10038 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Part 655 

Wage and Hour Division 

29 CFR Part 503 

RIN 1205–AB58 

Temporary Non-Agricultural 

Employment of H–2B Aliens in the 

United States 

AGENCY: Employment and Training 

Administration, and Wage and Hour 

Division, Labor. 

ACTION: Final rule. 

SUMMARY: The Department of Labor (the 

Department) is amending its regulations 

governing the certification of the 

employment of nonimmigrant workers 

in temporary or seasonal nonagricultural employment and the 

enforcement of the obligations 

applicable to employers of such 

nonimmigrant workers. This Final Rule 

revises the process by which employers 

obtain a temporary labor certification 

from the Department for use in 

petitioning the Department of Homeland 

Security (DHS) to employ a 

nonimmigrant worker in H–2B status. 

We have also created new regulations to 

provide for increased worker 

protections for both United States (U.S.) 

and foreign workers. 

DATES: This Final Rule is effective April 

23, 2012. 

FOR FURTHER INFORMATION CONTACT: For 

further information on 20 CFR part 655, 

Subpart A, contact William L. Carlson, 

Ph.D., Administrator, Office of Foreign 

Labor Certification, ETA, U.S. 

Department of Labor, 200 Constitution 

Avenue NW., Room C–4312, 

Washington, DC 20210; Telephone (202) 

693–3010 (this is not a toll-free 

number). Individuals with hearing or 

speech impairments may access the 

telephone number above via TTY by 

calling the toll-free Federal Information 

Relay Service at 1–800–877–8339. 

For further information on 29 CFR 

part 503 contact Mary Ziegler, Director, 

Division of Regulations, Legislation, and 

Interpretation, Wage and Hour Division, 

U.S. Department of Labor, 200 

Constitution Avenue NW., Room S– 

3510, Washington, DC 20210; 

Telephone (202) 693–0071 (this is not a 

toll-free number). Individuals with 

hearing or speech impairments may 

access the telephone number above via 

TTY by calling the toll-free Federal 

Information Relay Service at 1–800– 

877–8339. 

SUPPLEMENTARY INFORMATION: 

I. Revisions to 20 CFR part 655 Subpart 

A 

A. Statutory Standard and Current 

Department of Labor Regulations 

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

Immigration and Nationality Act (INA 

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

a nonimmigrant admitted to the U.S. on 

a temporary basis to perform temporary 

non-agricultural labor or services for 

which ‘‘unemployed persons capable of 

performing such service or labor cannot 

be found in this country.’’ 8 U.S.C. 

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

the INA requires DHS to consult with 

appropriate agencies before approving 

an H–2B visa petition. 8 U.S.C. 

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

Citizenship and Immigration Services 

(USCIS), the agency within DHS which 

adjudicates requests for H–2B status, 

require that an intending employer first 

apply for a temporary labor certification 

from the Secretary of Labor (the 

Secretary). That certification informs 

USCIS that U.S. workers capable of 

performing the services or labor are not 

available, and that the employment of 

the foreign worker(s) will not adversely 

affect the wages and working conditions 

of similarly employed U.S. workers. 

8 CFR 214.2(h)(6). On Guam, H–2B 

employment requires certification from 

the Governor of Guam, not the 

Secretary. 8 CFR 214.2(h)(6)(iii). 

Our regulations, at 20 CFR part 655, 

Subpart A, ‘‘Labor Certification Process 

for Temporary Employment in 

Occupations other than Agriculture or 

Registered Nursing in the United States 

(H–2B Workers),’’ govern the H–2B 

labor certification process, as well as the 

enforcement process to ensure U.S. and 

H–2B workers are employed in 

compliance with H–2B labor 

certification requirements. Applications 

for labor certification are processed by 

the Office of Foreign Labor Certification 

(OFLC) in the Employment and Training 

Administration (ETA), the agency to 

which the Secretary has delegated her 

responsibilities as described in the 

USCIS H–2B regulations. Enforcement 

of the attestations made by employers in 

the course of submission of H–2B 

applications for labor certification is 

conducted by the Wage and Hour 

Division (WHD) within the Department, 

to which DHS on January 16, 2009 

delegated enforcement authority granted 

to it by the INA. 8 U.S.C. 1184(c)(14)(B). 

Under the 2008 H–2B regulations 

published at 73 FR 29942, May 22, 2008 

(the 2008 Final Rule), an employer 

seeking to fill job opportunities through 

the H–2B program must demonstrate 

that it has a temporary need for the 

services or labor, as defined by one of 

four regulatory standards: (1) A onetime occurrence; (2) a seasonal need; (3) 

a peakload need; or (4) an intermittent 

need. 8 CFR 214.2(h)(6)(ii)(B). 

Generally, that period of time will be 

limited to 1 year or less, except in the 

case of a one-time occurrence, which 

could last up to 3 years, consistent with 

the standard under DHS regulations at 

8 CFR 214.2(h)(6) as well as current 

Department regulations at § 655.6(b). 

The 2008 Final Rule also employed an 

attestation-based filing model, in which 

the employer conducted its recruitment 

with no direct Federal or State 

oversight. Lastly, the 2008 Final Rule 

provided WHD’s enforcement authority 

under which WHD could impose civil 

money penalties and other remedies. 

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

Court for the Eastern District of 

Pennsylvania in 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 

2008 Final Rule and remanded the rule 

to the Department to correct its errors. 

In the Notice of Proposed Rulemaking 

(NPRM) published March 18, 2011 (76 

FR 15130), we proposed to amend the 

particular provisions that were 

invalidated by the Court, including 

specifying when H–2B employers must 

contact unions as a potential source of 

labor at § 655.44 and providing a new 

definition of full-time and a slightly 

modified definition of job contractor in 

§ 655.5 and 29 CFR 503.4. 

B. The Need for Rulemaking 

The Department determined for a 

variety of reasons that a new rulemaking 

effort is necessary for the H–2B 

program. These policy-related reasons, 

which were discussed at length in the 

NPRM, include expansion of 

opportunities for U.S. workers, evidence 

of violations of program requirements, 

some rising to a criminal level, need for 

better worker protections, and a lack of 

understanding of program obligations. 

We accordingly proposed to revert to 

the compliance-based certification 

model that had been used from the 

inception of the program until the 2008 

Final Rule. We also proposed to add 

new recruitment and other requirements 

to broaden the dissemination of job offer 

information, such as introducing the 

electronic job registry and requiring the 

job offer to remain open to U.S. workers 

for a longer period and closer to the date 

of need. We stated that these changes 

were necessary to ensure that there was 


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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 10039 

an adequate test of the U.S. labor market 

to determine whether U.S. workers are 

available for the jobs. Further, we 

proposed additional worker protections, 

such as increasing the number of hours 

per week required for full-time 

employment and requiring that U.S. 

workers in corresponding employment 

who perform the same jobs at the same 

place as the H–2B workers receive the 

same wages and benefits as the H–2B 

workers. We discussed how increased 

worker protections were necessary to 

ensure that the employment of H–2B 

workers does not adversely affect the 

wages and working conditions of U.S. 

workers. 

Summing the present value of the 

costs associated with this rulemaking in 

Years 1–10 results in total discounted 

costs over 10 years of $10.3 million to 

$12.8 million (with 7 percent and 3 

percent discounting, respectively). 

TABLE 1—SUMMARY OF COSTS AND TRANSFERS

[Millions of dollars] 

Cost component 

Transfers and costs by year 

(millions of dollars) 

Year 1 

costs 

Year 2–10 

costs 

Year 1–10 

costs 

Undiscounted: 

Total Costs and Transfers—Low ...................................................................................................... $96.34 $94.73 $948.91 

Total Costs and Transfers—High ..................................................................................................... 131.38 129.76 1,299.26 

Total Transfers—Low ....................................................................................................................... 93.37 93.37 933.71 

Total Transfers—High ...................................................................................................................... 128.41 128.41 1,284.06 

Total Costs to Employers ................................................................................................................. 2.83 1.31 14.64 

Total Costs to Government .............................................................................................................. 0.14 0.05 0.56 

Present Value—7% Real Interest Rate: 

Total Costs & Transfers—Low ......................................................................................................... .................... .................... 623.22 

Total Costs & Transfers—High ........................................................................................................ .................... .................... 853.20 

Total Transfers—Low ....................................................................................................................... .................... .................... 612.89 

Total Transfers—High ...................................................................................................................... .................... .................... 842.87 

Total Costs ....................................................................................................................................... .................... .................... 10.33 

Present Value—3% Real Interest Rate: 

Total Costs & Transfers—Low ......................................................................................................... .................... .................... 786.05 

Total Costs & Transfers—High ........................................................................................................ .................... .................... 1,076.20 

Total Transfers—Low ....................................................................................................................... .................... .................... 773.27 

Total Transfers—High ...................................................................................................................... .................... .................... 1,063.42 

Total Costs ....................................................................................................................................... .................... .................... 12.78 

Note: Totals may not sum due to rounding. 

TABLE 2—SUMMARY OF ESTIMATED COST BY PROVISION

[Millions of dollars] 

Cost component 

Provision costs by year 

(in millions of dollars) 

Year 1 

costs 

Year 2–10 

costs 

Year 1–10 

costs 

Transfers: 

Corresponding Workers’ Wages—Low ............................................................................................ $17.52 $17.52 $175.18 

Corresponding Workers’ Wages—High ........................................................................................... 52.55 52.55 525.53 

Transportation ................................................................................................................................... 61.33 61.33 613.28 

Subsistence ...................................................................................................................................... 2.81 2.81 28.09 

Lodging ............................................................................................................................................. 1.58 1.58 15.83 

Visa and Border Crossing Fees ....................................................................................................... 10.13 10.13 101.33 

Total Transfers—Low ....................................................................................................................... 93.37 93.37 933.71 

Total Transfers—High ...................................................................................................................... 128.41 128.41 1,284.06 

Costs to Employers: 

Read and Understand Rule .............................................................................................................. 1.20 0 1.20 

Document Retention ......................................................................................................................... 0.32 0 0.32 

Additional Recruiting ......................................................................................................................... 1.04 1.04 10.36 

Disclosure of Job Order ................................................................................................................... 0.26 0.26 2.63 

Other Provisions a ............................................................................................................................. 0.014 0.014 0.14 

Total Costs to Employers .......................................................................................................... 2.83 1.31 14.65 

Costs to Government: 

Electronic Job Registry ..................................................................................................................... 0.14 0.05 0.56 

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

Total First Year Costs to Government ...................................................................................... 0.14 0.05 0.56 

Total Costs & Transfers: 

Total Costs & Transfers—Low ......................................................................................................... 96.34 94.73 948.91 

Total Costs & Transfers—High ........................................................................................................ 131.38 129.76 1,299.26 


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10040 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

TABLE 2—SUMMARY OF ESTIMATED COST BY PROVISION—Continued 

[millions of dollars] 

Cost component 

Provision costs by year 

(in millions of dollars) 

Year 1 

costs 

Year 2–10 

costs 

Year 1–10 

costs 

Total Transfers—Low ....................................................................................................................... 93.37 93.37 933.71 

Total Transfers—High ...................................................................................................................... 128.41 128.41 1,284.06 

Total Costs ....................................................................................................................................... 2.97 1.36 15.20 

Note: Totals may not sum due to rounding. a Includes the sum of: Elimination of Attestation-Based Model; Post Job Opportunity; Workers Rights Poster. 

C. Overview of the Comments Received 

We received 869 comments on the 

proposed rule. We have determined that 

457 were completely unique including 8 

representative form letters, 4 were 

duplicates, 407 were considered a form 

letter or based on a form letter, and 1 

comment was withdrawn at the request 

of the commenter. Those comments that 

were received by means not listed in the 

proposed rule or that we received after 

the comment period closed were not 

considered in this Final Rule. 

Commenters represented a broad 

range of constituencies for the H–2B 

program, including small business 

employers, U.S. and H–2B workers, 

worker advocacy groups, State 

Workforce Agencies (SWAs), agents, law 

firms, employer and industry advocacy 

groups, union organizations, members 

of the U.S. Congress, and various 

interested members of the public. We 

received comments both in support of 

and in opposition to the proposed 

regulation, which are discussed in 

greater detail below. 

One commenter contended that we 

dismiss comments simply because they 

are similar in nature. This statement is 

incorrect. We read and analyzed all 

comments that we received within the 

comment period. For purposes of 

posting comments for the public to 

view, we posted all comments we 

deemed unique with at least one copy 

of a form letter so that there is an 

opportunity to see the concerns being 

addressed. All form letters are 

considered in the final count of 

comments received and we address 

them as required by the Administrative 

Procedure Act (APA) in this Final Rule. 

Another commenter argued that we did 

not allow enough time to comment on 

the proposed rulemaking. We disagree 

and believe that 60 days was enough 

time for the public to comment on the 

rulemaking. We note that the APA does 

not provide a specific time period 

during which agencies must accept 

public comments in response to 

proposed rules, see 5 U.S.C. 553, but the 

60-day comment period that we 

provided during this rulemaking is 

consistent with the directive of 

Executive Order 13563, see Improving 

Regulation and Regulatory Review, 76 

FR 3821–22 (Jan. 21, 2011). Moreover, 

in light of the Court’s ruling in the 

CATA case invalidating some of the 

current regulations, we believe it was 

necessary to proceed as expeditiously as 

reasonable through the rulemaking 

process. 

There were several issues which we 

deemed to be beyond the scope of the 

proposed rule. Some of these issues 

included general disapproval of any 

foreigners being allowed to work in the 

U.S., elimination of temporary foreign 

worker programs, activities and rules 

related to the H–2A program, and 

general foreign relations and 

immigration reform issues (including 

increasing or decreasing the number of 

available visas). Also beyond the scope 

of this rulemaking were the collective 

bargaining rights of H–2B workers, the 

wage methodology promulgated by the 

Wage Methodology for the Temporary 

Non-agricultural Employment H–2B 

Program, 76 FR 3452, Jan. 19, 2011 and 

the portability of visas. 

Lastly, we received a large number of 

comments from the ski industry 

requesting an exemption from the 

regulations. Many of the commenters 

believed that because ski instructors 

require skills or experience, under the 

new rules they would be ineligible for 

the H–2B program. Generally, job 

positions certified under the H–2B 

program are low skilled, requiring little 

to no experience. We do recognize, 

however, that there are some 

occupations and categories under the 

H–2B program that may require 

experience and/or training. Employer 

applicants demonstrating a true need for 

a level of experience, training or 

certification in their application have 

never been prohibited in the H–2B 

program, given the breadth of the 

definition of H–2B under the INA. See 

8 U.S.C. 1101(a)(15)(H)(ii)(b). We have 

determined that an exemption for the 

ski industry is not appropriate as the 

commenters presented no valid 

argument as to why exemption is 

necessary. There is nothing about the 

workers they seek to hire that prevents 

them from participating in the H–2B 

program. Ski resorts are fixed-site 

locations that run on a seasonal basis 

with standard operating procedures. We 

do not see a reason, nor was one 

presented, that prevents a ski resort 

from meeting all the recruitment 

requirements. 

D. Elimination of the Attestation-Based 

Model 

One of the overarching changes we 

made in the proposed rule was the 

elimination of the attestation-based 

model adopted in the 2008 Final Rule. 

We received comments supporting the 

elimination of the attestation-based 

model as well as opposing that change. 

Generally, commenters who supported 

our decision to revert to a compliancebased model focused on the 

Department’s desire to reduce the 

susceptibility of the H–2B program to 

fraud and abuse. Several commenters 

expressed concern about the rise of 

criminal and civil prosecutions which 

they felt demonstrate abuse in the H–2 

program. Most of the commenters cited 

our audit experience, as discussed in 

the NPRM, and agreed that this data 

alone should foreclose any debate on 

the necessity of ending the attestationbased model. One commenter 

specifically pointed out that changes in 

the 2008 Final Rule made it easier for 

unscrupulous employers and their 

agents to use H–2B visas for the illicit 

purpose of suppressing wages. This 

same commenter suggested that a return 

to a compliance-based model brings us 

back to the proper focus of 

administering the H–2B program in a 

manner that fairly balances the 

protection of workers with the desires of 

employers. Another commenter pointed 

out that the OFLC’s experience of 2 

years under the attestation-based model 


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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 10041 

1Program Design Issues Hampered ETA’s Ability 

to Ensure the H–2B Visa Program Provided 

Adequate Protections for U.S. Forestry Workers in 

Oregon, Office of the Inspector General of the U.S. 

Department of Labor, Report No. 17–12–001–03– 

321, Oct. 17, 2011. http://www.oig.dol.gov/public/ 

reports/oa/2012/17–12–001–03–321.pdf. 

2Semiannual Report to Congress, Office of the 

Inspector General of the U.S. Department of Labor, 

Volume 65 (October 1, 2010 to March 31, 2011); 

http://www.oig.dol.gov/public/semiannuals/65.pdf 

http://www.oig.dol.gov/public/semiannuals/65.pdf. 

is sufficient to demonstrate that the 

model cannot be retained without doing 

serious damage to the employment 

prospects and wages and working 

conditions of U.S. workers. Similarly, 

an advocacy group stated that many 

aspects of the attestation-based model 

deprive domestic workers of 

employment opportunities, adversely 

affect their wages and working 

conditions, and encourage, rather than 

curb, the well-documented fraud in the 

H–2B program. 

Generally, commenters who 

advocated the retention of an 

attestation-based model encouraged us 

to use our current resources and 

enforcement authority to crack down on 

bad actors, rather than overhaul the 

program. A few commenters stated that 

we did not give the 2008 Final Rule and 

the attestation-based model sufficient 

time to be successful. Contrary to the 

comments supportive of a change, these 

commenters argued that our audit of a 

random sample of cases is misleading 

given that the NPRM does not disclose 

the number of cases audited and the 

details about the audit process and that 

all violations appear to be counted with 

equal weight. Another commenter 

believed that reverting to the 

compliance-based model would create 

extensive processing delays. 

We disagree with the commenters 

who asserted that increased 

enforcement authority is the answer to 

resolving concerns about the attestationbased model. Our enforcement authority 

is a separate regulatory component, 

regardless of the certification model we 

use. Our experience, as presented in the 

NPRM, indicates that despite the fact 

that the 2008 Final Rule contained 

elevated penalties for non-compliance 

with the program provisions, the results 

of the audited cases demonstrate that an 

attestation-based process does not 

provide an adequate level of protection 

for either U.S. or foreign workers. 

Commenters who assert we did not 

give the 2008 Final Rule and its 

attestation-based model a chance to be 

successful undervalue the experience 

we have had over the last 2 years with 

the program. In making our decision to 

depart from the attestation-based model, 

we took into account not only the audits 

we conducted as described in the 

NPRM, but also the various comments 

and concerns raised by employers, 

advocates, and workers about 

compliance with the program. The 

attestation-based model of the 2008 

Final Rule is highly vulnerable to fraud. 

Under that model, only after an 

employer has been certified and the 

foreign workers have come to the U.S. 

and begun working for the employer, is 

there a probability that the employer’s 

non-compliance will be discovered or 

that the foreign worker(s) will report a 

violation. Only if an employer is 

audited or investigated will we learn of 

any non-compliance, even minor 

violations of program obligations, since 

the attestation-based model relies on the 

employer’s attestations. 

Consistent with our concerns about 

the attestation-based model, the 

Department’s Office of Inspector 

General (OIG) issued an audit report on 

October 17, 2011 in which OIG 

identified the attestation-based model as 

a weakness in the H–2B program 1. OIG 

found that the existing attestation-based 

application process did not allow for 

meaningful validation before 

application approval and hampered the 

Department’s ability to provide 

adequate protections for U.S. workers in 

the H–2B applications OIG reviewed. 

OIG noted that the Department’s 

proposed transition to a model requiring 

pre-approval review of compliance 

through documentation, as adopted in 

this Final Rule, would strengthen the 

program. 

As to commenter concerns about the 

audit sample discussed in the NPRM, 

we reiterate that we conducted two 

rounds of audits of a random sample of 

cases, both of which resulted in an 

indication that many of the employers 

were not in compliance with the 

attestations they agreed to. These audits 

we reviewed were a random sample. 

Employers were not selected based on 

specific industries or occupations, nor 

were they selected based on compliance 

with specific provisions. The indication 

of employer non-compliance from those 

audits is not acceptable by our 

standards. Additionally, contrary to the 

commenter’s claim that all violations 

were given equal weight, regardless of 

the type of violations or their 

consequences, our concern is that these 

audits evidenced a pattern of noncompliance with program obligations 

toward workers, regardless of the degree 

of such non-compliance. Moreover, the 

results of these audits showed the 

existence of deficiencies in the 

applications that would have warranted 

further action, the least of which would 

have included issuing a Notice of 

Deficiency, and affording the employer 

the opportunity to correct the 

deficiencies, before adjudicating the 

application. Again, under the 

attestation-based program model, we are 

not aware of the non-compliance before 

certification. 

Furthermore, despite the fact that 

H–2B cases continue to be processed 

under the 2008 Final Rule, which some 

commenters said implemented an ideal 

balance between the attestation-based 

model and stronger enforcement 

authority, we still see evidence in the 

H–2B program of a rising number of 

criminal violations. In addition to the 

specific cases cited in the NPRM, there 

has been more recent evidence of 

employers and agents filing fraudulent 

applications involving thousands of 

requested employees for non-existent 

job opportunities. For example, 

according to the OIG’s ‘‘Semiannual 

Report to Congress’’ (October 2010 until 

March 2011),2 OIG investigations found 

that emerging organized criminal groups 

are using the Department’s foreign labor 

certification processes in illegal 

schemes, and in so doing are 

committing crimes that negatively 

impact workers. The report further lists 

at least 4 examples of fraud committed 

by employers or their attorneys/agents 

in the H–2B program. 

