, individual industries, 

Federal, State or local Government 

agencies, or geographic regions; or (3) 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of U.S.-based enterprises to 

compete with foreign-based enterprises 

in domestic or export markets. 

E. Executive Order 13132—Federalism 

The Department has reviewed this 

proposed rule in accordance with E.O. 

13132 regarding federalism and has 

determined that it does not have 

federalism implications. The proposed 

rule does not have substantial direct 

effects on States, on the relationship 

between the States, or on the 

distribution of power and 

responsibilities among the various 

levels of Government as described by 

E.O. 13132. Therefore, the Department 

has determined that this proposed rule 

will not have a sufficient federalism 

implication to warrant the preparation 

of a summary impact statement. 

F. Executive Order 13175—Indian 

Tribal Governments 

This proposed rule was reviewed 

under the terms of E.O. 13175 and 

determined not to have tribal 

implications. The proposed rule does 

not have substantial direct effects on 

one or more Indian tribes, on the 

relationship between the Federal 

Government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. As a 

result, no tribal summary impact 

statement has been prepared. 

G. Assessment of Federal Regulations 

and Policies on Families 

Section 654 of the Treasury and 

General Government Appropriations 

Act, enacted as part of the Omnibus 

Consolidated and Emergency 

Supplemental Appropriations Act of 


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1999 (Pub. L. 105–277, 112 Stat. 2681) 

requires the Department to assess the 

impact of this proposed rule on family 

well-being. A rule that is determined to 

have a negative effect on families must 

be supported with an adequate 

rationale. 

The Department has assessed this 

proposed rule and determines that it 

will not have a negative effect on 

families. 

H. Executive Order 12630—Government 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

The proposed rule is not subject to 

E.O. 12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights, because it 

does not involve implementation of a 

policy with takings implications. 

I. Executive Order 12988—Civil Justice 

The proposed rule has been drafted 

and reviewed in accordance with E.O. 

12988, Civil Justice Reform, and will not 

unduly burden the Federal court 

system. The Department has developed 

the proposed rule to minimize litigation 

and provide a clear legal standard for 

affected conduct, and has reviewed the 

proposed rule carefully to eliminate 

drafting errors and ambiguities. 

J. Plain Language 

The Department drafted this NPRM in 

plain language. 

K. Paperwork Reduction Act 

As part of its continuing effort to 

reduce paperwork and respondent 

burden, the Department conducts a 

preclearance consultation program to 

provide the general public and Federal 

agencies with an opportunity to 

comment on proposed and continuing 

collections of information in accordance 

with the Paperwork Reduction Act of 

1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). 

This process helps to ensure that the 

public understands the Department’s 

collection instructions; respondents 

provide requested data in the desired 

format; reporting burden (time and 

financial resources) is minimized; 

collection instruments are clearly 

understood; and the Department 

properly assesses the impact of 

collection requirements on respondents. 

The PRA requires all Federal agencies 

to analyze proposed regulations for 

potential time burdens on the regulated 

community created by provisions 

within the proposed regulations that 

require the submission of information. 

These information collection (IC) 

requirements must be submitted to OMB 

for approval. Persons are not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number as required in 5 CFR 

1320.11(l) or it is exempt from the PRA. 

The majority of the IC requirements 

for the current H–2B program are 

approved under OMB control number 

1205–0466 (which includes ETA Form 

9141 and ETA Form 9142). The 

Department is proposing to add a new 

IC to the same OMB control number, 

specifically, the ETA Form 9155. In 

addition, the IC for the ETA Form 9142 

will need to be modified to account for 

new requirements under the proposed 

regulation. 

A number of the provisions under this 

proposed rule are exempt from a burden 

analysis. Below is a section-by-section 

analysis of the PRA burden. Any 

necessary adjustments to the burden 

calculations have been submitted to 

OMB for review under sec. 3507(d) of 

the PRA. For an additional explanation 

of how the Department calculated the 

burden hours and related costs, the PRA 

package for IC 1205–0466 may be 

obtained by contacting the PRA 

addressee shown below or at http:// 

www.RegInfo.gov. 

PRA Addressee: Sherril Hurd, Office 

of Policy Development and Research, 

U.S. Department of Labor, Employment 

& Training Administration, 200 

Constitution Avenue, NW., Room N– 

5641, Washington, DC 20210. 

Telephone: 202–693–3700 (this is not a 

toll-free number). 

Comments regarding the IC should be 

sent to (1) the Office of Information and 

Regulatory Affairs, Office of 

Management and Budget, Room 10235, 

New Executive Office Building, 

Washington, DC 20503; Attention: Desk 

Officer for the Employment and 

Training Administration; and a copy to 

(2) Office of Foreign Labor Certification, 

Room C–4312, 200 Constitution Ave., 

NW., Washington, DC 20210 or fax: 

202–693–2768. Comments to OMB may 

be submitted by using the Federal 

eRulemaking portal at http:// 

www.regulations.gov (follow 

instructions for submission of 

comments) or by fax: 202–395–5806. 

OMB requests that comments be 

received within 60 days of publication 

of the Proposed Rule to ensure their 

consideration. Please note that 

comments submitted to OMB are a 

matter of public record. 

When submitting comments on the 

information collection, your comments 

should address one or more of the 

following four points: 

• Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

• Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

• Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submissions 

of responses. 

Summary 

The information collection is required 

by Title 8 CFR 214.2(h)(6) of the DHS 

regulations. Title 8 CFR 

214.2(h)(6)(b)(iii)(A) and (iv)(A) require 

the Secretary to certify, among other 

things, that any foreign worker seeking 

to enter the U.S. for the purpose of 

performing certain temporary 

nonagricultural labor will not, by doing 

so, adversely affect wages and working 

conditions of U.S. workers similarly 

employed. The Secretary must also 

certify that qualified workers in the U.S. 

are not available for the job opportunity. 

Before any employer may petition for 

any temporary nonagricultural foreign 

workers, it must submit a request for 

certification to the Secretary containing 

the elements prescribed by the DHS 

regulations. 

This proposed rule is designed to 

obtain the necessary information for the 

Secretary to make an informed decision 

in meeting the Department’s obligations. 

The information collected will be used, 

among other things: To inform U.S. 

workers of the job opportunity thereby 

testing the labor market; to determine 

whether or not the employer is offering 

the proper wage to all employees; to 

ensure that the employer (and its agent) 

is eligible to employ foreign workers 

under the H–2B program; to have 

written assurances from the employer of 

its intent to comply with program 

requirements; and to ensure program 

integrity. 

BILLING CODE 4510–FP–P 


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BILLING CODE 4510–FP–C 


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66Obligation to respond to this information 

collection is mandatory (M), required for benefit 

(R), or voluntary (V). 

67See 5 CFR 1320.3(c)(2). 

68See 5 CFR 1320.3(b)(3); this is a normal 

function of SWAs. 

69See 5 CFR 1320.3(b)(2). 

70See 29 CFR 1602.14 (OMB 3046–0040); 29 CFR 

1627.3(B)(3) (OMB 3046–0018); 29 CFR 

1627.3(b)(3). 

71See 5 CFR 1320.3(h)(6) & (9) and 5 CFR 

1320.4(a)(2). 

72See 5 CFR 1320.4(a)(2). 

73Source: Bureau of Labor Statistics 2009 OES 

wage data for Washington, DC. 

Annual Hourly Burden 

In order to estimate the potential 

hourly burden of the information 

collection required to apply for a labor 

certification as described in this 

proposed rule, the Department relied 

upon program experience and program 

data from FY 2000–2009. Based on 

information on program usage from 

these years, the Department estimates 

that it will receive an average of 8,717 

applications requesting approximately 

236,706 foreign workers. This is a 

decrease from the 12,000 applications 

estimated in the previous submission 

used to calculate the original burden in 

1205–0466 and is in part due to the 

fluctuating U.S. economy over the years. 

Specifically, the methodology used to 

arrive at the current lower estimate 

includes periods in which the U.S. 

economy grew and periods in which the 

U.S. economy contracted. 

For the number of appeals, 

modifications, requests for waivers of 

the filing time, extensions, and other 

program components requiring 

information collection under the PRA, 

the Department based its estimates on 

program experience in the current 

program and its other programs with 

similar procedures to determine annual 

hourly burdens described in the chart 

above. 

The total annual hourly burden for 

the IC in this NPRM is 94,187 hours. 

Monetized Hourly Burden 

Employers filing applications for 

temporary alien employment 

certification represent a wide variety of 

industries. Salaries for employers and/ 

or their employees who perform the 

reporting and recordkeeping functions 

required by this regulation may range 

from several hundred dollars to several 

hundred thousand dollars, where the 

corporate executive office of a large 

company performs some or all of these 

functions itself. However, the 

Department recognizes that in most 

companies a Human Resources Manager 

will perform these activities. Therefore, 

in estimating employer staff time and 

costs, the Department used the hourly 

wage rate for a Human Resources 

Manager ($42.95), as published by the 

U.S. Department of Labor’s 

Occupational Employment Statistics 

OnLine,73 and increased by a factor of 

1.43 to account for employee benefits 

and other compensation for a total 

hourly cost of $61.42. Total annual 

respondent hour costs for the 

information collection is estimated as 

follows: 

1205–0466 94,187 hours × $61.42 = 

$5,784,966 

Cost Burden to Respondents 

The proposed rule does not alter any 

out-of-pocket expenses such as filing 

fees to participate in the program. There 

is also no capital investment required to 

participate. 

Affected Public: Farms, business or 

other for-profit; not-for-profit 

institutions. 

Estimated Number of Respondents: 

3,966. 

Estimated Number of Responses: 

396,984. 

Frequency of Response: Annually; 

occasionally. 

Estimated Annual Burden Hours: 

94,187. 

Estimated Annual Hourly Burden 

Cost: $5,784,966. 

Estimated Annual Cost Burden: $0. 

List of Subjects 

20 CFR Part 655 

Administrative practice and 

procedure, Employment, Employment 

and training, Enforcement, Foreign 

workers, Forest and forest products, 

Fraud, Health professions, Immigration, 

Labor, Longshore and harbor work, 

Migrant workers, Nonimmigrant 

workers, Passports and visas, Penalties, 

Reporting and recordkeeping 

requirements, Unemployment, Wages, 

Working conditions. 

29 CFR Part 503 

Administrative practice and 

procedure, Employment, Foreign 

Workers, Housing, Housing standards, 

Immigration, Labor, Nonimmigrant 

workers, Penalties, Transportation, 

Wages. 

Title 20—Employees’ Benefits 

PART 655—TEMPORARY 

EMPLOYMENT OF FOREIGN 

WORKERS IN THE UNITED STATES 

1. The authority citation for part 655 

continues to read as follows: 

Authority: Section 655.0 issued under 8 

U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) 

and (ii), 1182(m), (n) and (t), 1184(c), (g), and 

(j), 1188, and 1288(c) and (d); sec. 3(c)(1), 

Pub. L. 101–238, 103 Stat. 2099, 2102 (8 

U.S.C. 1182 note); sec. 221(a), Pub. L. 101– 

649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 

note); sec. 303(a)(8), Pub. L. 102–232, 105 

Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 

323(c), Pub. L. 103–206, 107 Stat. 2428; sec. 

412(e), Pub. L. 105–277, 112 Stat. 2681 (8 

U.S.C. 1182 note); sec. 2(d), Pub. L. 106–95, 

113 Stat. 1312, 1316 (8 U.S.C. 1182 note); 

Pub. L. 109–423, 120 Stat. 2900; and 8 CFR 

214.2(h)(4)(i). 

Section 655.00 issued under 8 U.S.C. 

1101(a)(15)(H)(ii), 1184(c), and 1188; and 8 

CFR 214.2(h). 

Subparts A and C issued under 8 CFR 

214.2(h). 

Subpart B issued under 8 U.S.C. 

1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 

CFR 214.2(h). 

Subparts D and E authority repealed. 

Subparts F and G issued under 8 U.S.C. 

1288(c) and (d); and sec. 323(c), Pub. L. 103– 

206, 107 Stat. 2428. 

Subparts H and I issued under 8 U.S.C. 

1101(a)(15)(H)(i)(b) and (b)(1), 1182(n) and 

(t), and 1184(g) and (j); sec. 303(a)(8), Pub. L. 

102–232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 

note); sec. 412(e), Pub. L. 105–277, 112 Stat. 

2681; and 8 CFR 214.2(h). 

Subparts J and K authority repealed. 

Subparts L and M issued under 8 U.S.C. 

1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d), 

Pub. L. 106–95, 113 Stat. 1312, 1316 (8 U.S.C. 

1182 note); Pub. L. 109–423, 120 Stat. 2900; 

and 8 CFR 214.2(h). 

2. In subpart A, revise §§ 655.1 

through 655.6 to read as follows: 

Subpart A—Labor Certification 

Process for Temporary NonAgricultural Employment in the United 

States (H–2B Workers) 

Sec. 

655.1 Scope and purpose of subpart A. 

655.2 Authority of the agencies, offices, and 

divisions in the Department of Labor. 

655.3 Territory of Guam. 

655.4 Special procedures. 

655.5 Definition of terms. 

655.6 Temporary need. 

* * * * * 

§ 655.1 Scope and purpose of subpart A. 

The Immigration and Nationality Act 

(INA) at 8 U.S.C. 1184(c)(1) requires the 

Secretary of the Department of 

Homeland Security (DHS) to consult 

with appropriate agencies before 

authorizing the entry of H–2B workers. 

DHS regulations at 8 CFR 214.2(h)(6)(iv) 

provide that an employer’s petition to 

employ nonimmigrant workers on H–2B 

visas for temporary non-agricultural 

employment in the United States (U.S.), 

except for Guam, must be accompanied 

by an approved temporary employment 

certification from the Secretary of Labor 

(Secretary). 

(a) Purpose. The temporary 

employment certification reflects a 

determination by the Secretary that: 


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(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 

that 

(2) The employment of the H–2B 

worker(s) will not adversely affect the 

wages and working conditions of U.S. 

workers similarly employed. 

(b) Scope. This subpart sets forth the 

procedures governing the labor 

certification process for the temporary 

employment of nonimmigrant foreign 

workers in the H–2B visa category, as 

defined in 8 U.S.C. 1101(a)(15)(H)(ii)(b). 

It also establishes obligations with 

respect to the terms and conditions of 

the temporary employment certification 

with which H–2B employers must 

comply, as well as their obligations to 

H–2B workers and workers in 

corresponding employment. 

Additionally, this subpart sets forth 

integrity measures for ensuring 

employers’ continued compliance with 

the terms and conditions of the 

temporary employment certification. 

§ 655.2 Authority of the agencies, offices, 

and divisions in the Department of Labor. 

(a) Authority and role of the Office of 

Foreign Labor Certification (OFLC). The 

Secretary has delegated her authority to 

make determinations under this subpart, 

pursuant to 8 CFR 214.2(h)(6)(iv), to the 

Assistant Secretary for the Employment 

and Training Administration (ETA), 

who in turn has delegated that authority 

to OFLC. Determinations on an 

Application for Temporary Employment 

Certification in the H–2B program are 

made by the Administrator, OFLC who, 

in turn, may delegate this responsibility 

to designated staff members, e.g., a 

Certifying Officer (CO). 

(b) Authority of the Wage and Hour 

Division (WHD). Pursuant to its 

authority under the INA, 8 U.S.C. 

1184(c)(14)(B), DHS has delegated to the 

Secretary certain investigatory and law 

enforcement functions with respect to 

terms and conditions of employment in 

the H–2B program. The Secretary has, in 

turn, delegated that authority to WHD. 

The regulations governing WHD 

investigation and enforcement 

functions, including those related to the 

enforcement of temporary employment 

certifications, issued under this subpart, 

may be found in 29 CFR part 503. 

(c) Concurrent authority. OFLC and 

WHD have concurrent authority to 

impose a debarment remedy under 

§ 655.73 or under 29 CFR 503.24. 

§ 655.3 Territory of Guam. 

Subpart A of this part does not apply 

to temporary employment in the 

Territory of Guam, except that an 

applicant seeking certification for a job 

opportunity on Guam must obtain a 

prevailing wage from the Department in 

accordance with § 655.10 of this 

subpart. The Department of Labor 

(Department or DOL) does not certify to 

the United States Citizenship and 

Immigration Services (USCIS) of DHS 

the temporary employment of 

nonimmigrant foreign workers under H– 

2B visas, or enforce compliance with the 

provisions of the H–2B visa program, in 

the Territory of Guam. Under DHS 

regulations, administration of the H–2B 

temporary employment certification 

program is undertaken by the Governor 

of Guam, or the Governor’s designated 

representative. 

§ 655.4 Special procedures. 

To provide for a limited degree of 

flexibility in carrying out the Secretary’s 

responsibilities, the Administrator, 

OFLC has the authority to establish, 

continue, revise, or revoke special 

procedures in the form of variances for 

processing certain H–2B applications. 

Employers must demonstrate in writing 

to the Administrator, OFLC that special 

procedures are necessary. Before making 

determinations under this section, the 

Administrator, OFLC may consult with 

affected employers and worker 

representatives. Special procedures in 

place on the effective date of this 

regulation, including special procedures 

currently in effect for handling 

applications for tree planters and related 

reforestation workers, professional 

athletes, boilermakers coming to the 

U.S. on an emergency basis, and 

professional entertainers, will remain in 

force until modified or withdrawn by 

the Administrator, OFLC. 

§ 655.5 Definition of terms. 

For purposes of this subpart: 

Act means the Immigration and 

Nationality Act or INA, as amended, 8 

U.S.C. 1101 et seq. 

Administrative Law Judge (ALJ) means 

a person within the Department’s Office 

of Administrative Law Judges appointed 

under 5 U.S.C. 3105. 

Administrator, Office of Foreign Labor 

Certification (OFLC) means the primary 

official of the Office of Foreign Labor 

Certification, ETA, or the 

Administrator’s designee. 

Administrator, Wage and Hour 

Division (WHD) means the primary 

official of the WHD, or the 

Administrator’s designee. 

Agent means a legal entity or person 

who: 

(1)(i) Is authorized to act on behalf of 

an employer for temporary 

nonagricultural labor certification 

purposes; 

(ii) Is not itself an employer, or a joint 

employer, as defined in this subpart 

with respect to a specific application; 

and 

(iii) Is not an association or other 

organization of employers. 

(2) No agent who is under suspension, 

debarment, expulsion, disbarment or 

otherwise restricted from practice before 

any court, the Department, the 

Executive Office for Immigration 

Review under 8 CFR 1003.101, or DHS 

under 8 CFR 292.3 may represent an 

employer under this subpart. 

Agricultural labor or services means 

those duties and occupations defined in 

subpart B of this part. 

Applicant means a U.S. worker who 

is applying for a job opportunity for 

which an employer has filed an 

Application for Temporary Employment 

Certification (Form ETA 9142 and the 

appropriate appendices). 

Application for Temporary 

Employment Certification means the 

Office of Management and Budget 

(OMB)-approved Form ETA 9142 and 

the appropriate appendices, a valid 

wage determination, as required by 

§ 655.12, and a subsequently-filed U.S. 

worker recruitment report, submitted by 

an employer to secure a temporary 

employment certification determination 

from DOL. 

Area of intended employment means 

the geographic area within normal 

commuting distance of the place 

(worksite address) of the job 

opportunity for which the certification 

is sought. There is no rigid measure of 

distance that constitutes a normal 

commuting distance or normal 

commuting area, because there may be 

widely varying factual circumstances 

among different areas (e.g., average 

commuting times, barriers to reaching 

the worksite, or quality of the regional 

transportation network). If the place of 

intended employment is within a 

Metropolitan Statistical Area (MSA), 

including a multistate MSA, any place 

within the MSA is deemed to be within 

normal commuting distance of the place 

of intended employment. The borders of 

MSAs are not controlling in the 

identification of the normal commuting 

area; a location outside of an MSA may 

be within normal commuting distance 

of a location that is inside (e.g., near the 

border of) the MSA. 

Area of substantial unemployment 

means a contiguous area with a 

population of at least 10,000 in which 

there is an average unemployment rate 

equal to or exceeding 6.5 percent for the 

12 months preceding the determination 

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Attorney means any person who is a 

member in good standing of the bar of 

the highest court of any State, 

possession, territory, or commonwealth 

of the U.S., or the District of Columbia. 

No attorney who is under suspension, 

debarment, expulsion, disbarment, or 

otherwise restricted from practice before 

any court, the Department, the 

Executive Office for Immigration 

Review under 8 CFR 1003.101, or DHS 

under 8 CFR 292.3 may represent an 

employer under this subpart. 

Board of Alien Labor Certification 

Appeals (BALCA or Board) means the 

permanent Board established by part 

656 of this chapter, chaired by the Chief 

Administrative Law Judge, and 

consisting of ALJs assigned to the 

Department and designated by the Chief 

ALJ to be members of BALCA. The 

Board is located in Washington, DC, and 

reviews and decides appeals in 

Washington, DC. 

Certifying Officer (CO) means an 

OFLC official designated by the 

Administrator, OFLC to make 

determinations on applications under 

the H–2B program. The Administrator, 

OFLC is the National CO. Other COs 

may also be designated by the 

Administrator, OFLC to make the 

determinations required under this 

subpart. 

Chief Administrative Law Judge 

means the chief official of the 

Department’s Office of Administrative 

Law Judges or the Chief Administrative 

Law Judge’s designee. 

Corresponding employment means 

the employment of workers who are not 

H–2B workers by an employer that has 

an accepted H–2B Application for 

Temporary Employment Certification in 

any work included in the job order or 

in any work performed by the H–2B 

workers. To qualify as corresponding 

employment, the work must be 

performed during the period of the job 

order, including any approved 

extension thereof. 

Date of need means the first date the 

employer requires services of the H–2B 

workers as listed on the Application for 

Temporary Employment Certification. 

Department of Homeland Security 

(DHS) means the Federal Department 

having jurisdiction over certain 

immigration-related functions, acting 

through its agencies, including USCIS. 

Employee means a person who is 

engaged to perform work for an 

employer, as defined under the general 

common law. Some of the factors 

relevant to the determination of 

employee status include: The hiring 

party’s right to control the manner and 

means by which the work is 

accomplished; the skill required to 

perform the work; the source of the 

instrumentalities and tools for 

accomplishing the work; the location of 

the work; the hiring party’s discretion 

over when and how long to work; and 

whether the work is part of the regular 

business of the hiring party. Other 

applicable factors may be considered 

and no one factor is dispositive. The 

terms ‘‘employee’’ and ‘‘worker’’ are used 

interchangeably in this subpart. 

Employer means a person (including 

any individual, partnership, association, 

corporation, cooperative, firm, joint 

stock company, trust, or other 

organization with legal rights and 

duties) that: 

(1) Has a place of business (physical 

location) in the U.S. and a means by 

which it may be contacted for 

employment; 

(2) Has an employer relationship 

(such as the ability to hire, pay, fire, 

supervise or otherwise control the work 

of employees) with respect to an H–2B 

worker or a worker in corresponding 

employment; and 

(3) Possesses, for purposes of filing an 

Application for Temporary Employment 

Certification, a valid Federal Employer 

Identification Number (FEIN). 

Employment and Training 

Administration (ETA) means the agency 

within the Department which includes 

OFLC and has been delegated authority 

by the Secretary to fulfill the Secretary’s 

mandate under the DHS regulations for 

the administration and adjudication of 

an Application for Temporary 

Employment Certification and related 

functions. 

Federal holiday means a legal public 

holiday as defined at 5 U.S.C. 6103. 

Full time means 35 or more hours of 

work per week for the purposes of the 

H–2B program. 

H–2B Petition means the DHS Petition 

for a Nonimmigrant Worker form, or 

successor form, and accompanying 

documentation required by DHS for 

employers seeking to employ foreign 

persons as H–2B nonimmigrant workers. 

The H–2B Petition includes the 

approved Application for Temporary 

Employment Certification and the Final 

Determination letter. 

H–2B Registration means the OMBapproved Form ETA 9155, submitted by 

an employer to register its intent to hire 

H–2B workers and to file an Application 

for Temporary Employment 

Certification. 

H–2B worker means any temporary 

foreign worker who is lawfully present 

in the U.S. and authorized by DHS to 

perform nonagricultural labor or 

services of a temporary or seasonal 

nature under 8 U.S.C. 

1101(a)(15)(H)(ii)(b). 

Job contractor means a person, 

association, firm, or a corporation that 

meets the definition of an employer and 

that contracts services or labor on a 

temporary basis to one or more 

employers, which is not an affiliate, 

branch or subsidiary of the job 

contractor and where the job contractor 

will not exercise substantial, direct dayto-day supervision or control in the 

performance of the services or labor to 

be performed other than hiring, paying 

and firing the workers. 

Job offer means the offer made by an 

employer or potential employer of H–2B 

workers to both U.S. and H–2B workers 

describing all the material terms and 

conditions of employment, including 

those relating to wages, working 

conditions, and other benefits. 

Job opportunity means one or more 

openings for full-time employment with 

the petitioning employer within a 

specified area(s) of intended 

employment for which the petitioning 

employer is seeking workers. 

Job order means the document 

containing all the material terms and 

conditions of employment relating to 

wages, hours, working conditions, 

worksite and other benefits, including 

all obligations and assurances under 29 

CFR part 503 and this subpart that is 

posted between and among the State 

Workforce Agencies (SWAs) on their 

inter- and intra-State job clearance 

systems. 

Joint employment means that where 

two or more employers each have 

sufficient definitional indicia of being 

an employer to be considered the 

employer of a worker, those employers 

will be considered to jointly employ 

that worker. Each employer in a joint 

employment relationship to a worker is 

considered a joint employer of that 

worker. 

Layoff means any involuntary 

separation of one or more U.S. 

employees without cause. 

Metropolitan Statistical Area (MSA) 

means a geographic entity defined by 

OMB for use by Federal statistical 

agencies in collecting, tabulating, and 

publishing Federal statistics. A metro 

area contains a core urban area of 50,000 

or more population, and a micro area 

contains an urban core of at least 10,000 

(but fewer than 50,000) population. 