Lastly, while some commenters were 

concerned about the processing delays 

that may result from reverting to a 

compliance-based certification model, 

our focus in administering the H–2B 

program is to provide employers with a 

viable workforce while protecting U.S. 

and foreign workers. We will, however, 

continue to endeavor to process 

applications as efficiently and quickly 

as possible and in accordance with the 

timeframes set forth in the application 

processing provisions of this Final Rule. 

In the NPRM, we solicited comments 

on maintaining the 2008 Final Rule or 

some modification of the attestationbased program design. While we have 

chosen to adopt the certification-based 

model described in the NPRM, we 

discuss below the responses to the 

specific questions presented in the 

NPRM: 

1. What kind of specific guidance could 

the Department provide that would 

benefit a first-time (or sporadic) 

employer in the H–2B program to avoid 

mistakes in making attestations of 

compliance with program obligations? 

We received several comments 

directly addressing this question, one of 

which asserted that the attestation-based 

model was straightforward and that 

non-compliance is attributable to a 


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10042 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

willful choice made by the employer or 

its attorney/agent. Another comment, 

submitted by several employer advocacy 

groups, encouraged us to establish 

additional ongoing education programs 

throughout the U.S. and to provide a 

hotline to answer questions about basic 

programmatic issues. The comment 

suggested the hotline be supplemented 

by the Certifying Officer (CO) notifying 

employers of any technical issues while 

the Application for Temporary 

Employment Certification is pending. 

An employer also expressed frustration 

with its inability to communicate 

directly with us to seek immediate 

guidance on program processes and 

policies. 

While we have established an email 

box (tlc.chicago@dol.gov) to which 

employers can submit questions about 

their applications, we continue to rely 

on those questions to easily identify 

recurring issues for which we may need 

to issue a Frequently Asked Question 

(FAQ) and/or guidance or provide 

additional training to staff. We also 

anticipate stakeholder educational 

efforts to help familiarize program users 

and others with the regulatory 

requirements and changes in the H–2B 

program. Where feasible and necessary, 

we will provide additional educational 

outreach through briefings and other 

types of guidance documents for the 

benefit of all employers. 

2. What kind of guidance would benefit 

frequent users of the program with 

respect to repetitive errors in 

recruitment? What kind of guidance 

would be beneficial in avoiding errors 

in unique situations for these users? 

One commenter suggested that we 

implement a three-strike policy to 

eliminate willful violators from the 

H–2B program. Another commenter, 

including several employer advocacy 

groups, encouraged us to establish 

additional ongoing education programs 

throughout the U.S. and suggested that 

employers document their attendance, 

which we should consider in mitigation 

of employer error in the application 

process. The commenter also 

recommended that we provide a hotline 

to answer questions about basic 

programmatic issues and publish at 

appropriate intervals a top 10 errors and 

issues list and a public notice on the 

OFLC’s Web site indicating where the 

CO identifies a trend. 

We believe that debarment and other 

program integrity measures are 

sufficient to eliminate willful violators 

from the H–2B program, and therefore, 

do not consider a three strike policy to 

be necessary. As to the request for a 

hotline, as stated above, we have 

established an email box to which 

employers can submit questions about 

the status of their applications; we 

believe this will be more accurate than 

a telephone line for receiving 

information and questions that can then 

be translated into public guidance as 

appropriate. We rely on such emailed 

questions and information to identify 

recurring issues for which we may need 

to publish an FAQ and/or guidance. We 

also draft FAQs and other guidance 

documentation at the recommendation 

of the COs, based on recurring trends 

and/or issues identified by them. In an 

effort to better provide information to 

the employer community, we will 

consider publishing guidance 

responsive to specific issues, such as a 

way to avoid common filing mistakes, 

once those have been determined under 

the re-engineered model. Lastly, we also 

plan to implement rollout activities and 

briefings to help familiarize program 

users and others with the regulatory 

requirements and changes in the H–2B 

program. Where we determine that more 

guidance is needed, we will provide 

additional educational outreach to the 

filing community and other interested 

parties. 

3. Could pre-certification audits 

augment a post-certification audit in an 

attestation-based program model? If not, 

how would you propose the Department 

obtain information in the absence of 

supervised activity in order to arrive at 

certification while ensuring compliance 

with program obligations? 

Several commenters stated that they 

would be supportive of more postcertification audits as long as we retain 

the attestation-based certification 

model. In asking this question, we were 

trying to gauge whether a precertification audit process would be a 

viable way to alleviate the obvious 

compliance problems that occur under 

the attestation-based certification 

model. One commenter believed that by 

adding a pre-certification audit process, 

we would only be contributing to the 

existing burden on the H–2B worker to 

report non-compliance without actually 

removing those employer applicants 

that continue to do poorly. Another 

commenter stated that a pre-certification 

audit process would imply that a review 

of the documentation will ensure 

compliance with program requirements. 

This same commenter believed that a 

pre-certification review cannot ensure 

that proper wages will be paid or that 

U.S. referrals will be properly 

considered for a job. The commenter 

also affirmed that the current 

enforcement scheme provides 

significant incentive for program users 

to comply based on audits after an 

attestation has been made. Lastly, one 

commenter claimed that asking a 

hypothetical question about possible 

changes in the program structure, such 

as pre-certification audits, without 

actually proposing language or 

procedures does not qualify as 

appropriate notice and would require us 

to issue a new NPRM. 

As discussed above, we sought 

comments about possible alternatives 

related to retaining the attestation-based 

certification model. Based on the 

comments on the retention of the 

attestation-based certification model 

and pre-certification audits, we have 

decided not to retain the attestationbased model. Therefore, we no longer 

consider the pre-certification audit 

process alternative, which was tied to 

the concept of the attestation-based 

model, to be an option. 

4. What additional sanctions could be 

taken against employers to ensure 

compliance with program requirements, 

given the potential for fraud in the 

H–2B program? 

We received several comments on 

sanctions. We discuss issues involving 

sanctions in the preamble discussions of 

29 CFR part 503 and §§ 655.72 and 

655.73. 

5. What other kinds of actions could the 

Department take to prevent an H–2B 

employer from filing attestations that do 

not meet program requirements? 

We did not receive specific 

alternatives in answer to this question. 

Any other incidental alternatives 

received that relate to specific sections 

of the Final Rule have been discussed 

under the appropriate related 

provisions. 

For the reasons discussed above, we 

are reverting to a compliance-based 

model under the H–2B program as 

proposed. 

II. Discussion of Comments Received 

A. Introductory Sections 

We address below those areas in 

which we received comments. For 

specific provisions on which we did not 

receive comments, we have retained the 

provisions as proposed, except where 

clarifying edits have been made. 

1. § 655.1 Scope and Purpose of 

Subpart A 

The proposed provision informs 

program users of the statutory basis and 

regulatory authority for the H–2B labor 

certification process. This provision also 

describes our role in receiving, 

reviewing, adjudicating, and preserving 

the integrity of an Application for 


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3 In recent decisions, the Supreme Court has 

affirmed this approach by applying Chevron 

deference to an agency’s construction of a 

jurisdictional provision in its organic statute. See 

Coeur Alaska v. Southeast Alaska Conserv. Council, 

129 S. Ct. 2458, 2469 (2009); United States v. 

Eurodif, 129 S. Ct. 878, 888 (2009). 

Temporary Employment Certification. 

We are adopting the provision as 

proposed. We received several general 

comments relating to this section. One 

commenter stated that the scope and 

purpose was to pay the highest of all the 

prevailing wages and to make sure that 

H–2B workers are offered the same 

protections under the law as any other 

worker. Another commenter stated that 

the original scope and purpose was to 

find temporary workers or certify 

applications for foreign workers. These 

comments misunderstand our 

responsibility and the criteria that must 

be met before we certify an H–2B 

Application for Temporary Employment 

Certification. Under DHS’ regulations at 

8 CFR 214.2(h)(6)(iv), the purpose of 

these regulations is for the Secretary of 

Labor to determine that: (1) There are 

not sufficient U.S. workers who are 

qualified and who will be available to 

perform the temporary services or labor 

for which an employer desires to import 

foreign workers; and (2) the 

employment of the H–2B worker(s) will 

not adversely affect the wages and 

working conditions of U.S. workers 

similarly employed. It is through the 

regulatory provisions set forth below 

that the Department ensures that that 

the criteria for its labor certification 

determinations are met. 

2. § 655.2 Authority of Agencies, 

Offices and Divisions in the Department 

of Labor 

This section describes the authority 

and division of activities related to the 

H–2B program among the Department’s 

agencies. The NPRM discussed the 

authority of OFLC, the office within 

ETA that exercises the Secretary’s 

responsibility for determining the 

availability of U.S. workers and whether 

the employment of H–2B nonimmigrant 

workers will adversely affect the wages 

and working conditions of similarly 

employed workers. It also discussed the 

authority of WHD, the agency 

responsible for investigation and 

enforcement of the terms and conditions 

of H–2B labor certifications, as 

delegated by DHS. We are retaining this 

provision as proposed. 

We received several comments from 

employer advocacy organizations on our 

authority to administer the H–2B labor 

certification program. These 

commenters alleged that Congress has 

not vested authority in the Department 

and that the statutory provision 

mandating consultation with other 

agencies does not necessarily give us the 

right to effectuate the requirements 

proposed under these regulations. We 

address this general assertion below; 

however, our authority for specific 

provisions of this Final Rule is 

addressed in the discussions of the 

sections containing those provisions. 

Under the INA, Congress did not 

specifically address the issue of the 

Department’s authority to engage in 

legislative rulemaking in the H–2B 

program but the legislative history of the 

Immigration Reform and Control Act 

(IRCA) specifically acknowledges the 

Department’s practice of issuing 

legislative rules, see H.R. Rep. No. 99– 

682, pt. 1, at 79–80, 1986 WL 31950, at 

**34. Since 1968, DOL has had 

regulations governing the H–2 nonagricultural program, see 33 FR at 7570– 

71, and in enacting IRCA in 1986, 

Congress acknowledged DOL’s 

rulemaking without withdrawing its 

authority to issue legislative rules, see 

H.R. Rep. No. 99–682, pt. 1, at 80. 

Ordinarily, when Congress adopts a new 

law incorporating sections of a prior law 

it is presumed to be aware of existing 

administrative regulations interpreting 

the prior law. See Lorillard v. Pons, 434 

U.S. 575, 580–81 (1978). Moreover, 

when Congress re-enacts a statutory 

provision, an agency’s prior longstanding administrative practice under 

that statutory provision is deemed to 

have received congressional approval. 

Fribourg Nav. Co. v. CIR, 383 U.S. 272, 

283 (1966). In this case, Congress did 

more than re-enact the H–2 nonagricultural statutory provision, it 

expressly acknowledged DOL’s rules 

governing the H–2 program. See H.R. 

Rep. No. 99–682, pt. 1, at 80. Thus, 

Congress approved of DOL’s rulemaking 

authority in the H–2B program, and saw 

fit not to alter or further define DOL’s 

practices, unlike the H–2A agricultural 

program. Id. 

Even if the legislative history does not 

resolve the issue of DOL’s rulemaking 

authority, when the statute does not 

delegate rulemaking authority 

explicitly, such statutory ambiguities 

are implicit delegations to the agency 

administering the statute to interpret the 

statute through its rulemaking authority. 

Arnett v. CIR, 473 F.3d 790, 792 (7th 

Cir. 2007).3 Congress expected DOL to 

ensure that employers using the H–2B 

program would not adversely affect 

similarly situated United States 

workers. See 8 U.S.C. 

1101(a)(15)(H)(ii)(b); H.R. Rep. No. 99– 

682, pt. 1, at 80. This involves policytype determinations beyond disputed 

facts in a particular case, see U.S. v. Fla. 

E. Coast Ry., 410 U.S. 224, 245–46 

(1973), which renders DOL’s use of 

legislative rulemaking more appropriate 

in the administration of the H–2B 

program than case-by-case adjudication, 

see Ford Motor Co. v. FTC, 673 F.2d 

1008, 1009–10 (9th Cir. 1982). Given the 

type of global considerations 

confronting DOL in administering the 

program, it would defeat Congress’s 

goals to conclude that DOL is only 

authorized to engage in case-by-case 

adjudication. See USV Pharm. Corp. v. 

Weinberger, 412 U.S. 655, 665 (1973). 

DOL’s use of legislative rulemaking also 

comports with the judicial preference 

for filling in the interstices of the law 

through a quasi-legislative enactment of 

rules of general applicability. See SEC v. 

Chenery Corp., 332 U.S. 194, 202 (1947). 

Courts encourage agencies to adopt 

legislative rules when seeking to 

establish norms of widespread 

application. See Ford Motor Co., 673 

F.2d at 1009. Notice and comment 

rulemaking provides important 

procedural protections to the public, 

allows agencies to apprise themselves of 

relevant issues and views, and promotes 

predictability. See Int’l Union v. MSHA, 

626 F.3d 84, 95 (DC Cir. 2010). Without 

the use of this process, the public would 

be deprived of important protections 

that are unavailable in case-by-case 

adjudication. Nat’l Petroleum Ref. Ass’n 

v. FTC, 482 F.2d 672, 683–84 (1973). 

Importantly, the CATA decision 

recently held that the Department is not 

permitted to adopt an H–2B prevailing 

wage regime without engaging in 

legislative rulemaking. See CATA I, 

2010 WL 3431761, at *19 (E.D. Pa. 

Aug.30,2010). That decision specifically 

invalidated the Department’s attempt to 

use guidance documents to announce 

the applicable prevailing wage 

methodology for H–2B employers, 

holding that doing so deprives the 

public of the opportunity to comment 

on important issues for the 

administration of the H–2B program. Id. 

Given the CATA decision’s holding that 

the Department cannot use guidance 

documents to establish prevailing wage 

rates, without any legislative 

rulemaking authority, the Department 

would lack the authority to administer 

the H–2B program in a fair and 

predictable manner. Lastly, given 

Congress’ delegation of enforcement 

authority under 8 U.S.C. 1184(c)(14)(B) 

to USCIS and the Department, it would 

be irrational to assume that Congress 

didn’t intend for the Department to 

issue rules to define the terms of the 

H–2B program in the absence of 

statutory standards. Cf. Nat’l Ass’n of 


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Home Bds. v. OSHA, 602 F.3d 464, 467 

(DC Cir. 2010). 

3. § 655.3 Territory of Guam 

As in the 2008 Final Rule, under the 

proposed rule, the granting of H–2B 

labor certifications and the enforcement 

of the H–2B visa program on Guam 

continue to reside with the Governor of 

Guam, under DHS regulations. 

However, the NPRM proposed that we 

would determine all H–2B prevailing 

wages, including those for Guam. 

Recently, DHS, which consults with the 

Governor of Guam about the admission 

of H–2B construction workers on Guam, 

has determined that prevailing wages 

for construction workers on Guam will 

be determined by the Secretary. 8 CFR 

214.2(h)(6)(v)(E)(v). DHS and the 

Department agree that it is more 

appropriate for OFLC to issue H–2B 

prevailing wages for all workers, 

including construction workers on 

Guam, because OFLC already provides 

prevailing wage determinations (PWDs) 

for all other U.S. jurisdictions. We 

therefore proposed that the process for 

obtaining a prevailing wage in § 655.10 

also would apply to H–2B job 

opportunities on Guam. Employment 

opportunities on Guam accordingly 

would be subject to the same process 

and methodology for calculating 

prevailing wages as any other 

jurisdiction within OFLC’s purview. We 

received no comments on this section 

and therefore are retaining the provision 

as proposed. 

4. § 655.4 Special Procedures 

The proposed rule maintained our 

authority to establish, continue, revise, 

or revoke special procedures that 

establish variations for processing 

certain H–2B Applications for 

Temporary Employment Certification. 

These are situations where we recognize 

that variations from the normal H–2B 

labor certification processes are 

necessary to permit the temporary 

employment of foreign workers in 

specific industries or occupations when 

U.S. workers are not available and the 

employment of foreign workers will not 

adversely affect the wages or working 

conditions of similarly employed U.S. 

workers. These variations permit those 

who would otherwise be unable to 

readily comply with the program’s 

established processes to participate, 

such as by allowing itinerary 

employment for reforestation employers 

and certain employers in the 

entertainment industry. These special 

procedures permit us to accommodate 

the unique circumstances of certain 

classes of employers without 

undermining our essential 

responsibilities. We are retaining the 

proposed section with one minor 

clarification reminding the employer 

that it must request special procedures. 

We also proposed that special 

procedures already in place on the 

effective date of the regulations will 

remain in force until we otherwise 

modify or withdraw them. A couple of 

commenters objected to the continuance 

of current special procedures because 

they had not participated in the process. 

We see no need to upset the settled 

expectations of the employers who have 

relied upon the special procedures for 

many years at least to the extent they do 

not conflict with these regulations. To 

the extent that the current special 

procedures are in conflict with these 

regulations, the regulations will take 

precedence. An example of a possible 

conflict would be the current special 

procedure provision which allows precertification to Canadian musicians who 

enter the U.S. to perform within a 50- 

mile area adjacent to the Canadian 

border for a period of 30 days or less. 

TEGL 31–05 Procedures for Temporary 

Labor Certification in the Entertainment 

Industry under the H–2B Visa program, 

May 31, 2006, available at http:// 

wdr.doleta.gov/directives/attach/TEGL/ 

TEGL 31–05.pdf. Since the Final Rule 

does not provide for pre-certification for 

any occupations, such exemption would 

no longer be allowed. 

A few commenters requested that we 

revise the proposed language under this 

section from ‘‘the Administrator, OFLC 

may consult with affected employers 

and worker representatives’’ to ‘‘the 

Administrator, OFLC must consult with 

affected employers and worker 

representatives.’’ In addition, some 

commenters, including labor 

organizations and employees in the 

reforestation industry, recommended 

that we should present special 

procedures through a notice and 

comment period similar to an NPRM. 

Finally, a couple of commenters felt that 

the special procedures process violates 

the APA. 

We decline to make the changes 

proposed by the commenters. We have 

complied with the procedural 

requirements of the APA by proposing 

this provision and soliciting public 

comments. See 5 U.S.C. 553. The 

purpose of the special procedures is to 

allow a particular group of employers 

with a need for H–2B workers to 

participate in the program by waiving 

certain regulatory provisions when the 

provisions cannot be reconciled with 

the operational norms of the industry 

and when the employers comply with 

industry-specific alternative procedures. 

Although we are not required to provide 

procedures for requesting a waiver, see 

FCC v. WNCN Listeners Guild, 450 U.S. 

582, 601 (1981), the Department is 

committed to ensuring that the views of 

affected employers and worker 

representatives are considered. The 

process under which a special 

procedure is considered is in most cases 

initiated by an industry or group of 

employers presenting us evidence that 

demonstrates their occupations are 

unique and that application of certain 

provisions in the regulations cannot be 

reconciled with the operational norms 

of the industry. Before effectuating such 

procedures, we will consult with other 

employer and worker representatives as 

well as agencies within and outside the 

Department, as appropriate, to identify 

necessary revisions which will, at the 

same time, keep the integrity and 

principal concepts of the program 

intact. We also will continue to look to 

our program experts in OFLC and WHD 

and review industry data gathered from 

employers that have previously used the 

H–2B program. Additionally, while 

special procedures allow for necessary 

and specific variations to regulations, 

we expect employers to adhere to all 

other aspects of the regulations not 

addressed in the special procedures. 

The application of a special procedure 

by an employer or an industry in no 

way relieves an employer from its 

obligation to obtain an approved 

temporary labor certification from the 

Department before submitting a request 

for workers to USCIS. 

5. § 655.5 Definition of Terms 

a. Area of substantial unemployment. 

We proposed to add a definition of area 

of substantial unemployment to the H– 

2B program. The proposed definition 

reflected the established definition of 

area of substantial unemployment in use 

within ETA as it relates to Workforce 

Investment Act (WIA) fund allocations. 

We have retained the proposed 

definition of area of substantial 

unemployment without change. 

Some commenters suggested 

alternative methods of defining an area 

of substantial unemployment. Several 

commenters contended that a different 

threshold percentage than 6.5 percent 

(e.g., 8 percent or 9 percent, the current 

national unemployment rate) or a 

different time period than 12 months 

(e.g., 3 months or the period of need 

requested) should be used to identify an 

area of substantial unemployment. One 

labor organization proposed more than 

a definitional alternative, suggesting 

that employers in areas with 5 percent 

or higher unemployment should be 

subject to an automatic legal 

presumption that there is no labor 


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4TEGL 5–11—Designation of Areas of Substantial 

Unemployment (ASUs) under the Workforce 

Investment Act (WIA) for Program Year (PY) 2012 

has been added to the ETA Advisory Web site and 

is available at http://wdr.doleta.gov/directives/ 

corr_doc.cfm?DOCN=3069. 

shortage sufficient to support an H–2B 

application and that those employers’ 

applications should be given a strict, 

high level review, including review by 

a senior official in Washington, DC. 

The definition proposed in the NPRM 

and retained in the Final Rule is the 

existing definition of area of substantial 

unemployment within ETA. ETA uses 

this definition to identify areas with 

concentrated unemployment and focus 

WIA funding for services to facilitate 

employment in those areas. We 

proposed using this existing definition, 

and have chosen to retain it in the Final 

Rule, both as a way to improve labor 

market test quality and for the sake of 

operational simplicity. This existing 

definition provides the appropriate 

standard for identifying areas of 

concentrated unemployment where 

additional recruitment could result in 

U.S. worker employment. Also, the 

process of collecting data and 

designating an area of substantial 

unemployment using the existing 

definition is already established, as 

discussed in ETA’s Training and 

Employment Guidance Letter No. 5–11, 

Aug. 12, 2011,4 providing OFLC with a 

ready resource for identifying areas to 

focus additional recruitment. Finally, 

using this definition of area of 

substantial unemployment in the Final 

Rule enables an employer to check the 

list of areas of substantial 

unemployment ETA publishes to 

determine whether its job opportunity 

may fall within an area of substantial 

unemployment and, as appropriate, be 

subject to enhanced recruitment. 

Adopting a legal presumption of the 

availability of domestic workers in areas 

with 5 percent or higher unemployment 

would significantly impact employers’ 

access to the H–2B program and could 

not be viewed as a logical outgrowth of 

the proposal. Furthermore, while we 

appreciate the commenter’s concern, we 

disagree with the approach suggested. 

We thoroughly review all applications 

submitted for all areas of intended 

employment. We consider enhanced 

recruitment requirements, as proposed 

in the NPRM, to be the most appropriate 

way to handle job opportunities in areas 

of substantial unemployment. 

Accordingly, we will retain the 

provision as proposed in the Final Rule. 

b. Corresponding employment. The 

NPRM proposed to include a definition 

of corresponding employment and to 

require that employers provide to 

workers engaged in corresponding 

employment at least the same 

protections and benefits as those 

provided to H–2B workers (except for 

border crossing and visa fees which 

would not be applicable). The NPRM 

defined corresponding employment as 

the employment of workers who are not 

H–2B workers by an employer that has 

an accepted H–2B application in any 

work included in the job order (i.e., the 

certified job duties in places of 

employment or worksite locations 

specified by the employer) or in any 

work performed by the H–2B workers 

during the period of the job order 

(anywhere the H–2B employer places 

H–2B workers outside the scope of the 

labor certification), including any 

approved extension. 

For the reasons discussed below, the 

Final Rule modifies the corresponding 

employment definition by deleting the 

word ‘‘any’’ from before the word 

‘‘work’’ in two places and inserting the 

words ‘‘doing substantially the same’’ 

instead. The preamble also clarifies and 

provides examples of what is and is not 

covered. The Final Rule also excludes 

from the definition of corresponding 

employment two categories of 

incumbent employees: (1) Those 

employees who have been continuously 

employed by the H–2B employer in the 

relevant occupation for at least the prior 

52 weeks, who have worked or been 

paid for at least 35 hours in at least 48 

of the prior 52 workweeks, and have 

averaged at least 35 hours of work or 

pay over the prior 52 workweeks, and 

whose terms and conditions of 

employment are not substantially 

reduced during the period of the job 

order. In determining whether the 

standard is met, the employer may take 

credit for any hours that were reduced 

because the employee voluntarily chose 

not to work due to personal reasons 

such as illness or vacation; and (2) those 

employees who are covered by a 

collective bargaining agreement or 

individual employment contract that 

guarantees an offer of at least 35 hours 

of work each week and continued 

employment with the H–2B employer 

through at least the period of the job 

order, except that the employee may be 

dismissed for cause. 

Significantly, the Final Rule retains in 

the definition the requirement that ‘‘to 

qualify as corresponding employment, 

the work must be performed during the 

period of the job order, including any 

approved extension thereof.’’ Any work 

performed by U.S. workers outside the 

specific period of the job order does not 

qualify as corresponding employment. 

Accordingly, the Final Rule does not 

require employers to offer their U.S. 

workers (part-time or full-time workers) 

corresponding employment protections 

outside of the period of the job order. If, 

for example, a U.S. worker works yearround and is in corresponding 

employment with the H–2B workers 

during the period of the job order, the 

employer must provide corresponding 

employment protections during the time 

period of the job order but may choose 

not to do so during the time period 

outside of the job order. 

There were many comments related to 

the proposed protections for workers in 

corresponding employment. Employee 

advocates, unions, and a member of 

Congress strongly endorsed the 

proposed provision, stating that it was 

essential to ensuring that the 

employment of H–2B workers does not 

adversely affect the wages, benefits, and 

working conditions of similarly 

employed domestic workers. They 

emphasized that it is important for 

corresponding workers to receive not 

just the prevailing wage, but all the 

other assurances and benefits offered to 

H–2B workers, such as transportation, 

the three-fourths guarantee, and fulltime employment, in order to place U.S. 

workers on at least the same footing as 

foreign workers. These commenters 

noted that the principle that there 

should be no preference for foreign 

workers is fundamental to the INA, and 

that a corresponding employment 

requirement prohibits employer 

practices that would hurt the 

employment prospects of U.S. workers. 

They also emphasized that the proposed 

rule’s assurance of equal protection was 

a significant improvement for domestic 

workers who have, in the past, been 

bypassed in favor of foreign workers. 

Thus, they stated that this protection is 

necessary to provide a meaningful test 

of whether there are U.S. workers 

available for employment. The 

employee advocates also stated that the 

proposed definition’s broadening of the 

requirement to protect incumbent 

employees, rather than just those newly 

hired in response to the H–2B 

recruitment, is important because many 

employers employ some U.S. workers 

on a year-round basis, and they should 

not be employed alongside H–2B 

workers who receive greater pay, 

benefits, and protections. Similarly, an 

employee advocate specifically 

commended the proposed rule’s 

coverage of situations where employers 

place H–2B workers in occupations 

and/or job sites outside the scope of the 

labor certification, which the 

commenter stated happens regularly. 

Thus, it asserted that protecting U.S. 

workers (including incumbent workers) 


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who are performing the same work as 

the H–2B workers is necessary to ensure 

that U.S. workers are not adversely 

affected by the presence of H–2B 

workers in the labor market. Finally, 

one union stated that this additional 

protection for U.S. workers would also 

protect H–2B workers, because U.S. 

workers would be empowered to assist 

in policing unscrupulous H–2B 

employers. 

Employers, on the other hand, 

generally opposed the extension of 

protections to workers in corresponding 

employment. Some stated that they 

could not afford to provide the same 

terms and conditions of employment to 

corresponding workers, including 

paying the prevailing wage and 

guaranteeing three-fourths of the hours. 

For example, a golf course association 

stated that it would be financially 

impossible to provide the same wages 

and benefits to summer high school and 

college laborers as it provided to H–2B 

workers performing the same manual 

labor. Others stated that paying the 

prevailing wage to corresponding 

workers would not be problematic, but 

that they wanted to be able to continue 

to reward long-tenured employees 

(foreign or U.S.) or more skilled staff 

with higher pay than new workers, such 

as by providing a pay increase based 

upon years of service. 

It appeared there was confusion about 

the impact of the corresponding 

employment requirement. Employers 

expressed concern because they have 

overlap in the job duties of various 

positions, with supervisors performing 

some of the same tasks as the workers 

they supervise. They believed that, if 

there is some slight nexus between what 

an H–2B workers does and what a 

higher-paid year-round worker does, the 

employer would have to pay all workers 

the higher wage. They stated that this 

requirement would compel changes to 

management techniques and eliminate 

or greatly reduce employers’ flexibility 

to have employees perform whatever 

task is necessary to complete their work, 

thereby harming productivity. Employer 

representatives stated that the definition 

is so broadly worded (‘‘any’’ work 

included in the job order or ‘‘any’’ work 

performed by the H–2B workers) that it 

would cover the entire workforce of 

many businesses. One firm gave the 

example of a large resort with roughly 

2000 employees where senior 

management (including the resident 

manager, the director of food and 

beverage, and even the finance manager) 

clean rooms on a busy day; supervisors 

carry guests’ luggage; managers in the 

restaurant clear tables; and managers on 

the golf course pick up trash or cut the 

grass. The firm wondered what the H– 

2B workers should be paid in this case 

and whether every employee is a 

corresponding employee who would be 

entitled to the three-fourths guarantee. 

Other employers assumed that their 

laborers would have to be compensated 

at the same rate as a supervisor if the 

supervisor occasionally performed some 

of their same tasks, such as mowing, 

because of a weather event, large golf 

tournament, or shortage of staff due to 

illness. An employer association stated 

that employers, such as restaurants, 

needed the flexibility to have a waitress 

serve as a cashier or hostess, or to have 

a dishwasher assist with food 

preparation or cooking, in order to get 

the work done and keep employees 

working throughout the day. 

Therefore, some employer 

representatives suggested that the rule 

should limit the definition to work in 

the occupation listed in the job order. 

They stated this would avoid a situation 

where all U.S. workers who dig holes 

and plant bushes would be viewed as 

corresponding employees if the H–2B 

job order was for a supervisory 

landscaper with knowledge of irrigation 

systems and plant species but the 

supervisor occasionally helped to dig or 

plant. These commenters also suggested 

that the Department limit the rule’s 

scope to those U.S. workers who are 

newly hired by the employer on or after 

the beginning of the job order period, 

rather than extending it to workers 

employed prior to the employment of 

H–2B workers. Some employer 

commenters suggested that the 

Department delete the word ‘‘any’’ from 

before the word ‘‘work.’’ Other 

commenters questioned whether the 

Department has the legal authority to 

impose the requirement. 

After carefully considering all of these 

comments, the Department has decided 

to modify the definition of 

corresponding employment to delete the 

word ‘‘any’’ from before ‘‘work’’ in two 

places and insert the words 

‘‘substantially the same,’’ and to exclude 

two categories of incumbent employees: 

(1) Those who have worked in the 

relevant job continuously for the H–2B 

employer for at least the prior 52 weeks, 

have averaged at least 35 hours of work 

or pay over those 52 weeks and have 

received at least 35 hours of work or pay 

in at least 48 of the 52 weeks, as 

demonstrated by the employer’s payroll 

records and whose terms and conditions 

of employment are not substantially 

reduced during the job order period (an 

employer may take credit for those 

hours that were reduced due to an 

employee’s voluntary leave); and (2) 

those who are covered by a collective 

bargaining agreement or individual 

employment contract that guarantees at 

least 35 hours of work each week and 

continued employment with the H–2B 

employer at least through the end of the 

job order period. Incumbent employees 

who fall within one of these categories 

may have valuable terms of 

employment, including job security and 

benefits, that neither H–2B workers nor 

other temporary workers have. This may 

account for wage differentials between 

these incumbents and those who are 

entitled to the H–2B prevailing wage, as 

well as other differences in terms and 

conditions of employment. 

The Final Rule continues to include 

other workers within the definition of 

corresponding employment as proposed 

in order to fulfill the DHS regulatory 

requirement that an H–2B Petition will 

not be approved unless the Secretary 

certifies that the employment of the 

alien will not adversely affect the wages 

and working conditions of similarly 

employed U.S. workers. 8 CFR 

214.2(h)(6). As the NPRM explained, 

Congress has long intended that 

similarly employed U.S. workers should 

not be treated less favorably than 

temporary foreign workers. For 

example, a 1980 Senate Judiciary Report 

on Temporary Worker Programs stated 

that U.S. employers were required to 

offer domestic workers wages equal to 

foreign workers as a prerequisite for 

labor certification. See Congressional 

Research Service: ‘‘Report to the Senate 

Committee on the Judiciary: Temporary 

Worker Programs: Background and 

Issues, 53 (1980)’’; see also H.R. Rep. 

No. 99–682, pt. 1 at 80 (1986) (‘‘The 

essential feature of the H–2 program has 

been and would continue to be the 

requirement that efforts be made to find 

domestic workers before admitting 

workers from abroad. A corollary rule, 

again preserved in the bill, is that the 

importation of foreign workers will not 

be allowed if it would adversely affect 

the wages and working conditions of 

domestic workers similarly employed’’). 

Current § 655.22(a) reflects this 

principle, in part, by requiring that the 

terms and conditions of offered 

employment cannot be less favorable 

than those offered to H–2B workers. 

Thus, the current regulation provides 

for equal treatment of workers newly 

hired during the current 10-day H–2B 

recruitment process. 

The current regulation, however, does 

not protect U.S. workers who engage in 

similar work performed by H–2B 

workers during the validity period of 

the job order, because it does not protect 

any incumbent employees. Therefore, 

for example, a U.S. employee hired 

three months previously performing the 


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same work as the work requested in the 

job order, but earning less than the 

advertised wage, would be required to 

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

employer to obtain the higher wage rate 

offered to H–2B workers. This would be 

disruptive for the employer and could 

create an additional administrative 

burden for the SWAs with respect to 

any workers being referred through 

them. It also puts too high a premium 

on employees understanding their rights 

under the regulations, and feeling 

secure enough—rare in low-wage 

employment—to quit a job with the 

expectation of being immediately 

rehired. Therefore, the Final Rule does 

not require incumbent employees to 

jump through this unnecessary hoop; 

U.S. workers generally would be 

entitled to the wage rates paid to H–2B 

employees without having to quit their 

jobs and be rehired. 

There are only two categories of 

incumbent U.S. employees who would 

be excluded from the definition of 

corresponding employment. The first 

category covers those incumbents who 

have been continuously employed by 

the H–2B employer for at least the 52 

weeks prior to the date of need, who 

have averaged at least 35 hours of work 

or pay over those 52 weeks, and who 

have worked or been paid for at least 35 

hours in at least 48 of the 52 weeks, and 

whose terms and conditions of 

employment are not substantially 

reduced during the period of the job 

order. The employer may take credit for 

any hours that were reduced because 

the employee voluntarily chose for 

personal reasons not to work hours that 

the employer offered, such as due to 

illness or vacation. Thus, for example, 

assume an employee took six weeks of 

unpaid leave due to illness, and the 

employer offered the employee 40 hours 

of work each of those weeks. In that 

situation, the employer could take credit 

for all those hours in determining the 

employee’s average number of hours 

worked in the prior year and could take 

credit for each of those six weeks in 

determining whether it provided at least 

35 hours of work or pay in 48 of the 

prior 52 weeks. Similarly, if the 

employer provided a paid day off for 

Thanksgiving and an employee worked 

the other 32 hours in that workweek, the 

employer would be able to take credit 

for all 40 hours when computing the 

average number of hours worked and 

count that week toward the required 48 

weeks. In contrast, assume another 

situation where the employer offered 

the employee only 15 hours of work 

during each of three weeks, and the 

employee did not work any of those 

hours. The employer could only take 

credit for the hours actually offered 

when computing the average number of 

hours worked or paid during the prior 

52 weeks, and it would not be able to 

count those three weeks when 

determining whether it provided at least 

35 hours of work or pay for the required 

48 weeks. 

The second category of incumbent 

workers excluded from the definition of 

corresponding employment includes 

those covered by a collective bargaining 

agreement or individual employment 

contract that guarantees both an offer of 

at least 35 hours of work each week and 

continued employment with the H–2B 

employer at least through the period of 

the job order (except that the employee 

may be dismissed for cause). As noted 

above, incumbent employees in the first 

category are year-round employees who 

began working for the employer before 

the employer took the first step in the 

H–2B process by filing an Application 

for Temporary Employment 

Certification. They work 35 hours per 

week for the employer, even during its 

slow season. The Department recognizes 

that there may be some weeks when, 

due to personal factors such as illness 

or vacation, the employee does not work 

35 hours. The employer may still treat 

such a week as a week when the 

employee worked 35 hours for purposes 

of the corresponding employment 

definition, so long as the employer 

offered at least 35 hours of work and the 

employee voluntarily declined to work, 

as demonstrated by the employer’s 

payroll records. Thus, these workers 

have valuable job security that H–2B 

workers and those hired during the 

recruitment period or the period of the 

job order lack. Such full-time, yearround employees may have other 

valuable benefits as well, such as health 

insurance or paid time off. Similarly, 

employees covered by a collective 

bargaining agreement or an individual 

employment contract with a guaranteed 

weekly number of hours and just cause 

provisions also have valuable job 

security; they may also have benefits 

beyond those guarantees provided by 

the H–2B program. These valuable terms 

and conditions of employment may 

account for any difference in wages 

between what they receive and what H– 

2B workers receive. Therefore, these 

U.S. workers are excluded from 

corresponding employment only if they 

continue to be employed full-time at 

substantially the same terms and 

conditions throughout the period 

covered by the job order, except that 

they may be dismissed for cause. 

The Final Rule’s inclusion of other 

workers within the definition of 

corresponding employment is important 

because the current regulation does not 

protect U.S. workers in the situation 

where an H–2B employer places H–2B 

workers in occupations and/or at job 

sites outside the scope of the labor 

certification, in violation of the 

regulations. For example, if an employer 

submits an application for workers to 

serve as landscape laborers, but then 

assigns the H–2B workers to serve as 

bricklayers constructing decorative 

landscaping walls, the employer has 

bypassed many of the H–2B program’s 

protections for U.S. workers. The 

employer has deprived them of their 

right to protections such as domestic 

recruitment requirements, the right to be 

employed if available and qualified, and 

the prevailing wage requirement. The 

Final Rule guards against this abuse of 

the system and protects the integrity of 

the H–2B process by ensuring that the 

corresponding U.S. workers employed 

as bricklayers receive the prevailing 

wage for that work. 

The current regulation also does not 

protect U.S. workers if the employer 

places H–2B workers at job sites outside 

the scope of the labor certification. For 

example, an employer may submit an 

application for workers to serve as 

landscape laborers in a rural county in 

southern Illinois, but instead assign its 

H–2B workers to work as landscape 

laborers in the Chicago area. Because 

the employer did not fulfill its 

recruitment obligations in Chicago, U.S. 

workers were not aware of the job 

opportunity, they could not apply and 

take advantage of their priority hiring 

right, and the prevailing wage assigned 

was not the correct rate for Chicago. 

Such a violation of the employer’s 

attestations results both in the absence 

of a meaningful test of the labor market 

for available U.S. workers and U.S. 

workers being adversely affected by the 

presence of the underpaid H–2B 

workers. The Final Rule’s definition of 

corresponding employment ensures that 

the employer’s incumbent landscape 

laborers who work where the H–2B 

workers actually are assigned to work 

will receive the appropriate prevailing 

wage rate; paying the proper wage to 

such workers is necessary to protect 

against possible adverse effects on U.S. 

workers due to wage depression from 

the introduction of foreign workers. 

Therefore, adoption of the definition of 

corresponding employment in the Final 

Rule is necessary to allow the 

Department to fulfill its mandate from 

DHS to provide labor certifications only 

in appropriate circumstances. 


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On the other hand, it is important to 

clarify that the corresponding 

employment requirement does not 

apply in the way that a number of 

employer commenters feared it would 

apply. Employers expressed concern 

that, if a supervisor or manager picked 

up a piece of trash on a golf course, 

planted a tree, or cleared a dining room 

table (the duties of its H–2B workers), 

all its employees who performed such 

work would be entitled to the higher 

wage rate paid to the supervisor. This 

concern is misplaced because this is not 

what the definition of corresponding 

employment requires. Under the Final 

Rule, a U.S. employee who performs 

work that is either within the H–2B job 

order or work actually performed by 

H–2B workers is entitled to be paid at 

least the H–2B required wage for that 

work. However, as the employer 

commenters recognized, the supervisor 

already is earning more than the H–2B 

workers. The corresponding 

employment requirement does not 

impose obligations in the opposite 

direction. Thus it does not, for example, 

require an employer to bump up the 

wages it pays to its landscape laborers 

to the supervisor’s wage rate simply 

because the supervisor performed some 

of their landscaping laborer duties. Of 

course, if the H–2B certification was for 

a landscaping supervisor, and one of its 

laborers actually worked as a supervisor 

(perhaps because the supervisor was 

away on vacation for a week or was out 

sick for a day or two), then that laborer 

would be entitled to the H–2B 

prevailing supervisory rate for those 

hours actually worked as a supervisor. 

The laborer would not be entitled to the 

supervisory wage rate on an ongoing 

basis after the worker has returned to 

performing laborer duties. 

Employers also expressed concern 

about how the corresponding 

employment provision would affect 

their flexibility in assigning workers 

different tasks. It is the employer’s 

obligation to state accurately on the 

Application for Temporary Employment 

Certification the job duties that their 

H–2B workers will perform and to 

comply with the terms of their labor 

certifications by limiting the H–2B 

workers to those duties. This will 

maximize the employers’ flexibility 

with regard to their U.S. employees. For 

example, if a restaurant receives a labor 

certification based on its temporary 

need for dishwashers, and it limits its 

H–2B employees to such duties, the 

restaurant may freely assign any of its 

U.S. workers to other jobs as needed, 

such as cashiers, servers and cooks. If 

the restaurant had previously used both 

its H–2B and U.S. workers 

interchangeably in various jobs, it must 

plan more carefully in the future in 

order to comply with the terms of its 

certification. 

Nevertheless, in order to address 

employer concerns that the proposed 

definition of corresponding employment 

(‘‘any work included in the job order’’ 

or ‘‘any work performed by the H–2B 

workers’’) was so broadly worded that it 

would encompass the entire workforce 

of a company, the Final Rule deletes the 

word ‘‘any’’ in both places and uses the 

term ‘‘substantially the same’’ instead. 

The Department did not intend for the 

word ‘‘any’’ to indicate that occasional 

or insignificant instances of overlapping 

job duties would transform a U.S. 

worker employed in one job into 

someone in corresponding employment 

with an H–2B worker employed in 

another job. The following explanation 

is intended to provide clarity regarding 

when work is substantially the same 

that it should be considered 

corresponding employment. We note 

that the Wage and Hour Division has 

considerable enforcement experience 

under a number of statutes in 

determining the extent to which 

employees who are assigned to one type 

of work actually perform other types of 

work and that employers are generally 

familiar with these analyses. 

Where the U.S. worker is performing 

‘‘either substantially the same work 

included in the job order or 

substantially the same work performed 

by the H–2B workers * * * during the 

period of the job order, including an 

approved extension thereof,’’ the U.S. 

worker is in corresponding employment 

and entitled to the H–2B prevailing 

wage if it is higher than the worker 

currently receives. This includes 

situations where the U.S. worker 

performs the same job as the H–2B 

worker as well as those situations where 

the U.S. worker regularly performs a 

significant number of the duties of the 

H–2B worker for extended periods of 

time, because that worker’s job is 

substantially the same as the H–2B 

worker’s job. The U.S. worker in both 

situations is in corresponding 

employment and thus entitled to the 

higher H–2B prevailing wage. 