Each metro or micro area consists of one 

or more counties and includes the 

counties containing the core urban area, 

as well as any adjacent counties that 

have a high degree of social and 

economic integration (as measured by 

commuting to work) with the urban 

core. 

National Prevailing Wage Center 

(NPWC) means that office within OFLC 


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from which employers, agents, or 

attorneys who wish to file an 

Application for Temporary Employment 

Certification receive a prevailing wage 

determination. 

NPWC Director means the OFLC 

official to whom the Administrator, 

OFLC has delegated authority to carry 

out certain NPWC operations and 

functions. 

National Processing Center (NPC) 

means the office within OFLC which is 

charged with the adjudication of an 

Application for Temporary Employment 

Certification or other applications. For 

purposes of this subpart, the NPC 

receiving a request for an H–2B 

Registration and an Application for 

Temporary Employment Certification 

will be the Chicago NPC whose address 

is published in the Federal Register. 

NPC Director means the OFLC official 

to whom the Administrator, OFLC has 

delegated authority for purposes of 

certain Chicago NPC operations and 

functions. 

Non-agricultural labor and services 

means any labor or services not 

considered to be agricultural labor or 

services as defined in subpart B of this 

part. It does not include the provision 

of services as members of the medical 

profession by graduates of medical 

schools. 

Occupational employment statistics 

(OES) survey means the program under 

the jurisdiction of the BLS that provides 

annual wage estimates for occupations 

at the State and MSA levels. 

Offered wage means the wage that 

equals or exceeds the highest of the 

prevailing wage or Federal, State, or 

local minimum wage. 

Office of Foreign Labor Certification 

(OFLC) means the organizational 

component of the ETA that provides 

national leadership and policy guidance 

and develops regulations to carry out 

the Secretary’s responsibilities for the 

admission of foreign workers to the U.S. 

to perform work described in 8 U.S.C. 

1101(a)(15)(H)(ii)(b). 

Prevailing wage determination (PWD) 

means the prevailing wage for the 

position, as described in § 655.12, that 

is the subject of the Application for 

Temporary Employment Certification. 

Professional athlete is defined in 8 

U.S.C. 1182(a)(5)(A)(iii)(II), and means 

an individual who is employed as an 

athlete by: 

(1) A team that is a member of an 

association of six or more professional 

sports teams whose total combined 

revenues exceed $10,000,000 per year, if 

the association governs the conduct of 

its members and regulates the contests 

and exhibitions in which its member 

teams regularly engage; or 

(2) Any minor league team that is 

affiliated with such an association. 

Secretary means the Secretary of 

Labor, the chief official of the U.S. 

Department of Labor, or the Secretary’s 

designee. 

Secretary of Homeland Security 

means the chief official of the U.S. 

Department of Homeland Security or the 

Secretary of Homeland Security’s 

designee. 

Secretary of State means the chief 

official of the U.S. Department of State 

or the Secretary of State’s designee. 

State Workforce Agency (SWA) means 

a State government agency that receives 

funds under the Wagner-Peyser Act (29 

U.S.C. 49 et seq.) to administer the 

State’s public labor exchange activities. 

Strike means a concerted stoppage of 

work by employees as a result of a labor 

dispute, or any concerted slowdown or 

other concerted interruption of 

operation (including stoppage by reason 

of the expiration of a collective 

bargaining agreement). 

Successor in interest means 

(1) Where an employer has violated 

29 CFR part 503, or this subpart, and 

has ceased doing business or cannot be 

located for purposes of enforcement, a 

successor in interest to that employer 

may be held liable for the duties and 

obligations of the violating employer in 

certain circumstances. The following 

factors, as used under Title VII of the 

Civil Rights Act and the Vietnam Era 

Veterans’ Readjustment Assistance Act, 

may be considered in determining 

whether an employer is a successor in 

interest; no one factor is dispositive, but 

all of the circumstances will be 

considered as a whole: 

(i) Substantial continuity of the same 

business operations; 

(ii) Use of the same facilities; 

(iii) Continuity of the work force; 

(iv) Similarity of jobs and working 

conditions; 

(v) Similarity of supervisory 

personnel; 

(vi) Whether the former management 

or owner retains a direct or indirect 

interest in the new enterprise; 

(vii) Similarity in machinery, 

equipment, and production methods; 

(viii) Similarity of products and 

services; and 

(ix) The ability of the predecessor to 

provide relief. 

(2) For purposes of debarment only, 

the primary consideration will be the 

personal involvement of the firm’s 

ownership, management, supervisors, 

and others associated with the firm in 

the violation(s) at issue. 

United States (U.S.) means the 

continental U.S., Alaska, Hawaii, the 

Commonwealth of Puerto Rico, and the 

territories of Guam, the U.S. Virgin 

Islands, and the Commonwealth of the 

Northern Mariana Islands (CNMI). 

United States Citizenship and 

Immigration Services (USCIS) means the 

Federal agency within DHS that makes 

the determination under the INA 

whether to grant petitions filed by 

employers seeking H–2B workers to 

perform temporary nonagricultural work 

in the U.S. 

United States worker (U.S. worker) 

means a worker who is: 

(1) A citizen or national of the U.S.; 

(2) An alien who is lawfully admitted 

for permanent residence in the U.S., is 

admitted as a refugee under 8 U.S.C. 

1157, is granted asylum under 8 U.S.C. 

1158, or is an immigrant otherwise 

authorized (by the INA or by DHS) to be 

employed in the U.S.; or 

(3) An individual who is not an 

unauthorized alien (as defined in 8 

U.S.C. 1324a(h)(3)) with respect to the 

employment in which the worker is 

engaging. 

Wage and Hour Division (WHD) 

means the agency within the 

Department with investigatory and law 

enforcement authority, as delegated 

from DHS, to carry out the provisions 

under 8 U.S.C. 1184(c). 

Wages mean all forms of cash 

remuneration to a worker by an 

employer in payment for personal 

services. 

§ 655.6 Temporary need. 

(a) An employer seeking certification 

under this subpart must establish that 

its need for nonagricultural services or 

labor is temporary, regardless of 

whether the underlying job is 

permanent or temporary. 8 CFR 

214.2(h)(6)(ii)(A). The need of a job 

contractor is inherently permanent in 

nature and the CO will deny a request 

for an H–2B Registration or an 

Application for Temporary Employment 

Certification where the employer is a job 

contractor. 

(b) The employer’s need is considered 

temporary if justified to the CO as one 

of the following: a one-time occurrence; 

a seasonal need; a peakload need; or an 

intermittent need, as defined by DHS. 8 

CFR 214.2(h)(6)(ii)(B). Except where the 

employer’s need is based on a one-time 

occurrence, the CO will deny a request 

for an H–2B Registration or an 

Application for Temporary Employment 

Certification where the employer has a 

need lasting more than 9 months. 

3. In subpart A, add §§ 655.7 through 

655.9 to read as follows: 


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Subpart A—Labor Certification 

Process for Temporary NonAgricultural Employment in the United 

States (H–2B Workers) 

* * * * * 

Sec. 

655.7 Persons and entities authorized to 

file. 

655.8 Requirements for agents. 

655.9 Disclosure of foreign worker 

recruitment. 

* * * * * 

§ 655.7 Persons and entities authorized to 

file. 

(a) Persons authorized to file. In 

addition to the employer applicant, a 

request for an H–2B Registration or an 

Application for Temporary Employment 

Certification may be filed by an attorney 

or agent, as defined under § 655.5. 

(b) Employer’s signature required. 

Regardless of whether the employer is 

represented by an attorney or agent, the 

employer is required to sign the H–2B 

Registration and Application for 

Temporary Employment Certification 

and all documentation submitted to the 

Department. 

§ 655.8 Requirements for agents. 

An agent filing an Application for 

Temporary Employment Certification on 

behalf of an employer must provide: 

(a) A copy of the agent agreement or 

other document demonstrating the 

agent’s authority to represent the 

employer; and 

(b) A copy of the Migrant and 

Seasonal Agricultural Worker Protection 

Act (MSPA) Farm Labor Contractor 

Certificate of Registration, if the agent is 

required under MSPA, at 29 U.S.C. 1801 

et seq., to have such a certificate, 

identifying the specific farm labor 

contracting activities the agent is 

authorized to perform. 

§ 655.9 Disclosure of foreign worker 

recruitment. 

(a) The employer, and its attorney or 

agent, as applicable, must provide a 

copy of all agreements with any agent or 

recruiter whom it engages or plans to 

engage in the international recruitment 

of H–2B workers under this Application 

for Temporary Employment 

Certification. 

(b) The Department will maintain a 

publicly available list of agents and 

recruiters who are party to such 

agreements. 

4a. In subpart A add an undesignated 

center heading before § 655.10 to read as 

follows: 

Prefiling Procedures 

4b. In § 655.10, revise paragraphs (a) 

and (c) through (g), and add paragraphs 

(h) and (i) to read as follows: 

§ 655.10 Prevailing wage. 

(a) Offered wage. The employer must 

advertise the position to all potential 

workers at a wage at least equal to the 

prevailing wage obtained from the 

NPWC, or the Federal, State or local 

minimum wage, whichever is highest. 

The employer must offer and pay this 

wage (or higher) to both its H–2B 

workers and its workers in 

corresponding employment. The 

issuance of a PWD under this section 

does not permit an employer to pay a 

wage lower than the highest wage 

required by any applicable Federal, 

State or local law. 

* * * * * 

(c) Request for PWD. (1) The employer 

must request a PWD from the NPWC 

before filing the job order with the 

SWA. 

(2) The PWD must be valid on the 

date the posting of the job order begins. 

(d) Multiple worksites. If the job 

opportunity involves multiple worksites 

within an area of intended employment 

and different prevailing wage rates exist 

for the opportunity within the area of 

intended employment, the prevailing 

wage is the highest applicable wage 

among all the worksites. The provisions 

of this paragraph do not apply to 

occupations that are covered under 

special procedures. 

(e) NPWC action. The NPWC will 

provide the PWD, indicate the source, 

and return the form with its 

endorsement to the employer. 

(f) Validity period. The NPWC must 

specify the validity period of the 

prevailing wage, which in no event may 

be more than 365 days and no less than 

90 days from the date that the 

determination is issued. 

(g) Professional athletes. In computing 

the prevailing wage for a professional 

athlete when the job opportunity is 

covered by professional sports league 

rules or regulations, the wage set forth 

in those rules or regulations is 

considered the prevailing wage. See 8 

U.S.C. 1182(p)(2). 

(h) Retention of documentation. The 

employer must retain the PWD for 3 

years from the date of issuance or the 

date of a final determination on the 

Application, whichever is later, and 

submit it to a CO if requested by a 

Notice of Deficiency, described in 

§ 655.31, or audit, as described in 

§ 655.70, or to a WHD representative 

during a WHD investigation. 

(i) Guam. The requirements of this 

paragraph shall apply to any request 

filed for an H–2B job opportunity on 

Guam. 

5. Revise § 655.11 to read as follows: 

§ 655.11 Registration of H–2B employers. 

All employers that desire to hire H– 

2B workers must establish their need for 

services or labor is temporary by filing 

an H–2B Registration with the NPC. 

(a) Registration filing. An employer 

must file an H–2B Registration. The H– 

2B Registration must be accompanied by 

documentation evidencing: 

(1) The number of positions that will 

be sought in the first year of registration; 

(2) The time period of need for the 

workers requested; and 

(3) That the nature of the employer’s 

need for the services or labor to be 

performed is non-agricultural and 

temporary, and is justified as either a 

one-time occurrence, a seasonal need, a 

peakload need, or an intermittent need, 

as defined at 8 CFR 214.2(h)(6)(ii)(B) 

and § 655.6. 

(b) Original signature. The H–2B 

Registration must bear the original 

signature of the employer (and that of 

the employer’s attorney or agent if 

applicable). 

(c) Timeliness of registration filing. A 

completed request for an H–2B 

Registration must be received by no less 

than 120 calendar days and no more 

than 150 calendar days before the 

employer’s date of need. 

(d) Temporary need. (1) The employer 

must establish that its need for 

nonagricultural services or labor is 

temporary, regardless of whether the 

underlying job is permanent or 

temporary. 8 CFR 214.2(h)(6)(ii)(A). 

(2) The employer’s need will be 

assessed in accordance with the 

definitions provided by the Secretary of 

DHS and as further defined in § 655.6. 

(e) NPC review. The CO will review 

the H–2B Registration and its 

accompanying documentation for 

completeness and make a determination 

based on the following factors: 

(1) The job classification and duties 

qualify as nonagricultural; 

(2) The employer’s need for the 

services or labor to be performed is 

temporary in nature; 

(3) The number of worker positions 

and period of need are justified; and 

(4) The request represents a bona fide 

job opportunity. 

(f) Mailing and postmark 

requirements. Any notice or request 

pertaining to H–2B Registration sent by 

the CO to an employer requiring a 

response will be mailed using the 

provided address using methods to 

assure next day delivery, including 

electronic mail. The employer’s 

response to such a notice or request 

must be mailed using methods to assure 

next day delivery, including electronic 

mail, and be sent by the due date 

specified by the CO or by the next 


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business day if the due date falls on a 

Saturday, Sunday or Federal holiday. 

(g) Request for information (RFI). If 

the CO determines the H–2B 

Registration cannot be approved, the CO 

will issue an RFI. Normally the RFI will 

be issued within 7 business days of the 

CO’s receipt of the H–2B Registration. 

The RFI will: 

(1) State the reason(s) why the H–2B 

Registration cannot be approved and 

what supplemental information or 

documentation is needed to correct the 

deficiencies; 

(2) Specify a date, no later than 7 

business days from the date the RFI is 

issued, by which the supplemental 

information or documentation must be 

sent by the employer; 

(3) State that, upon receipt of a 

response to the RFI, the CO will review 

the H–2B Registration as well as any 

supplemental information and 

documentation and issue a Notice of 

Decision on the H–2B Registration. The 

CO may, at her discretion, issue one or 

more additional RFIs before issuing a 

Notice of Decision on the H–2B 

Registration; and 

(4) State that failure to comply with 

an RFI, including not responding in a 

timely manner or not providing all 

required documentation within the 

specified timeframe, will result in a 

denial of the H–2B Registration. 

(h) Notice of Decision. The CO will 

notify the employer in writing of the 

final decision on the H–2B Registration. 

(1) Approved H–2B Registration. If the 

H–2B Registration is approved, the CO 

will send a Notice of Decision to the 

employer, and a copy to the employer’s 

attorney or agent, if applicable. The 

Notice of Decision will notify the 

employer that it is eligible to seek H–2B 

workers in the occupational 

classification for the anticipated number 

of positions and period of need stated 

on the approved H–2B Registration. The 

CO may approve the H–2B Registration 

for a period of up to 3 consecutive years. 

(2) Denied H–2B Registration. If the 

H–2B Registration is denied, the CO will 

send a Notice of Decision to the 

employer, and a copy to the employer’s 

attorney or agent, if applicable. The 

Notice of Decision will: 

(i) State the reason(s) why the H–2B 

Registration is denied; 

(ii) Offer the employer an opportunity 

to request administrative review under 

§ 655.61; and 

(iii) State that if the employer does 

not request administrative review in 

writing within 10 business days from 

the date the Notice of Decision is issued, 

the denial is final and the Department 

will not further consider the H–2B 

Registration. 

(i) Retention of documents. All 

employers filing an H–2B Registration 

are required to retain any documents 

and records not otherwise submitted 

proving compliance with this subpart. 

Such records and documents must be 

retained for a period of 3 years from the 

final date of applicability of the H–2B 

Registration, if approved, or 3 years 

from the date the decision is issued if 

the H–2B Registration is denied or 3 

years from the day the Department 

receives written notification from the 

employer withdrawing its pending H– 

2B Registration. 

6. In subpart A, add §§ 655.12 and 

655.13 to read as follows: 

§ 655.12 Use of registration of H–2B 

employers. 

(a) Upon approval of the H–2B 

Registration, the employer is authorized 

for the specified period of up to 3 

consecutive years from the date the H– 

2B Registration is approved to file an 

Application for Temporary Employment 

Certification, unless: 

(1) The number of workers to be 

employed has increased by more than 

20 percent (or 50 percent for employers 

requesting fewer than 10 workers) from 

the initial year; 

(2) The beginning or ending date of 

need for the job opportunity has 

changed by more than 14 days from the 

initial year; 

(3) The nature of the job classification 

and/or duties has materially changed; or 

(4) The temporary nature of the 

employer’s need for services or labor to 

be performed has materially changed. 

(b) If any of the changes in paragraphs 

(a)(1) through (4) of this section apply, 

the employer must file a new H–2B 

Registration in accordance with 

§ 655.11. 

§ 655.13 Review of PWDs. 

(a) Request for review of PWDs. Any 

employer desiring review of a PWD 

must make a written request for such 

review to the NPWC Director within 7 

business days from the date the PWD is 

issued. The request for review must 

clearly identify the PWD for which 

review is sought; set forth the particular 

grounds for the request; and include any 

materials submitted to the NPWC for 

purposes of securing the PWD. 

(b) NPWC review. Upon the receipt of 

the written request for review, the 

NPWC Director will review the 

employer’s request and accompanying 

documentation, including any 

supplementary material submitted by 

the employer, and after review may: 

(1) Affirm the PWD issued by the 

NPWC; or 

(2) Modify the PWD. 

(c) Request for review by BALCA. Any 

employer desiring review of the NPWC 

Director’s decision on a PWD must 

make a written request for review of the 

determination by BALCA within 10 

business days from the date the Final 

Determination letter is issued. 

(1) The request for review, statements, 

briefs, and other submissions of the 

parties and amicus curiae must contain 

only legal arguments and only the 

evidence that was within the record 

upon which the decision on the PWD 

was based. 

(2) The request for BALCA review 

must be in writing and addressed to the 

NPWC Director who made the final 

determination. Upon receipt of a request 

for BALCA review, the NPWC will 

prepare an appeal file and submit it to 

BALCA. 

(3) BALCA will handle appeals in 

accordance with § 655.61. 

7. In subpart A, add an undesignated 

center heading above § 655.15 to read as 

follows: 

Application for Temporary 

Employment Certification Filing 

Procedures 

8. Revise § 655.15 to read as follows: 

§ 655.15 Application filing requirements. 

All registered employers that desire to 

hire H–2B workers must file an 

Application for Temporary Employment 

Certification with the NPC designated 

by the Administrator, OFLC. Except for 

employers that qualify for emergency 

procedures at § 655.17, employers that 

fail to register under the procedures in 

§ 655.11 and/or that fail to submit a 

PWD obtained under § 655.10 will not 

be eligible to file an Application for 

Temporary Employment Certification 

and their applications will be returned 

without review. 

(a) What to file. A registered employer 

seeking H–2B workers must file a 

completed Application for Temporary 

Employment Certification (Form ETA 

9142 and the appropriate appendices 

and valid PWD), a copy of the job order 

being submitted concurrently to the 

SWA serving the area of intended 

employment, as set forth in § 655.16, 

and copies of all contracts and 

agreements with any agent or recruiter 

executed in connection with the job 

opportunities, as specified in § 655.9. 

(b) Timeliness. A completed 

Application for Temporary Employment 

Certification must be filed no more than 

90 calendar days and no less than 75 

calendar days before the employer’s 

date of need. 

(c) Location and method of filing. The 

employer must submit the Application 

for Temporary Employment 


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Certification and all required supporting 

documentation by U.S. Mail or private 

mail courier to the NPC. The 

Department may also require an 

Application for Temporary Employment 

Certification, at a future date, to be filed 

electronically in addition to or instead 

of by mail, notice of which will be 

published in the Federal Register. 

(d) Original signature. The 

Application for Temporary Employment 

Certification must bear the original 

signature of the employer (and that of 

the employer’s authorized attorney or 

agent if the employer is so represented). 

(e) Requests for multiple positions. 

Certification of more than one position 

may be requested on the Application for 

Temporary Employment Certification as 

long as all H–2B workers will perform 

the same services or labor under the 

same terms and conditions, in the same 

occupation, in the same area of intended 

employment, and during the same 

period of employment. 

(f) Separate applications. Except as 

otherwise permitted under § 655.4, a 

separate Application for Temporary 

Employment Certification must be filed 

for worksite(s) within one area of 

intended employment for each job 

opportunity with an employer for each 

period of employment. Except where 

otherwise permitted under § 655.4, an 

association or other organization of 

employers is not permitted to file master 

applications on behalf of its employermembers under the H–2B program. 

(g) One-time occurrence. Where a onetime occurrence lasts longer than 1 year, 

the CO will instruct the employer on 

any additional requirements with 

respect to the continuing validity of the 

labor market test or offered wage 

obligation. 

(h) Information dissemination. 

Information received in the course of 

processing a request for an H–2B 

Registration, an Application for 

Temporary Employment Certification or 

program integrity measures such as 

audits may be forwarded from OFLC to 

WHD, or any other Federal agency as 

appropriate, for investigative and/or 

enforcement purposes. 

9. Add § 655.16 to read as follows: 

§ 655.16 Filing of the job order at the SWA. 

(a) Submission of the job order. (1) 

The employer must submit the job order 

to the SWA serving the area of intended 

employment at the same time it submits 

the Application for Temporary 

Employment Certification and a copy of 

the job order to the NPC in accordance 

with § 655.15. If the job opportunity is 

located in more than one State within 

the same area of intended employment, 

the employer may submit the job order 

to any one of the SWAs having 

jurisdiction over the anticipated 

worksites, but must identify the 

receiving SWA on the copy of the job 

order submitted to the NPC with its 

Application for Temporary Employment 

Certification. The employer must inform 

the SWA that the job order is being 

placed in connection with a 

concurrently submitted Application for 

Temporary Employment Certification 

for H–2B workers. 

(2) The job order submitted to the 

SWA must satisfy the requirements set 

forth in § 655.18. 

(b) SWA review of the job order. The 

SWA must review the job order and 

ensure that it complies with criteria set 

forth in § 655.18. If the SWA determines 

that the job order does not comply with 

the applicable criteria, the SWA must 

inform the CO at the NPC of the noted 

deficiencies within 4 business days of 

receipt of the job order. 

(c) Intrastate and interstate clearance. 

Upon receipt of the Notice of 

Acceptance, the SWA must promptly 

place the job order in intrastate and 

interstate clearance. 

(d) Duration of job order posting and 

SWA referral of U.S. workers. Upon 

receipt of the Notice of Acceptance, any 

SWA in receipt of the employer’s job 

order must keep the job order on its 

active file until the end of the 

recruitment period, as set forth in 

§ 655.40(c), and must refer to the 

employer in a manner consistent with 

§ 655.47 all U.S. workers who apply for 

the job opportunity or on whose behalf 

a job application is made. 

(e) Amendments to a job order. The 

employer may amend the job order at 

any time before the CO makes a final 

determination, in accordance with 

procedures set forth in § 655.35. 

10. Revise § 655.17 to read as follows: 

§ 655.17 Emergency situations. 

(a) Waiver of time period. The CO may 

waive the time period(s) for filing an 

H–2B Registration and/or an 

Application for Temporary Employment 

Certification for employers that have 

good and substantial cause, provided 

that the CO has sufficient time to 

thoroughly test the domestic labor 

market on an expedited basis and to 

make a final determination as required 

by § 655.50. 

(b) Employer requirements. The 

employer requesting a waiver of the 

required time period(s) must submit to 

the NPC a request for a waiver of the 

time period requirement, a completed 

Application for Temporary Employment 

Certification and the job order 

identifying the SWA serving the area of 

intended employment, and must 

otherwise meet the requirements of 

§ 655.15. If the employer did not 

previously apply for an H–2B 

Registration, the employer must also 

submit a completed H–2B Registration 

with all supporting documentation, as 

required by § 655.11. If the employer 

did not previously apply for a PWD, the 

employer must also submit a completed 

PWD request. The employer’s waiver 

request must include detailed 

information describing the good and 

substantial cause that has necessitated 

the waiver request. Good and 

substantial cause may include, but is 

not limited to, the substantial loss of 

U.S. workers due to Acts of God, 

unforeseen changes in market 

conditions, or pandemic health issues. 

A denial of a previously submitted 

H–2B Registration in accordance with 

the procedures set forth in § 655.11 does 

not constitute good and substantial 

cause necessitating a waiver under this 

section. 

(c) Processing of emergency 

applications. The CO will process the 

emergency H–2B Registration and/or 

Application for Temporary Employment 

Certification and job order in a manner 

consistent with the provisions of this 

subpart and make a determination on 

the Application for Temporary 

Employment Certification in accordance 

with § 655.50. If the CO grants the 

waiver request, the CO will forward a 

Notice of Acceptance and the approved 

job order to the SWA serving the area 

of intended employment identified by 

the employer in the job order. If the CO 

determines that the certification cannot 

be granted because, under paragraph (a) 

of this section, the request for 

emergency filing is not justified and/or 

there is not sufficient time to make a 

determination of temporary need or 

ensure compliance with the criteria for 

certification contained in § 655.51, the 

CO will send a Final Determination 

letter to the employer in accordance 

with § 655.53. 

11. Add § 655.18 to read as follows: 

§ 655.18 Contents of the job order. 

An employer must ensure that the job 

order contains the information about the 

job opportunity as required for the 

advertisements required in § 655.41 and 

the following assurances: 

(a) Prohibition against preferential 

treatment. The employer’s job order 

must offer to U.S. workers no less than 

the same benefits, wages, and working 

conditions that the employer is offering, 

intends to offer, or will provide to 

H–2B workers. Job offers may not 

impose on U.S. workers any restrictions 

or obligations that will not be imposed 

on the employer’s H–2B workers. This 


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does not relieve the employer from 

providing to H–2B workers at least the 

minimum benefits, wages, and working 

conditions which must be offered to 

U.S. workers consistent with this 

section. 

(b) Bona fide job requirements. Each 

job qualification and requirement listed 

in the job order must be bona fide and 

consistent with the normal and accepted 

qualifications and requirements 

imposed by non-H–2B employers in the 

same occupation and area of intended 

employment. The employer’s job 

qualifications and requirements 

imposed on U.S. workers must be no 

less favorable than the qualifications 

and requirements that the employer is 

imposing or will impose on H–2B 

workers. 

(c) Minimum benefits, wages, and 

working conditions. Every job order 

accompanying an Application for 

Temporary Employment Certification 

must include each of the minimum 

benefit, wage, and working condition 

provisions listed in paragraphs (d) 

through (k) of this section. 

(d) Rate of pay. The wage listed in the 

job order must equal or exceed the 

highest of the prevailing wage or the 

Federal, State, or local minimum wage. 

(e) Frequency of pay. The employer 

must state in the job order the frequency 

with which the worker will be paid, 

which must be at least every 2 weeks or 

according to the prevailing practice in 

the area of intended employment, 

whichever is more frequent. 

(f) Deductions. The job order must 

specify that the employer will make all 

deductions from the worker’s paycheck 

required by law. The job order must 

specify all deductions not required by 

law which the employer will make from 

the worker’s paycheck. 

(g) Job opportunity is full-time. The 

job order must clearly state that the job 

opportunity is a full-time temporary 

position, calculated to be at least 35 

hours per workweek, and that the 

employer will use a single workweek as 

its standard for computing wages due. 

(h) Three-fourths guarantee. The job 

order must clearly state the applicability 

of the three-fourths guarantee, offering 

the worker employment for a total 

number of work hours equal to at least 

three-fourths of the workdays of each 4- 

week period in accordance with 

§ 655.20(f). 

(i) Transportation and visa fees. 

(1) The job order must detail how the 

worker will be provided with 

transportation and subsistence from the 

place from which the worker has come 

to work for the employer, whether in the 

U.S. or abroad, to the place of 

employment, consistent with 

§ 655.20(j)(1)(i), and that the employer 

will provide or pay for the worker’s cost 

of return transportation and daily 

subsistence from the place of 

employment to the place from which 

the worker, disregarding intervening 

employment, departed to work for the 

employer, consistent with 

§ 655.20(j)(1)(ii). If applicable, the job 

order must state that the employer will 

provide the daily transportation to and 

from the worksite. 

(2) The job order must state that the 

employer will reimburse the worker in 

the first workweek for all visa, visa 

processing, border crossing, and other 

related fees including those mandated 

by the government incurred by the 

H–2B worker (but not for passport 

expenses or other charges primarily for 

the benefit of the worker). 

(j) Employer-provided items. The job 

order must specify that the employer 

must provide to the worker, without 

charge or deposit charge, all tools, 

supplies, and equipment required to 

perform the duties assigned, in 

accordance with § 655.20(k). 

(k) Board, lodging, or facilities. If the 

employer provides the worker with the 

option of board, lodging, or other 

facilities or intends to assist workers to 

secure such lodging, such provision of 

board, lodging, or other facilities must 

be listed in the job order. If the 

employer intends to make any wage 

deductions related to such provision of 

board, lodging or other facilities, they 

must be disclosed in the job order. 

12. In subpart A, add an undesignated 

center heading before § 655.20 to read as 

follows: 

Assurances and Obligations 

13. Revise § 655.20 to read as follows: 

§ 655.20 Assurances and obligations of 

H–2B employers. 

An employer employing H–2B 

workers and/or workers in 

corresponding employment under an 

Application for Temporary Employment 

Certification has agreed as part of the 

Application for Temporary Employment 

Certification that it will abide by the 

following conditions: 

(a) Rate of pay. (1) The offered wage 

set forth in the job order equals or 

exceeds the highest of the prevailing 

wage or Federal minimum wage, State 

minimum wage, or local minimum 

wage. The employer must pay at least 

the offered wage, free and clear, during 

the entire period of the Application for 

Temporary Employment Certification 

accepted by OFLC. 

(2) The offered wage is not based on 

commissions, bonuses, or other 

incentives, including paying on a piecerate basis, unless the employer 

guarantees a wage earned every 

workweek that equals or exceeds the 

offered wage. 

(3) If the employer requires one or 

more minimum productivity standards 

of workers as a condition of job 

retention, the standards must be 

specified in the job order and must be 

normal and usual for non-H–2B 

employers for the same occupation in 

the area of intended employment. 

(4) An employer that pays on a piecerate basis must pay a piece rate that is 

no less than the normal rate for workers 

performing the same activity in the area 

of intended employment. The average 

hourly piece-rate earnings must result in 

an amount at least equal to the offered 

wage. If the worker is paid on a piece 

rate basis and at the end of the 

workweek the piece-rate does not result 

in average hourly piece-rate earnings 

during the workweek at least equal to 

the amount the worker would have 

earned had the worker been paid at the 

offered hourly rate, then the employer 

must supplement the worker’s pay at 

that time so that the worker’s earnings 

are at least as much as the worker would 

have earned during the workweek if the 

worker had instead been paid at the 

offered hourly wage rate for each hour 

worked. 

(b) Wages free and clear. The payment 

requirements for wages in this section 

will be satisfied by the timely payment 

of such wages to the worker either in 

cash or negotiable instrument payable at 

par. The payment must be made finally 

and unconditionally and ‘‘free and 

clear.’’ The principles applied in 

determining whether deductions are 

reasonable and payments are received 

free and clear and the permissibility of 

deductions for payments to third 

persons are explained in more detail in 

29 CFR part 531. 

(c) Deductions. The employer must 

make all deductions from the worker’s 

paycheck required by law. The job order 

must specify all deductions not required 

by law which the employer will make 

from the worker’s pay. Deductions not 

disclosed in the job order are 

prohibited. The wage payment 

requirements of paragraph (b) of this 

section are not met where unauthorized 

deductions, rebates, or refunds reduce 

the wage payment made to the worker 

below the minimum amounts required 

by the offered wage or where the worker 

fails to receive such amounts free and 

clear because the worker ‘‘kicks back’’ 

directly or indirectly to the employer or 

to another person for the employer’s 

benefit the whole or part of the wages 

delivered to the worker. Authorized 

deductions are limited to: Those 


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required by law, such as taxes payable 

by workers that are required to be 

withheld by the employer and amounts 

due workers which the employer is 

required by court order to pay to 

another; deductions for the reasonable 

cost or fair value of board, lodging, and 

facilities furnished; and deductions of 

amounts which are authorized to be 

paid to third persons for the worker’s 

account and benefit through his or her 

voluntary assignment or order or which 

are authorized by a collective bargaining 

agreement with bona fide 

representatives of workers which covers 

the employer. Deductions for amounts 

paid to third persons for the worker’s 

account and benefit which are not so 

authorized or are contrary to law or 

from which the employer, agent or 

recruiter, including any agents or 

workers, or any affiliated person derives 

any payment, rebate, commission, 

profit, or benefit directly or indirectly, 

may not be made if they reduce the 

actual wage paid to the worker below 

the offered wage indicated on the 

Application for Temporary Employment 

Certification. 

(d) Job opportunity is full time. The 

job opportunity is a full-time temporary 

position, calculated to be at least 35 

hours per workweek, and the employer 

will use a single workweek as its 

standard for computing wages due. An 

employee’s workweek will be a fixed 

and regularly recurring period of 168 

hours—seven consecutive 24-hour 

periods. It need not coincide with the 

calendar week but may begin on any 

day and at any hour of the day. 

(e) Job qualifications and 

requirements. Each job qualification and 

requirement listed in the job order must 

be bona fide and consistent with the 

normal and accepted qualifications and 

requirements imposed by non-H–2B 

employers in the same occupation and 

area of intended employment. The CO 

may require the employer to submit 

documentation to substantiate the 

appropriateness of any job qualification 

specified in the job order. 

(f) Three-fourths guarantee. (1) The 

employer must guarantee to offer the 

worker employment for a total number 

of work hours equal to at least threefourths of the workdays in each 4-week 

period beginning with the first workday 

after the arrival of the worker at the 

place of employment or the advertised 

first date of need, whichever is later, 

and ending on the expiration date 

specified in the job order or in its 

extensions, if any. 

(2) For purposes of this paragraph a 

workday means the number of hours in 

a workday as stated in the job order. The 

employer must offer a total number of 

hours of work to ensure the provision of 

sufficient work to reach the threefourths guarantee in each 4-week period 

during the work period specified in the 

job order, or during any modified job 

order period to which the worker and 

employer have mutually agreed and that 

has been approved by the CO. 

(3) In the event the worker begins 

working later than the specified 

beginning date the guarantee period 

begins with the first workday after the 

arrival of the worker at the place of 

employment, and continues until the 

last day during which the job order and 

all extensions thereof are in effect. 

(4) The 4-week periods to which the 

guarantee applies are based upon the 

workweek used by the employer for pay 

purposes. The first 4-week period also 

includes any partial workweek, if the 

first workday after the worker’s arrival 

at the place of employment is not the 

beginning of the employer’s workweek, 

with the guaranteed number of hours 

increased on a pro rata basis (thus, the 

first period may include up to 4 weeks 

and 6 days). The final 4-week period 

includes any time remaining after the 

last full 4-week period ends, and thus 

may be as short as 1 day, with the 

guaranteed number of hours decreased 

on a pro rata basis. 

(5) Therefore, if, for example, a job 

order is for a 10-week period, during 

which a normal workweek is specified 

as 5 days a week, 8 hours per day, the 

worker would have to be guaranteed 

employment for at least 120 hours (4 

weeks × 40 hours/week = 160 hours × 

75 percent = 120) in the first 4-week 

period, at least 120 hours in the second 

4-week period, and at least 60 hours (2 

weeks × 40 hours/week = 80 hours × 75 

percent = 60) in the final partial period. 

(6) If the worker is paid on a piece rate 

basis, the employer must use the 

worker’s average hourly piece rate 

earnings or the required hourly wage 

rate, whichever is higher, to calculate 

the amount due under the guarantee. 

(7) A worker may be offered more 

than the specified hours of work on a 

single workday. For purposes of meeting 

the guarantee, however, the worker will 

not be required to work for more than 

the number of hours specified in the job 

order for a workday. The employer, 

however, may count all hours actually 

worked in calculating whether the 

guarantee has been met. If during any 4- 

week period during the period of the job 

order the employer affords the U.S. or 

H–2B worker less employment than that 

required under paragraph (f)(1) of this 

section, the employer must pay such 

worker the amount the worker would 

have earned had the worker, in fact, 

worked for the guaranteed number of 

days. An employer has not met the work 

guarantee if the employer has merely 

offered work on three-fourths of the 

workdays in a 4-week period if each 

workday did not consist of a full 

number of hours of work time as 

specified in the job order. 

(8) Any hours the worker fails to 

work, up to a maximum of the number 

of hours specified in the job order for a 

workday, when the worker has been 

offered an opportunity to work in 

accordance with paragraph (f)(1) of this 

section, and all hours of work actually 

performed (including voluntary work 

over 8 hours in a workday), may be 

counted by the employer in calculating 

whether each 4-week period of 

guaranteed employment has been met. 

An employer seeking to calculate 

whether the guaranteed number of 

hours has been met must maintain the 

payroll records in accordance with this 

part. 

(g) Impossibility of fulfillment. If, 

before the expiration date specified in 

the job order, the services of the worker 

are no longer required for reasons 

beyond the control of the employer due 

to fire, weather, or other Act of God that 

makes the fulfillment of the job order 

impossible, the employer may terminate 

the job order with the approval of the 

CO. In the event of such termination of 

a job order, the employer must fulfill a 

three-fourths guarantee, as described in 

paragraph (f) of this section, for the time 

that has elapsed from the start date 

listed in the job order or the first 

workday after the arrival of the worker 

at the place of employment, whichever 

is later, to the time of its termination. 

The employer must make efforts to 

transfer the H–2B worker or worker in 

corresponding employment to other 

comparable employment acceptable to 

the worker and consistent with the INA, 

as applicable. If a transfer is not 

effected, the employer must return the 

worker, at the employer’s expense, to 

the place from which the worker 

(disregarding intervening employment) 

came to work for the employer, or 

transport the worker to the worker’s 

next certified H–2B employer, 

whichever the worker prefers. 

(h) Frequency of pay. The employer 

must state in the job order the frequency 

with which the worker will be paid, 

which must be at least every 2 weeks or 

according to the prevailing practice in 

the area of intended employment, 

whichever is more frequent. Employers 

must pay wages when due. 

(i) Earnings statements. (1) The 

employer must keep accurate and 

adequate records with respect to the 

workers’ earnings, including but not 

limited to: Records showing the nature 


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and amount of the work performed; the 

number of hours of work offered each 

day by the employer (broken out by 

hours offered both in accordance with 

and over and above the three-fourths 

guarantee in paragraph (f) of this 

section); the hours actually worked each 

day by the worker; the time the worker 

began and ended each workday; the rate 

of pay (both piece rate and hourly, if 

applicable); the worker’s earnings per 

pay period; the worker’s home address; 

and the amount of and reasons for any 

and all deductions taken from the 

worker’s wages. 

(2) The employer must furnish to the 

worker on or before each payday in one 

or more written statements the 

following information: 

(i) The worker’s total earnings for 

each workweek in the pay period; 

(ii) The worker’s hourly rate and/or 

piece rate of pay; 

(iii) For each workweek in the pay 

period the hours of employment offered 

to the worker (showing offers in 

accordance with the three-fourths 

guarantee as determined in paragraph (f) 

of this section, separate from any hours 

offered over and above the guarantee); 

(iv) For each workweek in the pay 

period the hours actually worked by the 

worker; 

(v) An itemization of all deductions 

made from the worker’s wages; 

(vi) If piece rates are used, the units 

produced daily; 

(vii) The beginning and ending dates 

of the pay period; and 

(viii) The employer’s name, address 

and FEIN. 

(j) Transportation and visa fees. (1)(i) 

Transportation to the place of 

employment. The employer must 

provide the worker transportation and 

subsistence from the place from which 

the worker has come to work for the 

employer, whether in the U.S. or 

abroad, to the place of employment. The 

employer may arrange and pay for the 

transportation and subsistence directly, 

advance the reasonable cost of the 

transportation and subsistence to the 

worker before the worker’s departure, or 

pay the worker in the first workweek for 

the reasonable costs incurred by the 

worker. When it is the prevailing 

practice of non-H–2B employers in the 

occupation in the area to do so or when 

the employer extends such benefits to 

similarly situated H–2B workers, the 

employer must advance the required 

transportation and subsistence costs (or 

otherwise provide them) to workers in 

corresponding employment who are 

traveling to the employer’s worksite. 

The amount of the transportation 

payment must be no less (and is not 

required to be more) than the most 

economical and reasonable common 

carrier transportation charges for the 

distances involved. The amount of the 

daily subsistence must be at least the 

amount permitted in § 655.173. 

(ii) Transportation from the place of 

employment. If the worker has no 

immediate subsequent H–2B 

employment, the employer must 

provide or pay at the time of departure 

for the worker’s cost of return 

transportation and daily subsistence 

from the place of employment to the 

place from which the worker, 

disregarding intervening employment, 

departed to work for the employer. If the 

worker has contracted with a 

subsequent employer that has not 

agreed in the job order to provide or pay 

for the worker’s transportation from the 

employer’s worksite to such subsequent 

employer’s worksite, the employer must 

provide or pay for that transportation 

and subsistence. If the worker has 

contracted with a subsequent employer 

that has agreed in the job order to 

provide or pay for the worker’s 

transportation from the employer’s 

worksite to such subsequent employer’s 

worksite, the subsequent employer must 

provide or pay for such expenses. 

(iii) Employer-provided 

transportation. All employer-provided 

transportation must comply with all 

applicable Federal, State, or local laws 

and regulations and must provide, at a 

minimum, the same vehicle safety 

standards, driver licensure 

requirements, and vehicle insurance as 

required under 49 CFR parts 390, 393, 

and 396. 

(iv) Disclosure. All transportation and 

subsistence costs that the employer will 

pay must be disclosed in the job order. 

(2) The employer must pay or 

reimburse the worker in the first 

workweek for all visa, visa processing, 

border crossing, and other related fees 

including those mandated by the 

government-incurred by the H–2B 

worker, but not for passport expenses or 

other charges primarily for the benefit of 

the worker. 

(k) Employer-provided items. The 

employer must provide to the worker, 

without charge or deposit charge, all 

tools, supplies, and equipment required 

to perform the duties assigned. 

(l) Disclosure of job order. The 

employer must provide to an H–2B 

worker if outside of the United States no 

later than the time at which the worker 

applies for the visa, or to a worker in 

corresponding employment no later 

than on the day work commences, a 

copy of the job order including any 

subsequent modifications. For an H–2B 

worker changing employment from an 

H–2B employer to a subsequent H–2B 

employer, the copy must be provided no 

later than the time an offer of 

employment is made by the subsequent 

H–2B employer. The disclosure of all 

documents required by this paragraph 

must be provided in a language 

understood by the worker, as necessary 

or reasonable. 

(m) Notice of worker rights. The 

employer must post and maintain in a 

conspicuous location at the place of 

employment a poster provided by the 

Department which sets out the rights 

and protections for H–2B workers and 

workers in corresponding employment. 

The employer must post the poster in 

English. To the extent necessary, the 

employer must request and post 

additional posters, as made available by 

the Department, in any language 

common to a significant portion of the 

workers if they are not fluent in English. 

(n) No unfair treatment. The employer 

has not and will not intimidate, 

threaten, restrain, coerce, blacklist, 

discharge or in any manner discriminate 

against, and has not and will not cause 

any person to intimidate, threaten, 

restrain, coerce, blacklist, or in any 

manner discriminate against, any person 

who has: 

(1) Filed a complaint under or related 

to 8 U.S.C. 1184(c), 29 CFR part 503, or 

this Subpart, or any other Department 

regulation promulgated thereunder; 

(2) Instituted or caused to be 

instituted any proceeding under or 

related to 8 U.S.C. 1184(c), 29 CFR part 

503, or this Subpart or any other 

Department regulation promulgated 

thereunder; 

(3) Testified or is about to testify in 

any proceeding under or related to 8 

U.S.C. 1184(c), 29 CFR part 503, or this 

Subpart or any other Department 

regulation promulgated thereunder; 

(4) Consulted with an employee of a 

legal assistance program or an attorney 

on matters related to 8 U.S.C. 1184(c), 

29 CFR part 503, or this Subpart or any 

other Department regulation 

promulgated thereunder; or 

(5) Exercised or asserted on behalf of 

himself/herself or others any right or 

protection afforded by 8 U.S.C. 1184(c), 

29 CFR part 503, or this Subpart or any 

other Department regulation 

promulgated thereunder. 

(o) Comply with the prohibitions 

against employees paying fees. The 

employer and its attorney, agents, or 

employees have not sought or received 

payment of any kind from the worker 

for any activity related to obtaining H– 

2B employment certification or 

employment, including payment of the 

employer’s attorney or agent fees, visa 

or other application and H–2B Petition 

fees, recruitment costs, or any fees 


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15186 Federal Register / Vol. 76, No. 53 / Friday, March 18, 2011 / Proposed Rules 

falsely attributed to obtaining the 

approved Application for Temporary 

Employment Certification. For purposes 

of this paragraph, payment includes, but 

is not limited to, monetary payments, 

wage concessions (including deductions 

from wages, salary, or benefits), 

kickbacks, bribes, tributes, in kind 

payments, and free labor. All wages 

must be paid free and clear. This 

provision does not prohibit employers 

or their agents from receiving 

reimbursement for costs that are the 

responsibility and primarily for the 

benefit of the worker, such as 

government-required passport fees. 

(p) Contracts with third parties to 

comply with prohibitions. The employer 

must contractually prohibit in writing 

any agent or recruiter (or any agent or 

employee of such agent or recruiter) 

whom the employer engages, either 

directly or indirectly, in international 

recruitment of H–2B workers to seek or 

receive payments or other compensation 

from prospective workers. This 

documentation must be made available 

upon request by the CO or another 

Federal party. 

(q) Prohibition against preferential 

treatment of foreign workers. The 

employer’s job offer must offer to U.S. 

workers no less than the same benefits, 

wages, and working conditions that the 

employer is offering, intends to offer, or 

will provide to H–2B workers. Job offers 

may not impose on U.S. workers any 

restrictions or obligations that will not 

be imposed on the employer’s H–2B 

workers. This does not relieve the 

employer from providing to H–2B 

workers at least the minimum benefits, 

wages, and working conditions which 

must be offered to U.S. workers 

consistent with this section. 

(r) Non-discriminatory hiring 

practices. The job opportunity is, and 

through the period set forth in 

paragraph (t) of this section must 

continue to be, open to any qualified 

U.S. worker regardless of race, color, 

national origin, age, sex, religion, 

disability, or citizenship. Rejections of 

any U.S. workers who applied or apply 

for the job must only be for lawful, jobrelated reasons, and those not rejected 

on this basis have been or will be hired. 

In addition, the employer has and will 

continue to retain records of all hired 

workers and rejected applicants as 

required by § 655.56. 

(s) Recruitment requirements. The 

employer must conduct all required 

recruitment activities, including any 

additional employer-conducted 

recruitment activities as determined by 

the CO, and as specified in §§ 655.40– 

.46. 

(t) Continuing requirement to hire 

U.S. workers. The employer has and 

will continue to cooperate with the 

SWA by accepting referrals of all 

eligible U.S. workers who apply (or on 

whose behalf a job application is made) 

for the job opportunity, and must 

provide employment to any qualified, 

eligible U.S. worker who applies to the 

employer for the job opportunity, until 

the later of the date the last H–2B 

worker departs for the job opportunity 

or 3 days before the date of need. If the 

last H–2B worker has not departed by 3 

days before the date of need, the 

employer is required to immediately 

inform the SWA in writing and notify 

the SWA of the new departure date as 

soon as available. 

(u) No strike or lockout. There is no 

strike or lockout at the worksite for 

which the employer is requesting H–2B 

certification at the time the Application 

for Temporary Employment 

Certification is filed. 

(v) No recent or future layoffs. The 

employer has not laid off and will not 

lay off any similarly employed U.S. 

worker in the occupation that is the 

subject of the Application for 

Temporary Employment Certification in 

the area of intended employment within 

the period beginning 120 calendar days 

before the date of need through the end 

of the period of certification. A layoff for 

lawful, job-related reasons such as lack 

of work or the end of a season is 

permissible if all H–2B workers are laid 

off before any U.S. worker in 

corresponding employment. 

(w) Contact with former U.S. 

employees. The employer will contact 

by mail or other effective means all of 

its former U.S. workers (except those 

who were dismissed for cause or who 

abandoned the worksite) employed by 

the employer in the occupation at the 

place of employment during the 

previous year, disclose the terms of the 

job order, and solicit their return to the 

job. This includes, but is not limited to, 

those former U.S. workers who have 

been laid off within a period of 120 days 

before the date of need. 

(x) Area of intended employment and 

job opportunity. The employer will not 

place any H–2B workers employed 

under the approved Application for 

Temporary Employment Certification 

outside the area of intended 

employment or in a job opportunity not 

listed on the approved Application for 

Temporary Employment Certification 

unless the employer has obtained a new 

approved Application for Temporary 

Employment Certification. 

(y) Abandonment/termination of 

employment. Upon the separation from 

employment of H–2B worker(s) 

employed under the Application for 

Temporary Employment Certification or 

workers in corresponding employment, 

if such separation occurs before the end 

date of the employment specified in the 

Application for Temporary Employment 

Certification, the employer must notify 

OFLC in writing of the separation from 

employment not later than 2 work days 

after such separation is discovered by 

the employer. In addition, the employer 

must notify DHS in writing (or any other 

method specified by DHS in the Federal 

Register or Code of Federal Regulations) 

of such separation of an H–2B worker. 

An abandonment or abscondment is 

deemed to begin after a worker fails to 

report for work at the regularly 

scheduled time for 5 consecutive 

working days without the consent of the 

employer. If the separation is due to the 

voluntary abandonment of employment 

by the H–2B worker or worker in 

corresponding employment, and the 

employer provides appropriate 

notification specified under this 

paragraph, the employer will not be 

responsible for providing or paying for 

the subsequent transportation and 

subsistence expenses of that worker 

under this section, and that worker is 

not entitled to the three-fourths 

guarantee described in paragraph (f) of 

this section. The employer’s obligation 

to guarantee three-fourths of the work 

described in paragraph (f) ends with the 

last full 4-week period preceding the 

worker’s voluntary abandonment or 

termination for cause. 

(z) Compliance with applicable laws. 

During the period of employment that is 

the subject of the Application for 

Temporary Employment Certification, 

the employer must comply with all 

applicable Federal, State and local 

employment-related laws and 

regulations, including health and safety 

laws. In compliance with such laws, 

including the William Wilberforce 

Trafficking Victims Protection 

Reauthorization Act of 2008, 18 U.S.C. 

1592(a), the employer may not hold or 

confiscate workers’ passports, visas, or 

other immigration documents. 

§§ 655.21–655.24 [Reserved] 

13. Remove and reserve §§ 655.21– 

655.24. 

14. In subpart A, add an undesignated 

center heading before § 655.30 to read as 

follows: 

Processing of an Application for 

Temporary Employment Certification 

15. In subpart A, revise §§ 655.30 

through 655.35 to read as follows: 


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Federal Register / Vol. 76, No. 53 / Friday, March 18, 2011 / Proposed Rules 15187 

Subpart A—Labor Certification 

Process for Temporary NonAgricultural Employment in the United 

States (H–2B Workers) 

* * * * * 

Sec. 

655.30 Processing of an application and job 

order. 

655.31 Notice of deficiency. 

655.32 Submission of a modified 

application or job order. 

655.33 Notice of acceptance. 

655.34 Electronic job registry. 

655.35 Amendments to an application or 

job order. 

* * * * * 

§ 655.30 Processing of an application and 

job order. 

(a) NPC review. The CO will promptly 

review the Application for Temporary 

Employment Certification and job order 

for compliance with all applicable 

program requirements. 

(b) Mailing and postmark 

requirements. Any notice or request sent 

by the CO to an employer requiring a 

response will be mailed to the address 

provided in the Application for 

Temporary Employment Certification 

using methods to assure next day 

delivery, including electronic mail. The 

employer’s response to such a notice or 

request must be mailed using methods 

to assure next day delivery, including 

electronic mail, and be sent by the due 

date or the next business day if the due 

date falls on a Saturday, Sunday or 

Federal holiday. 