Because the definition of 

corresponding employment also applies 

to ‘‘work performed by H–2B workers,’’ 

it is important to note that 

corresponding employment can also 

arise where H–2B worker is assigned to 

perform a job that significantly deviates 

from the job order; effectively making 

the H–2B worker perform a different job 

than was stated in the labor 

certification. If this violation causes the 

H–2B worker to regularly perform a job 

for extended periods of time that U.S. 

workers perform, then the U.S. workers 

performing the same job are in 

corresponding employment. If the 

prevailing wage for that job is higher 

than the wages the U.S. workers earn, 

then the U.S. workers are entitled to the 

higher wage. 

An issue of corresponding 

employment will arise if the employer 

assigns the H–2B worker to work at a 

different worksite(s) or place(s) of 

employment than the worksite(s) or 

place(s) of employment listed in the 

certified application. U.S. workers at the 

new, non-certified location may be 

performing the same or substantially the 

same job as the H–2B worker. Deviating 

from the labor certification in this 

manner and moving an H–2B worker to 

the non-certified place of employment 

will cause the U.S. workers who 

perform the same work to be deemed to 

be in corresponding employment. They 

will be entitled to the H–2B prevailing 

wage if it is higher than what they 

currently earn. 

Finally, employers expressed their 

interest in continuing to reward their 

experienced employees with higher 

wage rates than those paid to new 

workers. The H–2B program does not 

prohibit such higher wage rates for an 

employer’s experienced employees. Of 

course, an employer must offer at least 

the same terms and conditions of 

employment to its U.S. workers in 

corresponding employment as it offers, 

plans to offer, or will provide to its H– 

2B workers. So if an employer rewards 

an H–2B worker with extra pay and/or 

benefits based on the H–2B employee’s 

previous work experience, the employer 

must offer and provide at least the same 

extra pay and/or benefits to U.S. 

workers in corresponding employment 

with same or similar level of previous 

work experience. Employers can and 

should indicate the additional pay 

amounts based upon years of experience 

on any Application for Temporary 

Employment Certification, and properly 

advertise and recruit for those positions. 

c. Full-time. The Department 

proposed to change the definition of 

full-time from 30 or more hours of work 

per workweek to 35 or more hours of 

work per week. This proposal was 

precipitated by the District Court’s 

decision in CATA v. Solis, 2010 WL 

3431761 (E.D. Pa. 2010), invalidating 

the 2008 Final Rule’s 30-hour 

definition. The Department stated in its 

NPRM that a 35-hour workweek was 

more reflective of empirical data, was 

consistent with other temporary work 

programs, and would comport with 

H–2B employment relationships that the 


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5Bureau of Labor Statistics, Labor Force 

Statistics, Table A–24; Persons at work in 

agriculture and related nonagricultural industries 

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

web/empsit/cpseea24.htm. 

6Bureau of Labor Statistics, Employment 

Situation, Table A–24: Persons at work in 

agriculture and related and in nonagricultural 

industries by hours of work, May 2011. http:// 

www.bls.gov/web/empsit/cpseea24.htm. 

Department has encountered during its 

limited enforcement experience. In 

addition, the Department solicited 

comment for an alternative definition of 

40 hours, noting that the December 2010 

Bureau of Labor Statistics (BLS) Current 

Population Survey (CPS) found that the 

average workweek for employees who 

consider themselves full-time was 42.4 

hours per week.5

Several trade associations and private 

businesses supported retaining the 2008 

Final Rule’s standard of 30 hours per 

workweek, citing the difficulties of 

scheduling work around unpredictable 

and uncontrollable events, particularly 

the weather. A number of those 

commenters suggested that full-time 

employment should be determined not 

in each individual workweek, but by 

averaging workweeks over the length of 

the certified employment period. Two 

trade associations and a private business 

claimed that increasing full-time to 35 

hours per workweek would decrease 

employer flexibility and/or increase 

costs. Comments from several trade 

associations and a professional 

association stated that a 35-hour 

workweek would be burdensome in 

combination with other aspects of the 

proposed rule, particularly the threequarter guarantee. Finally, one private 

business commented that the definition 

of full-time should be determined by 

industry standards. 

A private business, a private citizen, 

a research institute, two unions, and a 

number of worker advocacy groups 

commented that a definition of full-time 

as 40 hours per workweek is preferable 

to 35, arguing that the higher standard 

is more representative of typical fulltime jobs. Several of these commenters 

referred to the CPS findings cited by the 

Department. Two H–2B worker 

advocacy groups asserted their 

experience indicated that long hours are 

standard in many industries employing 

H–2B workers and, therefore, a 40-hour 

definition would be more representative 

of H–2B job opportunities. Another 

union and a research institute, in their 

support of a 40-hour standard, noted 

that the H–1B visa program also defines 

full-time as 40 hours per workweek. 

Finally, a private business, a union, a 

research organization, and two advocacy 

organizations argued that establishing a 

40-hour standard is more protective of 

U.S. workers than a 35-hour standard, as 

more U.S. workers are likely to consider 

jobs that offer 40 hours of work. One 

union suggested changing the definition 

to 37.5 hours per workweek, arguing 

that this was a common measure. 

In accord with the District Court’s 

decision in CATA v. Solis, the 

Department has continued to carefully 

consider relevant factors in determining 

the hours threshold for full-time, 

including national labor market 

statistics, empirical evidence from a 

random sample of approved 

applications, and other employment 

laws. All available evidence suggests 

that the existing definition of 30 hours 

or more per workweek is not an accurate 

reflection of full-time employment. 

According to the May 2011 Employment 

Situation report published by BLS, the 

average number of hours worked per 

week for employees who consider 

themselves full-time was 42.7.6 Another 

BLS publication, the Current Population 

Survey, uses a 35-hour threshold to 

define full-time employment. Employer 

practices also strongly suggest that the 

existing definition of 30 hours is not 

reflective of actual employer practices: 

in a randomly selected sample of 200 

Applications that the Department 

certified or partially certified in 2009 

and 2010, more than 99 percent 

reflected workweeks of at least 35 hours. 

This finding is consistent with the 

Department’s enforcement experience: 

the vast majority of Applications that 

are the subject of investigations are 

certified for 35 or more hours per week. 

Under another similar nonimmigrant 

visa program the Department regulates, 

H–2A program for agricultural workers, 

full-time is defined as 35-hours per 

week. 

The Department recognizes that there 

is no universally-accepted definition of 

full-time employment and, without such 

a standard, must determine a reasonable 

floor of hours per week below which a 

job is not considered full-time and 

therefore ineligible for inclusion in the 

H–2B program. After careful 

consideration, the Department has 

decided to retain the proposed 

definition of at least 35 hours per week, 

which more accurately reflects full-time 

employment expectations than the 

current 30-hour definition, will not 

compromise worker protections, and is 

consistent with other existing 

Department standards and practices in 

the industries that currently use the 

H–2B program to obtain workers. 

Though a 40-hour threshold, as some 

commenters pointed out, would be more 

consistent with the BLS-reported 

average of workweek of nearly 43 hours, 

an average level, by definition, accounts 

for both higher and lower values. The 

average includes, for example, hours 

worked by exempt managerial and 

professional employees who are not 

entitled to overtime and who tend to 

work longer hours. The Department 

observes that it is entirely likely that the 

average calculation includes 

employment relationships in which 

both the employer and the workers 

consider full-time to be 35 hours of 

work per week. This assertion is borne 

out by some Applications for Temporary 

Employment Certification currently 

being filed with ETA that request such 

a weekly schedule. 

The Department’s decision to define 

full-time as 35 or more hours does not 

conflict with worker advocacy groups’ 

claims that many H–2B jobs require 40 

or more hours per week. The 35-hour 

floor simply allows employers access to 

the H–2B program for a relatively small 

number of full-time jobs that would not 

have been eligible under a 40-hour 

standard. H–2B employers are and will 

remain required to accurately represent 

the actual number of hours per week 

associated with the job, recruit U.S. 

workers on the basis of those hours, and 

pay for all hours of work. Therefore, the 

employer is obligated to disclose and 

offer those hours of employment— 

whether 35, 40 or 45, or more—that 

accurately reflect the job being certified. 

Failure to do so could result in a finding 

of violation of these regulations. 

d. Job contractor. We proposed to 

amend the definition of job contractor to 

resolve concerns raised by the U.S. 

District Court for the Eastern District of 

Pennsylvania in CATA v. Solis, 2010 

WL 3431761, about our adoption of 

language in the 2008 Final Rule that 

states a job contractor ‘‘will not exercise 

any supervision or control in the 

performance of the services or labor to 

be performed other than hiring, paying, 

and firing the workers.’’ The Court 

found that our explanation that we 

adopted this language to ‘‘make clear 

that the job contractor, rather than the 

contractor’s client, must control the 

work of the individual employee,’’ 73 

FR 78020, 78024, Dec. 19, 2008, ‘‘did 

precisely the opposite—it clarified that 

it is the contractor’s client who ‘must 

control the work of the individual 

employee.’ The explanation is therefore 

not rationally connected to the change, 

which will accordingly be invalidated 

as arbitrary.’’ CATA, 2010 WL 3431761 

at *16. 

The proposed definition of job 

contractor included the phrase ‘‘will not 

exercise substantial, direct day-to-day 

supervision or control.’’ This addition 

further clarified that an entity exercising 


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some limited degree of supervision or 

control over the H–2B workers would 

still be considered a job contractor, 

while an entity exercising substantial, 

direct day-to-day supervision or control 

over the H–2B workers would not be 

considered a job contractor. For the 

reasons stated below, we have decided 

to amend the definition as proposed to 

include the phrase supervision and 

control rather than supervision or 

control. 

While some commenters contended 

that the CATA decision was flawed and 

urged us to use existing enforcement 

mechanisms rather than change the 

definition, other commenters welcomed 

the additional language clarifying that 

an employer exercising substantial, 

daily supervision and control would not 

be considered a job contractor. A 

specialty bar association suggested that 

since an employer’s status as a job 

contractor determines an employer’s 

eligibility to use the H–2B program 

under the NPRM, we should provide 

more concrete examples of employers 

that we would or would not consider to 

be job contractors. 

While we appreciate the bar 

association’s suggestion, given the 

infinite variety of business arrangements 

employers can make with other 

employers for the provision of labor or 

services, it is impossible to provide a 

definitive list of types of employers that 

would or would not be deemed job 

contractors. However, the following 

examples may be instructive for 

illustrating the differences between an 

employer that is a job contractor and an 

employer that is not. Employer A is a 

temporary clerical staffing company. It 

sends several of its employees to Acme 

Corporation to answer phones and make 

copies for a week. While Employer A 

has hired these employees and will be 

issuing paychecks to these employees 

for the time worked at Acme 

Corporation, Employer A will not 

exercise substantial, direct day-to-day 

supervision and control over its 

employees during their performance of 

services at Acme Corporation. Rather, 

Acme Corporation will direct and 

supervise the Employer A’s employees 

during that week. Under this particular 

set of facts, Employer A would be 

considered a job contractor. By contrast, 

Employer B is a landscaping company. 

It sends several of its employees to 

Acme Corporation once a week to do 

mowing, weeding, and trimming around 

the Acme campus. Among the 

employees that Employer B sends to 

Acme Corporation are several landscape 

laborers and one supervisor. The 

supervisor instructs and supervises the 

laborers as to the tasks to be performed 

on the Acme campus. Under this 

particular set of facts, Employer B 

would not be considered a job 

contractor. Note that the provision of 

services under a contract alone does not 

render an employer a job contractor; 

rather, each employment situation must 

be evaluated individually to determine 

the nature of the employer-employee 

relationship and accordingly, whether 

the petitioning employer is in fact a job 

contractor. 

We believe that our discussion of 

reforestation employers in the NPRM 

also may help to further clarify the 

definition of job contractor. As 

described in the NPRM, a typical 

reforestation employer, such as those 

who have historically used the H–2B 

program, performs contract work using 

crews of workers subject to the 

employer’s on-site, day-to-day 

supervision and control. Such an 

employer, whose relationship with its 

employees involves substantial, direct, 

on-site, day-to-day supervision and 

control would not be considered a job 

contractor under this Final Rule. 

However, if a reforestation employer 

were to send its workers to another 

company to work on that company’s 

crew and did not provide substantial, 

direct, on-site, day-to-day supervision 

and control of the workers, that 

employer would be considered a job 

contractor under this Final Rule. 

Some commenters asserted that a job 

contractor’s degree of supervision does 

not change the fact that its need for 

workers is permanent. These 

commenters appear to misunderstand 

our objective in proposing to prohibit 

job contractors from participating in the 

H–2B program. The NPRM created an 

irrebuttable presumption that a job 

contractor’s need for workers is 

inherently permanent. The 

implementation of that determination 

necessitates that we create a definition 

of job contractor. Only after a job 

contractor is identified through the 

definition can we conclude that the 

entity’s need is permanent. 

One commenter asserted that the 

language ‘‘where the job contractor will 

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

performance of the services or labor to 

be performed other than hiring, paying 

and firing the workers’’ created a 

loophole for job contractors to 

artificially increase their level of 

supervision in order to avoid being 

labeled job contractors. Another 

commenter was concerned that an 

employer performing contracts on a 

year-round basis with on-site supervised 

crews would avoid being designated a 

job contractor based on its level of 

supervision. Both suggested removing 

the supervision or control language from 

the definition. While we are concerned 

about job contractors artificially 

changing their business model to 

circumvent a job contractor designation, 

we believe that the permanency of such 

an employer’s need will be evident and 

addressed during the registration and 

application processes. Moreover, we 

believe that retaining the supervision 

and control language in the definition is 

essential to continuing to provide access 

to employers with legitimate temporary 

needs who perform contracts for 

services (e.g. reforestation or 

landscaping). Therefore, we will not 

alter the definition of job contractor in 

such a way as to bar all employers that 

perform contracts for services. 

A specialty bar association contended 

that the phrase ‘‘substantial, direct dayto-day supervision or control’’ is 

ambiguous and will lead to confusion 

and uncertainty. The commenter 

asserted that the word ‘‘or’’ could lead 

to proof of either supervision or control 

enabling an employer to avoid 

designation as a job contractor and 

suggested that the word substantial adds 

to interpretive difficulty. Contrary to the 

commenter’s reading, we intended 

supervision or control to prevent an 

employer which did not exercise both 

supervision and control from avoiding 

designation as a job contractor. In order 

to resolve this ambiguity, we have 

changed ‘‘or’’ to ‘‘and’’ in the Final 

Rule. We believe the use of the word 

substantial is important because some 

job contractors do exercise minimal 

levels of supervision and control, for 

example, by sending a foreman to check 

that a crew is working. We have 

retained the rest of the definition 

without change because, as discussed 

above, we believe the language is 

essential to distinguishing between 

employers who perform contracts for 

services and employers who fill staffing 

contracts. The Final Rule now states 

that job contractors do not exercise 

substantial, direct day-to-day 

supervision and control in the 

performance of the services or labor to 

be performed other than hiring, paying 

and firing the workers. 

e. Other definitions. As discussed 

under § 655.6, we have decided to 

permit job contractors to participate in 

H–2B program where they can 

demonstrate their own temporary need, 

not that of their clients. The particular 

procedures and requirements that 

govern their participation are set forth 

in § 655.19 and provide in greater detail 

the responsibilities of the job 

contractors and their clients. 

Accordingly, we are adding a definition 


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of employer-client to this Final Rule to 

define the characteristics of the 

employer that is served by the job 

contractor and the nature of their 

relationship. 

We also proposed to define several 

terms not previously defined in the 

2008 Final Rule, including job offer and 

job order. We proposed definitions for 

job offer and job order to ensure that 

employers understand the difference 

between the offer that is made to 

workers, which must contain all the 

material terms and conditions of the job, 

and the order that is the published 

document used by SWAs in the 

dissemination of the job opportunity. In 

response to comments about the 

definitions of job offer and job order, we 

have retained the definition of job offer 

without change but have revised the 

definition of job order to indicate that it 

must include some, but not all, of the 

material terms and conditions of 

employment as reflected in modified 

§ 655.18 which identifies the minimum 

content required for job orders. 

Some commenters expressed concern 

that both the definition of job offer and 

the definition of job order require the 

employer to include all material terms 

and conditions for the job opportunity. 

The commenters contended that since 

employment contracts typically 

incorporate employee handbooks and 

other documents by reference, it would 

be difficult, if not impossible, to draft a 

document that contains all material 

terms and conditions. In addition, the 

commenters argued that including such 

extensive content would infringe on an 

employer’s legitimate business interest 

in maintaining the confidentiality of 

employment terms and subject 

employers to exorbitant fees when the 

document was used in mandatory 

advertising. We agree that including all 

material terms and conditions for the 

job opportunity in the job order and 

advertising would be difficult, if not 

impossible, as well as a dramatic 

departure from how employers hire for 

these positions. Accordingly, we have 

amended the definition of job order so 

that it now reads ‘‘[t]he document 

containing the material terms and 

conditions of employment * * *’’ 

rather than ‘‘[t]he document containing 

all the material terms and conditions of 

employment * * *’’ and ‘‘including 

obligations and assurances under 29 

CFR part 503 * * *’’ and we have 

amended § 655.18 to reflect the 

minimum content requirements for job 

orders. We also removed the phrase ‘‘on 

their inter- and intra-State job clearance 

systems’’ as unnecessary. The definition 

of job offer remains unchanged and 

requires an employer’s job offer to 

contain all material terms and 

conditions of employment. 

We also proposed revising the 

definition of strike so that the term is 

defined more consistently with our 2010 

H–2A regulations. We are retaining the 

proposed definition without change. 

Some worker advocacy organizations 

supported the revised definition, 

appreciating that the definition 

recognizes a broad range of protected 

concerted activity and clearly notifies 

employers and workers of their 

obligations when workers engage in 

these protected activities. Other 

commenters, representing employer 

concerns, opposed the revised 

definition, finding it too broad. These 

commenters contended that the 

proposed definition includes minor 

disagreements not rising to the level of 

what the commenters or prior regulatory 

language would consider a strike and 

that the definition covered an 

employer’s local workforce, rather than 

just the H–2B position. Some 

commenters requested a return to the 

language of the 2008 Final Rule, arguing 

that the proposed definition rejects our 

longstanding position limiting the 

admission of H–2B workers where the 

specific job opportunity is vacant 

because the incumbent is on strike or 

being locked out in the course of a labor 

dispute. These commenters were 

concerned that two workers could claim 

to have a dispute and, thereby, prevent 

the employer from using the program. 

Given our desire to align the 

definition of strike in this Final Rule 

with the definition in the 2010 H–2A 

regulations, we have decided to retain 

the definition as proposed. As we 

explained in the preamble to the 2010 

H–2A Final Rule at 75 FR 6884, Feb. 12, 

2010, we believe narrowing the 

provision as recommended by 

commenters would unjustifiably limit 

the freedom of workers to engage in 

concerted activity during a labor 

dispute. 

6. § 655.6 Temporary Need 

We proposed to interpret temporary 

need in accordance with the DHS 

definition of that term and of our 

experience in the H–2B program. The 

DHS regulations define temporary need 

as a need for a limited period of time, 

where the employer must ‘‘establish that 

the need for the employee will end in 

the near, definable future.’’ 8 CFR. 

214.2(h)(6)(ii)(B). The Final Rule, as 

discussed in further detail below, is 

consistent with this approach. 

Also, consistent with the definition of 

temporary need, we proposed to 

exclude job contractors from 

participation in the H–2B program, in 

that they have an ongoing business of 

supplying workers to other entities, 

even if the receiving entity’s need for 

the services is temporary. The proposal 

was based on our view that a job 

contractor’s ongoing need is by its very 

nature permanent rather than temporary 

and therefore the job contractor does not 

qualify to participate in the program. As 

discussed below, we have revised the 

proposed provisions in the Final Rule. 

a. Job Contractors. We received a 

number of comments on our proposal to 

eliminate job contractors from the H–2B 

program. We received some comments 

related to the definition of job contractor 

and how we will identify a job 

contractor. Those comments related to 

the definition of job contractor rather 

than the nature of a job contractor’s 

need. Specifically, commenters from the 

reforestation industry expressed 

concerns over being classified as job 

contractors. These comments are 

addressed in the discussion of § 655.5. 

A number of commenters expressed 

support for the elimination of job 

contractors, agreeing that job 

contractors’ need is permanent and that 

the job openings are actually with a job 

contractor’s employer-client, rather than 

with the job contractor. A worker 

advocacy organization asserted that the 

proposed approach, ensuring that the 

program is reserved for temporary job 

openings and excluding job contractors 

whose need is inherently permanent, 

was consistent with Congressional 

intent with respect to the program. One 

commenter expressed support for the 

changes in the proposed rule which 

reflected the court’s ruling in CATA v. 

Solis and which prohibited job 

contractors from filing in the program if 

their clients did not also submit an 

application to the Department. 

Other commenters generally 

supported the elimination of job 

contractors from the program as a way 

of protecting workers from trafficking 

and forced labor. One commenter also 

asserted that the elimination of job 

contractors will prevent circumstances 

where the H–2B workers are left without 

sufficient work or pay while in the job 

contractor’s employ and where H–2B 

workers, who may be willing to work for 

less pay or in worse conditions, 

compete with similarly situated U.S. 

workers. 

Another commenter offered support 

for the prohibition on job contractors 

due to the difficulty in holding them 

accountable for program violations, 

either because they disappear at the 

threat of litigation or because they have 

so little money that they are judgmentproof when they violate employment 

and labor laws. This commenter 


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reasoned that the job contractors act as 

a shield for the employers who actually 

employ the workers and indicated that 

the proposed change to the regulations 

would stem violations of laws by both 

contractors and the employers who 

work in concert with them. 