(c) Information dissemination. OFLC 

may forward information received in the 

course of processing Applications for 

Temporary Employment Certification 

and program integrity measures to 

WHD, or any other Federal agency, as 

appropriate, for investigation and/or 

enforcement purposes. 

§ 655.31 Notice of deficiency. 

(a) Notification timeline. If the CO 

determines the Application for 

Temporary Employment Certification 

and/or job order is incomplete, contains 

errors or inaccuracies, or does not meet 

the requirements set forth in this 

subpart, the CO will notify the employer 

within 7 business days from the CO’s 

receipt of the Application for 

Temporary Employment Certification. If 

applicable, the Notice of Deficiency will 

include job order deficiencies identified 

by the SWA under § 655.16. The CO 

will send a copy of the Notice of 

Deficiency to the SWA serving the area 

of intended employment identified by 

the employer on its job order, and if 

applicable, to the employer’s attorney or 

agent. 

(b) Notice content. The notice will: 

(1) State the reason(s) why the 

Application for Temporary Employment 

Certification or job order fails to meet 

the criteria for acceptance; 

(2) Offer the employer an opportunity 

to submit a modified Application for 

Temporary Employment Certification or 

job order within 10 business days from 

the date of the Notice of Deficiency. The 

Notice will state the modification 

needed for the CO to issue a Notice of 

Acceptance; 

(3) Offer the employer an opportunity 

to request administrative review of the 

Notice of Deficiency before an ALJ 

under provisions set forth in § 655.61. 

The notice will inform the employer 

that it must submit a written request for 

review to the Chief ALJ of DOL within 

10 business days from the date the 

Notice of Deficiency is issued by 

facsimile or other means normally 

assuring next day delivery and 

simultaneously serve a copy on the CO. 

The notice will also state that the 

employer may submit any legal 

arguments that the employer believes 

will rebut the basis of the CO’s action; 

and 

(4) State that if the employer does not 

comply with the requirements of this 

section by either submitting a modified 

application within 10 business days or 

requesting administrative review before 

an ALJ under § 655.61, the CO will deny 

the Application for Temporary 

Employment Certification. The notice 

will inform the employer that the denial 

of the Application for Temporary 

Employment Certification is final, and 

cannot be appealed. The Department 

will not further consider that 

Application for Temporary Employment 

Certification. 

§ 655.32 Submission of a modified 

application or job order. 

(a) Review of a modified Application 

for Temporary Employment 

Certification or job order. Upon receipt 

of a response to a Notice of Deficiency, 

including any modifications, the CO 

will review the response. The CO may, 

at her discretion, issue one or more 

additional Notices of Deficiency before 

issuing a Notice of Decision. The 

employer’s failure to comply with a 

Notice of Deficiency, including not 

responding in a timely manner or not 

providing all required documentation, 

will result in a denial of the 

Application. 

(b) Acceptance of a modified 

Application for Temporary Employment 

Certification or job order. If the CO 

accepts the modification(s) to the 

Application for Temporary Employment 

Certification and/or job order, the CO 

will issue a Notice of Acceptance. The 

CO will send a copy of the Notice of 

Acceptance to the SWA instructing it to 

make any necessary modifications to the 

not yet posted job order and, if 

applicable, to the employer’s attorney or 

agent and follow the procedure set forth 

in § 655.33. 

(c) Denial of a modified Application 

for Temporary Employment 

Certification or job order. If the CO does 

not accept the modification(s) to the 

Application for Temporary Employment 

Certification and/or job order, the CO 

will deny the Application for 

Temporary Employment Certification in 

accordance with the labor certification 

determination provisions in § 655.50. 

(d) Appeal from denial of a modified 

Application for Temporary Employment 

Certification or job order. The 

procedures for appealing a denial of a 

modified Application for Temporary 

Employment Certification and/or job 

order are the same as for appealing the 

denial of a non-modified Application 

for Temporary Employment 

Certification outlined in § 655.61. 

(e) Post acceptance modifications. 

The CO may require modifications to 

the job order at any time before the final 

determination to grant or deny the 

Application for Temporary Employment 

Certification if the CO determines that 

the offer of employment does not 

contain all the minimum benefits, 

wages, and working condition 

provisions as set forth in § 655.20. Such 

modifications must be made by the 

employer or certification will be denied 

under § 655.53. The employer must 

provide all workers recruited in 

connection with the job opportunity in 

the Application for Temporary 

Employment Certification with a copy of 

the modified job order as approved by 

the CO. 

§ 655.33 Notice of acceptance. 

(a) Notification timeline. If the CO 

determines the Application for 

Temporary Employment Certification 

and job order are complete and meet the 

requirements of this subpart, the CO 

will notify the employer in writing 

within 7 business days from the date the 

CO received the Application for 

Temporary Employment Certification 

and job order or modification thereof. A 

copy of the Notice of Acceptance will be 

sent to the SWA serving the area of 

intended employment identified by the 

employer on its job order and, if 

applicable, to the employer’s attorney or 

agent. 

(b) Notice content. The notice will: 

(1) Direct the employer to engage in 

recruitment of U.S. workers as provided 

in §§ 655.40–655.47, including any 


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additional recruitment ordered by the 

CO under § 655.46; 

(2) State that such employerconducted recruitment is in addition to 

the job order being circulated by the 

SWA(s) and that the employer must 

conduct recruitment within 14 calendar 

days from the date the Notice of 

Acceptance is issued, consistent with 

§ 655.40; 

(3) Advise the employer that it must 

inform the SWA with which the 

employer has placed its job order in 

writing if the last H–2B worker has not 

departed for the place of employment by 

the third day preceding the employer’s 

date of need, and that the employer 

must advise the SWA when the last H– 

2B worker has departed; 

(4) Direct the SWA to place the job 

order into intra and interstate clearance 

as set forth in § 655.16 and to commence 

such clearance by: 

(i) Sending a copy of the job order to 

other States listed as anticipated 

worksites in the Application for 

Temporary Employment Certification 

and job order, if applicable; and 

(ii) Sending a copy of the job order to 

the SWAs for all States designated by 

the CO for interstate clearance; 

(5) Instruct the SWA to keep the 

approved job order on its active file 

until the end of the recruitment period 

as defined in § 655.40(c), and to 

transmit the same instruction to other 

SWAs to which it circulates the job 

order in the course of interstate 

clearance; 

(6) Where the occupation or industry 

is traditionally or customarily 

unionized, direct the SWA to circulate 

a copy of the job order to the following 

labor organizations; 

(i) The central office of the State 

Federation of Labor in the State(s) in 

which work will be performed; and 

(ii) The office(s) of local union(s) 

representing employees in the same or 

substantially equivalent job 

classification in the area(s) in which 

work will be performed; 

(7) Advise the employer, as 

appropriate, that it must contact the 

appropriate community-based 

organization with notice of the job 

opportunity; and 

(8) Require the employer to submit a 

report of its recruitment efforts as 

specified in § 655.48. 

§ 655.34 Electronic job registry. 

(a) Location of and placement in the 

electronic job registry. Upon acceptance 

of the Application for Temporary 

Employment Certification under 

§ 655.33, the CO will promptly place for 

public examination a copy of the job 

order posted by the SWA on the 

Department’s electronic job registry, 

including any amendments or required 

modifications approved by the CO. 

(b) Length of posting on electronic job 

registry. The Department will keep the 

job order posted on the electronic job 

registry until the end of the recruitment 

period, as set forth in § 655.40(c). 

(c) Conclusion of active posting. Once 

the recruitment period has concluded, 

the SWA will inform the CO and the job 

order will be placed in inactive status 

on the electronic job registry. 

§ 655.35 Amendments to an application or 

job order. 

The Application for Temporary 

Employment Certification and/or job 

order may be amended by the employer 

before the CO makes a final 

determination to grant or deny the 

Application for Temporary Employment 

Certification. All U.S. workers hired 

under the original job order must be 

immediately provided copies of any 

approved amendments. 

(a) Increases in number of workers. 

The employer may request to increase 

the number of workers noted in the 

initial Application for Temporary 

Employment Certification and listed on 

its job order by no more than 20 percent 

(50 percent for employers requesting 

fewer than 10 workers). All requests for 

increasing the number of workers must 

be made in writing and will not be 

effective until approved by the CO. 

Upon acceptance of an amendment, the 

CO will submit to the SWA any 

necessary changes to the job order and 

update the electronic job registry. 

(b) Minor changes to the period of 

employment. The employer may request 

minor changes to the total period of 

employment listed on its initial 

Application for Temporary Employment 

Certification and job order, for a period 

of up to 14 days, but the period of 

employment may not exceed a total of 

9 months, except in the event of a onetime occurrence. All requests for minor 

changes to the total period of 

employment must be made in writing 

and will not be effective until approved 

by the CO. Upon acceptance of an 

amendment, the CO will submit to the 

SWA any necessary changes to the job 

order and update the electronic job 

registry. 

(c) Other amendments to the 

Application for Temporary Employment 

Certification and job order. The 

employer may request other 

amendments to the Application for 

Temporary Employment Certification 

and job order. All such requests must be 

made in writing and will not be 

effective until approved by the CO. In 

considering whether to approve the 

request, the CO will determine whether 

the proposed amendment(s) are 

sufficiently justified and must take into 

account the effect of the changes on the 

underlying labor market test for the job 

opportunity. Upon acceptance of an 

amendment, the CO will submit to the 

SWA any necessary changes to the job 

order and update the electronic job 

registry. 

(d) Amendments after certification. 

The employer may not request an 

amendment to an Application for 

Temporary Employment Certification or 

job order and the CO may not amend an 

Application for Temporary Employment 

Certification after the CO has made a 

final determination to grant or deny the 

Application for Temporary Employment 

Certification. 

§§ 655.36–655.39 [Reserved] 

16. Add reserved §§ 655.36–655.39. 

17. Add an undesignated center 

heading and §§ 655.40 through 655.48 to 

read as follows: 

Subpart A—Labor Certification 

Process for Temporary NonAgricultural Employment in the United 

States (H–2B Workers) 

* * * * * 

Sec. 

Post-Acceptance Requirements 

655.40 Employer-conducted recruitment. 

655.41 Advertising requirements. 

655.42 Newspaper advertisements. 

655.43 Contact with former U.S. employees. 

655.44 Contact with labor organizations. 

655.45 Contact with bargaining 

representative and posting and other 

contact requirements. 

655.46 Additional employer-conducted 

recruitment. 

655.47 Referrals of U.S. workers. 

655.48 Recruitment report. 

* * * * * 

Post-Acceptance Requirements 

§ 655.40 Employer-conducted recruitment. 

(a) Employer obligations. Employers 

must conduct recruitment of U.S. 

workers to ensure that there are not 

qualified workers who will be available 

for the positions listed in the 

Application for Temporary Employment 

Certification. 

(b) Employer-conducted recruitment 

period. Unless otherwise instructed by 

the CO, the employer must conduct the 

recruitment described in §§ 655.41— 

655.47 within 14 calendar days from the 

date the Notice of Acceptance is issued. 

All employer-conducted recruitment 

must be completed before the employer 

submits the recruitment report as 

required in § 655.48. 

(c) U.S. worker referrals. Employers 

must continue to accept referrals of all 


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U.S. applicants interested in the 

position until the later of the date the 

last H–2B worker departs for the job 

opportunity or 3 days before the date of 

need. If the last H–2B worker has not 

departed by 3 days before the date of 

need, the employer is required to 

immediately inform the SWA in writing 

and notify the SWA of the new 

departure date as soon as available. 

(d) Interviewing U.S. workers. 

Employers that wish to require 

interviews must conduct those 

interviews by phone or provide a 

procedure for the interviews to be 

conducted in the location where the 

worker is being recruited so that the 

worker incurs little or no cost. 

Employers cannot provide potential H– 

2B workers with more favorable 

treatment with respect to the 

requirement for, and conduct of, 

interviews. 

(e) Qualified and available U.S. 

workers. The employer must consider 

all U.S. applicants for the job 

opportunity. The employer must accept 

and hire any applicants who are 

qualified and who will be available. 

(f) Recruitment report. The employer 

must prepare a recruitment report that 

lists all applicants and whether they 

were accepted or rejected. This report 

must include all reasons why an 

applicant was rejected in accordance 

with § 655.48. 

§ 655.41 Advertising requirements. 

(a) All recruitment conducted under 

§ 655.40 must meet the requirements set 

forth in this section and must contain 

terms and conditions of employment 

that are not less favorable than those 

offered to the H–2B workers and reflect, 

at a minimum, those contained in the 

job order. 

(b) In addition to those terms and 

conditions contained in the job order, 

all advertising must contain the 

following information: 

(1) The employer’s name and 

appropriate SWA contact information 

for applicants to inquire about the job 

opportunity or to send applications, 

indications of availability, and/or 

resumes directly to the SWA; 

(2) The geographic area of intended 

employment with enough specificity to 

apprise applicants of any travel 

requirements and where applicants will 

likely have to reside to perform the 

services or labor; 

(3) A description of the job 

opportunity for which certification is 

sought with sufficient information to 

apprise U.S. workers of the services or 

labor to be performed, including the 

duties, the minimum education and 

experience requirements, the work 

hours and days, and the anticipated 

start and end dates of the job 

opportunity; 

(4) A statement that the position is 

temporary and a statement of the total 

number of job openings the employer 

intends to fill; 

(5) If applicable, a statement that 

overtime will be available to the worker 

and the wage offer(s) for working any 

overtime hours; 

(6) If applicable, a statement 

indicating that on-the-job training will 

be provided to the worker; 

(7) The wage offer, or in the event that 

there are multiple wage offers (such as 

where an itinerary is authorized through 

special procedures for an employer), the 

range of applicable wage offers; 

(8) A statement that transportation 

and subsistence from the place where 

the worker has come to work for the 

employer to the place of employment 

will be provided; 

(9) If applicable, a statement that work 

tools, supplies, and equipment will be 

provided to the worker without charge; 

(10) If applicable, a statement that 

daily transportation to and from the 

worksite will be provided by the 

employer; 

(11) A statement summarizing the 

three-fourths guarantee as required by 

§ 655.20(f); and 

(12) A statement directing applicants 

to apply for the job opportunity at the 

nearest office of the SWA in the State in 

which the advertisement appeared. 

§ 655.42 Newspaper advertisements. 

(a) The employer must place an 

advertisement (in a language other than 

English, where the CO determines 

appropriate) on 2 separate days, which 

may be consecutive, one of which must 

be a Sunday (except as provided in 

paragraph (b) of this section), in a 

newspaper of general circulation serving 

the area of intended employment and 

appropriate to the occupation and the 

workers likely to apply for the job 

opportunity. 

(b) If the job opportunity is located in 

a rural area that does not have a 

newspaper with a Sunday edition, the 

CO may direct the employer, in place of 

a Sunday edition, to advertise in the 

regularly published daily edition with 

the widest circulation in the area of 

intended employment. 

(c) The newspaper advertisements 

must satisfy the requirements in 

§ 655.41. 

(d) The employer must maintain 

copies of newspaper pages (with date of 

publication and full copy of the 

advertisement), or tear sheets of the 

pages of the publication in which the 

advertisements appeared, or other proof 

of publication furnished by the 

newspaper containing the text of the 

printed advertisements and the dates of 

publication, consistent with the 

document retention requirements in 

§ 655.56. 

§ 655.43 Contact with former U.S. 

employees. 

The employer must contact by mail or 

other effective means, its former U.S. 

workers including those who have been 

laid off within 120 calendar days before 

the date of need (except those who were 

dismissed for cause or who abandoned 

the worksite) employed by the employer 

in the occupation at the place of 

employment during the previous year, 

disclose the terms of the job order, and 

solicit their return to the job. The 

employer must maintain documentation 

sufficient to prove such contact in 

accordance with § 655.56. 

§ 655.44 Contact with labor organizations. 

Where the occupation or industry is 

customarily unionized, the employer 

must contact the local union in writing 

to seek U.S. workers who are qualified 

and who will be available. The 

employer must maintain documentation 

in accordance with § 655.56 

demonstrating that such organization(s) 

were contacted and whether the 

organization(s) referred qualified U.S. 

workers, including the number of 

referrals, or were non-responsive to the 

employer’s requests. 

§ 655.45 Contact with bargaining 

representative and posting and other 

contact requirements. 

(a) If there is a bargaining 

representative for any of the employer’s 

employees in the occupation and area of 

intended employment, the employer 

must provide written notice of the job 

opportunity, by providing a copy of the 

Application for Temporary Employment 

Certification and the job order, and 

maintain documentation that it was sent 

to the bargaining representative(s). An 

employer governed by this paragraph 

must include information in its 

recruitment report that confirms that the 

bargaining representative(s) was 

contacted and notified of the position 

openings and whether the organization 

referred qualified U.S. worker(s), 

including the number of referrals, or 

was non-responsive to the employer’s 

requests. 

(b) If there is no bargaining 

representative, the employer must post 

the availability of the job opportunity in 

at least 2 conspicuous locations at the 

place(s) of anticipated employment or in 

some other manner that provides 

reasonable notification to all employees 

in the job classification and area in 


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which the work will be performed by 

the H–2B workers. The notice must 

meet the requirements under § 655.41 

and be posted for at least 10 consecutive 

business days. The employer must 

maintain a copy of the posted notice 

and identify where and when it was 

posted in accordance with § 655.56. 

(c) If appropriate to the occupation 

and area of intended employment, as 

indicated by the CO in the Notice of 

Acceptance, the employer must provide 

written notice of the job opportunity to 

a community-based organization, and 

maintain documentation that it was sent 

to the designated community-based 

organization. An employer governed by 

this paragraph must include information 

in its recruitment report that confirms 

that the community-based organization 

was contacted and notified of the 

position openings and whether the 

organization referred qualified U.S. 

worker(s), including the number of 

referrals, or was non-responsive to the 

employer’s requests. 

§ 655.46 Additional employer-conducted 

recruitment. 

(a) Requirement to conduct additional 

recruitment. The employer may be 

instructed by the CO to conduct 

additional recruitment. Such 

recruitment may be required at the 

discretion of the CO where the CO has 

determined that there may be U.S. 

workers who are qualified and who will 

be available for the work, including but 

not limited to where the job opportunity 

is located in an area of substantial 

unemployment. 

(b) Nature of the additional employerconducted recruitment. The CO will 

describe the precise number and nature 

of the additional recruitment efforts. 

Additional recruitment may include, 

but will not be limited to, posting on the 

employer’s Web site or another Web 

site, contact with community-based 

organizations, contact with State OneStop Career Centers, and other print 

advertising, such as using a 

professional, trade or ethnic publication 

where such a publication is appropriate 

for the occupation and the workers 

likely to apply for the job opportunity. 

(c) Proof of the additional employerconducted recruitment. The CO will 

specify the documentation or other 

supporting evidence that must be 

maintained by the employer as proof 

that the additional recruitment 

requirements were met. Documentation 

must be maintained as required in 

§ 655.56. 

§ 655.47 Referrals of U.S. workers. 

SWAs may only refer for employment 

individuals who have been apprised of 

all the material terms and conditions of 

employment and have indicated, by 

accepting referral to the job opportunity 

that they are qualified and will be 

available for employment. 

§ 655.48 Recruitment report. 

(a) Requirements of the recruitment 

report. The employer must prepare, 

sign, and date a written recruitment 

report. The recruitment report must be 

mailed by a date specified by the CO in 

the Notice of Acceptance and contain 

the following information: 

(1) The name of each recruitment 

activity or source (e.g., job order and the 

name of the newspaper); 

(2) The name and contact information 

of each U.S. worker who applied or was 

referred to the job opportunity up to the 

date of the preparation of the 

recruitment report, and the disposition 

of each worker’s application. The 

employer must clearly indicate whether 

the job opportunity was offered to the 

U.S. worker and whether the U.S. 

worker accepted or declined; 

(3) Confirmation that former U.S. 

employees were contacted, if applicable, 

and by what means; 

(4) Confirmation that labor 

organizations were contacted, if 

applicable, and by what means. Such 

documentation must demonstrate that 

the organization was contacted and 

notified of the job openings and whether 

the organization referred qualified U.S. 

worker(s), including the number of 

referrals, or was non-responsive to the 

employer’s requests; 

(5) Confirmation that the bargaining 

representative was contacted, if 

applicable, and by what means or that 

the employer posted the availability of 

the job opportunity to all employees; 

(6) Confirmation that the communitybased organization designated by the CO 

was contacted, if applicable; 

(7) If applicable, confirmation that 

additional recruitment was conducted 

as directed by the CO; and 

(8) If applicable, for each U.S. worker 

who applied for the position but was 

not hired, the lawful job-related 

reason(s) for not hiring the U.S. worker. 

(b) Duty to update recruitment report. 

The employer must continue to update 

the recruitment report throughout the 

recruitment period. The updated report 

need not be submitted to the 

Department, but must be made available 

in the event of a post-certification audit 

or upon request by DOL. 

§ 655.49 [Reserved] 

18. Add reserved § 655.49. 

19. Add an undesignated center 

heading before § 655.50 to read as 

follows: 

Labor Certification Determinations 

20. Revise § 655.50 to read as follows: 

§ 655.50 Determinations. 

(a) Certifying Officers (COs). The 

Administrator, OFLC is the 

Department’s National CO. The 

Administrator, OFLC and the CO(s) by 

virtue of delegation from the 

Administrator, OFLC, have the authority 

to certify or deny Applications for 

Temporary Employment Certification 

under the H–2B nonimmigrant 

classification. If the Administrator, 

OFLC directs that certain types of 

temporary employment certification 

applications or a specific Application 

for Temporary Employment 

Certification under the H–2B 

nonimmigrant classification be handled 

by the OFLC’s National Office, the 

Director of the NPC will refer such 

applications to the Administrator, 

OFLC. 

(b) Determination. Except as 

otherwise provided in this paragraph, 

the CO will make a determination either 

to grant, partially grant, or deny the 

Application for Temporary Employment 

Certification. The CO will grant the 

application only if the employer has met 

all the requirements of this subpart, 

including the criteria for certification in 

§ 655.51, thus demonstrating that there 

is an insufficient number of U.S. 

workers who are qualified and who will 

be available for the job opportunity for 

which certification is sought and that 

the employment of the H–2B workers 

will not adversely affect the benefits, 

wages, and working conditions of 

similarly employed U.S. workers. 

21. In subpart A, add §§ 655.51 

through 655.56 to read as follows: 

Subpart A—Labor Certification 

Process for Temporary NonAgricultural Employment in the United 

States (H–2B Workers) 

* * * * * 

Sec. 

655.51 Criteria for certification. 

655.52 Approved certification. 

655.53 Denied certification. 

655.54 Partial certification. 

655.55 Validity of temporary employment 

certification. 

655.56 Document retention requirements of 

H–2B employers. 

* * * * * 

§ 655.51 Criteria for certification. 

(a) The criteria for certification 

include whether the employer has a 

valid H–2B Registration to participate in 

the H–2B program and has complied 

with all of the requirements of this 

program. 


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(b) In making a determination 

whether there are insufficient U.S. 

workers to fill the employer’s job 

opportunity, the CO will count as 

available any U.S. worker referred by 

the SWA or any U.S. worker who 

applied (or on whose behalf an 

application is made) directly to the 

employer, but who was rejected by the 

employer for other than a lawful jobrelated reason. 

(c) Certifications will not be granted 

to employers that have failed to comply 

with one or more sanctions or remedies 

imposed by final agency actions under 

the H–2B program. 

§ 655.52 Approved certification. 

If temporary employment certification 

is granted, the CO will send the 

approved Application for Temporary 

Employment Certification and a Final 

Determination letter to the employer by 

means normally assuring next day 

delivery, including electronic mail, and 

a copy, if appropriate, to the employer’s 

attorney or agent. 

§ 655.53 Denied certification. 

If temporary employment certification 

is denied, the CO will send the Final 

Determination letter to the employer by 

means normally assuring next day 

delivery and a copy, if appropriate, to 

the employer’s attorney or agent. The 

Final Determination letter will: 

(a) State the reason(s) certification is 

denied, citing the relevant regulatory 

standards and/or special procedures; 

(b) Offer the employer an opportunity 

to request administrative review of the 

denial under § 655.61; and 

(c) State that if the employer does not 

request administrative review in 

accordance with § 655.61, the denial is 

final and the Department will not 

further consider that Application for 

Temporary Employment Certification. 

§ 655.54 Partial certification. 

The CO may issue a partial 

certification, reducing either the period 

of need or the number of H–2B workers 

or both for certification, based upon 

information the CO receives during the 

course of processing the Application for 

Temporary Employment Certification. 

The number of workers certified will be 

reduced by one for each referred U.S. 

worker who is qualified and who will be 

available at the time and place needed 

and has not been rejected for lawful jobrelated reasons, to perform the services 

or labor. If a partial labor certification is 

issued, the CO will amend the 

Application for Temporary Employment 

Certification and then return it to the 

employer with a Final Determination 

letter, with a copy to the employer’s 

attorney or agent, if applicable. The 

Final Determination letter will: 

(a) State the reason(s) why either the 

period of need and/or the number of H– 

2B workers requested has been reduced, 

citing the relevant regulatory standards 

and/or special procedures; 

(b) If applicable, address the 

availability of U.S. workers in the 

occupation; 

(c) Offer the employer an opportunity 

to request administrative review of the 

partial certification under § 655.61; and 

(d) State that if the employer does not 

request administrative review in 

accordance with § 655.61, the partial 

certification is final and the Department 

will not further consider that 

Application for Temporary Employment 

Certification. 

§ 655.55 Validity of temporary employment 

certification. 

(a) Validity period. A temporary 

employment certification is valid only 

for the period of time between the 

beginning and ending dates of 

employment, as approved on the 

Application for Temporary Employment 

Certification. The certification expires 

on the last day of authorized 

employment. 

(b) Scope of validity. A temporary 

employment certification is valid only 

for the number of H–2B positions, the 

area of intended employment, the job 

classification and specific services or 

labor to be performed, and the employer 

specified on the approved Application 

for Temporary Employment 

Certification. The temporary 

employment certification may not be 

transferred from one employer to 

another unless the employer to which it 

is transferred is a successor in interest 

to the employer to which it was issued. 

§ 655.56 Document retention requirements 

of H–2B employers. 

(a) Entities required to retain 

documents. All employers filing an 

Application for Temporary Employment 

Certification requesting H–2B workers 

are required to retain the documents 

and records proving compliance with 

29 CFR part 503 and this subpart, 

including but not limited to those 

specified in paragraph (c) of this 

section. 

(b) Period of required retention. The 

employer must retain records and 

documents for 3 years from the date of 

certification of the Application for 

Temporary Employment Certification or 

from the date of adjudication if the 

Application for Temporary Employment 

Certification is denied or 3 years from 

the day the Department receives the 

letter of withdrawal provided in 

accordance with § 655.62. 

(c) Documents and records to be 

retained by all applicants. All 

employers filing an H–2B Registration 

and an Application for Temporary 

Employment Certification must retain 

the following documents and records 

and must provide the documents and 

records in the event of an audit or 

investigation: 

(1) Documents and records not 

previously submitted during the 

registration process that substantiate 

temporary need; 

(2) Proof of recruitment efforts, as 

applicable, including: 

(i) Job order placement as specified in 

§ 655.16; 

(ii) Advertising as specified in 

§§ 655.41 and 655.42; 

(iii) Contact with former U.S. workers 

as specified in § 655.43; 

(iv) Contact with labor organizations, 

if applicable, as specified in § 655.44; 

(v) Contact with bargaining 

representative(s), or copy of the posting 

of the job opportunity, if applicable, as 

specified in § 655.45(a) or (b); and 

(vi) Additional employer-conducted 

recruitment efforts as specified in 

§ 655.46; 

(3) Substantiation of the information 

submitted in the recruitment report 

prepared in accordance with § 655.48, 

such as evidence of nonapplicability of 

contact with former workers as specified 

in § 655.43; 

(4) The final recruitment report and 

any supporting resumes and contact 

information as specified in § 655.48; 

(5) Records of each worker’s earnings, 

hours offered and worked, and other 

information as specified in § 655.20(i); 

(6) Evidence of contact with U.S. 

workers who applied for the job 

opportunity in the Application for 

Temporary Employment Certification, 

including documents demonstrating 

that any rejections of U.S. workers were 

for lawful, job-related reasons, as 

specified in § 655.20(r); 

(7) Evidence of contact with any 

former U.S. worker in the occupation 

and the area of intended employment in 

the Application for Temporary 

Employment Certification, including 

documents demonstrating that the U.S. 

worker had been offered the job 

opportunity in the Application for 

Temporary Employment Certification, 

as specified § 655.20(w), and that the 

U.S. worker either refused the job 

opportunity or was rejected only for 

lawful, job-related reasons, as specified 

in § 655.20(r); 

(8) The written contracts with agents 

or recruiters, including the written 

contract prohibiting an agent or 

recruiter from receiving payments, as 

specified in § 655.20(p); 


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(9) Written notice provided to and 

informing OFLC that an H–2B worker or 

worker in corresponding employment 

has separated from employment before 

the end date of employment specified in 

the Application for Temporary 

Employment Certification, as specified 

in § 655.20(y); 

(10) The H–2B Registration, job order 

and a copy of the Application for 

Temporary Employment Certification; 

and 

(11) The H–2B Petition, including all 

accompanying documents. 

(d) Availability of documents for 

enforcement purposes. An employer 

must make available to the 

Administrator, OFLC within 72 hours 

following a request by the OFLC the 

documents and records required under 

29 CFR part 503 and this section so that 

the Administrator, OFLC may copy, 

transcribe, or inspect them. 

§§ 655.57—655.59 [Reserved] 

22. Add reserved §§ 655.57–655.59. 

23. Add an undesignated center 

heading before § 655.60 to read as 

follows: 

Post Certification Activities 

24. Revise § 655.60 to read as follows: 

§ 655.60 Extensions. 

An employer may apply for 

extensions of the period of employment 

in the following circumstances. 

Extensions are available only to 

employers whose approved period of 

employment, as listed on the 

Application for Temporary Employment 

Certification, does not exceed the 

maximum period of temporary need for 

a seasonal need, a peakload need, an 

intermittent need, or a one-time 

occurrence, in accordance with § 655.6, 

and DHS regulations at 8 CFR 

214.2(h)(6)(ii)(B). Such requests must be 

related to weather conditions or other 

factors beyond the control of the 

employer (which may include 

unforeseen changes in market 

conditions), and must be supported in 

writing, with documentation showing 

why the extension is needed and that 

the need could not have been 

reasonably foreseen by the employer. 

The CO will notify the employer of the 

decision in writing. The CO will not 

grant an extension where the total work 

period under that Application for 

Temporary Employment Certification 

and the authorized extension would 

exceed 9 months for employers whose 

temporary need is seasonal, peakload, or 

intermittent, or 3 years for employers 

that have a one-time occurrence of 

temporary need, except in extraordinary 

circumstances. The employer may 

appeal a denial of a request for an 

extension by following the procedures 

in § 655.61. The H–2B employer’s 

assurances and obligations under the 

temporary employment certification 

will continue to apply with respect to 

the workers recruited in connection 

with the Application for Temporary 

Employment Certification during the 

extended period of employment. For 

purposes of the assurances and 

obligations that are based on the 

workers’ partial or full completion of 

the work period specified in the job 

order, the employer must continue to 

meet its obligations based on the 

extended work period listed in the 

approved Application for Temporary 

Employment Certification. The 

employer must immediately provide to 

its workers a copy of any approved 

extension. 

25. In subpart A, add §§ 655.61 

through 655.63 to read as follows: 

Subpart A—Labor Certification 

Process for Temporary NonAgricultural Employment in the United 

States (H–2B Workers) 

* * * * * 

Sec. 

655.61 Administrative review. 

655.62 Withdrawal of an Application for 

Temporary Employment Certification. 

655.63 Public disclosure. 

* * * * * 

§ 655.61 Administrative review. 

(a) Request for review. Where 

authorized in this subpart, employers 

may request an administrative review 

before the BALCA of a determination by 

the CO. In such cases, the request for 

review: 

(1) Must be sent to the BALCA, with 

a copy simultaneously sent to the CO 

who denied the application, within 10 

business days from the date of 

determination; 

(2) Must clearly identify the particular 

determination for which review is 

sought; 

(3) Must set forth the particular 

grounds for the request; 

(4) Must include a copy of the CO’s 

determination; and 

(5) May contain only legal argument 

and such evidence as was actually 

submitted to the CO before the date the 

CO’s determination was issued. 

(b) Appeal file. Upon the receipt of a 

request for review, the CO will, within 

7 business days, assemble and submit 

the Appeal File using means to ensure 

same day or next day delivery, to the 

BALCA, the employer, and the 

Associate Solicitor for Employment and 

Training Legal Services, Office of the 

Solicitor, U.S. Department of Labor. 

(c) Briefing schedule. Within 7 

business days of receipt of the Appeal 

File, the counsel for the CO may submit, 

using means to ensure same day or next 

day delivery, a brief in support of the 

CO’s decision. 

(d) Assignment. The Chief 

Administrative Law Judge may 

designate a single member or a three 

member panel of the BALCA to consider 

a particular case. 

(e) Review. The BALCA must review 

the CO’s determination only on the 

basis of the Appeal File, the request for 

review, and any legal briefs submitted 

and must: 

(1) Affirm the CO’s determination; or 

(2) Reverse or modify the CO’s 

determination; or 

(3) Remand to the CO for further 

action. 

(f) Decision. The BALCA should 

notify the employer, the CO, and 

counsel for the CO of its decision within 

7 business days of the submission of the 

CO’s brief or 10 business days after 

receipt of the Appeal File, whichever is 

later, using means to ensure same day 

or next day delivery. 

§ 655.62 Withdrawal of an Application for 

Temporary Employment Certification. 

Employers may withdraw an 

Application for Temporary Employment 

Certification after it has been accepted 

and before it is adjudicated. 

§ 655.63 Public disclosure. 

The Department will maintain an 

electronic file accessible to the public 

with information on all employers 

applying for temporary nonagricultural 

labor certifications. The database will 

include such information as the number 

of workers requested, the date filed, the 

date decided, and the final disposition. 

§ 655.64 [Reserved] 

26. Add reserved § 655.64. 

§ 655.65 [Removed and Reserved] 

27. Remove and reserve § 655.65. 

§§ 655.66–655.69 [Reserved] 

28. Add reserved §§ 655.66 through 

655.69. 

29. Add an undesignated center 

heading before § 655.70 to read as 

follows: 

Integrity Measures 

30. In subpart A, revise §§ 655.70 

through 655.73 to read as follows: 

Subpart A—Labor Certification 

Process for Temporary NonAgricultural Employment in the United 

States (H–2B Workers) 

* * * * * 


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Sec. 

655.70 Audits. 

655.71 CO-ordered assisted recruitment. 

655.72 Revocation. 

655.73 Debarment. 

* * * * * 

§ 655.70 Audits. 

The CO may conduct audits of 

adjudicated temporary employment 

certification applications. 

(a) Discretion. The CO has the sole 

discretion to choose the applications 

selected for audit. 

(b) Audit letter. Where an application 

is selected for audit, the CO will send 

an audit letter to the employer and a 

copy, if appropriate, to the employer’s 

attorney or agent. The audit letter will: 

(1) Specify the documentation that 

must be submitted by the employer; 

(2) Specify a date, no more than 30 

calendar days from the date the audit 

letter is issued, by which the required 

documentation must be sent to the CO; 

and 

(3) Advise that failure to comply with 

the audit process may result: 

(i) In the requirement that the 

employer undergo the assisted 

recruitment procedures in § 655.71 in 

future filings of H–2B temporary 

employment certification applications 

for a period of up to 2 years, or 

(ii) In a revocation of the certification 

and/or debarment from the H–2B 

program and any other foreign labor 

certification program administered by 

the Department. 

(c) Supplemental information request. 

During the course of the audit 

examination, the CO may request 

supplemental information and/or 

documentation from the employer in 

order to complete the audit. If 

circumstances warrant, the CO can issue 

one or more requests for additional 

supplemental information. 

(d) Potential referrals. In addition to 

measures in this subpart, the CO may 

decide to provide the audit findings and 

underlying documentation to DHS, 

WHD, or other appropriate enforcement 

agencies. The CO will refer any findings 

that an employer discouraged an eligible 

U.S. worker from applying, or failed to 

hire, discharged, or otherwise 

discriminated against an eligible U.S. 

worker, to the Department of Justice, 

Civil Rights Division, Office of Special 

Counsel for Unfair Immigration Related 

Employment Practices. 

§ 655.71 CO-ordered assisted recruitment. 

(a) Requirement of assisted 

recruitment. If, as a result of audit or 

otherwise, the CO determines that a 

violation has occurred that does not 

warrant debarment, the CO may require 

the employer to engage in assisted 

recruitment for a defined period of time 

for any future Application for 

Temporary Employment Certification. 

(b) Notification of assisted 

recruitment. The CO will notify the 

employer (and its attorney or agent, if 

applicable) in writing of the assisted 

recruitment that will be required of the 

employer for a period of up to 2 years 

from the date the notice is issued. The 

notification will state the reasons for the 

imposition of the additional 

requirements, state that the employer’s 

agreement to accept the conditions will 

constitute their inclusion as bona fide 

conditions and terms of a temporary 

employment certification, and offer the 

employer an opportunity to request an 

administrative review. If administrative 

review is requested, the procedures in 

§ 655.6l apply. 

(c) Assisted recruitment. The assisted 

recruitment process will be in addition 

to any recruitment required of the 

employer by §§ 655.41–.47 and may 

consist of, but is not limited to, one or 

more of the following: 

(1) Requiring the employer to submit 

a draft advertisement to the CO for 

review and approval at the time of filing 

the Application for Temporary 

Employment Certification; 

(2) Designating the sources where the 

employer must recruit for U.S. workers, 

including newspapers and other 

publications, and directing the 

employer to place the advertisement(s) 

in such sources; 

(3) Extending the length of the 

placement of the advertisement and/or 

job order; 

(4) Requiring the employer to notify 

the CO and the SWA in writing when 

the advertisement(s) are placed; 

(5) Requiring an employer to perform 

any additional assisted recruitment 

directed by the CO; 

(6) Requiring the employer to provide 

proof of the publication of all 

advertisements as directed by the CO, in 

addition to providing a copy of the job 

order; 

(7) Requiring the employer to provide 

proof of all SWA referrals made in 

response to the job order; 

(8) Requiring the employer to submit 

any proof of contact with all referrals 

and past U.S. workers; and/or 

(9) Upon request, requiring the 

employer to provide any additional 

documentation verifying it conducted 

the assisted recruitment as directed by 

the CO. 

(d) Failure to comply. If an employer 

fails to comply with requirements 

ordered by the CO under this section, 

the certification will be denied and the 

employer and/or its attorney or agent 

may be debarred under § 655.73. 

§ 655.72 Revocation. 

(a) Basis for DOL revocation. The 

Administrator, OFLC may revoke a 

temporary employment certification 

approved under this subpart, if the 

Administrator, OFLC finds: 

(1) The issuance of the temporary 

employment certification was not 

justified due to fraud or willful 

misrepresentation of a material fact in 

the application process, as defined in 

§ 655.73(d); 

(2) The employer substantially failed 

to comply with any of the terms or 

conditions of the approved temporary 

employment certification. A substantial 

failure is a willful failure to comply that 

constitutes a significant deviation from 

the terms and conditions of the 

approved certification and is further 

defined in §§ 655.73(d) and (e); 

(3) The employer failed to cooperate 

with a DOL investigation or with a DOL 

official performing an investigation, 

inspection, audit (under § 655.73), or 

law enforcement function under 29 CFR 

part 503 or this subpart; or 

(4) The employer failed to comply 

with one or more sanctions or remedies 

imposed by WHD, or with one or more 

decisions or orders of the Secretary with 

the respect to the H–2B program. 

(b) DOL procedures for revocation— 

(1) Notice of Revocation. If the 

Administrator, OFLC makes a 

determination to revoke an employer’s 

temporary employment certification, the 

Administrator, OFLC will send to the 

employer (and its attorney or agent) a 

Notice of Revocation. The notice will 

contain a detailed statement of the 

grounds for the revocation and inform 

the employer of its right to submit 

rebuttal evidence or to appeal. If the 

employer does not file rebuttal evidence 

or an appeal within 10 business days 

from the date the Notice of Revocation 

is issued, the notice is the final agency 

action and will take effect immediately 

at the end of the 10-day period. 

(2) Rebuttal. If the employer timely 

submits rebuttal evidence, the 

Administrator, OFLC will inform the 

employer of the final determination on 

the revocation within 10 business days 

of receiving the rebuttal evidence. If the 

Administrator, OFLC determines that 

the certification should be revoked, the 

Administrator, OFLC will inform the 

employer of its right to appeal according 

to the procedures of § 655.61. If the 

employer does not appeal the final 

determination, it will become the final 

agency action. 

(3) Appeal. An employer may appeal 

a Notice of Revocation, or a final 


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determination of the Administrator, 

OFLC after the review of rebuttal 

evidence, according to the appeal 

procedures of § 655.61. The ALJ’s 

decision is the final agency action. 

(4) Stay. The timely filing of rebuttal 

evidence or an administrative appeal 

will stay the revocation pending the 

outcome of those proceedings. 

(5) Decision. If the temporary 

employment certification is revoked, the 

Administrator, OFLC will send a copy 

of the final agency action to DHS and 

the Department of State (DOS). 

(c) Employer’s obligations in the event 

of revocation. If an employer’s 

temporary employment certification is 

revoked, the employer is responsible 

for: 

(1) Reimbursement of actual inbound 

transportation and other expenses; 

(2) The workers’ outbound 

transportation expenses; 

(3) Payment to the workers of the 

amount due under the three-fourths 

guarantee; and 

(4) Any other wages, benefits, and 

working conditions due or owing to the 

workers under this subpart. 

§ 655.73 Debarment. 

(a) Debarment of an employer. The 

Administrator, OFLC may not issue 

future labor certifications under this 

subpart to an employer or any successor 

in interest to that employer, subject to 

the time limits set forth in paragraph (c) 

of this section, if the Administrator, 

OFLC finds that the employer 

committed the following violations: 

(1) Willful misrepresentation of a 

material fact in its H–2B Registration, 

Application for Temporary Employment 

Certification, or H–2B Petition; 

(2) Substantial failure to meet any of 

the terms and conditions of its H–2B 

Registration, Application for Temporary 

Employment Certification, or H–2B 

Petition. A substantial failure is a willful 

failure to comply that constitutes a 

significant deviation from the terms and 

conditions of such documents; or 

(3) Willful misrepresentation of a 

material fact to the Department of State 

during the visa application process. 

(b) Debarment of an agent or attorney. 

If the Administrator, OFLC finds, under 

this section, that an attorney or agent 

participated in an employer’s violation, 

the Administrator, OFLC may not issue 

future labor certifications to an 

employer represented by such agent or 

attorney, subject to the time limits set 

forth in paragraph (c) of this section. 

(c) Period of debarment. Debarment 

under this subpart may not be for less 

than 1 year or more than 5 years from 

the date of the final agency decision. 

(d) Determining whether a violation is 

willful. A willful misrepresentation of a 

material fact or a willful failure to meet 

the required terms and conditions 

occurs when the employer, attorney, or 

agent knows a statement is false or that 

the conduct is in violation, or shows 

reckless disregard for the truthfulness of 

its representation or for whether its 

conduct satisfies the required 

conditions. 

(e) Determining whether a violation is 

significant. In determining whether a 

violation is a significant deviation from 

the terms and conditions of the H–2B 

Registration, Application for Temporary 

Employment Certification, or H–2B 

Petition, the factors that the 

Administrator, OFLC may consider 

include, but are not limited to, the 

following: 

(1) Previous history of violation(s) 

under the H–2B program; 

(2) The number of H–2B workers, 

workers in corresponding employment, 

or improperly rejected U.S. applicants 

who were and/or are affected by the 

violation(s); 

(3) The gravity of the violation(s); 

(4) The extent to which the violator 

achieved a financial gain due to the 

violation(s), or the potential financial 

loss or potential injury to the worker(s); 

and 

(5) Whether U.S. workers have been 

harmed by the violation. 

(f) Violations. Where the standards set 

forth in paragraphs (d) and (e) in this 

section are met, debarrable violations 

would include but would not be limited 

to: 

(1) Failure to pay or provide the 

required wages, benefits or working 

conditions to the employer’s H–2B 

workers and/or workers in 

corresponding employment; 

(2) Failure, except for lawful, jobrelated reasons, to offer employment to 

qualified U.S. workers who applied for 

the job opportunity for which 

certification was sought; 

(3) Failure to comply with the 

employer’s obligations to recruit U.S. 

workers; 

(4) Improper layoff or displacement of 

U.S. workers or workers in 

corresponding employment; 

(5) Failure to comply with one or 

more sanctions or remedies imposed by 

the Administrator, WHD for violation(s) 

of obligations under the job order or 

other H–2B obligations, or with one or 

more decisions or orders of the 

Secretary or a court under this subpart 

or 29 CFR part 503; 

(6) Failure to comply with the Notice 

of Deficiency process under this 

subpart; 

(7) Failure to comply with the assisted 

recruitment process under this subpart; 

(8) Impeding an investigation of an 

employer under 29 CFR part 503 or an 

audit under this subpart; 

(9) Employing an H–2B worker 

outside the area of intended 

employment, in an activity/activities 

not listed in the job order, or outside the 

validity period of employment of the job 

order, including any approved 

extension thereof; 

(10) A violation of the requirements of 

§ 655.20(o) or (p); 

(11) A violation of any of the 

provisions listed in 29 CFR 503.16(r); 

(12) A single heinous act showing 

such flagrant disregard for the law that 

future compliance with program 

requirements cannot reasonably be 

expected; 

(13) Fraud involving the H–2B 

Registration, Application for Temporary 

Employment Certification or the H–2B 

Petition; or 

(14) A material misrepresentation of 

fact during the registration or 

application process. 

(g) Debarment procedure—(1) Notice 

of Debarment. If the Administrator, 

OFLC makes a determination to debar 

an employer, attorney, or agent, the 

Administrator, OFLC will send the party 

a Notice of Debarment. The Notice will 

state the reason for the debarment 

finding, including a detailed 

explanation of the grounds for and the 

duration of the debarment and inform 

the party subject to the Notice of its 

right to submit rebuttal evidence or to 

request a debarment hearing. If the party 

does not file rebuttal evidence or 

request a hearing within 30 calendar 

days of the date of the Notice of 

Debarment, the Notice is the final 

agency action and the debarment will 

take effect at the end of the 30-day 

period. The timely filing of any rebuttal 

evidence or a request for a hearing stays 

the debarment pending the outcome of 

the appeal as provided in paragraphs 

(g)(2)–(6) of this section. 

(2) Rebuttal. The party who received 

the Notice of Debarment may choose to 

submit evidence to rebut the grounds 

stated in the Notice within 30 calendar 

days of the date the Notice is issued. If 

rebuttal evidence is timely filed, the 

Administrator, OFLC will issue a final 

determination on the debarment within 

30 calendar days of receiving the 

rebuttal evidence. If the Administrator, 

OFLC determines that the party should 

be debarred, the Administrator, OFLC 

will inform the party of its right to 

request a debarment hearing according 

to the procedures in this section. The 

party must request a hearing within 30 

calendar days after the date of the 

Administrator, OFLC’s final 

determination, or the Administrator 


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OFLC’s determination will be the final 

agency order and the debarment will 

take effect at the end of the 30-day 

period. 

(3) Hearing. The recipient of a Notice 

of Debarment seeking to challenge the 

debarment must request a debarment 

hearing within 30 calendar days of the 

date of a Notice of Debarment or the 

date of a final determination of the 

Administrator, OFLC after review of 

rebuttal evidence submitted under 

paragraph (g)(2) of this section. To 

obtain a debarment hearing, the 

recipient must, within 30 days of the 

date of the Notice or the final 

determination, file a written request 

with the Chief Administrative Law 

Judge, United States Department of 

Labor, 800 K Street, NW., Suite 400–N, 

Washington, DC 20001–8002, and 

simultaneously serve a copy on the 

Administrator, OFLC. The debarment 

will take effect 30 calendar days from 

the date the Notice of Debarment or 

final determination is issued, unless a 

request for review is timely filed. 

Within 10 business days of receipt of 

the request for a hearing, the 

Administrator, OFLC will send a 

certified copy of the ETA case file to the 

Chief ALJ by means normally assuring 

next day delivery. The Chief ALJ will 

immediately assign an ALJ to conduct 

the hearing. The procedures in 29 CFR 

part 18 apply to such hearings, except 

that the request for a hearing will not be 

considered to be a complaint to which 

an answer is required. 

(4) Decision. After the hearing, the 

ALJ must affirm, reverse, or modify the 

Administrator, OFLC’s determination. 

The ALJ will prepare the decision 

within 60 calendar days after 

completion of the hearing and closing of 

the record. The ALJ’s decision will be 

provided to the parties to the debarment 

hearing by means normally assuring 

next day delivery. The ALJ’s decision is 

the final agency action, unless either 

party, within 30 calendar days of the 

ALJ’s decision, seeks review of the 

decision with the Administrative 

Review Board (ARB). 

(5) Review by the ARB. (i) Any party 

wishing review of the decision of an ALJ 

must, within 30 calendar days of the 

decision of the ALJ, petition the ARB to 

review the decision. Copies of the 

petition must be served on all parties 

and on the ALJ. The ARB will decide 

whether to accept the petition within 30 

calendar days of receipt. If the ARB 

declines to accept the petition, or if the 

ARB does not issue a notice accepting 

a petition within 30 calendar days after 

the receipt of a timely filing of the 

petition, the decision of the ALJ is the 

final agency action. If a petition for 

review is accepted, the decision of the 

ALJ will be stayed unless and until the 

ARB issues an order affirming the 

decision. The ARB must serve notice of 

its decision to accept or not to accept 

the petition upon the ALJ and upon all 

parties to the proceeding. 

(ii) Upon receipt of the ARB’s notice 

to accept the petition, the Office of 

Administrative Law Judges will 

promptly forward a copy of the 

complete hearing record to the ARB. 

(iii) Where the ARB has determined to 

review the decision and order, the ARB 

will notify each party of the issue(s) 

raised, the form in which submissions 

must be made (e.g., briefs or oral 

argument), and the time within which 

the presentation must be submitted. 

(6) ARB Decision. The ARB’s final 

decision must be issued within 90 

calendar days from the notice granting 

the petition and served upon all parties 

and the ALJ. 

(h) Concurrent debarment 

jurisdiction. OFLC and the WHD have 

concurrent jurisdiction to debar under 

this section or under 29 CFR 503.24. 

When considering debarment, OFLC 

and the WHD will coordinate their 

activities. A specific violation for which 

debarment is imposed will be cited in 

a single debarment proceeding. Copies 

of final debarment decisions will be 

forwarded to DHS and DOS promptly. 

(i) Debarment from other foreign labor 

programs. Upon debarment under this 

subpart or 29 CFR 503.24, the debarred 

party will be disqualified from filing 

any labor certification applications or 

labor condition applications with the 

Department by, or on behalf of, the 

debarred party for the same period of 

time set forth in the final debarment 

decision. 

§§ 655.74–655.81 [Removed and Reserved] 

31. In subpart A, remove §§ 655.74 

through 655.81. 

§§ 655.82–655.99 [Reserved] 

32. Add reserved §§ 655.82 through 

655.99. 

TITLE 29 

33. Add part 503 to read as follows: 

PART 503—ENFORCEMENT OF 

OBLIGATIONS FOR TEMPORARY 

NONIMMIGRANT NONAGRICULTURAL WORKERS 

ADMITTED UNDER SECTION 214(c)(1) 

OF THE IMMIGRATION AND 

NATIONALITY ACT 

Subpart A—General Provisions 

Sec. 