On the other hand, one commenter 

asserted that the bar on job contractors 

should not be complete because to the 

extent that any one job contractor does 

not have a year-round need and 

routinely does not employ workers in a 

particular occupation for a specific 

segment of the year, its needs are 

seasonal. This commenter argued that 

the standard for rejection from the H–2B 

program should be definitively 

permanent, not potentially permanent, 

with respect to whether or not a job 

contractor’s need is permanent. Job 

contractors should be afforded the same 

opportunity as all other employers to 

prove they have a temporary need for 

services or labor. Relying on Matter of 

Vito Volpe, 91–INA–300 (BALCA 1994), 

this commenter indicated that any need 

that does not constitute ‘‘permanent 

full-time work, such as where the 

occupation is one where employers 

have seasonal layoffs each year, the 

position is temporary.’’ 

As discussed in the NPRM, a person 

or entity that is a job contractor, as 

defined under § 655.5, has no individual 

need for workers. Rather, its need is 

based on the underlying need of its 

employer-clients, some which may be 

concurrent and/or consecutive. 

However, we recognize the validity of 

the concern raised by the commenter 

that we should exclude from the 

program only those who have a 

definitively permanent need for 

workers, and that job contractors who 

only operate several months out of the 

year and thus have a genuine temporary 

need should not be excluded. Therefore, 

we are revising § 655.6 to permit only 

those contractors that demonstrate their 

own temporary need, not that of their 

employer-clients, to continue to 

participate in the H–2B program. Job 

contractors will only be permitted to file 

applications based on seasonal need or 

a one-time occurrence. In other words, 

in order to participate in the H–2B 

program, a job contractor would have to 

demonstrate, just as all employers 

seeking H–2B workers based on 

seasonal need have always been 

required: (1) If based on a seasonal need 

that the services or labor that it provides 

are traditionally tied to a season of the 

year, by an event or pattern and is of a 

recurring nature; or (2) if based on a 

one-time occurrence, that the employer 

has not employed workers to perform 

the services or labor in the past and will 

not need workers to perform the 

services in the future or that it has an 

employment situation that is otherwise 

permanent, but a temporary event of 

short duration has created the need for 

a temporary worker. 

For a job contractor with a seasonal 

need, the job contractor must specify the 

period(s) or time during each year in 

which it does not provide any services 

or labor. The employment is not 

seasonal if the period during which the 

services or labor is not provided is 

unpredictable or subject to change or is 

considered a vacation period for the 

contractor’s permanent employees. For 

instance, a job contractor that regularly 

supplies workers for ski resorts from 

October to March but does not supply 

any workers outside of those months 

would have its own temporary need that 

is seasonal. 

Limiting job contractor applications to 

seasonal need and a one-time 

occurrence is appropriate, as it is 

extremely difficult, if not impossible, to 

identify appropriate peakload or 

intermittent needs for job contractors 

with inherently variable client bases. 

The seminal, precedent decision in 

Matter of Artee, 18 I. & N. Dec 366, 

Interim Decision 2934, 1982 WL 190706 

(Comm’r 1982), established that a 

determination of temporary need rests 

on the nature of the underlying need for 

the duties of the position. To the extent 

that a job contractor is applying for a 

temporary labor certification, the job 

contractor whose need rests on that of 

its clients has itself no independent 

need for the services or labor to be 

performed. The Board of Alien Labor 

Certification Appeals (BALCA) has 

further clarified the definition of 

temporary need in Matter of Caballero 

Contracting & Consulting LLC, 2009– 

TLN–00015 (Apr. 9, 2009), finding that 

‘‘the main point of Artee * * * is that 

a job contractor cannot use [solely] its 

client’s needs to define the temporary 

nature of the job where focusing solely 

on the client’s needs would 

misrepresent the reality of the 

application.’’ The BALCA, in Matter of 

Cajun Constructors, Inc. 2009–TLN– 

00096 (Oct. 9, 2009), also decided that 

an employer that by the nature of its 

business works on a project until 

completion and then moves on to 

another has a permanent rather than a 

temporary need. 

The limited circumstances under 

which job contractors may continue to 

participate in the H–2B program would 

still be subject to the limitations 

provided in the CATA decision, which 

resulted in the Department no longer 

being able to accept H–2B labor 

certification applications from job 

contractors if the job contractor’s 

employer-clients also did not submit 

labor certification applications. Section 

655.19 sets forth the procedures and 

requirements governing the filing of 

applications by job contractors. 

The Department understands that in 

some cases the use of a job contractor 

may be advantageous to employers. 

However, the advantages provided to 

employers by using job contractors do 

not overcome the fact that many job 

opportunities with job contractors are 

inherently permanent and therefore 

such job contractors are not permitted to 

participate in the program. We 

recognize that by taking this position 

the result may be that some employers 

who have been clients of such job 

contractors, and who have not 

previously participated in the program, 

may now seek to do so. In the proposed 

rule, the Department encouraged 

employers to submit information about 

their changed circumstances as a result 

of the proposal to bar job contractors 

from the program, including the 

potential costs and savings that may 

result. The Department did not receive 

any comments from employers 

describing or quantifying the cost of the 

elimination of job contractors from the 

program to aid in the Department’s 

estimation of the economic impact of 

this proposal. 

One commenter was concerned that 

job contractors would get around this 

prohibition by representing employers 

as agents. Agents, by their role in the 

program, have no temporary need apart 

from the underlying need of the 

employer on whose behalf they are 

filing the Application for Temporary 

Employment Certification. When 

considering any employer’s H–2B 

Registration, the Department will 

require that employer to substantiate its 

temporary need by providing evidence 

required to support such a need. The 

Department does not anticipate an issue 

with this type of misclassification. 

b. Change in the Duration of 

Temporary Need. In addition to 

proposing to bar job contractors from 

the H–2B program based on their 

underlying permanent need for the 

employees, we proposed to define 

temporary need, except in the event of 

a one-time occurrence, as 9 months in 

duration, a decrease from the 10-month 

limitation under the 2008 Final Rule. As 

also discussed in the NPRM, this 

definition is more restrictive than, yet 

still consistent with, the DHS definition 

of temporary need, in which the ‘‘period 

of time will be 1 year or less, but in the 

case of a one-time event could last up 

to 3 years.’’ 8 CFR 214.2(h)(6)(ii)(B). We 


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are adopting this provision in the Final 

Rule as proposed. 

We received a number of comments 

on this proposal. Most commenters 

supported the clarification of the 

temporary need standard. Two such 

commenters recommended a further 

reduction in the duration of temporary 

need to no more than 6 months. In 

support of their proposal, these 

commenters suggested that half a year is 

a reasonable amount of time for an 

employer to have an unskilled 

temporary foreign worker, because there 

are currently millions of unemployed 

unskilled U.S. workers seeking 

employment across the country. These 

commenters hoped that shortening the 

certification periods for H–2B workers 

will compel employers to increase 

recruitment of U.S. workers (because 

they will have to recruit more often), 

which better achieves the statutory 

mandate not to use H–2B labor unless 

‘‘unemployed persons capable of 

performing such service or labor cannot 

be found in this country.’’ 8 U.S.C. 

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

Other commenters opposed the 

proposal to change the maximum 

duration of temporary need from 10 

months to 9 months. One commenter, 

who conducted a private survey of H– 

2B employers, indicated that 32 percent 

of its respondents indicated that 

curtailing the temporary work period to 

9 from 10 months will have a severe 

effect on their bottom line. The 

remainder of respondents indicated 

moderate to no effect. This commenter 

indicated that some industries reported 

greater effects than others; those 

primarily concerned over the shorter 

season included: Landscaping, seafood 

processing, ski resorts, summer resorts, 

and forestry. As reported by this 

commenter, for some of these industries, 

a shorter season would mean less time 

for training and quality control, 

decreased revenues and loss of 

permanent full-time employees. 

Another commenter concurred that the 

adoption of a 9-month limit would have 

a devastating impact on many types of 

businesses, ranging from hospitality and 

food service to landscaping and 

numerous others. This commenter 

raised concerns about a significant drop 

in participation in the program by 

nearly a third of the businesses 

currently using the H–2B program and 

predicted substantial effects on the 

economy, including upstream ripple 

effects. In contrast to commenters who 

called for a yet shorter duration, most of 

these commenters agreed that they 

would not be able to use the H–2B 

program if we define a temporary need 

as less than 9 months. 

Another commenter asserted that the 

standard for temporary need should be 

the employer’s actual need (up to 1 year, 

or up to 3 years for one-time events) and 

not an arbitrary time period defined by 

the Department under the guise of 

ensuring the integrity of the program. 

Supporting the retention of a 10-month 

standard, this commenter challenged 

our reasoning for reducing the duration 

of seasonal, peakload, or intermittent 

need, including referring to the 

discussion under the 2008 Final Rule 

which indicated that a period of need in 

excess of 1 year may be justified in 

certain circumstances. Finally, an 

association of employers and temporary 

workers argued that temporary need 

should not be generally quantified 

because it is industry-specific and 

suggested that each employer should be 

able to argue that its need is temporary 

and consistent with the definition of 

seasonal or peakload. 

DHS categorizes and defines 

temporary need into four classifications: 

seasonal need; peakload need; 

intermittent need; and one-time 

occurrence. A one-time occurrence may 

be for a period of up to 3 years. The 

other categories are limited to 1 year or 

less in duration. See, generally, 8 CFR 

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

We believe that the proposed time 

period is an appropriate interpretation 

of the one year or less limitation 

contained in the DHS regulations. 

Allowing employers to file seasonal, 

peakload or intermittent need 

applications for periods approaching a 

year (364 days is less than 1 year) would 

be inconsistent with the statutory 

requirement that H–2B job opportunities 

need to be temporary. The closer the 

period of employment is to one year, the 

more the opportunity resembles a 

permanent position. For instance, it 

would be difficult, if not impossible, to 

distinguish between a permanent job 

opportunity and one in which the work 

begins on March 1st and ends on 

February 20th, only to begin again on 

March 1st. We believe that a maximum 

employment period of 9 months 

definitively establishes the 

temporariness of the position, as there is 

an entire season in which there is 

simply no need for the worker(s). Where 

there are only a few days or even a 

month or two for which no work is 

required, the job becomes less 

distinguishable from the permanent 

position, particularly one that offers 

time off due to a slow-down in work 

activity. Recurring temporary needs of 

more than 9 months are, as a practical 

matter, permanent positions for which 

H–2B labor certification is not 

appropriate. The current approach that 

permits temporary certifications for 

periods up to 10 months encompasses 

job opportunities that we believe are 

permanent in nature and not consistent 

with Congressional intent to limit H–2B 

visas to employers with temporary or 

seasonal needs. However, we recognize 

that some employers may have a 

legitimate temporary need that lasts up 

to 9 months, and for that reason, we 

decline to reduce the duration of 

temporary need to 6 months. A job 

opportunity that does not exist in the 

winter months would likely be 

considered seasonal. We believe that the 

9-month limitation that fairly describes 

the maximum scope of a seasonal need 

should also be applied to peakload need 

since there is no compelling rationale 

for creating a different standard for 

peakload. 

While we recognize the impact that a 

movement from 10 months, which had 

been previously acceptable, to 9 months 

will have an adverse impact on some 

employers, the impact is not relevant to 

our legal obligation to protect the wages 

and working conditions of U.S. workers. 

The Department previously relied on 

the standard articulated in In the Matter 

of Vito Volpe Landscaping, 91–INA– 

300, 91–INA–301, 92–INA–170, 91– 

INA–339, 91–INA–323, 92–INA–11 

(Sept. 29, 1994), which stated that a 

period of 10 months was not permanent. 

The Department may adopt through 

notice and comment rulemaking a new 

standard that is within our obligation to 

administer the program. See United 

States v. Storer Broadcasting, 351 U.S. 

192, 203 (1956); Heckler v. Campbell, 

461 U.S. 458, 467 (1983). We have 

determined that 9 months better reflects 

a recurring seasonal or temporary need 

and have accordingly proposed a new 

standard which has been adopted in this 

Final Rule. Recurring temporary needs 

of more than 9 months are, as a practical 

matter, permanent positions for which 

H–2B labor certifications are not 

appropriate. The majority of H–2B 

employer applicants will not be affected 

by this change. According to H–2B 

program data for FY 2007–2009, 68.7 

percent of certified and partially 

certified employer applicants had a 

duration of temporary need less than or 

equal to 9 months, while 31.3 percent of 

certified or partially certified applicants 

had a duration of temporary need 

greater than 9 months. Many seasonal 

businesses experience ‘‘shoulder 

seasons,’’ which are periods of time at 

the beginning and end of the season 

when fewer workers are needed. 

Therefore, we anticipate that employers 

will be able to meet their labor needs 

during the short additional period they 


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10054 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

must cover of the shoulder seasons with 

U.S. workers and, therefore, will not be 

impacted by the change from the 10- 

month standard. 

Similarly, we have determined that 

limiting the duration of temporary need 

on a peakload basis would ensure that 

the employer is not mischaracterizing a 

permanent need as one that is 

temporary. For example, since 

temporary need on a peakload basis is 

not tied to a season, under the current 

10-month standard, an employer may be 

able to characterize a permanent need 

for the services or labor by filing 

consecutive applications for workers on 

a peakload basis. To the extent that each 

application does not exceed the 10 

months, the 2-month inactive period 

may correspond to a temporary 

reduction in workforce due to annual 

vacations or administrative periods. 

Increasing the duration of time during 

which an employer must discontinue 

operations from 2 months to 3 will 

ensure that the use of the program is 

reserved for employers with a genuine 

temporary need. Similarly, a 9-month 

limitation is appropriate for ensuring 

that the employer’s intermittent need is, 

in fact, temporary. In addition, under 

the Final Rule, each employer with an 

intermittent need will be required to file 

a separate H–2B Registration and 

Application for Temporary Employment 

Certification to ensure that any 

disconnected periods of need are 

accurately portrayed and comply with 

the 9-month limitation. 

With respect to one commenter’s 

assertion that we have acknowledged in 

the 2008 Final Rule that temporary need 

may last longer than 1 year in some 

circumstances, the definition of a onetime occurrence as lasting up to 3 years 

is consistent with DHS regulations and 

is intended to address those limited 

circumstances where the employer has 

a one-time need for workers that will 

exceed the 9-month limitation. 

With respect to the commenter’s 

concern regarding the potential 

economic impact of the shorter standard 

on the operations of businesses and the 

drop in program participation, the 

Department has accounted in both the 

NPRM and this Final Rule for the 

potential drop in program use. 

Employers participating in the H–2B 

program must demonstrate that they 

have a temporary need for the labor or 

services to be performed which they are 

unable to meet with U.S. workers. In 

interpreting the DHS standard for 

defining temporary need, the 

Department has struck a balance 

between ensuring that each position 

certified will comport with the 

regulatory requirements and 

accommodating an employer’s 

legitimate need to fill its job 

opportunities in cases where United 

States workers are not available. 

c. Peakload need. In addition to redefining the duration of temporary 

need, we expressed concern in the 

NPRM that certain employers who lack 

the ability to demonstrate temporary 

need on a seasonal basis may 

mischaracterize a permanent need as a 

short-term temporary need which would 

fit under the peakload need standard. 

We used as an example the landscaping 

industry in which the off season is 

primarily a product of the absence of H– 

2B workers rather than a reduction in 

the underlying need for the services or 

labor. In that context, we sought 

comments and ideas from the public on 

the factors or criteria that we should 

consider in determining whether the 

employer has a genuine peakload need 

based on short-term demand. In 

addition, we requested input on 

whether we should limit these 

occurrences to those resulting from 

climactic, environmental or other 

natural conditions, or on limiting shortterm demand to 6 months. 

We received several comments on this 

proposal. The majority of commenters 

opposed the restriction of the peakload 

need standard. One commenter 

indicated that approximately a quarter 

of all H–2B applications are filed for 

landscaping employment, and that the 

employer’s underlying need may well 

depend on the location of the company 

and the climate in that location. This 

commenter suggested that these 

employers should not be precluded 

from program participation by virtue of 

where they are located, and requested 

that we retain our peakload need 

definition as proposed. 

In response to commenters’ 

suggestions, we have concluded that no 

commenters offered a practical rationale 

indicating that a 6 month limitation 

would be more effective at curbing the 

issue of misclassifying the nature of the 

employer’s need, rather than a 9 month 

limitation but we received a large 

number of comments noting that such a 

change would have an unintended 

consequence of effectively barring at 

least one sustaining industry— 

landscaping—from the program. With 

respect to another commenter’s 

suggestion that we estimate short-term 

demand in relation to the number of 

temporary workers on a peakload basis 

as a percentage of the employer’s total 

workforce, we note that such a 

suggestion is not operationally feasible. 

One commenter responded to the 

request for comments on establishing 

criteria for distinguishing genuine 

peakload need from a permanent need. 

The commenter proposed the 

application of a specific criterion, 

namely: a limitation of peakload need to 

6 months, defining short-term demand 

in relation to the percentage of 

temporary workers on a peakload basis 

as a percentage of the employer’s total 

workforce. This commenter proposed 

concrete numbers of workers and 

percentages based on the numbers of 

workers employed by the employer, 

indicating that such an approach ought 

to preclude employers that conduct 

year-round activities constituting 

permanent need from using the H–2B 

program. 

Having considered all comments on 

this proposal, we have determined to 

retain the provision as proposed. We 

thank the commenters for their valuable 

suggestions; however, we have 

determined that this regulation, as 

proposed, better meets our program 

mandate than any of the suggested 

alternatives.. Therefore, we are retaining 

this provision as proposed. 

d. One-Time Occurrence. In addition 

to barring job contractors, and reducing 

the duration of the seasonal/peakload 

need to 9 months, we proposed an 

interpretation of a one-time occurrence 

to be consistent with DHS regulations 

under which such an occurrence could 

last up to 3 years. We received a number 

of comments on this proposal. 

The majority of commenters opposed 

the apparent expansion of this 

requirement. One commenter indicated 

that while the reduction in the duration 

of seasonal/peakload need to 9 months 

was a notable improvement, the 3-year 

one-time occurrence provided 

employers with a loophole. This 

commenter referred to the H–2B 

definition under section 101 of the INA 

to indicate an inconsistency. Other 

commenters suggested that we institute 

an across the board 9-month limitation 

to the duration of temporary need. Many 

of the commenters opposing this 

proposal referred to average durations 

U.S. workers stay in their jobs, noting 

that the duration was typically less than 

3 years and thus that our proposal was 

inconsistent with labor market 

information. 

Other commenters addressing the 

needs of the construction industry 

indicated that the standard for proving 

a temporary need based on a one-time 

occurrence would be difficult to meet 

under the definition, in that the 

employer must establish that [1] it has 

not employed workers to perform the 

services or labor in the past and that it 

will not need workers to perform the 

services or labor in the future, or [2] it 

has an employment situation that is 


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otherwise permanent, but a temporary 

event of short duration has created the 

need for a temporary worker. These 

commenters expressed concern that 

construction contractors will not able to 

pass the first test unless the project for 

which the H–2B worker is hired is the 

only project they ever work on, because 

they invariably use the same types of 

workers. As to the second alternative, 

they argued that the construction 

industry consists primarily of short-term 

and intermittent work and therefore 

does not qualify under this test. Another 

commenter opposing the change in the 

definition for consistency with DHS 

regulations indicated that in crafting its 

definition DHS relied on an example 

from the construction industry which 

was not an accurate portrayal of the way 

in which that industry operates. 

Another commenter opposing the 3-year 

standard for one-time occurrences 

indicated that circumstances where an 

employer will be able to comply with 

the requirements for meeting the 

standard may be rare. 

We proposed to define temporary 

need consistent with DHS regulations, 

so that both agencies make consistent 

decisions on applications/petitions. The 

majority of commenters asserted that 

our reliance on DHS regulations, in this 

instance, is misplaced. These 

commenters focused on the examples 

relied upon by DHS in the preamble to 

its 2008 regulations at 73 FR 78104, Dec. 

19, 2008 to explain the operation of the 

3-year, one-time occurrence. Although 

we adopt the DHS regulatory standard, 

we acknowledge, as DHS did, that it did 

not intend for the 3-year 

accommodation of special projects to 

provide a specific exemption for the 

construction industry in which many of 

an employer’s projects or contracts may 

prove a permanent rather than a 

temporary need. Therefore, we will 

closely scrutinize all assertions of 

temporary need on the basis of a onetime occurrence to ensure that the use 

of this category is limited to those 

special and rare circumstances where 

the employer has a non-recurring need 

which exceeds the 9 month limitation. 

For example, an employer who has a 

construction contract which exceeds 9 

months may not use the program under 

a one-time occurrence if it has 

previously filed an Application for 

Temporary Employment Certification 

identifying a one-time occurrence and 

the prior Application for Temporary 

Employment Certification requested H– 

2B workers to perform the same services 

or labor in the same occupation. 

For all of the reasons articulated 

above, we are retaining the standard for 

a one-time occurrence as proposed. 

7. § 655.7 Persons and Entities 

Authorized To File 

In the NPRM, we proposed to 

designate the persons authorized to file 

an H–2B Registration or an Application 

for Temporary Employment 

Certification as the employer, or its 

attorney or agent. The proposed 

provisions also stressed the requirement 

that the employer must sign the H–2B 

Registration or Application for 

Temporary Employment Certification 

and any other required documents, 

whether or not it is represented by an 

attorney or agent. We did not receive 

comments on this proposal. Therefore, 

the provision is retained as proposed. 

8. § 655.8 Requirements for Agents 

In the NPRM, we noted that we have 

long accepted applications from agents 

acting on behalf of employers in the H– 

2B program, but that in administering 

the H–2B program, we have become 

concerned about the role of agents in the 

program and whether their presence and 

participation have contributed to 

program compliance problems. We 

proposed that if we were to continue to 

accept applications from agents, that the 

agents be required, at a minimum, to 

provide copies of current agreements 

defining the scope of their relationships 

with employers and that where an agent 

is required under the Migrant and 

Seasonal Agricultural Worker Protection 

Act (MSPA) to have a Certificate of 

Registration, the agent must also 

provide a current copy of the certificate 

which identifies the specific farm labor 

contracting activities that the agent is 

authorized to perform. The Final Rule 

adopts this provision as proposed. We 

also invited the public to provide ideas 

and suggestions on the appropriate role 

of agents in the H–2B program. We 

specifically sought comments on 

whether we should continue to permit 

the representation of employers by 

agents in the H–2B program, and if so, 

whether any additional requirements 

should be applied to agents to 

strengthen program integrity. 

Based on the comments we received, 

we have concluded that agents should 

be permitted to continue to represent 

employers in the H–2B process before 

the Department and file Applications for 

Temporary Employment Certification on 

their behalf. To assist in verifying the 

scope of the agent’s relationship with 

the employer, we will also require 

agents to provide copies of their 

agreement with the employer as well as 

the MSPA Certificate of Registration, 

where applicable. We are collecting the 

agreements and will be reviewing them 

as evidence that a bona fide relationship 

exists between the agent and the 

employer and, where the agent is also 

engaged in international recruitment, to 

ensure that the agreements include the 

language required at § 655.20(p) 

prohibiting the payment of fees by the 

worker. We do, however, also reserve 

the right to further review the 

agreements in the course of an 

investigation or other integrity measure. 

We therefore remind the public that a 

certification of an employer’s 

application that includes such a 

submitted agreement in no way 

indicates a general approval of the 

agreement or the terms therein. 

A few commenters suggested that 

agents be barred from filing applications 

on behalf of H–2B employers. At least 

two commenters, both trade 

organizations, suggested that agents 

create a problematic level of separation 

between employers and their obligations 

under the H–2B program. 

An overwhelming number of 

commenters, however, stated that while 

disreputable agents may exist, bona fide 

agents are critical to the employers’ 

ability to maneuver through the H–2B 

application process and requirements. 

Many of these commenters reiterated 

our own statistics for FY 2010, showing 

that that only 14 percent of employers 

filed applications without an agent and 

that 38 percent of these cases were 

denied. These commenters argued that 

we should continue to allow agents to 

file applications on behalf of H–2B 

employers. These same commenters, 

however, expressed an interest in 

program integrity and therefore agreed 

with the proposal to require agents to 

provide copies of their agreements with 

employers, to verify the existence of a 

relationship. Some commenters 

suggested that the agent(s) should be 

permitted to redact confidential 

proprietary business information before 

providing such agreements. Again, we 

are requiring agents to supply copies of 

the agreements defining the scope of 

their relationship with employers to 

ensure that there is a bona fide agency 

relationship and maintain program 

integrity. The requirement, however, in 

no way obligates either the agent or the 

employer to disclose any trade secrets or 

other proprietary business information. 

The Final Rule only requires the agent 

to provide sufficient documentation to 

clearly demonstrate the scope of the 

agency relationship. In addition, under 

this Final Rule, we do not presently 

plan to post these agreements for public 

viewing. If, however, we do so in the 

future, we will continue to follow all 

applicable legal and internal procedures 

for complying with Freedom of 

Information Act (FOIA) requests to 


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ensure the protection of private data in 

such circumstances. 

One commenter, a trade organization, 

suggested that the proposed requirement 

that agents provide a copy of their 

MSPA Certificate of Registration, if 

required under MSPA, may be 

confusing since H–2B is viewed as nonagricultural, in contrast with the H–2A 

program, which is for agricultural labor 

and services. This commenter 

recommended that we provide a list of 

those businesses to which this 

additional requirement applies. 

Several commenters also suggested 

that, in addition to receiving agentemployer agreements we should: limit 

the tasks in which agents can engage to 

those not involving the unauthorized 

practice of law or for which no payment 

is received, in accordance with DHS’ 

regulations; make such agreements 

publicly available; maintain a public list 

of the identity of agents who represent 

employers in the labor certification 

process; require mandatory registration 

for agents; hold employers strictly liable 

for the actions and representations of 

their agents; and lastly, enhance 

enforcement mechanisms to combat 

fraud. 

After evaluating all the comments, we 

have decided to continue to permit 

agents to participate in the Department’s 

H–2B labor certification program. Their 

importance to employers, as reflected in 

numerous comments, outweighs any 

value gained by their exclusion. We 

remain interested in furthering program 

integrity; while we are not prepared to 

accept any of the specific requirements 

on agents suggested by commenters at 

this time, we have clarified in 

§ 655.73(b) that an agent signing ETA 

Form 9142 may be debarred for its own 

violation as well as for participating in 

a violation committed by the employer. 

Some of the commenters’ ideas, such as 

requiring agents to be registered with 

the Department to participate in the 

program would require additional 

government resources which are 

currently limited, while other ideas are 

not deemed necessary at this time, such 

as making the agreements publicly 

available. We believe that the 

Department will be able to preserve 

program integrity by collecting such 

agreements to ascertain the validity of 

and scope of the agency relationship 

and, where the agent is also engaged in 

international recruitment, to ensure they 

include the contractual prohibition 

against charging fees language required 

at § 655.20(p) prohibiting the payment 

of fees by the worker. Such action, in 

combination with the enforcement 

mechanisms and compliance-based 

model adopted by this Final Rule, will 

resolve many of the expressed concerns 

without requiring the expenditure of 

additional resources. However, as stated 

under § 655.63, we reserve the right to 

post any documents received in 

connection with the Application For 

Temporary Employment Certification 

and will redact information accordingly. 

Lastly, in response to commenters 

that urged us to hold employers strictly 

liable for the actions of the agents, we 

remind both agents and employers that 

each is responsible for the accuracy and 

veracity of the information and 

documentation submitted, as indicated 

in the ETA Form 9142 and Appendix 

B.1, both of which must be signed by 

the employer and its agent. As 

discussed under § 655.73(b), agents who 

are signatories to ETA Form 9142 may 

now be held liable for their own 

independent violations of the H–2B 

program. As to the commenter’s 

suggestion that we provide additional 

examples of H–2B occupations subject 

to MSPA guidelines, we believe that 

employers or individuals working in 

affected industries are already aware of 

their obligations under MSPA, 

including the requirement to register. 

9. § 655.9 Disclosure of Foreign 

Worker Recruitment 

We proposed to require an employer 

and its attorney and/or agent to provide 

a copy of all agreements with any agent 

or recruiter whom it engages or plans to 

engage in the international recruitment 

of H–2B workers. We also proposed to 

disclose to the public the names of the 

agents and recruiters used by employers 

and their attorneys and/or agents 

participating in the H–2B program. We 

received several comments, all of which 

agreed with the proposal to provide 

information about the recruiter’s 

identity. We have expanded this section 

in the Final Rule to better reflect the 

obligation therein. For example, we 

revised the Final Rule to specify that the 

requirement to provide a copy of the 

written contract applies to agreements 

between the employer or the employer’s 

attorney or agent and that the written 

contract must contain the contractual 

prohibition on charging fees, as set forth 

in § 655.20(p). Where the contract is not 

in English and the required contractual 

prohibition is not readily discernible, 

we reserve the right to request further 

information to ensure that the 

contractual prohibition is included in 

the agreement. 

Several commenters requested that we 

strengthen the section by requiring the 

employer to also provide the identity 

and location of the foreign labor 

recruiter’s sub-recruiters or sub-agents 

and to expand the provision to include 

verbal agreements, as such informal 

arrangements with foreign recruiters are 

not uncommon. We agree that in 

addition to bolstering program integrity 

by aiding in the enforcement of certain 

regulatory provisions, collecting the 

identity and location of persons hired 

by or working for the recruiter or its 

agent to recruit or solicit prospective 

H–2B workers—effectively acting as 

sub-recruiters, sub-agents, or subcontractors—will bring a greater level of 

transparency to the foreign recruitment 

process that will assist the Department, 

other agencies, workers, and community 

and worker advocates in understanding 

the roles of each participant and the 

recruitment chain altogether. This 

requirement advances the Department’s 

mission of ensuring that employers 

comply with overall H–2B program 

requirements, and do not engage in 

practices that adversely affect the wages 

and working conditions of U.S. workers. 

See 8 U.S.C. 1184(c)(14). 

We have therefore added paragraph 

(b) of this section in the Final Rule, 

requiring that employers and their 

attorneys or agents provide the identity 

(name) of the persons and entities hired 

by or working for the recruiter or 

recruiting agent and any of the agents or 

employees of those persons and entities, 

as well as the geographic location in 

which they are operating. We interpret 

the term ‘‘working for’’ to encompass 

any persons or entities engaged in 

recruiting prospective foreign workers 

for the H–2B job opportunities offered 

by the employer, whether they are hired 

directly by the primary recruiter or are 

working indirectly for that recruiter as 

a downstream recruiter in the 

recruitment chain. We expect 

employers, and their attorneys or agents, 

as applicable, to provide these names 

and geographic locations to the best of 

their knowledge at the time the 

application is filed. We expect that, as 

a normal business practice, when 

completing the written agreement with 

the primary recruiting agent or recruiter, 

the employer/attorney/agent will ask 

who the recruiter plans to use to recruit 

workers in foreign countries, and 

whether those persons or entities plan 

to hire other persons or entities to 

conduct such recruitment, throughout 

the recruitment chain. 

As mentioned above, the public 

disclosure of the names of the foreign 

labor recruiters used by employers, as 

well as the identities and locations of 

persons or entities hired by or working 

for the primary recruiter in the 

recruitment of H–2B workers, and the 

agents or employees of these entities, 

will provide greater transparency to the 

H–2B worker recruitment process. By 


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providing us with this list, which we 

will make public, the Department will 

be in a better position to enforce 

recruitment violations, and workers will 

be better protected against fraudulent 

recruiting schemes because they will be 

able to verify whether a recruiter is in 

fact recruiting for legitimate H–2B job 

opportunities in the U.S. We intend to 

use this list of foreign labor recruiters to 

facilitate information sharing between 

the Department and the public, so that 

where we believe it is appropriate, we 

can more closely examine applications 

or certifications involving a particular 

recruiter or its agent identified by 

members of the public as having 

engaged in improper behavior. 

Additionally, information about the 

identity of the international recruiters 

will assist us in more appropriately 

directing our audits and investigations. 

To reiterate the overall requirements 

of § 655.9 in the Final Rule, § 655.9(a) 

requires employers or their agents or 

attorneys, as applicable, to provide us 

with a copy of all agreements with any 

foreign labor recruiter, and those written 

agreements must contain the required 

contractual prohibition on the collection 

of fees, as set forth in § 655.20(p). The 

requirement in § 655.9(b) to disclose to 

the Department the identities and 

locations of persons and entities hired 

by or working for the foreign labor 

recruiter and any of the agents or 

employees of those persons and entities 

who will recruit or solicit H–2B workers 

for the job opportunities offered by the 

employer encompasses all agreements, 

whether written or verbal, involving the 

whole recruitment chain that brings an 

H–2B worker to the employer’s certified 

H–2B job opportunity in the U.S. 

Several commenters erroneously 

assumed the agreements between the 

employer and the foreign recruiter 

would be made public. The NPRM 

provided for obtaining the agreements 

and sharing with the public the identity 

of the recruiters, not the full agreements. 

As stated above, we intend to collect 

the submitted agreements for the 

purpose of maintaining a public list of 

recruiters involved with H–2B workers. 

At the time of collection, we will review 

the agreements to obtain the names of 

the foreign recruiters and to verify that 

these agreements include the 

contractual prohibition against charging 

fees language required at § 655.20(p) 

prohibiting the payment of fees by the 

worker. We may also further review the 

agreements in the course of an 

investigation or other integrity measure. 

We therefore remind the public that a 

certification of an employer’s 

application that includes such a 

submitted agreement in no way 

indicates a general approval of the 

agreement or the terms therein. 

Several commenters agreed that the 

disclosure of the identity of the foreign 

recruiters is helpful and badly needed, 

but suggested that it is not enough. One 

commenter, an individual, suggested 

that if an employer is paying a recruiter 

to locate foreign workers, that employer 

should also pay for a U.S. recruiter to 

locate U.S. workers. We did not impose 

such a requirement. This Final Rule, as 

discussed below in further detail, 

contains several recruitment steps the 

employer must conduct, aimed at 

providing U.S. workers ample 

opportunity to learn about and apply for 

these jobs. 

Other commenters suggested that we 

should institute a mandatory 

registration or licensing system, that we 

should require recruiters to make 

themselves subject to U.S. jurisdiction, 

or that employers should be held strictly 

liable for recruitment violations. While 

we appreciate these suggestions, we will 

not implement them because we neither 

have the resources nor the authority to 

do so. However, we will continue to 

implement enforcement and integrity 

measures to decrease potential fraud in 

the H–2B program. 

B. Prefiling Procedures 

1. § 655.10 Prevailing Wage 

We proposed a modified process for 

obtaining a prevailing wage designed to 

simplify how an employer requests a 

PWD. The proposed rule required 

employers to request PWDs from the 

National Prevailing Wage Center 

(NPWC) before posting their job orders 

with the SWA and stated that the PWD 

must be valid on the day the job orders 

are posted. We encourage employers to 

continue to request a PWD in the H–2B 

program at least 60 days before the date 

the determination is needed. After 

reviewing comments on the proposed 

prevailing wage process, we are 

adopting the provisions as proposed, 

with one amendment. 

Several labor and worker advocacy 

groups supported the proposed process 

for obtaining a PWD. One, while 

agreeing that we should require 

employers to test the U.S. labor market 

using a currently valid PWD, suggested 

that we should also require employers 

to pay any increased prevailing wage 

that is in effect for any time during the 

certified period of employment. The 

commenter cited the Court’s ruling in 

CATA and the requirement in the H–2A 

program requirement that an employer 

pay a higher adverse effect wage rate 

(AEWR) when a new, higher AEWR 

becomes effective during the period of 

employment as its basis for the 

suggestion. 

Since this concept of paying any 

increased prevailing wage that is in 

effect for any time during the certified 

period of employment was not 

contained in the NPRM and the public 

did not have notice and an opportunity 

to comment, we cannot adopt the 

commenter’s suggestion in this Final 

Rule. 

Some labor and worker advocacy 

groups suggested that removing the last 

sentence of proposed paragraph (d), 

which exempts employers operating 

under special procedures, would clarify 

the proposed regulatory language on 

prevailing wages for multiple worksites. 

We agree and have removed the 

sentence in the Final Rule. We issue 

special procedures through TEGLs 

which detail the variances permitted for 

occupations covered by the special 

procedures. 

Some commenters noted that existing 

special procedures will require 

updating, given this rule and the 

Prevailing Wage Final Rule. We agree 

that we will need to update existing 

special procedure guidance to reflect 

organizational and regulatory changes; 

however, those updates will be issued 

through new Training and Employment 

Guidance Letters (TEGLs) rather than 

within this rule, where appropriate. 

Until such time as new TEGLs are 

issued, we will continue to honor the 

special procedures that were in place 

before the effective date of the new 

regulations. 

A number of commenters expressed 

concern about the application of the 

new prevailing wage methodology to 

workers in corresponding employment. 

We address these comments in the 

larger discussion of corresponding 

employment at § 655.5. 

As discussed in the NPRM, this 

rulemaking does not address or seek to 

amend the prevailing wage methodology 

established under the H–2B Wage Final 

Rule. Comments related to the new 

prevailing wage methodology fall 

outside the scope of this rulemaking. 

2. § 655.11 Registration of H–2B 

Employers 

We proposed to bifurcate the current 

application process into a registration 

phase, which addresses the employer’s 

temporary need, and an application 

phase, which addresses the labor market 

test. We proposed to require employers 

to submit an H–2B Registration and 

receive an approval before submitting 

an Application for Temporary 

Employment Certification and 

conducting the U.S. labor market test. 

The proposed registration required 


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employers to document the number of 

positions the employer desires to fill in 

the first year of registration; the period 

of time for which the employer needs 

the workers; and that the employer’s 

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

as either a one-time occurrence, a 

seasonal need, a peakload need, or an 

intermittent need, as defined by DHS in 

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

in § 655.6. If approved, we proposed 

that the registration would be valid for 

a period of up to 3 years, absent a 

significant change in conditions, 

enabling an employer to begin the 

application process at the second phase 

without having to re-establish 

temporary need for the second and third 

years of registration. We have retained 

the proposed registration process in the 

Final Rule, with one minor change 

related to Requests for Information 

(RFIs) and other clarifying language that 

if and when the H–2B Registration is 

permitted to be filed electronically, the 

employer must print and sign it to 

satisfy the original signature 

requirement. 

a. Method of registration. Many 

commenters voiced support for the 

proposal to bifurcate the application 

process and shift the temporary need 

and bona fide job opportunity review to 

the registration process described in the 

NPRM. Some commenters supported 

bifurcation believing that the 

registration process will provide more 

time for OFLC to thoroughly review an 

employer’s intended use of the program 

and temporary need. Others supported 

the registration process, asserting that 

the 3-year registration validity and 

removal of employers without legitimate 

temporary need will result in a more 

efficient process, better program 

oversight, better protection for workers, 

and greater visa availability for 

employers with legitimate temporary 

needs. Still other commenters believed 

that the registration would help prevent 

visa fraud. These comments were 

consistent with our reasoning, as 

articulated in the NPRM. 

Other commenters opposed the 

registration process. Some industry 

organizations and employers feared that 

the addition of a registration step will 

make the application process more 

cumbersome and time-consuming and 

some urged us to use increased 

enforcement activities rather than 

program restructuring to accomplish our 

stated goals. We view the proposed 

separation of the temporary need 

evaluation process from the labor 

market test process as an opportunity to 

fully evaluate an employer’s intended 

use of the H–2B program without 

sacrificing overall program efficiency. 

We have found that evaluating 

temporary need is a fact-intensive 

process which, in many cases, can take 

a considerable amount of time to 

resolve. Separating the two processes 

will give OFLC the time to make a 

considered decision about temporary 

need without negatively impacting an 

employer’s ability to have the workers it 

needs in place when needed. In 

addition, we anticipate that many 

employers, with 3 years of registration 

validity, will enjoy a one-step process 

involving only the labor market test in 

their second and third years after 

registration, which will allow the 

Department to process these 

applications more efficiently. We 

disagree that enforcement alone can 

ensure program integrity; we believe the 

move from an attestation-based model to 

a compliance-based model, the 

bifurcation of application processing 

into registration and labor market test 

phases, and enforcement activities all 

contribute to program integrity. We 

appreciate and understand stakeholder 

concerns about transition to a new 

registration process and will make every 

effort to ensure that the transition does 

not adversely impact processing by 

announcing the procedures by which 

we will implement the registration 

process. We have accordingly added a 

regulatory provision to allow for the 

transition of the registration process 

through a future announcement in the 

Federal Register, until which time the 

CO will adjudicate temporary need 

through the application process. 

One commenter expressed concern 

that DHS and the Department of State 

(DOS) each also review temporary need 

and that the three agencies differ in 

approach, resulting in inconsistent 

findings related to temporary need. We 

understand that, throughout the H–2B 

process, an employer must interact with 

multiple government agencies, each 

with different responsibilities related to 

the H–2B program. However, while each 

may perform different functions, the 

definition of temporary need is 

consistent across all relevant agencies, 

and we seek to minimize differences by 

participating in inter-agency 

communication designed to align the 

agencies’ H–2B processing efforts. 

One specialty bar association asserted 

that the new registration process is a 

departure from previous practice and 

that we are exceeding our authority by 

adjudicating temporary need in the 

registration process, effectively 

removing USCIS from the process and 

assuming an adjudicatory role that 

Congress did not intend. We disagree. 

We have a longstanding practice of 

evaluating temporary need as an integral 

part of the adjudication of the 

Application for Temporary Labor 

Certification; the bifurcation of the 

application process into a registration 

phase and a labor market test phase 

shifts the timing of, but does not change 

the nature of, our review. See Matter of 

Golden Dragon Chinese Restaurant, 19 I. 

& N. Dec. 238, 239 (Comm’r 1984). 

Moreover, following lengthy 

discussions, DHS and the Department 

both issued companion H–2B final rules 

in 2008. 73 FR 78020, Dec. 19, 2008; 73 

FR 78104, Dec. 19, 2008. These final 

rules left our evaluation of temporary 

need in place and shifted administrative 

review of the Application for Temporary 

Labor Certification from DHS to the 

Department. The bifurcation of the 

application process simply represents a 

timing shift, not a change, in our 

longstanding review of temporary need 

and bona fide job opportunity issues. 

b. Timing of registration. We 

proposed to require employers to file an 

H–2B Registration no fewer than 120 

and no more than 150 calendar days 

before the date of initial need for H–2B 

workers. The Final Rule retains this 

provision with minor clarification. 

Several commenters supported 

bifurcation of the application process as 

a means of enabling employers to 

conduct recruitment in the U.S. labor 

market closer to the date of need. We 

agree and anticipate, as these 

commenters do, that recruitment closer 

to the date of need should provide a 

more accurate reflection of actual labor 

market conditions. 

Other commenters feared that the 

addition of a registration step will make 

the application process more timeconsuming. Commenters expressed 

concern that, without timelines or 

deadlines on registration processing, an 

employer cannot be sure it will have 

time to complete Department, DHS, and 

DOS processing and receive the 

requested workers before its date of 

need. One commenter alleged that we 

sought to hide registration processing 

time outside the application processing 

time counted against our 60-day 

processing guideline. 