503.0 Introduction. 

503.1 Scope and purpose. 

503.2 Territory of Guam. 

503.3 Coordination among Governmental 

agencies. 

503.4 Definition of terms. 

503.5 Temporary need. 

503.6 Waiver of rights prohibited. 

503.7 Investigation authority of Secretary. 

503.8 Accuracy of information, statements, 

data. 

Subpart B—Enforcement 

503.15 Enforcement. 

503.16 Assurances and obligations of H–2B 

employers. 

503.17 Documentation retention 

requirements of H–2B employers. 

503.18 Validity of temporary employment 

certification. 

503.19 Violations. 

503.20 Sanctions and remedies—general. 

503.21 Concurrent actions. 

503.22 Representation of the Secretary. 

503.23 Civil money penalty assessment. 

503.24 Debarment. 

503.25 Failure to cooperate with 

investigators. 

503.26 Civil money penalties—payment 

and collection. 

Subpart C—Administrative Proceedings 

503.40 Applicability of procedures and 

rules. 

Procedures Related to Hearing 

503.41 Administrator, WHD’s 

determination. 

503.42 Contents of notice of determination. 

503.43 Request for hearing. 

Rules of Practice 

503.44 General. 

503.45 Service of pleadings. 

503.46 Commencement of proceeding. 

503.47 Caption of proceeding. 

503.48 Conduct of proceeding. 

Procedures Before Administrative Law Judge 

503.49 Consent findings and order. 

Post-Hearing Procedures 

503.50 Decision and order of 

Administrative Law Judge. 

Review of Administrative Law Judge’s 

Decision 

503.51 Procedures for initiating and 

undertaking review. 

503.52 Responsibility of the Office of 

Administrative Law Judges (OALJ). 

503.53 Additional information, if required. 

503.54 Submission of documents to the 

Administrative Review Board. 

503.55 Final decision of the Administrative 

Review Board. 

Record 

503.56 Retention of official record. 

Authority: Section 503 is issued under 8 

U.S.C. 1101(a)(15)(H)(ii)(b) and 1184(c), and 

8 CFR 214.2(h). 

Subpart A—General Provisions 

§ 503.0 Introduction. 

These regulations cover the 

enforcement of all statutory and 

regulatory obligations, including 


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requirements under 8 U.S.C. 1184(c) 

and 20 CFR part 655, subpart A, 

applicable to the employment of H–2B 

workers admitted under the 

Immigration and Nationality Act (INA), 

8 U.S.C. 1101(a)(15)(H)(ii)(b), and 

workers in corresponding employment, 

including obligations to offer 

employment to eligible United States 

(U.S.) workers and to not lay off or 

displace U.S. workers in a manner 

prohibited by these regulations or 

20 CFR part 655, subpart A. 

§ 503.1 Scope and purpose. 

(a) Statutory standard. 8 U.S.C. 

1184(c)(1) requires the Secretary of the 

Department of Homeland Security 

(DHS) to consult with appropriate 

agencies before authorizing the entry of 

H–2B workers. DHS regulations 8 CFR 

214.2(h)(6)(iv) provide that a petition to 

bring nonimmigrant workers on H–2B 

visas into the U.S. for temporary 

nonagricultural employment may not be 

approved by the Secretary of Homeland 

Security unless the petitioner has 

applied for and received a temporary 

employment certification from the U.S. 

Secretary of Labor (Secretary). The 

temporary employment certification 

reflects a determination by the Secretary 

that: 

(1) There are not sufficient U.S. 

workers who are qualified and will be 

available at the time and place needed 

to perform the labor or services involved 

in the petition; and 

(2) The employment of the foreign 

worker will not adversely affect the 

wages and working conditions of U.S. 

workers similarly employed. 

(b) Role of the Employment and 

Training Administration (ETA). The 

issuance and denial of labor 

certifications under 8 U.S.C. 1184(c) has 

been delegated by the Secretary to ETA, 

an agency within the U.S. Department of 

Labor (the Department or DOL), which 

in turn has delegated that authority to 

the Office of Foreign Labor Certification 

(OFLC). In general, matters concerning 

the obligations of an H–2B employer 

related to the temporary employment 

certification process are administered by 

OFLC, including obligations and 

assurances made by employers, 

overseeing employer recruitment, and 

assuring program integrity. The 

regulations pertaining to the issuance, 

denial, and revocation of labor 

certification for temporary foreign 

workers by the OFLC are found in 

20 CFR part 655, subpart A. 

(c) Role of the Wage and Hour 

Division (WHD). DHS, effective January 

18, 2009, under section 214(c)(14)(B) of 

the INA, 8 U.S.C. 1184(c)(14)(B), has 

delegated to the Secretary certain 

investigatory and law enforcement 

functions to carry out the provisions 

under 8 U.S.C. 1184(c). The Secretary 

has delegated these functions to the 

WHD. In general, matters concerning the 

rights of H–2B workers and workers in 

corresponding employment under this 

part and the employer’s obligations are 

enforced by the WHD, including 

whether employment was offered to 

U.S. workers as required under 20 CFR 

part 655, subpart A, or whether U.S. 

workers were laid off or displaced in 

violation of program requirements. The 

WHD has the responsibility to carry out 

investigations, inspections, and law 

enforcement functions and in 

appropriate instances to impose 

penalties, to debar from future 

certifications, to recommend revocation 

of existing certifications, and to seek 

remedies for violations, including 

recovery of unpaid wages and 

reinstatement of improperly laid off or 

displaced U.S. workers. 

(d) Effect of regulations. The 

enforcement functions carried out by 

the WHD under 8 U.S.C. 1184(c), 

20 CFR part 655, subpart A, and these 

regulations apply to the employment of 

any H–2B worker and any worker in 

corresponding employment as the result 

of an Application for Temporary 

Employment Certification filed with the 

Department on or after the effective date 

of these regulations. 

§ 503.2 Territory of Guam. 

This part does not apply to temporary 

employment in the Territory of Guam. 

The Department does not certify to the 

United States Citizenship and 

Immigration Services (USCIS) of DHS 

the temporary employment of 

nonimmigrant foreign workers under 

H–2B visas, or enforce compliance with 

the provisions of the H–2B visa program 

in the Territory of Guam. Under DHS 

regulations, 8 CFR 214.2(h)(6)(v), 

administration of the H–2B temporary 

employment certification program is 

undertaken by the Governor of Guam, or 

the Governor’s designated 

representative. 

§ 503.3 Coordination among Governmental 

agencies. 

(a) Complaints received by ETA or 

any State Workforce Agency (SWA) 

regarding noncompliance with H–2B 

statutory or regulatory labor standards 

will be immediately forwarded to the 

appropriate WHD office for suitable 

action under these regulations. 

(b) Information received in the course 

of processing registrations and 

applications, program integrity 

measures, or enforcement actions may 

be shared between OFLC and WHD or, 

where applicable to employer 

enforcement under the H–2B program, 

may be forwarded to other agencies as 

appropriate, including the Department 

of State (DOS) and DHS. 

(c) A specific violation for which 

debarment is sought will be cited in a 

single debarment proceeding. OFLC and 

the WHD will coordinate their activities 

to achieve this result. Copies of final 

debarment decisions will be forwarded 

to DHS promptly. 

§ 503.4 Definition of terms. 

For purposes of this part: 

Act means the Immigration and 

Nationality Act or INA, as amended, 

8 U.S.C. 1101 et seq. 

Administrative Law Judge (ALJ) means 

a person within the Department’s Office 

of Administrative Law Judges appointed 

under 5 U.S.C. 3105. 

Administrator, Office of Foreign Labor 

Certification (OFLC) means the primary 

official of the Office of Foreign Labor 

Certification, ETA, or the 

Administrator’s designee. 

Administrator, Wage and Hour 

Division (WHD) means the primary 

official of the WHD, or the 

Administrator’s designee. 

Agent means a legal entity or person 

who: 

(1)(i) Is authorized to act on behalf of 

an employer for temporary 

nonagricultural labor certification 

purposes; 

(ii) Is not itself an employer, or a joint 

employer, as defined in this part with 

respect to a specific application; and 

(iii) Is not an association or other 

organization of employers. 

(2) No agent who is under suspension, 

debarment, expulsion, disbarment, or 

otherwise restricted from practice before 

any court, the Department, the 

Executive Office for Immigration 

Review under 8 CFR 1003.101, or DHS 

under 8 CFR 292.3 may represent an 

employer under this part. 

Agricultural labor or services means 

those duties and occupations defined in 

20 CFR 655.100. 

Applicant means a U.S. worker who 

is applying for a job opportunity for 

which an employer has filed an 

Application for Temporary Employment 

Certification (Form ETA 9142 and the 

appropriate appendices). 

Application for Temporary 

Employment Certification means the 

Office of Management and Budget 

(OMB)-approved Form ETA 9142 and 

the appropriate appendices, a valid 

wage determination, as required by 

§ 655.12, and a subsequently-filed U.S. 

worker recruitment report, submitted by 

an employer to secure a temporary 

employment certification determination 

from DOL. 


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Area of intended employment means 

the geographic area within normal 

commuting distance of the place 

(worksite address) of the job 

opportunity for which the certification 

is sought. There is no rigid measure of 

distance that constitutes a normal 

commuting distance or normal 

commuting area, because there may be 

widely varying factual circumstances 

among different areas (e.g., average 

commuting times, barriers to reaching 

the worksite, or quality of the regional 

transportation network). If the place of 

intended employment is within a 

Metropolitan Statistical Area (MSA), 

including a multistate MSA, any place 

within the MSA is deemed to be within 

normal commuting distance of the place 

of intended employment. The borders of 

MSAs are not controlling in the 

identification of the normal commuting 

area; a location outside of an MSA may 

be within normal commuting distance 

of a location that is inside (e.g., near the 

border of) the MSA. 

Attorney means any person who is a 

member in good standing of the bar of 

the highest court of any State, 

possession, territory, or commonwealth 

of the U.S., or the District of Columbia. 

No attorney who is under suspension, 

debarment, expulsion, disbarment, or 

otherwise restricted from practice before 

any court, the Department, the 

Executive Office for Immigration 

Review under 8 CFR 1003.101, or DHS 

under 8 CFR 292.3 may represent an 

employer under this part. 

Certifying Officer (CO) means an 

OFLC official designated by the 

Administrator, OFLC to make 

determinations on applications under 

the H–2B program. The Administrator, 

OFLC is the National CO. Other COs 

may also be designated by the 

Administrator, OFLC to make the 

determinations required under 20 CFR 

part 655, subpart A. 

Chief Administrative Law Judge 

means the chief official of the 

Department’s Office of Administrative 

Law Judges or the Chief Administrative 

Law Judge’s designee. 

Corresponding employment means 

the employment of workers who are not 

H–2B workers by an employer that has 

an accepted H–2B Application for 

Temporary Employment Certification in 

any work included in the job order or 

in any work performed by the H–2B 

workers. To qualify as corresponding 

employment, the work must be 

performed during the period of the job 

order, including any approved 

extension thereof. 

Date of need means the first date the 

employer requires services of the H–2B 

workers as listed on the application. 

Department of Homeland Security 

(DHS) means the Federal Department 

having jurisdiction over certain 

immigration-related functions, acting 

through its agencies, including USCIS. 

Employee means a person who is 

engaged to perform work for an 

employer, as defined under the general 

common law. Some of the factors 

relevant to the determination of 

employee status include: the hiring 

party’s right to control the manner and 

means by which the work is 

accomplished; the skill required to 

perform the work; the source of the 

instrumentalities and tools for 

accomplishing the work; the location of 

the work; the hiring party’s discretion 

over when and how long to work; and 

whether the work is part of the regular 

business of the hiring party. Other 

applicable factors may be considered 

and no one factor is dispositive. The 

terms ‘‘employee’’ and ‘‘worker’’ are used 

interchangeably in this part. 

Employer means a person (including 

any individual, partnership, association, 

corporation, cooperative, firm, joint 

stock company, trust, or other 

organization with legal rights and 

duties) that: 

(1) Has a place of business (physical 

location) in the U.S. and a means by 

which it may be contacted for 

employment; 

(2) Has an employer relationship 

(such as the ability to hire, pay, fire, 

supervise or otherwise control the work 

of employees) with respect to an H–2B 

worker or a worker in corresponding 

employment; and 

(3) Possesses, for purposes of filing an 

Application for Temporary Employment 

Certification, a valid Federal Employer 

Identification Number (FEIN). 

Employment and Training 

Administration (ETA) means the agency 

within the Department which includes 

OFLC and has been delegated authority 

by the Secretary to fulfill the Secretary’s 

mandate under the DHS regulations for 

the administration and adjudication of 

an Application for Temporary 

Employment Certification and related 

functions. 

Federal holiday means a legal public 

holiday as defined at 5 U.S.C. 6103. 

Full time means 35 or more hours of 

work per week for the purpose of the 

H–2B program. 

H–2B Petition means the DHS Petition 

for a Nonimmigrant Worker form, or 

successor form, and accompanying 

documentation required by DHS for 

employers seeking to employ foreign 

persons as H–2B nonimmigrant workers. 

The H–2B Petition includes the 

approved Application for Temporary 

Employment Certification and the Final 

Determination letter. 

H–2B Registration means the OMBapproved Form ETA 9155, submitted by 

an employer to register its intent to hire 

H–2B workers and to file an Application 

for Temporary Employment 

Certification. 

H–2B worker means any temporary 

foreign worker who is lawfully present 

in the U.S. and authorized by DHS to 

perform nonagricultural labor or 

services of a temporary or seasonal 

nature under 8 U.S.C. 

1101(a)(15)(H)(ii)(b). 

Job contractor means a person, 

association, firm, or a corporation that 

meets the definition of an employer and 

that contracts services or labor on a 

temporary basis to one or more 

employers, which is not an affiliate, 

branch or subsidiary of the job 

contractor and where the job contractor 

will not exercise substantial, direct dayto-day supervision or control in the 

performance of the services or labor to 

be performed other than hiring, paying 

and firing the workers. 

Job offer means the offer made by an 

employer or potential employer of H–2B 

workers to both U.S. and H–2B workers 

describing all the material terms and 

conditions of employment, including 

those relating to wages, working 

conditions, and other benefits. 

Job opportunity means one or more 

openings for full-time employment with 

the petitioning employer within a 

specified area(s) of intended 

employment for which the petitioning 

employer is seeking workers. 

Job order means the document 

containing all the material terms and 

conditions of employment relating to 

wages, hours, working conditions, 

worksite and other benefits, including 

all obligations and assurances under 20 

CFR part 655 and this part that is posted 

between and among the State Workforce 

Agencies (SWAs) on their inter- and 

intra-State job clearance systems. 

Joint employment means that where 

two or more employers each have 

sufficient definitional indicia of being 

an employer to be considered the 

employer of a worker, those employers 

will be considered to jointly employ 

that worker. Each employer in a joint 

employment relationship to a worker is 

considered a joint employer of that 

worker. 

Layoff means any involuntary 

separation of one or more U.S. 

employees without cause. 

Metropolitan Statistical Area (MSA) 

means a geographic entity defined by 

OMB for use by Federal statistical 

agencies in collecting, tabulating, and 

publishing Federal statistics. A metro 


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area contains a core urban area of 50,000 

or more population, and a micro area 

contains an urban core of at least 10,000 

(but fewer than 50,000) population. 

Each metro or micro area consists of one 

or more counties and includes the 

counties containing the core urban area, 

as well as any adjacent counties that 

have a high degree of social and 

economic integration (as measured by 

commuting to work) with the urban 

core. 

National Processing Center (NPC) 

means the office within OFLC which is 

charged with the adjudication of an 

Application for Temporary Employment 

Certification or other applications. 

Non-agricultural labor and services 

means any labor or services not 

considered to be agricultural labor or 

services as defined in subpart B of this 

part. It does not include the provision 

of services as members of the medical 

profession by graduates of medical 

schools. 

Occupational employment statistics 

(OES) survey means the program under 

the jurisdiction of the BLS that provides 

annual wage estimates for occupations 

at the State and MSA levels. 

Offered wage means the wage that 

equals or exceeds the highest of the 

prevailing wage or Federal, State, or 

local minimum wage. 

Office of Foreign Labor Certification 

(OFLC) means the organizational 

component of the ETA that provides 

national leadership and policy guidance 

and develops regulations to carry out 

the Secretary’s responsibilities for the 

admission of foreign workers to the U.S. 

to perform work described in 8 U.S.C. 

1101(a)(15)(H)(ii)(b). 

Prevailing wage determination (PWD) 

means the prevailing wage for the 

position, as described in 20 CFR 655.12, 

which is the subject of the Application 

for Temporary Employment 

Certification. 

Professional athlete is defined in 8 

U.S.C. 1182(a)(5)(A)(iii)(II), and means 

an individual who is employed as an 

athlete by: 

(1) A team that is a member of an 

association of six or more professional 

sports teams whose total combined 

revenues exceed $10,000,000 per year, if 

the association governs the conduct of 

its members and regulates the contests 

and exhibitions in which its member 

teams regularly engage; or 

(2) Any minor league team that is 

affiliated with such an association. 

Secretary means the Secretary of 

Labor, the chief official of the U.S. 

Department of Labor, or the Secretary’s 

designee. 

Secretary of Homeland Security 

means the chief official of the U.S. 

Department of Homeland Security or the 

Secretary of Homeland Security’s 

designee. 

Secretary of State means the chief 

official of the U.S. Department of State 

or the Secretary of State’s designee. 

State Workforce Agency (SWA) means 

a State government agency that receives 

funds under the Wagner-Peyser Act 

(29 U.S.C. 49 et seq.) to administer the 

State’s public labor exchange activities. 

Strike means a concerted stoppage of 

work by employees as a result of a labor 

dispute, or any concerted slowdown or 

other concerted interruption of 

operation (including stoppage by reason 

of the expiration of a collective 

bargaining agreement). 

Successor in interest means 

(1) Where an employer has violated 

20 CFR part 655, Subpart A or this part, 

and has ceased doing business or cannot 

be located for purposes of enforcement, 

a successor in interest to that employer 

may be held liable for the duties and 

obligations of the violating employer in 

certain circumstances. The following 

factors, as used under Title VII of the 

Civil Rights Act and the Vietnam Era 

Veterans’ Readjustment Assistance Act, 

may be considered in determining 

whether an employer is a successor in 

interest; no one factor is dispositive, but 

all of the circumstances will be 

considered as a whole: 

(i) Substantial continuity of the same 

business operations; 

(ii) Use of the same facilities; 

(iii) Continuity of the work force; 

(iv) Similarity of jobs and working 

conditions; 

(v) Similarity of supervisory 

personnel; 

(vi) Whether the former management 

or owner retains a direct or indirect 

interest in the new enterprise; 

(vii) Similarity in machinery, 

equipment, and production methods; 

(viii) Similarity of products and 

services; and 

(ix) The ability of the predecessor to 

provide relief. 

(2) For purposes of debarment only, 

the primary consideration will be the 

personal involvement of the firm’s 

ownership, management, supervisors, 

and others associated with the firm in 

the violation(s) at issue. 

United States (U.S.) means the 

continental U.S., Alaska, Hawaii, the 

Commonwealth of Puerto Rico, and the 

territories of Guam, the U.S. Virgin 

Islands, and the Commonwealth of the 

Northern Mariana Islands (CNMI). 

United States Citizenship and 

Immigration Services (USCIS) means the 

Federal agency within DHS that makes 

the determination under the INA 

whether to grant petitions filed by 

employers seeking H–2B workers to 

perform temporary nonagricultural work 

in the U.S. 

United States worker (U.S. worker) 

means a worker who is: 

(1) A citizen or national of the U.S.; 

(2) An alien who is lawfully admitted 

for permanent residence in the U.S., is 

admitted as a refugee under 8 U.S.C. 

1157, is granted asylum under 8 U.S.C. 

1158, or is an immigrant otherwise 

authorized (by the INA or by DHS) to be 

employed in the U.S.; or 

(3) An individual who is not an 

unauthorized alien (as defined in 

8 U.S.C. 1324a(h)(3)) with respect to the 

employment in which the worker is 

engaging. 

Wage and Hour Division (WHD) 

means the agency within the 

Department with investigatory and law 

enforcement authority, as delegated 

from DHS, to carry out the provisions 

under 8 U.S.C. 1184(c). 

Wages mean all forms of cash 

remuneration to a worker by an 

employer in payment for personal 

services. 

§ 503.5 Temporary need. 

(a) An employer seeking certification 

under 20 CFR part 655, subpart A must 

establish that its need for 

nonagricultural services or labor is 

temporary, regardless of whether the 

underlying job is permanent or 

temporary. 8 CFR 214.2(h)(6)(ii)(A). The 

need of a job contractor is inherently 

permanent in nature and the CO will 

deny a request for an H–2B Registration 

or an Application for Temporary 

Employment Certification where the 

employer is a job contractor. 

(b) The employer’s need is considered 

temporary if justified to the CO as one 

of the following: a one-time occurrence; 

a seasonal need; a peakload need; or an 

intermittent need, as defined by DHS. 

8 CFR 214.2(h)(6)(ii)(B). Except where 

the employer’s need is based on a onetime occurrence, the CO will deny a 

request for an H–2B Registration or an 

Application for Temporary Employment 

Certification where the employer has a 

need lasting more than 9 months. 

§ 503.6 Waiver of rights prohibited. 

A person may not seek to have an 

H–2B worker, a worker in 

corresponding employment, or any 

other person, including but not limited 

to a U.S. worker improperly rejected for 

employment or improperly laid off or 

displaced, waive or modify any rights 

conferred under 8 U.S.C. 1184(c), 

20 CFR part 655, subpart A, or these 

regulations. Any agreement by an 

employee purporting to waive or modify 

any rights given to said person under 


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these provisions will be void as contrary 

to public policy except as follows: 

(a) Waivers or modifications of rights 

or obligations hereunder in favor of the 

Secretary will be valid for purposes of 

enforcement; and 

(b) Agreements in settlement of 

private litigation are permitted. 

§ 503.7 Investigation authority of 

Secretary. 

(a) Authority of the Administrator, 

WHD. The Secretary of DHS has 

delegated to the Secretary, under 

8 U.S.C. 1184(c)(14)(B), the authority to 

perform all investigative and 

enforcement functions under 8 U.S.C. 

1101, 1103(a)(6), and 1184(c). The 

Administrator, WHD will perform all 

such functions. 

(b) Conduct of investigations. The 

Secretary, through the WHD, may 

investigate to determine compliance 

with obligations under 8 U.S.C. 1184(c), 

20 CFR part 655, subpart A, or these 

regulations, either under a complaint or 

otherwise, as may be appropriate. In 

connection with such an investigation, 

WHD may enter and inspect any 

premises, land, property, worksite, 

vehicles, structure, facility, place and 

records (and make transcriptions, 

photographs, scans, videos, 

photocopies, or use any other means to 

record the content of the records or 

preserve images of places or objects), 

question any person, or gather any 

information, in whatever form, as may 

be appropriate. 

(c) Confidential investigation. The 

WHD will conduct investigations in a 

manner that protects the confidentiality 

of any complainant or other person who 

provides information to the Secretary in 

good faith. 

(d) Report of violations. Any person 

may report a violation of the obligations 

imposed by 8 U.S.C. 1184(c), 20 CFR 

part 655, subpart A, or these regulations 

to the Secretary by advising any local 

office of the SWA, ETA, WHD or any 

other authorized representative of the 

Secretary. The office or person receiving 

such a report will refer it to the 

appropriate office of WHD for the 

geographic area in which the reported 

violation is alleged to have occurred. 

§ 503.8 Accuracy of information, 

statements, data. 

Information, statements, and data 

submitted in compliance with 8 U.S.C. 

1184(c) or these regulations are subject 

to 18 U.S.C. 1001, which provides, with 

regard to statements or entries generally, 

that whoever, in any matter within the 

jurisdiction of any department or agency 

of the U.S., knowingly and willfully 

falsifies, conceals, or covers up a 

material fact by any trick, scheme, or 

device, or makes any false, fictitious, or 

fraudulent statements or 

representations, or makes or uses any 

false writing or document knowing the 

same to contain any false, fictitious, or 

fraudulent statement or entry, will be 

fined not more than $250,000 or 

imprisoned not more than 5 years, or 

both. 

Subpart B—Enforcement 

§ 503.15 Enforcement. 

The investigation, inspection, and law 

enforcement functions that carry out the 

provisions of 8 U.S.C. 1184(c), 20 CFR 

part 655, subpart A, or the regulations 

in this part pertain to the employment 

of any H–2B worker, any worker in 

corresponding employment, or any U.S. 

worker improperly rejected for 

employment or improperly laid off or 

displaced. 

§ 503.16 Assurances and obligations of 

H–2B employers. 

An employer employing H–2B 

workers and/or workers in 

corresponding employment under an 

Application for Temporary Employment 

Certification has agreed as part of the 

Application for Temporary Employment 

Certification that it will abide by the 

following conditions: 

(a) Rate of pay. (1) The offered wage 

in the job order equals or exceeds the 

highest of the prevailing wage or 

Federal minimum wage, State minimum 

wage, or local minimum wage. The 

employer must pay at least the offered 

wage, free and clear, during the entire 

period of the Application for Temporary 

Employment Certification accepted by 

OFLC. 

(2) The offered wage is not based on 

commissions, bonuses, or other 

incentives, including paying on a piecerate basis, unless the employer 

guarantees a wage earned every 

workweek that equals or exceeds offered 

wage. 

(3) If the employer requires one or 

more minimum productivity standards 

of workers as a condition of job 

retention, the standards must be 

specified in the job order and must be 

normal and usual for non-H–2B 

employers for the same occupation in 

the area of intended employment. 