Our timeline for processing 

applications in the new two-step 

process is sensitive to these concerns. 

The proposed registration window (i.e., 

120 to 150 days before the employer’s 

anticipated date of need) provides 

enough time for processing the 

registration before an employer may 

submit an Application for Temporary 

Employment Certification (i.e., 75 to 90 

days before the employer’s anticipated 

date of need) to assure that the 

adjudication of the Application for 


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Temporary Employment Certification 

will not be delayed. In addition, many 

employers will not have to repeat the 

registration process for the next 2 years. 

The registration timeframe also reflects 

our understanding that some employers 

may have difficulty accurately 

predicting their need more than 5 

months in advance. The registration 

window seeks to balance both 

processing time and accuracy concerns. 

We anticipate an employer’s overall 

processing time to decrease significantly 

when the bifurcated process goes into 

effect. 

For consistency with other provisions 

under the Final Rule and clarification of 

the process therein, this provision has 

been slightly revised to add reference to 

the exception to the filing time 

requirement of the H–2B Registration 

where it is filed in support of an 

emergency filing under § 655.17. 

c. Registration process. The proposed 

rule authorized the CO to issue one or 

more RFIs before issuing a Notice of 

Decision on the H–2B Registration if the 

CO determined that he or she could not 

approve the H–2B Registration for 

various reasons, including, but not 

limited to: An incomplete or inaccurate 

ETA Form 9155; a job classification and 

duties that do not qualify as nonagricultural; the failure to demonstrate 

temporary need; and/or positions that 

do not constitute bona fide job 

opportunities. We retained the proposed 

provisions in the Final Rule, with one 

amendment. 

One employer suggested we remove 

the word ‘‘normally’’ from paragraph (g) 

of this section to establish a definitive 

timeframe for RFI issuance. We agree 

and have removed ‘‘normally’’ from 

paragraph (g) of this section in the Final 

Rule. 

Another employer suggested that we 

should not permit the CO to issue an 

unlimited number of RFIs. In order to 

provide the CO with flexibility to work 

with employers seeking to resolve 

deficiencies and secure registration 

approval, we will retain the provision as 

proposed. 

One commenter suggested limiting 3- 

year registration validity to employers 

with recurring predictable seasonal and 

peakload needs, while requiring onetime or intermittent need employers to 

re-register every year. We find that this 

concern is sufficiently accommodated in 

the regulation as written, which 

provides the CO with discretion over 

the validity period of registrations 

approved. The CO may approve a 

registration for a period up to 3 

consecutive years, taking into 

consideration the standard of need and 

any other factors in the registration. 

d. Registration content. Under the 

proposed rule, supporting 

documentation was to accompany the 

H–2B Registration, including 

documentation showing the number of 

positions the employer desires to fill in 

the first year of registration; the period 

of time for which the employer needs 

the workers; and that the employer’s 

need for the services or labor is 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. We are adopting the 

proposed provision of the NPRM 

without change. 

One commenter suggested that we 

include a basic recruitment effort 

requirement at the time of registration to 

show need for the program. We do not 

believe requiring recruitment prior to 

registration filing is consistent with our 

purpose in separating the application 

process into a registration step and a 

labor market test. Recruitment efforts 

close to an employer’s period of need 

are most likely to result in an accurate 

labor market test, while recruitment far 

in advance of the employer’s period of 

need is unlikely to yield valid 

recruitment results. The Final Rule 

retains recruitment requirements during 

the application process, which is closer 

to the employer’s date of need. 

One commenter encouraged us to 

include a bona fide employer check, in 

order to eliminate fraud by fictitious 

employers. The commenter suggested 

requiring Federal Employer 

Identification Number (FEIN) 

documentation and a certificate of good 

standing from the company’s State of 

formation (in the case of a corporation 

or a limited liability company) or 

comparable document for a sole 

proprietorship (e.g., certified payrolls 

and confirmation of a bank account 

form a financial institution) as well as 

disclosure of beneficial owners. We 

agree with the importance of allowing 

only bona fide employers access to the 

H–2B program and will verify business 

existence at the time of registration to 

protect program integrity. We will 

perform the initial business existence 

verification and, if questions arise, will 

request additional documentation of 

bona fide existence through the RFI 

process already contained in the Final 

Rule. 

Some labor and advocacy groups 

suggested making registration 

information available to the public, for 

both transparency and information 

purposes, as well as to permit public 

input on registrations before 

adjudication. Comments related to 

transparency and community interest in 

publicly available information have 

been addressed in the larger discussion 

of public disclosure. While we 

anticipate continuing to receive 

information and concerns from the 

public informally, which OFLC takes 

under consideration during its review, 

we cannot permit the public to formally 

participate in the adjudication process. 

It would present serious operational 

burdens, and as a result it would 

become difficult to complete the 

registration process in a timely fashion. 

Finally, we anticipate that the various 

provisions of this Final Rule will result 

in improved employer compliance, 

resolving some of the underlying 

concerns. 

e. Registration documentation 

retention. We proposed requiring all 

employers that file an H–2B Registration 

to retain any documents and records not 

otherwise submitted proving 

compliance with this subpart for a 

period of 3 years from the final date of 

applicability of the H–2B Registration, if 

approved, or the date of denial or 

withdrawal. We have retained this 

requirement in the Final Rule. 

We received few comments on this 

provision. One worker advocacy 

organization expressed support for the 

registration documentation retention 

requirement, believing the requirement 

will improve protections for U.S. 

workers, while another commenter 

suggested that a 5-year retention 

requirement would be better than 3 

years in preserving evidence for 

criminal prosecution. We believe the 3- 

year retention requirement is sufficient 

to address our interests in upholding 

program integrity and, as with any 

document retention requirement, if an 

employer is involved in a proceeding in 

which documents are relevant, the time 

for retaining the documents is tolled. 

One State bar association expressed 

concern about our discussion in the 

NPRM about requiring retention of 

documentation related to an H–2B 

Registration so that we could, 

potentially, use a prior year’s 

registration, even if withdrawn, as a 

factor in evaluating current temporary 

need. The commenter argued that there 

are many legitimate business reasons 

why an employer’s situation could 

change following denial or withdrawal 

of a registration. We understand that, in 

some situations, circumstances may 

change and legitimately affect the nature 

of an employer’s need for workers. We 

also expect that employers who 

accurately document their need when 

submitting a registration will be able to 

articulate the change, if requested. We 

will not deny an employer’s H–2B 


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Registration where the employer 

documents a change in circumstances 

and the H–2B Registration otherwise 

complies with program requirements. 

f. Registration of job contractors. As 

discussed in the preamble to § 655.6, we 

are continuing to permit job contractors 

to participate in the H–2B program 

where they can demonstrate their own 

temporary need and not that of their 

employer-clients, and that this 

temporary need is seasonal or a onetime occurrence. Accordingly, we have 

made several edits to reflect the 

requirement that job contractors provide 

documentation that establishes their 

temporary seasonal need or one-time 

occurrence during the registration 

process and to make this requirement a 

factor in the National Processing 

Center’s (NPC’s) review of the H–2B 

Registration. While a job contractor 

must file an Application for Temporary 

Employment Certification jointly with 

its employer-client, in accordance with 

§ 655.19, a job contractor and its 

employer-client must each file a 

separate H–2B Registration. 

g. Document retention. We proposed 

that the documents for registration 

would be retained for a period of 3 years 

from the date of applicability of the H– 

2B Registration. This meant that all 

documents retained in connection with 

an H–2B Registration would be retained 

for 3 years after the last date of 

validity—for up to 6 years. We have 

clarified in this Final Rule that the 

documents to be retained must be 

retained for 3 years from the date of 

certification of the last Application for 

Temporary Employment Certification 

supported by the H–2B Registration. We 

have also added clarifying language in 

the document retention provision at 

§ 655.56 with respect to the document 

retention of an H–2B Registration. 

3. § 655.12 Use of Registration by 

H–2B Employers 

We proposed to permit an employer 

to file an Application for Temporary 

Employment Certification upon 

approval of its H–2B Registration, and 

for the duration of the registration’s 

validity period, which may be up to 3 

consecutive years from the date of 

issuance, provided that the employer’s 

need for workers (i.e., dates of need or 

number of workers) had not changed 

more than the specified levels. In the 

NPRM, we proposed that if the 

employer’s need for workers increased 

by more than 20 percent (or 50 percent 

for employers requesting fewer than 10 

workers); if the beginning or ending date 

of need for the job opportunity changed 

by more than 14 calendar days; if the 

nature of the job classification and/or 

duties materially changed; and/or if the 

temporary nature of the employer’s need 

for services or labor materially changed, 

the employer would be required to file 

a new H–2B Registration. We also 

proposed that the H–2B Registration 

would be non-transferable. In the Final 

Rule, for the reasons stated below, we 

have retained this provision as 

proposed, except for a modification to 

the variance in the period of need 

permitted without an employer needing 

to re-register. 

a. Limitation on variances in 

temporary need. Some commenters 

contend that, given that business is not 

static, the limitations on H–2B 

Registration validity make it likely that 

an employer will have to register each 

year or at least more than once every 3 

years due to fluctuations in the number 

of workers needed, the dates of need, or 

the nature of the duties. We recognize 

that there may be fluctuations from year 

to year and accordingly have designed 

the H–2B Registration to accommodate 

minor variations. However, we also 

have an interest in preserving program 

integrity, and thus do not believe that it 

would be appropriate to allow for the 

same H–2B Registration to apply to a 

substantially different job opportunity. 

Commenters suggested other 

thresholds for variances in the period of 

need or in the number of workers 

requested that could trigger reregistration requirements. One 

commenter supported the requirement 

that employers be required to re-register 

when there are significant variances in 

temporary need as an important fraud 

reduction mechanism, but suggested we 

alter the formula from a percentage 

system to a whole number ratio system 

(e.g., employer can request an extra 2 

workers for every 10 that were sought in 

the initial registration). As the basis for 

the suggestion, the commenter 

identified a scenario in which an 

employer that initially requested 9 

workers could increase its request by 4 

workers without having to re-register, 

while an employer that initially 

requested 16 could only request 3 

workers without having to re-register. 

We believe that material changes in 

the job classification or job duties, 

material changes in the nature of the 

employer’s temporary need, or changes 

in the number of workers needed greater 

than the specified levels, from one year 

to the next, merit a fresh review through 

re-registration. We note that the 

tolerance level for the number of 

workers requested proposed for the 

registration process (i.e., 20 percent (or 

50 percent for employers requesting 

fewer than 10 workers)) is the same as 

the tolerance level in the 2008 H–2B 

Final Rule, the current H–2A regulation, 

and § 655.35 of this Final Rule for 

amendments to an Application for 

Temporary Employment Certification 

before certification. We do not find the 

difference of one worker, in the scenario 

provided, sufficient to justify changing 

our method of calculating minor 

changes in the number of workers 

requested. 

Another commenter suggested 

focusing the number of workers 

limitation on the number of H–2B 

workers actually employed rather than 

the number requested. We find this 

suggestion unworkable both for OFLC 

and employers. Our focus is on an 

employer’s need for workers and 

openings to be filled during recruitment, 

not actual visa usage. While we plan to 

begin collecting data on the number of 

workers an employer ultimately 

employs under H–2B visas for other 

purposes, such as gaining a better 

understanding of program usage, we 

will base our evaluation of H–2B 

Registration use on the number of 

workers requested. 

We agree, however, that a wider 

variation in the employer’s stated period 

of need would accommodate reasonable 

fluctuations in temporary need, without 

sacrificing program integrity, and would 

better effectuate our goal of streamlining 

the process by enabling more employers 

to use an H–2B Registration for more 

than 1 year. Accordingly, we have 

changed the limitation on a valid H–2B 

Registration to permit an employer’s 

beginning and/or ending date of need to 

change by no more than a total of 30 

calendar days from the initial year 

without requiring re-registration. 

b. Prohibition on transfer. We 

proposed to prohibit the transfer of an 

approved H–2B Registration. One 

commenter agreed with the proposal, 

finding the approach critical to 

preventing program abuse. Under the 

Final Rule, an H–2B Registration is nontransferrable. 

c. Validity of registration. We 

proposed to issue H–2B Registration 

approvals, valid for up to a period of 3 

years. Apart from the concerns 

discussed earlier, such as business 

fluctuations requiring an employer to reregister more often than its registration 

validity required, commenters generally 

supported the 3-year validity of a 

registration as a mechanism for 

potentially streamlining the process for 

repeat users. 

4. § 655.13 Review of Prevailing Wage 

Determinations 

We proposed changing the process for 

the review of PWDs for purposes of 

clarity and consistency. Specifically, we 


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proposed reducing the number of days 

within which the employer must 

request review of a PWD by the NPWC 

Director from 10 calendar days to 7 

business days from the date of the PWD. 

We also proposed revising the language 

of the 2008 Final Rule to reflect that the 

NPWC Director will review 

determinations, and specifying that the 

employer has 10 business days from the 

date of the NPWC Director’s final 

determination within which to request 

review by the BALCA. We adopt this 

provision of the NPRM without change 

in the Final Rule. 

A labor and worker advocacy 

organization suggested that U.S. and 

foreign workers should not be excluded 

from the PWD appeal process. We 

cannot permit public participation in 

the prevailing wage appeal process. The 

prevailing wage process is an employerbased application process, which often 

occurs before specific workers are 

identified. Operationally, doing so 

would present serious questions as to 

who could or could not become parties 

to the process and would make timely 

resolution of issues difficult. We will 

continue however, to accept information 

from the public regarding wage issues, 

including information concerning 

appeals. 

C. Application for Temporary 

Employment Certification Filing 

Procedures 

1. § 655.15 Application Filing 

Requirements 

Under the proposed rule, we returned 

to a post-filing recruitment model in 

order to develop more robust 

recruitment and to ensure better and 

more complete compliance by H–2B 

employers with program requirements. 

As explained in the proposed rule, our 

experience in administering the H–2B 

program since the implementation of 

the 2008 Final Rule suggests that the 

lack of oversight by the Department and 

the SWAs during the pre-filing 

recruitment process has resulted in 

failures to comply with program 

requirements. We believe the 

recruitment model described in the 

proposed rule and now adopted in this 

Final Rule will enhance coordination 

between OFLC and the SWAs, better 

serve the public by providing U.S. 

workers more access to available job 

opportunities, and assist employers in 

obtaining the qualified personnel that 

they require in a timelier manner. 

The proposed rule required the 

employer to file the Application for 

Temporary Employment Certification, 

with original signature(s), copies of all 

contracts and agreements with any agent 

and/or recruiter executed in connection 

with the job opportunities, and a copy 

of the job order with the Chicago NPC 

at the same time it files the job order 

with the SWA. The employer must 

submit this filing no more than 90 days 

and no fewer than 75 days before its 

date of need. The proposed process 

continues to employ the SWAs’ 

significant knowledge of the local labor 

market and job requirements. In the 

Final Rule, this provision is slightly 

revised to clarify that the employer is 

required to also submit to the NPC any 

information required under §§ 655.8 and 

655.9 (including the identity and 

location of persons and entities hired by 

or working with the recruiter or agent or 

employee of the recruiter to recruit 

prospective foreign workers for the H– 

2B job opportunities). The signature 

portion of this section is also slightly 

revised to clarify that if and when the 

Application for Temporary Employment 

is permitted to be filed electronically, 

the employer must print and sign it after 

receiving a determination to satisfy the 

original signature requirement. 

For purposes of simultaneous filing, 

we use the term ‘‘job order’’ when in 

fact the job order has yet to be created 

and posted by the SWA. We recognize 

that this may be confusing to the 

employer, as what will actually be 

submitted simultaneously to both 

agencies is a document which outlines 

the details of the employer’s job 

opportunity, not the official job order. 

We expect the employer to provide the 

Chicago NPC with an exact copy of the 

draft the employer provides to the SWA 

for the creation of the SWA job order. 

We also proposed to continue to 

require employers to file separate 

applications when there are different 

dates of need for the same job 

opportunity within an area of intended 

employment. Lastly, we proposed to 

continue to require filing of an 

Application for Temporary Employment 

Certification in a paper format until 

such time as an electronic system can be 

fully implemented. We are retaining the 

provisions as proposed. 

A few commenters disagreed with the 

proposal to allow for the simultaneous 

filing of the job order with the 

Department and the SWA, contending 

that the process would be unwieldy and 

result in duplicative efforts. In contrast, 

other commenters supported a return to 

a post-filing recruitment model. As 

discussed in the NPRM, by involving 

the SWA in the job order review, the 

proposed process directly employs the 

SWAs’ significant knowledge of the 

local labor market and job requirements. 

We agree with the commenters who 

asserted that the resulting job order will 

provide accurate, program compliant 

notification of the job opportunity to 

U.S. workers. In addition, requiring the 

employer to simultaneously file the job 

order with the Chicago NPC and the 

SWA will enhance coordination 

between the agencies, resulting in 

increased U.S. worker access to job 

opportunities as well as helping 

employers locate qualified and available 

U.S. workers. 

Some commenters supported the 

proposed timeframe for submitting the 

Application for Temporary Employment 

Certification. These commenters 

thought the requirement that employers 

file an Application for Temporary 

Employment Certification no more than 

90 days and no fewer than 75 days 

before their date of need, combined with 

the proposed post-filing recruitment, 

would allow employers to conduct a 

more accurate test of the U.S. labor 

market and the CO to make a more 

accurate determination about 

availability of U.S. workers. OIG, in its 

October 17, 2011 report, found that 

permitting employers to recruit for job 

openings up to 120 days prior to the job 

start makes the recruitment less likely to 

result in U.S. worker hires than 

recruitment closer to the start date. OIG 

identified our proposal to shorten the 

timeframe between recruitment and job 

start date as strengthening U.S. worker 

recruitment. We agree and have retained 

the proposed timeframe for filing the 

Application for Temporary Employment 

Certification in the Final Rule. 

One worker advocacy group 

expressed support for requiring separate 

applications for work occurring at 

separate worksites, with separate 

employers, or for different positions that 

have different job duties or terms and 

conditions of employment. We also 

received comments opposing the 

proposal to continue to require 

employers to file separate applications 

when there are different dates of need 

for the same job opportunity within an 

area of intended employment. 

Commenters argued that their business 

ramps up during the period of need, 

resulting in a need for some, but not all, 

of the workers requested on the date of 

need provided in the Application for 

Temporary Employment Certification. 

These commenters asserted that they 

also need flexibility to respond to 

changes in the market. We acknowledge 

that business is not static and an 

employer’s need for workers during its 

period of greatest and least need may 

not be consistent. However, employers 

should accurately identify their 

personnel needs and, for each period 

within its season, file a separate 

application containing a different date 


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of need. An application with an 

accurate date of need will be more likely 

to attract qualified U.S. workers to fill 

those open positions, especially when 

the employer conducts recruitment 

closer to the actual date of need. This 

prohibition against staggered entries 

based on a single date of need is 

intended to ensure that employers 

provide U.S. workers the maximum 

opportunity to consider the job 

opportunity and is consistent with 

USCIS policies. It ensures that U.S. 

workers are not treated less favorably 

than H–2B workers who, for example, 

may be permitted to report for duty 6 

weeks after the stated date of need. We 

recognize that there may be industries 

whose participation in the H–2B 

program may be constrained as a result 

of this revised 90- to 75-day timeframe 

filing in years in which the statutory cap 

of for the six-month intervals beginning 

October 1 and April 1 is at issue. 

However, this is largely a function of the 

statutory cap on the available visas over 

which we have no control. We are, 

therefore, retaining the provision as 

proposed and only slightly revising the 

language to further clarify that an 

employer must file only one 

Application for Temporary Employment 

Certification for worksite(s) within one 

area of intended employment for each 

job opportunity for each date of need. 

We received comments suggesting 

that we post the Application for 

Temporary Employment Certification to 

increase transparency. These comments 

have been addressed in the larger 

discussion of public disclosure at 

§ 655.63. 

We did not receive comments on our 

proposal to continue to use ETA Form 

9142 to collect the necessary 

information, with slightly modified 

appendices reflecting changes from the 

2008 Final Rule (such as a change of 

tense to note pre-recruitment filing). As 

discussed in the NPRM, while we have 

begun efforts to establish an online 

format for the submission of an 

Application for Temporary Employment 

Certification, deployment of the system 

depends upon the resolution of issues in 

this rulemaking; we cannot implement 

it until after this Final Rule is effective. 

After the rule is effective, there will 

have to be a period during which 

entities may only file applications by 

paper submissions. However, in 

anticipation of the deployment of an 

online filing system, we have added 

language in the regulatory text that 

clarifies that when an employer submits 

an Application for Temporary 

Employment Certification electronically, 

the CO will inform the employer how to 

fulfill the signature requirement. 

2. § 655.16 Filing of the Job Order at 

the SWA 

We proposed to require the employer 

to submit its job order directly to the 

SWA at the same time as it files the 

Application for Temporary Employment 

Certification and a copy of the job order 

with the Chicago NPC, no more than 90 

calendar days and no fewer than 75 

calendar days before the employer’s 

date of need. As discussed above, we 

sought to continue to use the SWAs’ 

experience with the local labor market, 

job requirements, and prevailing 

practices by requiring the SWA to 

review the contents of the job order for 

compliance with § 655.18 and to notify 

the CO of any deficiencies within 4 

business days of its receipt of the job 

order. The proposed rule differed from 

the 2008 Final Rule in that it prohibited 

the SWA from posting the job order 

before receiving a Notice of Acceptance 

from the CO directing it to do so. We 

have retained the provision in the Final 

Rule as proposed except for a 

modification to the SWA’s job order 

review timeframe and minor 

clarifications. 

Many commenters supported the 

return to more direct SWA participation 

in the U.S. labor market test, including 

the SWA’s simultaneous review of job 

order content with the Chicago NPC. 