(4) An employer that pays on a piecerate basis must pay a piece rate that is 

no less than the normal rate for workers 

performing the same activity in the area 

of intended employment. The average 

hourly piece rate earnings must result in 

an amount at least equal to the offered 

wage. If the worker is paid on a piece 

rate basis and at the end of the 

workweek the piece rate does not result 

in average hourly piece rate earnings 

during the workweek at least equal to 

the amount the worker would have 

earned had the worker been paid at the 

offered hourly rate, then the employer 

must supplement the worker’s pay at 

that time so that the worker’s earnings 

are at least as much as the worker would 

have earned during the workweek if the 

worker had instead been paid at the 

offered hourly wage rate for each hour 

worked. 

(b) Wages free and clear. The payment 

requirements for wages in this section 

will be satisfied by the timely payment 

of such wages to the worker either in 

cash or negotiable instrument payable at 

par. The payment must be made finally 

and unconditionally and ‘‘free and 

clear.’’ The principles applied in 

determining whether deductions are 

reasonable and payments are received 

free and clear and the permissibility of 

deductions for payments to third 

persons are explained in more detail in 

29 CFR part 531. 

(c) Deductions. The employer must 

make all deductions from the worker’s 

paycheck required by law. The job order 

must specify all deductions not required 

by law which the employer will make 

from the worker’s pay. Deductions not 

disclosed in the job order are 

prohibited. The wage payment 

requirements of paragraph (b) of this 

section are not met where unauthorized 

deductions, rebates, or refunds reduce 

the wage payment made to the worker 

below the minimum amounts required 

by the offered wage or where the worker 

fails to receive such amounts free and 

clear because the worker ‘‘kicks back’’ 

directly or indirectly to the employer or 

to another person for the employer’s 

benefit the whole or part of the wages 

delivered to the worker. Authorized 

deductions are limited to: those 

required by law, such as taxes payable 

by workers that are required to be 

withheld by the employer and amounts 

due workers which the employer is 

required by court order to pay to 

another; deductions for the reasonable 

cost or fair value of board, lodging, and 

facilities furnished; and deductions of 

amounts which are authorized to be 

paid to third persons for the worker’s 

account and benefit through his or her 

voluntary assignment or order or which 

are authorized by a collective bargaining 

agreement with bona fide 

representatives of workers which covers 

the employer. Deductions for amounts 

paid to third persons for the worker’s 

account and benefit which are not so 

authorized or are contrary to law or 

from which the employer, agent or 

recruiter, including any agents or 


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workers, or any affiliated person derives 

any payment, rebate, commission, 

profit, or benefit directly or indirectly, 

may not be made if they reduce the 

actual wage paid to the worker below 

the offered wage indicated on the 

Application for Temporary Employment 

Certification. 

(d) Job opportunity is full time. The 

job opportunity is a full-time temporary 

position, calculated to be at least 35 

hours per workweek, and the employer 

must use a single workweek as its 

standard for computing wages due. An 

employee’s workweek must be a fixed 

and regularly recurring period of 168 

hours—seven consecutive 24-hour 

periods. It need not coincide with the 

calendar week but may begin on any 

day and at any hour of the day. 

(e) Job qualifications and 

requirements. Each job qualification and 

requirement listed in the job order must 

be bona fide and consistent with the 

normal and accepted qualifications and 

requirements imposed by non-H–2B 

employers in the same occupation and 

area of intended employment. The CO 

may require the employer to submit 

documentation to substantiate the 

appropriateness of any job qualification 

specified in the job order. 

(f) Three-fourths guarantee. (1) The 

employer must guarantee to offer the 

worker employment for a total number 

of work hours equal to at least threefourths of the workdays in each 4-week 

period beginning with the first workday 

after the arrival of the worker at the 

place of employment or the advertised 

first date of need, whichever is later, 

and ending on the expiration date 

specified in the job order or in its 

extensions, if any. 

(2) For purposes of this paragraph a 

workday means the number of hours in 

a workday as stated in the job order. The 

employer must offer a total number of 

hours of work to ensure the provision of 

sufficient work to reach the threefourths guarantee in each 4-week period 

during the work period specified in the 

job order, or during any modified job 

order period to which the worker and 

employer have mutually agreed and that 

has been approved by the CO. 

(3) In the event the worker begins 

working later than the specified 

beginning date the guarantee period 

begins with the first workday after the 

arrival of the worker at the place of 

employment, and continues until the 

last day during which the job order and 

all extensions thereof are in effect. 

(4) The 4-week periods to which the 

guarantee applies are based upon the 

workweek used by the employer for pay 

purposes. The first 4-week period also 

includes any partial workweek, if the 

first workday after the worker’s arrival 

at the place of employment is not the 

beginning of the employer’s workweek, 

with the guaranteed number of hours 

increased on a pro rata basis (thus, the 

first period may include up to 4 weeks 

and 6 days). The final 4-week period 

includes any time remaining after the 

last full 4-week period ends, and thus 

may be as short as 1 day, with the 

guaranteed number of hours decreased 

on a pro rata basis. 

(5) Therefore, if, for example, a job 

order is for a 10-week period, during 

which a normal workweek is specified 

as 5 days a week, 8 hours per day, the 

worker would have to be guaranteed 

employment for at least 120 hours (4 

weeks × 40 hours/week = 160 hours × 

75 percent = 120) in the first 4-week 

period, at least 120 hours in the second 

4-week period, and at least 60 hours (2 

weeks × 40 hours/week = 80 hours × 75 

percent = 60) in the final partial period. 

(6) If the worker is paid on a piece rate 

basis, the employer must use the 

worker’s average hourly piece rate 

earnings or the required hourly wage 

rate, whichever is higher, to calculate 

the amount due under the guarantee. 

(7) A worker may be offered more 

than the specified hours of work on a 

single workday. For purposes of meeting 

the guarantee, however, the worker will 

not be required to work for more than 

the number of hours specified in the job 

order for a workday. The employer, 

however, may count all hours actually 

worked in calculating whether the 

guarantee has been met. If during any 4- 

week period during the period of the job 

order the employer affords the U.S. or 

H–2B worker less employment than that 

required under paragraph (f)(1) of this 

section, the employer must pay such 

worker the amount the worker would 

have earned had the worker, in fact, 

worked for the guaranteed number of 

days. An employer has not met the work 

guarantee if the employer has merely 

offered work on three-fourths of the 

workdays in a 4-week period if each 

workday did not consist of a full 

number of hours of work time as 

specified in the job order. 

(8) Any hours the worker fails to 

work, up to a maximum of the number 

of hours specified in the job order for a 

workday, when the worker has been 

offered an opportunity to work in 

accordance with paragraph (f)(1) of this 

section, and all hours of work actually 

performed (including voluntary work 

over 8 hours in a workday), may be 

counted by the employer in calculating 

whether each 4-week period of 

guaranteed employment has been met. 

An employer seeking to calculate 

whether the guaranteed number of 

hours has been met must maintain the 

payroll records in accordance with this 

part. 

(g) Impossibility of fulfillment. If, 

before the expiration date specified in 

the job order, the services of the worker 

are no longer required for reasons 

beyond the control of the employer due 

to fire, weather, or other Act of God that 

makes the fulfillment of the job order 

impossible, the employer may terminate 

the job order with the approval of the 

CO. In the event of such termination of 

a job order, the employer must fulfill a 

three-fourths guarantee, as described in 

paragraph (f) of this section, for the time 

that has elapsed from the start date 

listed in the job order or the first 

workday after the arrival of the worker 

at the place of employment, whichever 

is later, to the time of its termination. 

The employer must make efforts to 

transfer the H–2B worker or worker in 

corresponding employment to other 

comparable employment acceptable to 

the worker and consistent with the INA, 

as applicable. If a transfer is not 

effected, the employer must return the 

worker, at the employer’s expense, to 

the place from which the worker 

(disregarding intervening employment) 

came to work for the employer, or 

transport the worker to the worker’s 

next certified H–2B employer, 

whichever the worker prefers. 

(h) Frequency of pay. The employer 

must state in the job order the frequency 

with which the worker will be paid, 

which must be at least every 2 weeks or 

according to the prevailing practice in 

the area of intended employment, 

whichever is more frequent. Employers 

must pay wages when due. 

(i) Earnings statements. (1) The 

employer must keep accurate and 

adequate records with respect to the 

workers’ earnings, including but not 

limited to: records showing the nature 

and amount of the work performed; the 

number of hours of work offered each 

day by the employer (broken out by 

hours offered both in accordance with 

and over and above the three-fourths 

guarantee in paragraph (f) of this 

section); the hours actually worked each 

day by the worker; the time the worker 

began and ended each workday; the rate 

of pay (both piece rate and hourly, if 

applicable); the worker’s earnings per 

pay period; the worker’s home address; 

and the amount of and reasons for any 

and all deductions taken from the 

worker’s wages. 

(2) The employer must furnish to the 

worker on or before each payday in one 

or more written statements the 

following information: 

(i) The worker’s total earnings for 

each workweek in the pay period; 


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(ii) The worker’s hourly rate and/or 

piece rate of pay; 

(iii) For each workweek in the pay 

period the hours of employment offered 

to the worker (showing offers in 

accordance with the three-fourths 

guarantee as determined in paragraph (f) 

of this section, separate from any hours 

offered over and above the guarantee); 

(iv) For each workweek in the pay 

period the hours actually worked by the 

worker; 

(v) An itemization of all deductions 

made from the worker’s wages; 

(vi) If piece rates are used, the units 

produced daily; 

(vii) The beginning and ending dates 

of the pay period; and 

(viii) The employer’s name, address 

and FEIN. 

(j) Transportation and visa fees. (1)(i) 

Transportation to the place of 

employment. The employer must 

provide the worker transportation and 

subsistence from the place from which 

the worker has come to work for the 

employer, whether in the U.S. or 

abroad, to the place of employment. The 

employer may arrange and pay for the 

transportation and subsistence directly, 

advance the reasonable cost of the 

transportation and subsistence to the 

worker before the worker’s departure, or 

pay the worker in the first workweek for 

the reasonable costs incurred by the 

worker. When it is the prevailing 

practice of non-H–2B employers in the 

occupation in the area to do so or when 

the employer extends such benefits to 

similarly situated H–2B workers, the 

employer must advance the required 

transportation and subsistence costs (or 

otherwise provide them) to workers in 

corresponding employment who are 

traveling to the employer’s worksite. 

The amount of the transportation 

payment must be no less (and is not 

required to be more) than the most 

economical and reasonable common 

carrier transportation charges for the 

distances involved. The amount of the 

daily subsistence must be at least the 

amount permitted in 20 CFR 655.173. 

(ii) Transportation from the place of 

employment. If the worker has no 

immediate subsequent H–2B 

employment, the employer must 

provide or pay at the time of departure 

for the worker’s cost of return 

transportation and daily subsistence 

from the place of employment to the 

place from which the worker, 

disregarding intervening employment, 

departed to work for the employer. If the 

worker has contracted with a 

subsequent employer that has not 

agreed in the job order to provide or pay 

for the worker’s transportation from the 

employer’s worksite to such subsequent 

employer’s worksite, the employer must 

provide or pay for that transportation 

and subsistence. If the worker has 

contracted with a subsequent employer 

that has agreed in the job order to 

provide or pay for the worker’s 

transportation from the employer’s 

worksite to such subsequent employer’s 

worksite, the subsequent employer must 

provide or pay for such expenses. 

(iii) Employer-provided 

transportation. All employer-provided 

transportation must comply with all 

applicable Federal, State, or local laws 

and regulations and must provide, at a 

minimum, the same vehicle safety 

standards, driver licensure 

requirements, and vehicle insurance as 

required under 49 CFR parts 390, 393, 

and 396. 

(iv) Disclosure. All transportation and 

subsistence costs that the employer will 

pay must be disclosed in the job order. 

(2) The employer must pay or 

reimburse the worker in the first 

workweek for all visa, visa processing, 

border crossing, and other related fees 

including those mandated by the 

government incurred by the H–2B 

worker, but not for passport expenses or 

other charges primarily for the benefit of 

the worker. 

(k) Employer-provided items. The 

employer must provide to the worker, 

without charge or deposit charge, all 

tools, supplies, and equipment required 

to perform the duties assigned. 

(l) Disclosure of job order. The 

employer must provide to an H–2B 

worker outside of the United States no 

later than the time at which the worker 

applies for the visa, or to a worker in 

corresponding employment no later 

than on the day work commences, a 

copy of the job order including any 

subsequent modifications. For an H–2B 

worker changing employment from an 

H–2B employer to a subsequent H–2B 

employer, the copy must be provided no 

later than the time an offer of 

employment is made by the subsequent 

H–2B employer. The disclosure of all 

documents required by this paragraph 

must be provided in a language 

understood by the worker, as necessary 

or reasonable. 

(m) Notice of worker rights. The 

employer must post and maintain in a 

conspicuous location at the place of 

employment a poster provided by the 

Department which sets out the rights 

and protections for H–2B workers and 

workers in corresponding employment. 

The employer must post the poster in 

English. To the extent necessary, the 

employer must request and post 

additional posters, as made available by 

the Department, in any language 

common to a significant portion of the 

workers if they are not fluent in English. 

(n) No unfair treatment. The employer 

has not and will not intimidate, 

threaten, restrain, coerce, blacklist, 

discharge or in any manner discriminate 

against, and has not and will not cause 

any person to intimidate, threaten, 

restrain, coerce, blacklist, or in any 

manner discriminate against, any person 

who has: 

(1) Filed a complaint under or related 

to 8 U.S.C. 1184(c), 20 CFR part 655, 

subpart A, or this part or any other 

Department regulation promulgated 

thereunder; 

(2) Instituted or caused to be 

instituted any proceeding under or 

related to 8 U.S.C. 1184(c), 20 CFR part 

655, subpart A, or this part or any other 

Department regulation promulgated 

thereunder; 

(3) Testified or is about to testify in 

any proceeding under or related to 8 

U.S.C. 1184(c), 20 CFR part 655, subpart 

A, or this part or any other Department 

regulation promulgated thereunder; 

(4) Consulted with an employee of a 

legal assistance program or an attorney 

on matters related to 8 U.S.C. 1184(c), 

20 CFR part 655, subpart A, or this part 

or any other Department regulation 

promulgated thereunder; or 

(5) Exercised or asserted on behalf of 

himself/herself or others any right or 

protection afforded by 8 U.S.C. 1184(c), 

20 CFR part 655, subpart A, or this part 

or any other Department regulation 

promulgated thereunder. 

(o) Comply with the prohibitions 

against employees paying fees. The 

employer and its attorney, agents, or 

employees have not sought or received 

payment of any kind from the worker 

for any activity related to obtaining H– 

2B employment certification or 

employment, including payment of the 

employer’s attorney or agent fees, 

application and H–2B Petition fees, 

recruitment costs, or any fees falsely 

attributed to obtaining the approved 

Application for Temporary Employment 

Certification. For purposes of this 

paragraph, payment includes, but is not 

limited to, monetary payments, wage 

concessions (including deductions from 

wages, salary, or benefits), kickbacks, 

bribes, tributes, in kind payments, and 

free labor. All wages must be paid free 

and clear. This provision does not 

prohibit employers or their agents from 

receiving reimbursement for costs that 

are the responsibility and primarily for 

the benefit of the worker, such as 

government-required passport fees. 

(p) Contracts with third parties to 

comply with prohibitions. The employer 

must contractually prohibit in writing 

any agent or recruiter (or any agent or 


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15202 Federal Register / Vol. 76, No. 53 / Friday, March 18, 2011 / Proposed Rules 

employee of such agent or recruiter) 

whom the employer engages, either 

directly or indirectly, in international 

recruitment of H–2B workers to seek or 

receive payments or other compensation 

from prospective workers. This 

documentation must be made available 

upon request by the CO or another 

Federal party. 

(q) Prohibition against preferential 

treatment of foreign workers. The 

employer’s job offer must offer to U.S. 

workers no less than the same benefits, 

wages, and working conditions that the 

employer is offering, intends to offer, or 

will provide to H–2B workers. Job offers 

may not impose on U.S. workers any 

restrictions or obligations that will not 

be imposed on the employer’s H–2B 

workers. This does not relieve the 

employer from providing to H–2B 

workers at least the minimum benefits, 

wages, and working conditions which 

must be offered to U.S. workers 

consistent with this section. 

(r) Non-discriminatory hiring 

practices. The job opportunity is, and 

through the period set forth in 

paragraph (t) of this section must 

continue to be, open to any qualified 

U.S. worker regardless of race, color, 

national origin, age, sex, religion, 

disability, or citizenship. Rejections of 

any U.S. workers who applied or apply 

for the job must only be for lawful, jobrelated reasons, and those not rejected 

on this basis have been or will be hired. 

In addition, the employer has and will 

continue to retain records of all hired 

workers and rejected applicants as 

required by § 503.17. 

(s) Recruitment requirements. The 

employer must conduct all recruitment 

activities, including any additional 

employer-conducted recruitment 

activities as determined by the CO, and 

as specified in 20 CFR 655.40–.46. 

(t) Continuing requirement to hire 

U.S. workers. The employer has and 

will continue to cooperate with the 

SWA by accepting referrals of all 

eligible U.S. workers who apply (or on 

whose behalf a job application is made) 

for the job opportunity, and must 

provide employment to any qualified, 

eligible U.S. worker who applies to the 

employer for the job opportunity, until 

the later of the date the last H–2B 

worker departs for the job opportunity 

or 3 days before the date of need. If the 

last H–2B worker has not departed by 3 

days before the date of need, the 

employer is required to immediately 

inform the SWA in writing and notify 

the SWA of the new departure date as 

soon as available. 

(u) No strike or lockout. There is no 

strike or lockout at the worksite for 

which the employer is requesting H–2B 

certification at the time the Application 

for Temporary Employment 

Certification is filed. 

(v) No recent or future layoffs. The 

employer has not laid off and will not 

lay off any similarly employed U.S. 

worker in the occupation that is the 

subject of the Application for 

Temporary Employment Certification in 

the area of intended employment within 

the period beginning 120 calendar days 

before the date of need through the end 

of the period of certification. A layoff for 

lawful, job-related reasons such as lack 

of work or the end of a season is 

permissible if all H–2B workers are laid 

off before any U.S. worker in 

corresponding employment. 

(w) Contact with former U.S. 

employees. The employer must contact 

by mail or other effective means all of 

its former U.S. workers (except those 

who were dismissed for cause or who 

abandoned the worksite) employed by 

the employer in the occupation at the 

place of employment during the 

previous year, disclose the terms of the 

job order, and solicit their return to the 

job. This includes, but is not limited to, 

those former U.S. workers who have 

been laid off within a period of 120 days 

before the date of need. 

(x) Area of intended employment and 

job opportunity. The employer must not 

place any H–2B workers employed 

under the approved Application for 

Temporary Employment Certification 

outside the area of intended 

employment or in a job opportunity not 

listed on the approved Application for 

Temporary Employment Certification 

unless the employer has obtained a new 

approved Application for Temporary 

Employment Certification. 

(y) Abandonment/termination of 

employment. Upon the separation from 

employment of worker(s) employed 

under the Application for Temporary 

Employment Certification or workers in 

corresponding employment, if such 

separation occurs before the end date of 

the employment specified in the 

Application for Temporary Employment 

Certification, the employer must notify 

OFLC in writing of the separation from 

employment not later than 2 work days 

after such separation is discovered by 

the employer. In addition, the employer 

must notify DHS in writing (or any other 

method specified by the Department or 

DHS in the Federal Register or the Code 

of Federal Regulations) of such 

separation of an H–2B worker. An 

abandonment or abscondment is 

deemed to begin after a worker fails to 

report for work at the regularly 

scheduled time for 5 consecutive 

working days without the consent of the 

employer. If the separation is due to the 

voluntary abandonment of employment 

by the H–2B worker or worker in 

corresponding employment, and the 

employer provides appropriate 

notification specified under this 

paragraph, the employer will not be 

responsible for providing or paying for 

the subsequent transportation and 

subsistence expenses of that worker 

under this section, and that worker is 

not entitled to the three-fourths 

guarantee described in paragraph (f) of 

this section. The employer’s obligation 

to guarantee three-fourths of the work 

described in paragraph (f) ends with the 

last full 4-week period preceding the 

worker’s voluntary abandonment or 

termination for cause. 

(z) Compliance with applicable laws. 

During the period of employment that is 

the subject of the Application for 

Temporary Employment Certification, 

the employer must comply with all 

applicable Federal, State and local 

employment-related laws and 

regulations, including health and safety 

laws. In compliance with such laws, 

including the William Wilberforce 

Trafficking Victims Protection 

Reauthorization Act of 2008, 18 U.S.C. 

1592(a), the employer may not hold or 

confiscate workers’ passports, visas, or 

other immigration documents. 

(aa) Cooperation with investigators. 

The employer must cooperate with any 

employee of the Secretary who is 

exercising or attempting to exercise the 

Department’s authority pursuant to 8 

U.S.C. 1184(c). 

§ 503.17 Document retention requirements 

of H–2B employers. 

(a) Entities required to retain 

documents. All employers filing an 

Application for Temporary Employment 

Certification requesting H–2B workers 

are required to retain the documents 

and records proving compliance with 20 

CFR part 655, subpart A and this part, 

including but not limited to those 

specified in paragraph (c) of this 

section. 

(b) Period of required retention. The 

employer must retain records and 

documents for 3 years from the date of 

certification of the Application for 

Temporary Employment Certification or 

from the date of adjudication if the 

Application for Temporary Employment 

Certification is denied or 3 years from 

the day the Department receives the 

letter of withdrawal provided in 

accordance with 20 CFR 655.62. 

(c) Documents and records to be 

retained by all applicants. All 

employers filing an H–2B Registration 

and an Application for Temporary 

Employment Certification must retain 

the following documents and records 


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and must provide the documents and 

records in the event of an audit or 

investigation: 

(1) Documents and records not 

previously submitted during the 

registration process that substantiate 

temporary need; 

(2) Proof of recruitment efforts, as 

applicable, including: 

(i) Job order placement as specified in 

20 CFR 655.16; 

(ii) Advertising as specified in 20 CFR 

655.41 and 655.42; 

(iii) Contact with former U.S. workers 

as specified in 20 CFR 655.43; 

(iv) Contact with labor organizations, 

if applicable, as specified in 20 CFR 

655.44; 

(v) Contact with bargaining 

representative(s), copy of the posting of 

the job opportunity, and contact with 

community-based organizations, if 

applicable, as specified in 20 CFR 

655.45(a), (b) and (c); and 

(vi) Additional employer-conducted 

recruitment efforts as specified in 20 

CFR 655.46; 

(3) Substantiation of the information 

submitted in the recruitment report 

prepared in accordance with 20 CFR 

655.48, such as evidence of 

nonapplicability of contact with former 

workers as specified in 20 CFR 655.43; 

(4) The final recruitment report and 

any supporting resumes and contact 

information as specified in 20 CFR 

655.48; 

(5) Records of each worker’s earnings, 

hours offered and worked, and other 

information as specified in § 503.16(i); 

(6) Evidence of contact with U.S. 

workers who applied for the job 

opportunity in the Application for 

Temporary Employment Certification, 

including documents demonstrating 

that any rejections of U.S. workers were 

for lawful, job-related reasons, as 

specified in § 503.16(r); 

(7) Evidence of contact with any 

former U.S. worker in the occupation 

and the area of intended employment in 

the Application for Temporary 

Employment Certification, including 

documents demonstrating that the U.S. 

worker had been offered the job 

opportunity in the Application for 

Temporary Employment Certification, 

as specified in § 503.16(w), and that the 

U.S. worker either refused the job 

opportunity or was rejected only for 

lawful, job-related reasons, as specified 

in § 503.16(r); 

(8) The written contracts with agents 

or recruiters, including the written 

contract prohibiting an agent or 

recruiter from receiving payments, as 

specified in § 503.16(p); 

(9) Written notice provided to and 

informing OFLC that an H–2B worker or 

worker in corresponding employment 

has separated from employment before 

the end date of employment specified in 

the Application for Temporary 

Employment Certification, as specified 

in § 503.16(y); 

(10) The H–2B Registration, job order, 

and the Application for Temporary 

Employment Certification; and 

(11) The approved H–2B Petition, 

including all accompanying documents. 

(d) Availability of documents for 

enforcement purposes. An employer 

must make available to the 

Administrator, WHD within 72 hours 

following a request by the WHD the 

documents and records required under 

20 CFR part 655, Subpart A and this 

section so that the Administrator, WHD 

may copy, transcribe, or inspect them. 

§ 503.18 Validity of temporary employment 

certification. 

(a) Validity period. A temporary 

employment certification is valid only 

for the period of time between the 

beginning and ending dates of 

employment, as approved on the 

Application for Temporary Employment 

Certification. The certification expires 

on the last day of authorized 

employment. 

(b) Scope of validity. A temporary 

employment certification is valid only 

for the number of H–2B positions, the 

area of intended employment, the job 

classification and specific services or 

labor to be performed, and the employer 

specified on the approved Application 

for Temporary Employment 

Certification. The temporary 

employment certification may not be 

transferred from one employer to 

another unless the employer to which it 

is transferred is a successor in interest 

to the employer to which it was issued. 

§ 503.19 Violations. 

(a) Types of violations. Pursuant to 

the statutory provisions governing 

enforcement of the H–2B program, 8 

U.S.C. 1184(c)(14)(A), a violation exists 

under this part where the 

Administrator, WHD, through 

investigation, determines that there has 

been a: 

(1) Willful misrepresentation of a 

material fact on the H–2B Registration, 

Application for Temporary Employment 

Certification, or H–2B Petition; 

(2) Substantial failure to meet any of 

the terms and conditions of the H–2B 

Registration, Application for Temporary 

Employment Certification, or H–2B 

Petition. A substantial failure is a willful 

failure to comply that constitutes a 

significant deviation from the terms and 

conditions of such documents; or 

(3) Willful misrepresentation of a 

material fact to the Department of State 

during the visa application process. 

(b) Determining whether a violation is 

willful. A willful misrepresentation of a 

material fact or a willful failure to meet 

the required terms and conditions 

occurs when the employer, attorney, or 

agent knows its statement is false or that 

its conduct is in violation, or shows 

reckless disregard for the truthfulness of 

its representation or for whether its 

conduct satisfies the required 

conditions. 

(c) Determining whether a violation is 

significant. In determining whether a 

violation is a significant deviation from 

the terms and conditions of the H–2B 

Registration, Application for Temporary 

Employment Certification, or H–2B 

Petition, the factors that the 

Administrator, WHD may consider 

include, but are not limited to, the 

following: 

(1) Previous history of violation(s) 

under the H–2B program; 

(2) The number of H–2B workers, 

workers in corresponding employment, 

or U.S. workers who were and/or are 

affected by the violation(s); 

(3) The gravity of the violation(s); 

(4) The extent to which the violator 

achieved a financial gain due to the 

violation(s), or the potential financial 

loss or potential injury to the worker(s); 

and 

(5) Whether U.S. workers have been 

harmed by the violation. 

(d) Employer acceptance of 

obligations. The provisions of this part 

become applicable upon the date that 

the employer’s Application for 

Temporary Employment Certification is 

accepted. The employer’s submission of 

and signature on the approved H–2B 

Registration, Appendix B of the 

Application for Temporary Employment 

Certification, and H–2B Petition 

constitute the employer’s representation 

that the statements on the forms are 

accurate and that it knows and accepts 

the obligations of the program. 

§ 503.20 Sanctions and remedies— 

general. 

Whenever the Administrator, WHD 

determines that there has been a 

violation(s), as described in § 503.19, 

such action will be taken and such 

proceedings instituted as deemed 

appropriate, including (but not limited 

to) the following: 

(a) Institute administrative 

proceedings, including for: The recovery 

of unpaid wages (including recovery of 

prohibited recruitment fees paid or 

impermissible deductions from pay, and 

recovery of wages due for improperly 

placing workers in areas of employment 


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or in occupations other than those 

identified on the Application for 

Temporary Employment Certification 

and for which a prevailing wage was not 

obtained); the enforcement of provisions 

of the job order, 8 U.S.C. 1184(c), 20 

CFR part 655, subpart A, or these 

regulations; the assessment of a civil 

money penalty; make whole relief for 

any person who has been discriminated 

against; reinstatement and make whole 

relief for any U.S. worker who has been 

improperly rejected for employment, 

laid off or displaced; or debarment for 

no less than 1 or no more than 5 years. 

(b) The remedies referenced in 

paragraph (a) of this section will be 

sought either directly from the 

employer, or from its successor in 

interest, as appropriate. 

§ 503.21 Concurrent actions. 

OFLC has primary responsibility to 

make all determinations regarding the 

issuance, denial, or revocation of a labor 

certification as described in § 503.1(b) 

and in 20 CFR part 655, subpart A. The 

WHD has primary responsibility to 

make all determinations regarding the 

enforcement functions as described in 

§ 503.1(c). The taking of any one of the 

actions referred to above will not be a 

bar to the concurrent taking of any other 

action authorized by 8 U.S.C. 1184(c), 

20 CFR part 655, subpart A, or these 

regulations. OFLC and the WHD have 

concurrent jurisdiction to impose a 

debarment remedy under 20 CFR 655.73 

or under § 503.24. 

§ 503.22 Representation of the Secretary. 

The Solicitor of Labor, through 

authorized representatives, will 

represent the Administrator, WHD and 

the Secretary in all administrative 

hearings under 8 U.S.C. 1184(c)(14) and 

these regulations. 

§ 503.23 Civil money penalty assessment. 

(a) A civil money penalty may be 

assessed by the Administrator, WHD for 

each violation that meets the standards 

described in § 503.19. Each such 

violation involving the failure to pay an 

individual worker properly or to honor 

the terms or conditions of a worker’s 

employment required by the H–2B 

Registration, Application for Temporary 

Employment Certification, or H–2B 

Petition, constitutes a separate violation. 

Civil money penalty amounts for such 

violations are determined as set forth in 

paragraphs (b) through (e) of this 

section. 

(b) Upon determining that an 

employer has violated any provisions of 

§ 503.16 related to wages, impermissible 

deductions or prohibited fees and 

expenses, the Administrator, WHD may 

assess civil money penalties that are 

equal to the difference between the 

amount that should have been paid and 

the amount that actually was paid to 

such worker(s), not to exceed $10,000 

per violation. 

(c) Upon determining that an 

employer has terminated by layoff or 

otherwise or has refused to employ any 

worker in violation of § 503.16(r), 

§ 503.16(t), or § 503.16(v), within the 

periods described in those sections, the 

Administrator, WHD may assess civil 

money penalties that are equal to the 

wages that would have been earned but 

for the layoff or failure to hire, not to 

exceed $10,000 per violation. No civil 

money penalty will be assessed, 

however, if the employee refused the job 

opportunity, or was terminated for 

lawful, job-related reasons. 

(d) The Administrator, WHD may 

assess civil money penalties in an 

amount not to exceed $10,000 per 

violation for any other violation that 

meets the standards described in 

§ 503.19. 

(e) In determining the amount of the 

civil money penalty to be assessed 

under paragraphs (c) and (d) of this 

section, the Administrator, WHD will 

consider the type of violation 

committed and other relevant factors. In 

determining the level of penalties to be 

assessed, the highest penalties will be 

reserved for willful failures to meet any 

of the conditions of the Application for 

Temporary Employment Certification 

and H–2B Petition that involve harm to 

U.S. workers. Other factors which may 

be considered include, but are not 

limited to, the following: 

(1) Previous history of violation(s) of 

8 U.S.C. 1184(c), 20 CFR part 655, 

Subpart A, or these regulations; 

(2) The number of H–2B workers, 

workers in corresponding employment, 

or improperly rejected U.S. applicants 

who were and/or are affected by the 

violation(s); 

(3) The gravity of the violation(s); 

(4) Efforts made in good faith to 

comply with 8 U.S.C. 1184(c), 20 CFR 

part 655, subpart A, and these 

regulations; 

(5) Explanation from the person 

charged with the violation(s); 

(6) Commitment to future compliance, 

taking into account the public health, 

interest or safety; and 

(7) The extent to which the violator 

achieved a financial gain due to the 

violation, or the potential financial loss 

or potential injury to the workers. 

§ 503.24 Debarment. 

(a) Debarment of an employer. The 

Administrator, OFLC may not issue 

future labor certifications under 20 CFR 

part 655, subpart A to an employer or 

any successor in interest to that 

employer, subject to the time limits set 

forth in paragraph (c) of this section, if 

the Administrator, WHD finds that the 

employer committed a violation that 

meets the standards of § 503.19. Where 

these standards are met, debarrable 

violations would include but not be 

limited to: 

(1) Failure to pay or provide the 

required wages, benefits, or working 

conditions to the employer’s H–2B 

workers and/or workers in 

corresponding employment; 

(2) Failure, except for lawful, jobrelated reasons, to offer employment to 

qualified U.S. workers who applied for 

the job opportunity for which 

certification was sought; 

(3) Failure to comply with the 

employer’s obligations to recruit U.S. 

workers; 

(4) Improper layoff or displacement of 

U.S. workers or workers in 

corresponding employment; 

(5) Failure to comply with one or 

more sanctions or remedies imposed by 

the Administrator, WHD for violation(s) 

of obligations under the job order or 

other H–2B obligations, or with one or 

more decisions or orders of the 

Secretary or a court under 20 CFR part 

655, subpart A or this part; 

(6) Impeding an investigation of an 

employer under this part; 

(7) Employing an H–2B worker 

outside the area of intended 

employment, in an activity/activities 

not listed in the job order, or outside the 

validity period of employment of the job 

order, including any approved 

extension thereof; 

(8) A violation of the requirements of 

§ 503.16(o) or (p); 

(9) A violation of any of the 

provisions listed in § 503.16(r); 

(10) A single heinous act showing 

such flagrant disregard for the law that 

future compliance with program 

requirements cannot reasonably be 

expected; 

(11) Fraud involving the H–2B 

Registration, Application for Temporary 

Employment Certification, or H–2B 

Petition; or 

(12) A material misrepresentation of 

fact during the registration or 

application process. 

(b) Debarment of an agent or attorney. 

If the Administrator, WHD finds, under 

this section, that an agent or attorney 

participated in an employer’s violation, 

the Administrator, OFLC may not issue 

future labor certifications to an 

employer represented by such agent or 

attorney, subject to the time limits set 

forth in paragraph (c) of this section. 


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(c) Period of debarment. Debarment 

under this subpart may not be for less 

than 1 year or more than 5 years from 

the date of the final agency decision. 

(d) Debarment procedure—(1) Notice 

of Debarment. If the Administrator, 

WHD makes a determination to debar an 

employer, attorney, or agent, the 

Administrator, WHD will send the party 

a Notice of Debarment. The Notice will 

state the reason for the debarment 

finding, including a detailed 

explanation of the grounds for and the 

duration of the debarment and inform 

the party subject to the Notice of its 

right to request a debarment hearing and 

the timeframe under which such rights 

must be exercised under § 503.43. If the 

party does not request a hearing within 

30 calendar days of the date of the 

Notice of Debarment, the Notice is the 

final agency action and the debarment 

will take effect at the end of the 30-day 

period. The timely filing of an 

administrative appeal stays the 

debarment pending the outcome of the 

appeal as provided in § 503.43(e). 

(2) [Reserved] 

(e) Concurrent debarment jurisdiction. 

OFLC and the WHD have concurrent 

jurisdiction debar under 20 CFR 655.73 

or under this part. When considering 

debarment, OFLC and the WHD will 

coordinate their activities. A specific 

violation for which debarment is 

imposed will be cited in a single 

debarment proceeding. Copies of final 

debarment decisions will be forwarded 

to DHS and DOS promptly. 

(f) Debarment from other labor 

certification programs. Upon debarment 

under this part or 20 CFR 655.73, the 

debarred party will be disqualified from 

filing any labor certification 

applications or labor condition 

applications with the Department by, or 

on behalf of, the debarred party for the 

same period of time set forth in the final 

debarment decision. 

§ 503.25 Failure to cooperate with 

investigators. 

(a) No person will interfere or refuse 

to cooperate with any employee of the 

Secretary who is exercising or 

attempting to exercise the Department’s 

investigative or enforcement authority 

under 8 U.S.C. 1184(c). Federal statutes 

prohibiting persons from interfering 

with a Federal officer in the course of 

official duties are found at 18 U.S.C. 111 

and 18 U.S.C. 114. 

(b) Where an employer (or employer’s 

agent or attorney) interferes or does not 

cooperate with an investigation 

concerning the employment of an H–2B 

worker or a worker in corresponding 

employment, or a U.S. worker who has 

been improperly rejected for 

employment or improperly laid off or 

displaced, WHD may make such 

information available to OFLC and may 

recommend that OFLC revoke the 

existing certification that is the basis for 

the employment of the H–2B workers 

giving rise to the investigation. In 

addition, WHD may take such action as 

appropriate where the failure to 

cooperate meets the standards in 

§ 503.19, including initiating 

proceedings for the debarment of the 

employer from future certification for 

up to 5 years, and/or assessing civil 

money penalties against any person who 

has failed to cooperate with a WHD 

investigation. The taking of any one 

action will not bar the taking of any 

additional action. 

§ 503.26 Civil money penalties—payment 

and collection. 

Where a civil money penalty is 

assessed in a final order by the 

Administrator, WHD, by an ALJ, or by 

the ARB, the amount of the penalty 

must be received by the Administrator, 

WHD within 30 calendar days of the 

date of the final order. The person 

assessed the penalty will remit the 

amount ordered to the Administrator, 

WHD by certified check or by money 

order, made payable to the Wage and 

Hour Division, United States 

Department of Labor. The remittance 

will be delivered or mailed to the WHD 

Regional Office for the area in which the 

violations occurred. 

Subpart C—Administrative 

Proceedings 

§ 503.40 Applicability of procedures and 

rules. 

The procedures and rules contained 

herein prescribe the administrative 

appeal process that will be applied with 

respect to a determination to assess civil 

money penalties, to debar, to enforce 

provisions of the job order or obligations 

under 8 U.S.C. 1184(c), 20 CFR part 655, 

subpart A, or these regulations, or to the 

collection of monetary relief due as a 

result of any violation. 

Procedures Related to Hearing 

§ 503.41 Administrator, WHD’s 

determination. 

(a) Whenever the Administrator, WHD 

decides to assess a civil money penalty, 

to debar, or to impose other appropriate 

administrative remedies, including for 

the recovery of monetary relief, the 

employer against which such action is 

taken will be notified in writing of such 

determination. 

(b) The Administrator, WHD’s 

determination will be served on the 

employer by personal service or by 

certified mail at the employer’s last 

known address. Where service by 

certified mail is not accepted by the 

employer, the Administrator may 

exercise discretion to serve the 

determination by regular mail. 

§ 503.42 Contents of notice of 

determination. 

The notice of determination required 

by § 503.41 will: 

(a) Set forth the determination of the 

Administrator, WHD, including: 

(1) The amount of any monetary relief 

due; or 

(2) Other appropriate administrative 

remedies; or 

(3) The amount of any civil money 

penalty assessment; or 

(4) Whether debarment is sought and 

the term; and 

(5) The reason or reasons for such 

determination; 

(b) Set forth the right to request a 

hearing on such determination; 

(c) Inform the employer that in the 

absence of a timely request for a 

hearing, received by the Chief 

Administrative Law Judge (Chief ALJ) 

within 30 calendar days of the date of 

the determination, the determination of 

the Administrator, WHD will become 

final and not appealable; 

(d) Set forth the time and method for 

requesting a hearing, and the related 

procedures for doing so, as set forth in 

§ 503.43, and give the addresses of the 

Chief ALJ (with whom the request must 

be filed) and the representative(s) of the 

Solicitor of Labor (upon whom copies of 

the request must be served); and 

(e) Where appropriate, inform the 

employer that the Administrator, WHD 

will notify OFLC and DHS of the 

occurrence of a violation by the 

employer. 

§ 503.43 Request for hearing. 

(a) An employer desiring review of a 

determination issued under § 503.41, 

including judicial review, must make a 

request for such an administrative 

hearing in writing to the Chief ALJ at 

the address stated in the notice of 

determination. In such a proceeding, the 

Administrator will be the plaintiff, and 

the employer will be the respondent. If 

such a request for an administrative 

hearing is timely filed, the 

Administrator, WHD’s determination 

will be inoperative unless and until the 

case is dismissed or the Administrative 

Law Judge (ALJ) issues an order 

affirming the decision. 

(b) No particular form is prescribed 

for any request for hearing permitted by 

this section. However, any such request 

will: 

(1) Be dated; 


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(2) Be typewritten or legibly written; 

(3) Specify the issue or issues stated 

in the notice of determination giving 

rise to such request; 

(4) State the specific reason or reasons 

why the employer believes such 

determination is in error; 

(5) Be signed by the employer making 

the request or by the agent or attorney 

of such employer; and 

(6) Include the address at which such 

employer or agent or attorney desires to 

receive further communications relating 

thereto. 

(c) The request for such hearing must 

be received by the Chief ALJ, at the 

address stated in the Administrator, 

WHD’s notice of determination, no later 

than 30 calendar days after the date of 

the determination. An employer which 

fails to meet this 30-day deadline for 

requesting a hearing may thereafter 

participate in the proceedings only by 

consent of the ALJ. 

(d) The request may be filed in 

person, by facsimile transmission, by 

certified or regular mail, or by courier 

service within the time set forth in 

paragraph (c) of this section. For the 

requesting employer’s protection, if the 

request is by mail, it should be by 

certified mail. If the request is by 

facsimile transmission, the original of 

the request, signed by the employer or 

its attorney or agent, must be filed 

within 25 days. 

(e) The determination will take effect 

on the start date identified in the 

written notice of determination, unless 

an administrative appeal is properly 

filed. The timely filing of an 

administrative appeal stays the 

determination pending the outcome of 

the appeal proceedings. 

(f) Copies of the request for a hearing 

will be sent by the employer or attorney 

or agent to the WHD official who issued 

the notice of determination on behalf of 

the Administrator, WHD, and to the 

representative(s) of the Solicitor of 

Labor identified in the notice of 

determination. 

Rules of Practice 

§ 503.44 General. 

(a) Except as specifically provided in 

these regulations and to the extent they 

do not conflict with the provisions of 

this part, the Rules of Practice and 

Procedure for Administrative Hearings 

Before the Office of Administrative Law 

Judges established by the Secretary at 29 

CFR part 18 will apply to administrative 

proceedings described in this part. 

(b) As provided in the Administrative 

Procedure Act, 5 U.S.C. 556, any oral or 

documentary evidence may be received 

in proceedings under this part. The 

Federal Rules of Evidence and Subpart 

B of the Rules of Practice and Procedure 

for Administrative Hearings Before the 

Office of Administrative Law Judges (29 

CFR part 18, subpart B) will not apply, 

but principles designed to ensure 

production of relevant and probative 

evidence will guide the admission of 

evidence. The ALJ may exclude 

evidence which is immaterial, 

irrelevant, or unduly repetitive. 

§ 503.45 Service of pleadings. 

(a) Under this part, a party may serve 

any pleading or document by regular 

mail. Service on a party is complete 

upon mailing to the last known address. 

No additional time for filing or response 

is authorized where service is by mail. 

In the interest of expeditious 

proceedings, the ALJ may direct the 

parties to serve pleadings or documents 

by a method other than regular mail. 

(b) Two copies of all pleadings and 

other documents in any ALJ proceeding 

must be served on the attorneys for the 

Administrator, WHD. One copy must be 

served on the Associate Solicitor, 

Division of Fair Labor Standards, Office 

of the Solicitor, U.S. Department of 

Labor, 200 Constitution Avenue, NW., 

Room N–2716, Washington, DC 20210, 

and one copy must be served on the 

attorney representing the Administrator 

in the proceeding. 

(c) Time will be computed beginning 

with the day following service and 

includes the last day of the period 

unless it is a Saturday, Sunday, or 

Federally-observed holiday, in which 

case the time period includes the next 

business day. 

§ 503.46 Commencement of proceeding. 

Each administrative proceeding 

permitted under 8 U.S.C. 1184(c)(14) 

and these regulations will be 

commenced upon receipt of a timely 

request for hearing filed in accordance 

with § 503.43. 

§ 503.47 Caption of proceeding. 

(a) Each administrative proceeding 

instituted under 8 U.S.C. 1184(c)(14) 

and these regulations will be captioned 

in the name of the person requesting 

such hearing, and will be styled as 

follows: 

In the Matter of ll, Respondent. 

(b) For the purposes of such 

administrative proceedings the 

Administrator, WHD will be identified 

as plaintiff and the person requesting 

such hearing will be named as 

respondent. 

§ 503.48 Conduct of proceeding. 

(a) Upon receipt of a timely request 

for a hearing filed under and in 

accordance with § 503.43, the Chief ALJ 

will promptly appoint an ALJ to hear 

the case. 

(b) The ALJ will notify all parties of 

the date, time and place of the hearing. 

Parties will be given at least 30 calendar 

days notice of such hearing. 

(c) The ALJ may prescribe a schedule 

by which the parties are permitted to 

file a prehearing brief or other written 

statement of fact or law. Any such brief 

or statement must be served upon each 

other party. Post-hearing briefs will not 

be permitted except at the request of the 

ALJ. When permitted, any such brief 

must be limited to the issue or issues 

specified by the ALJ, will be due within 

the time prescribed by the ALJ, and 

must be served on each other party. 

Procedures Before Administrative Law 

Judge 

§ 503.49 Consent findings and order. 

(a) General. At any time after the 

commencement of a proceeding under 

this part, but before the reception of 

evidence in any such proceeding, a 

party may move to defer the receipt of 

any evidence for a reasonable time to 

permit negotiation of an agreement 

containing consent findings and an 

order disposing of the whole or any part 

of the proceeding. The allowance of 

such deferment and the duration thereof 

will be at the discretion of the ALJ, after 

consideration of the nature of the 

proceeding, the requirements of the 

public interest, the representations of 

the parties, and the probability of an 

agreement being reached which will 

result in a just disposition of the issues 

involved. 

(b) Content. Any agreement 

containing consent findings and an 

order disposing of a proceeding or any 

part thereof will also provide: 

(1) That the order will have the same 

force and effect as an order made after 

full hearing; 

(2) That the entire record on which 

any order may be based will consist 

solely of the notice of administrative 

determination (or amended notice, if 

one is filed), and the agreement; 

(3) A waiver of any further procedural 

steps before the ALJ; and 

(4) A waiver of any right to challenge 

or contest the validity of the findings 

and order entered into in accordance 

with the agreement. 

(c) Submission. On or before the 

expiration of the time granted for 

negotiations, the parties or their 

attorney or agent may: 

(1) Submit the proposed agreement for 

consideration by the ALJ; or 

(2) Inform the ALJ that agreement 

cannot be reached. 


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(d) Disposition. In the event an 

agreement containing consent findings 

and an order is submitted within the 

time allowed therefore, the ALJ, within 

30 days thereafter, will, if satisfied with 

its form and substance, accept such 

agreement by issuing a decision based 

upon the agreed findings. 

Post-Hearing Procedures 

§ 503.50 Decision and order of 

Administrative Law Judge. 

(a) The ALJ will prepare, within 60 

days after completion of the hearing and 

closing of the record, a decision on the 

issues referred by the Administrator, 

WHD. 

(b) The decision of the ALJ will 

include a statement of the findings and 

conclusions, with reasons and basis 

therefore, upon each material issue 

presented on the record. The decision 

will also include an appropriate order 

which may affirm, deny, reverse, or 

modify, in whole or in part, the 

determination of the Administrator, 

WHD. The reason or reasons for such 

order will be stated in the decision. 

(c) In the event that the 

Administrator, WHD assesses back 

wages for wage violation(s) of § 503.16 

based upon a PWD obtained by the 

Administrator from OFLC during the 

investigation and the ALJ determines 

that the Administrator’s request was not 

warranted, the ALJ will remand the 

matter to the Administrator for further 

proceedings on the Administrator’s 

determination. If there is no such 

determination and remand by the ALJ, 

the ALJ will accept as final and accurate 

the wage determination obtained from 

OFLC or, in the event the employer filed 

a timely appeal under 20 CFR 655.13 

the final wage determination resulting 

from that process. Under no 

circumstances will the ALJ determine 

the validity of the wage determination 

or require submission into evidence or 

disclosure of source data or the names 

of establishments contacted in 

developing the survey which is the basis 

for the PWD. 

(d) The decision will be served on all 

parties. 

(e) The decision concerning civil 

money penalties, debarment, monetary 

relief, and/or other administrative 

remedies, when served by the ALJ will 

constitute the final agency order unless 

the Administrative Review Board (ARB), 

as provided for in § 503.51, determines 

to review the decision. 

Review of Administrative Law Judge’s 

Decision 

§ 503.51 Procedures for initiating and 

undertaking review. 

(a) A respondent, the WHD, or any 

other party wishing review, including 

judicial review, of the decision of an 

ALJ will, within 30 days of the decision 

of the ALJ, petition the ARB to review 

the decision. Copies of the petition will 

be served on all parties and on the ALJ. 

(b) No particular form is prescribed 

for any petition for the ARB’s review 

permitted by this part. However, any 

such petition will: 

(1) Be dated; 

(2) Be typewritten or legibly written; 

(3) Specify the issue or issues stated 

in the ALJ decision and order giving rise 

to such petition; 

(4) State the specific reason or reasons 

why the party petitioning for review 

believes such decision and order are in 

error; 

(5) Be signed by the party filing the 

petition or by an authorized 

representative of such party; 

(6) Include the address at which such 

party or authorized representative 

desires to receive further 

communications relating thereto; and 

(7) Include as an attachment the ALJ’s 

decision and order, and any other 

record documents which would assist 

the ARB in determining whether review 

is warranted. 

(c) If the ARB does not issue a notice 

accepting a petition for review of the 

decision within 30 days after receipt of 

a timely filing of the petition, or within 

30 days of the date of the decision if no 

petition has been received, the decision 

of the ALJ will be deemed the final 

agency action. 

(d) Whenever the ARB, either on the 

ARB’s own motion or by acceptance of 

a party’s petition, determines to review 

the decision of an ALJ, a notice of the 

same will be served upon the ALJ and 

upon all parties to the proceeding. 

§ 503.52 Responsibility of the Office of 

Administrative Law Judges (OALJ). 

Upon receipt of the ARB’s Notice 

under § 503.51, the OALJ will promptly 

forward a copy of the complete hearing 

record to the ARB. 

§ 503.53 Additional information, if 

required. 

Where the ARB has determined to 

review such decision and order, the 

ARB will notify the parties of: 

(a) The issue or issues raised; 

(b) The form in which submissions 

will be made (i.e., briefs, oral argument, 

etc.); and 

(c) The time within which such 

presentation will be submitted. 

§ 503.54 Submission of documents to the 

Administrative Review Board. 

All documents submitted to the ARB 

will be filed with the Administrative 

Review Board, U.S. Department of 

Labor, 200 Constitution Avenue, NW., 

Room S–5220, Washington, DC 20210. 

An original and two copies of all 

documents must be filed. Documents 

are not deemed filed with the ARB until 

actually received by the ARB. All 

documents, including documents filed 

by mail, must be received by the ARB 

either on or before the due date. Copies 

of all documents filed with the ARB 

must be served upon all other parties 

involved in the proceeding. 

§ 503.55 Final decision of the 

Administrative Review Board. 

The ARB’s final decision will be 

issued within 90 days from the notice 

granting the petition and served upon 

all parties and the ALJ. 

Record 

§ 503.56 Retention of official record. 

The official record of every completed 

administrative hearing provided by 

these regulations will be maintained 

and filed under the custody and control 

of the Chief ALJ, or, where the case has 

been the subject of administrative 

review, the ARB. 

Signed in Washington, this 11th day of 

March 2011. 

Jane Oates, 

Assistant Secretary, Employment and 

Training Administration. 

Nancy Leppink, 

Deputy Administrator, Wage and Hour 

Division. 

[FR Doc. 2011–6152 Filed 3–17–11; 8:45 am] 

BILLING CODE 4510–FP–P 


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