These commenters agreed that the 

SWA’s local knowledge would be 

helpful in ensuring that an accurate job 

order is posted presenting the job 

opportunity to available workers. In 

contrast, some commenters opposed the 

simultaneous job order review process 

as burdensome for SWAs at current 

funding levels and duplicative of the 

Chicago NPC’s review. By requiring 

such concurrent filing and review, the 

CO can use the knowledge of the SWA, 

in addition to its own review, in a single 

Notice of Deficiency before the 

employer conducts its recruitment. 

While we are sensitive to SWA budget 

concerns, SWAs can continue to rely on 

foreign labor certification grant funding 

to support those functions. We believe 

that this continued cooperative 

relationship between the CO and the 

SWA will ensure greater program 

integrity and efficiency. 

Despite supporting re-introduction of 

SWA job order review, some 

commenters contended that 4 calendar 

days was insufficient time for the SWA 

to conduct an adequate compliance 

review and notify the Chicago NPC of its 

findings. After reviewing these 

comments, we have decided to modify 

the SWA’s timeframe for job order 

review in the Final Rule, from 4 

calendar days to 6 business days. 

One commenter suggested requiring 

the employer to submit the job order to 

all SWAs having jurisdiction over the 

anticipated worksite(s). We will not 

accept this suggestion, finding the result 

potentially burdensome and confusing 

to SWAs and employers, as well as the 

Chicago NPC. Limiting the job order 

submission and review to one SWA and 

the Chicago NPC and, after acceptance, 

circulating the job order to other 

appropriate SWAs, best accomplishes 

the cooperative relationship and 

thorough review we seek to implement 

without increasing confusion or 

sacrificing efficiency. 

A labor organization suggested that 

we clarify the meaning of intrastate and 

interstate clearance to ensure that the 

SWA circulates the job order to all 

appropriate States. Intrastate clearance 

refers to placement of the job order 

within the SWA labor exchange services 

system of the State to which the 

employer submitted the job order and to 

which the NPC sent the Notice of 

Acceptance, while interstate clearance 

refers to circulation of the job order to 

SWAs in other States, including those 

with jurisdiction over listed worksites 

and those the CO designates, for 

placement in their labor exchange 

services systems. We note that, under 

§ 655.33(b)(4), the CO directs the SWA 

in the Notice of Acceptance to the States 

to which the SWA must circulate the job 

order, ensuring that the employer is also 

aware of the job order’s exposure in the 

SWAs’ labor exchange services systems. 

However, to further this distinction in 

the Final Rule, this section has been 

slightly revised to clarify that the SWA 

must place the job order in intrastate 

clearance and must also provide it to 

other States as directed by the CO. 

The same labor organization 

suggested we require the SWA to post 

the job at State motor vehicle offices and 

Web sites. Another commenter 

suggested we require the job order to be 

open until the end of the certification 

period, not only the recruitment period. 

Still another commenter suggested the 

SWA be required to keep the job order 

posted for 30 days. We note that job 

order posting in the SWA labor 

exchange system is but one of the SWA 

and employer recruitment activities 

contained in the Final Rule, which 

together are designed to ensure 

maximum job opportunity exposure for 

U.S. workers during the recruitment 

period. Also, in most cases, the job 

order will be posted for more than 30 

days, since the Final Rule requires the 

employer to file its application no more 

than 90 calendar days and no less than 

75 calendar days before its date of need 

and the SWA to post the job order upon 


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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 10063 

receipt of the Notice of Acceptance and 

to keep the job order posted until 21 

days before the date of need, as 

discussed in the preamble to § 655.20(t). 

We do not consider it feasible to add 

further SWA requirements; as stated 

above, we have to be sensitive to SWA 

resource concerns. Additionally, the H– 

2B electronic job registry, for instance, 

already provides nationwide exposure 

of the job opportunities, which renders 

the additional postings suggested by the 

commenter unnecessary. We have 

decided to retain the requirement that 

SWAs post the job order for the duration 

of the recruitment period, which was 

revised as discussed in the preamble to 

§ 655.40. This ensures the job order is 

afforded maximum visibility for the 

most relevant period of time—the time 

during which workers are most likely to 

apply for an imminent job opening, and 

when employers are most in need of 

workers. 

One commenter suggested we require 

employers to simultaneously file the 

Application for Temporary Employment 

Certification rather than the job order 

with the SWA and Chicago NPC. In 

addition to citing the lack of a uniform 

job order form, the commenter 

contended that the Application for 

Temporary Employment Certification 

form contains the information necessary 

to place a job order and provides 

additional information, thereby 

enhancing the SWA’s review ability. 

While we acknowledge that there is no 

uniform job order form available, we 

note that the SWA labor exchange 

system is a State, not Federal, system. 

The existing cooperative Federal-State 

model under the Wagner-Peyser system 

is much too decentralized to 

accommodate the requirement that 

SWAs use a specific form. Moreover, in 

deference to concerns about SWA 

administrative burden, we do not wish 

to add forms, such as the Application 

for Temporary Employment 

Certification, outside of a SWA’s normal 

job order placement function. 

Additionally, the job order contains 

different reference points than the ETA 

Form 9141 and collects different 

information. Therefore, we will retain 

the provision without change. In an 

effort to acknowledge the fact that 

SWAs have different forms and 

emphasize the employer’s need to 

comply with each State’s form and 

requirements, we have revised this 

provision to provide that the employer’s 

job order must conform to the Statespecific requirements governing job 

orders as well as the requirements set 

forth in § 655.18. 

3. § 655.17 Emergency Situations 

We proposed to permit an employer 

to file an H–2B Registration fewer than 

120 days before the date of need and/or 

an Application for Temporary 

Employment Certification along with 

the job order fewer than 75 days before 

the date of need where an employer has 

good and substantial cause and there is 

enough time for the employer to 

undertake an adequate test of the labor 

market. This was a change from the 

2008 regulations, which do not allow for 

emergency filings, and sought to afford 

employers flexibility while maintaining 

the integrity of the application and 

recruitment processes. To meet the good 

and substantial cause test, we proposed 

that the employer must provide to the 

CO detailed information describing the 

reason(s) which led to the emergency 

request. Such cause may, in the Final 

Rule, include the substantial loss of U.S. 

workers due to Acts of God or similar 

unforeseeable man-made catastrophic 

event that is wholly outside the 

employer’s control, unforeseen changes 

in market conditions, or pandemic 

health issues. These edits have been 

made for consistency and clarity so that 

employers will easily understand those 

areas in which emergency situations 

will be permitted. However, the CO’s 

denial of an H–2B Registration in 

accordance with the procedures under 

§ 655.11 does not constitute good and 

substantial cause for a waiver request. 

In the NPRM, apart from permitting 

an employer to file fewer than 75 days 

before the start date of need and 

requiring the employer to show good 

and substantial cause, we proposed to 

process an H–2B Registration and/or an 

Application for Temporary Employment 

Certification and job orders in a manner 

consistent with non-emergency 

processing. In the Final Rule, we have 

adopted the proposed provision with a 

few clarifying edits. 

For purposes of simultaneous filing 

we use the term job order in the NPRM, 

when in fact the job order has yet to be 

created and posted by the SWA. We 

recognize that this may be confusing to 

the employer, as what will actually be 

submitted simultaneously with the 

Application for Temporary Employment 

Certification in such instances is a draft 

document which outlines the details of 

the employer’s job opportunity, not the 

official job order. Therefore, we have 

made such clarification in the Final 

Rule, indicating that the job order is 

proposed and not final. 

We also received several comments 

from employers, employer advocacy 

groups, and trade organizations, 

requesting that we include man-made 

disasters in this provision. While we 

indicated in the NPRM that the 

examples listed as good and substantial 

cause are not exclusive, suggesting that 

the expansion of the list is in line with 

the intent of the provision, for 

clarification we have revised this 

provision in the Final Rule to 

specifically include man-made disasters 

as being circumstances beyond the 

control of the employer that can result 

in the need to file an H–2B Registration 

and/or an Application for Temporary 

Employment Certification along with 

the job order fewer than 75 days before 

the date of need. 

Several commenters expressed 

concern about the potential for 

employers to use natural disasters to 

abuse the program and workers. These 

commenters urged us to be vigilant 

when processing emergency 

applications. We are sensitive to these 

concerns. We intend to subject 

emergency applications to a higher level 

of scrutiny than non-emergency 

applications. As proposed and as 

adopted in the Final Rule, an H–2B 

Registration and/or Application for 

Temporary Employment Certification 

processed under the emergency 

situation provision is subject to the 

same recruitment activities, potential to 

be selected for audit, and enforcement 

mechanisms as a non-emergency H–2B 

Registration and/or Application for 

Temporary Employment Certification. 

A labor organization asserted that in 

times of disaster, U.S. workers may be 

interested in assuming these temporary 

positions after an initial period of 

securing basic provisions and safety 

because they have been displaced from 

their normal jobs. This commenter 

suggested expanding the recruitment 

period for emergency situation filings to 

require the employer to replace H–2B 

workers with U.S. workers up to 50 

percent of the period of need requested. 

We have decided not to incorporate this 

suggestion. We believe each emergency 

situation is unique and must be 

evaluated on its specific characteristics, 

both as to whether a qualifying situation 

exists and whether there is sufficient 

time to thoroughly test the U.S. labor 

market. The regulation gives the CO the 

discretion not to accept the emergency 

filing if the CO believes there is 

insufficient time to thoroughly test the 

U.S. labor market and make a final 

determination. Moreover, under 

§ 655.46, the CO has the discretion to 

instruct an employer to conduct 

additional recruitment. We believe the 

Final Rule accommodates both the 

urgency of these situations and the 

importance of conducting an 

appropriate test of the U.S. labor market. 


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A worker advocacy group supported 

the inclusion of an emergency situation 

provision, but urged us to permit only 

late applications, not early applications. 

As discussed above, it is our intention 

that the emergency situation provision 

permit an employer to file fewer than 75 

days before the start date of need. This 

provision in no way expands the earliest 

date an employer is eligible to submit an 

H–2B Registration or Application for 

Temporary Employment Certification. 

A private citizen suggested limiting 

an employer to one emergency 

application per year. We have decided 

not to accept this suggestion. Given that 

some employers file multiple 

applications, each for a different 

occupation and/or area of intended 

employment, we believe such an 

approach is too strict and contrary to the 

purpose of the provision. 

Two labor organizations suggested 

limiting the subjectivity of the 

provision. One specifically 

recommended adding the word 

reasonably to unforeseen changes in 

market conditions, while the other 

recommended limiting emergencies to 

objectively verifiable events such as 

those confirmed in Federal, State or 

local government statements formally 

certifying a natural or manmade 

disaster, necessitating extraordinary 

measures by Federal, State or local 

government. The CO will adjudicate 

foreseeability based on the precise 

circumstances of each situation 

presented. The burden of proof is on the 

employer to demonstrate the 

unforeseeability leading to a request for 

a filing on an emergency basis. 

Therefore, we believe the language as 

proposed strikes an appropriate balance 

between providing flexibility to 

employers experiencing emergencies 

that create a need to submit applications 

closer to their need than normal 

processing permits, and limiting the 

scope of such emergencies so that 

emergency processing is truly an 

exception rather than the norm. 

4. § 655.18 Job Order Requirements and 

Contents 

The job order is essential for U.S. 

workers to make informed employment 

decisions. The Department proposed to 

require employers to inform applicants 

in the job order not only of the standard 

information provided in advertisements, 

but also several key assurances and 

obligations to which the employer is 

committing by filing an Application for 

Temporary Employment Certification 

for H–2B workers and to which U.S. 

workers are also entitled. The job order 

must also be provided to H–2B workers 

with its pertinent terms in a language 

the worker understands. 

Several commenters found the 

organization of this section to be 

confusing when read in concert with the 

advertising requirements at § 655.41. 

The proposed rule at § 655.18 reads: 

‘‘An employer must ensure that the job 

order contains the information about the 

job opportunity as required for the 

advertisements required in § 655.41 and 

the following assurances * * *’’ many 

of which overlapped with those 

requirements found in § 655.41. 76 FR 

15182, Mar. 18, 2011. In order to dispel 

confusion and reconcile the sections, 

the Department has reorganized § 655.18 

and imported some requirements from 

§ 655.41 that were implied, but not 

explicitly required, in the NPRM. Those 

specific changes are discussed below 

and in the preamble to § 655.41, and as 

a result of those changes, this section no 

longer cross-references § 655.41. 

In addition, the Department has 

reorganized this section in order to 

ensure that employers include all 

pertinent information in each job order, 

regardless of the State in which the job 

order is being placed. As there is not a 

single H–2B job order form that is 

applicable to all States and job 

opportunities, this change is necessary 

for the uniform administration of the 

program requirements. This approach 

will ensure that workers have a full 

understanding of the terms and 

conditions of employment, improve 

employer compliance, and support 

program enforcement. 

Furthermore, the Department clarifies 

that the assurances pertaining to the 

prohibition against preferential 

treatment and bona fide job 

requirements in paragraph (a) of this 

section need not be included in the job 

order verbatim; rather they are 

applicable to each job order insofar as 

they apply to each listed term and 

condition of employment. 

One commenter suggested that the 

lengthy job orders have the effect of 

discouraging U.S. workers from 

pursuing a job opportunity and 

suggested that the Department adopt an 

abbreviated form which might be 

provided to each job applicant by the 

SWA which summarizes the job order. 

The Department is not able to accept 

this suggestion as it is our primary 

concern in this context that U.S. 

applicants be provided with all of the 

terms and conditions of employment 

and fully apprised of the job 

opportunity. 

a. Prohibition against preferential 

treatment (proposed rule § 655.18(a); 

Final Rule § 655.18(a)(1)). The proposed 

rule required the employer to provide to 

U.S. workers at least the same level of 

benefits, wages, and working conditions 

that are being or will be offered or paid 

to H–2B workers, similar to the 

requirements under § 655.22(a) of the 

2008 Final Rule, with the additional 

requirement that this guarantee must be 

set forth in the job order to ensure that 

all workers are aware of their rights to 

similar benefits, wages, and working 

conditions. These protections were also 

reflected in the proposed rule as an 

employer assurance and obligation 

under § 655.20(q). 

Some commenters may have 

misunderstood the protections 

guaranteed to U.S. workers under the 

proposed section because the last 

sentence of the proposed section stated 

that an employer is not relieved from 

providing H–2B workers the minimum 

benefits, wages, and working conditions 

that must be offered to U.S. workers 

under this section. One commenter 

expressed support for the proposed 

changes and elaborated on the 

importance of preventing disparate 

treatment of H–2B and U.S. workers that 

could lead to the creation of 

substandard jobs and lead to the abuse 

of vulnerable H–2B workers. To clarify, 

the purpose of § 655.18(a)(1) is to 

protect U.S. workers by ensuring that 

the employers do not understate wages 

and/or benefits in an attempt to 

discourage U.S. applicants or to provide 

preferential treatment to temporary 

foreign workers. Employers are required 

to offer and provide H–2B workers at 

least the minimum wages and benefits 

outlined in these regulations. So long as 

the employer offers U.S. workers at least 

the same level of benefits as will be 

provided to the H–2B workers, the 

employer will be in compliance with 

this provision. Section 655.18(a)(1) does 

not preclude an employer from offering 

a higher wage rate or more generous 

benefits or working conditions to U.S. 

workers, as long as the employer offers 

to U.S. workers all the wages, benefits, 

and working conditions offered to and 

required for H–2B workers pursuant to 

the certified Application for Temporary 

Employment Certification. 

In addition to commenters who 

generally supported the expanded 

protections of H–2B workers, several 

commenters—a legal network a human 

rights organization, a labor organization 

and an alliance of human rights 

organizations—specifically requested 

that the Department add an additional 

provision into the job order which 

would require the employer to offer to 

H–2B workers the same fringe benefits 

as those the employer is offering to U.S. 

workers in corresponding employment. 

As discussed above, the Department’s 


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mandate requires that an employer be 

permitted to hire H–2B workers only in 

circumstances where there are no 

qualified and available U.S. workers, 

and where the employment of H–2B 

workers will not have an adverse effect 

on the wages and working conditions of 

U.S. workers. To that end, the regulation 

under § 655.18(a)(1) requires that the job 

order ‘‘must offer to U.S. workers no 

less than the same benefits, wages, and 

working conditions that the employer is 

offering, intends to offer, or will provide 

to H–2B workers.’’ Any fringe benefits 

offered or provided by an employer 

would fall under the category of 

benefits, and the employer would 

therefore be required to list them on the 

job order. However, nothing in this 

regulation precludes an employer from 

offering more generous benefits than 

those required by the regulations to 

either U.S. workers or H–2B workers, as 

long as the employer offers to U.S. 

workers at least the same wages, 

benefits, and working conditions offered 

to and required for H–2B workers 

pursuant to the approved Application 

for Temporary Employment 

Certification. However, for further 

clarification, the Department has 

amended § 655.18(b)(9) to require that 

the job order specifically list any fringe 

benefits that will be offered. 

The Department received no more 

comments on this section; the 

Department is therefore adopting the 

proposed language in the Final Rule 

without change. 

b. Bona fide job requirements 

(proposed rule § 655.18(b); Final Rule 

§ 655.18(a)(2)). The Department 

proposed to require that the job 

qualifications and requirements listed in 

the job order be bona fide and consistent 

with the normal and accepted job 

qualifications and requirements of 

employers that do not use H–2B workers 

for the same or comparable occupations 

in the same area of intended 

employment. Several commenters 

expressed concern about how the 

Department and the SWAs will 

determine what qualifications and 

requirements are bona fide and normal 

to the job opportunity. The 

determination of whether job 

requirements and qualifications are 

consistent with the normal and accepted 

job requirements and qualifications of 

non-H–2B employers is fact-specific. 

The SWAs have decades of experience 

reviewing job orders according to these 

standards. However, the Department 

recognizes that some confusion exists 

concerning the distinction between job 

requirements and qualifications and the 

application of each. Therefore, this 

provision of the Final Rule includes a 

definition of job requirements and 

qualifications. As stated in § 655.18(b), 

a qualification means a characteristic 

that is necessary for the individual to 

perform the job in question. A 

requirement means a term or condition 

of employment which a worker is 

required to accept in order to obtain the 

job opportunity. Additionally, the 

Department added language requiring 

that any on-the-job training that will be 

provided to the worker must be 

disclosed in the job order. This change 

was made to align with the advertising 

requirements in § 655.41. 

c. Benefits, wages, and working 

conditions (proposed rule § 655.18(c)– 

(g); Final Rule § 655.18(b)(1)–(8), (11)). 

The Department proposed to require 

that the employer list the following 

benefits, wages, and working conditions 

in the job order: The rate of pay, 

frequency of pay, deductions that will 

be made, and that the job opportunity is 

full-time. These requirements are 

generally consistent with those required 

in § 655.17 and § 655.22 of the 2008 

Final Rule. These disclosures are critical 

to any applicant’s decision to accept the 

job opportunity. 

Many advocacy groups commented on 

the importance of including information 

related to benefits, wages, and working 

conditions in the job order. These 

commenters noted that when this 

information is specifically listed on the 

job order, workers are better able to 

make an informed decision regarding 

the job opportunity prior to accepting a 

position. As no specific comments were 

received on proposed §§ 655.18(d), (e), 

or (g), the Department is adopting those 

provisions without change in the Final 

Rule. A full discussion of comments 

received on § 655.18(f) is below. 

In response to the aforementioned 

confusion caused by discrepancies 

between proposed § 655.18 (Contents of 

the job order) and § 655.41 (Advertising 

requirements), the following sections 

were reorganized: Proposed § 655.18(d) 

(Rate of pay) is § 655.18(b)(5) in the 

Final Rule, proposed § 655.18(e) 

(Frequency of pay) is § 655.18(b)(9) in 

the Final Rule, proposed § 655.18(f) 

(Deductions that will be made) is 

§ 655.18(b)(11) in the Final Rule, 

proposed § 655.18(g) (Statement that the 

job opportunity is full-time) is 

§ 655.18(b)(2) in the Final Rule, 

proposed § 655.18(h) (Three-fourths 

guarantee) is § 655.18(b)(17) in the Final 

Rule, proposed § 655.18(i) 

(Transportation and visa fees) is 

§ 655.18(b)(12) through (15) in the Final 

Rule, proposed § 655.18(j) (Employerprovided items) is § 655.18(b)(16) in the 

Final Rule, and proposed § 655.18(k) 

(Board, lodging, or facilities) is 

§ 655.18(b)(10) and (11). 

d. Deductions (proposed rule 

§ 655.18(f); Final Rule § 655.18(b)(10)). 

In § 655.18(f), the Department proposed 

to require that the job order specify that 

the employer will make all deductions 

from the worker’s paycheck required by 

law and specifically list all deductions 

not required by law that the employer 

will make from the worker’s paycheck. 

Numerous commenters—including 

advocacy organizations, legal networks, 

and labor organizations—offered 

unqualified support for this provision. 

One foreign worker advocacy group 

noted that workers have expressed 

concern that the various deductions are 

unlawful and affect their ability to 

support family members in their 

countries of origin. 

In addition, a coalition representing 

agents and employers requested that the 

Department amend this section in three 

ways. First, the commenter suggested 

that the Department define deductions 

for the purpose of this section as an 

actual subtraction from earned wages. 

This commenter contended that such an 

amendment would prevent an employer 

from finding itself in violation of this 

obligation because an employee 

expended sums without its knowledge, 

which some treat as deductions. 

Second, the commenter requested that 

the Department amend this section to 

deal with the circumstance where 

deductions may, but not necessarily 

will, be made. The commenter asserted 

that an employer should be able to 

avoid discouraging a potential applicant 

by suggesting that a deduction will be 

made when it might never be, for 

example, a deduction for damages to 

employer-owned items, where State law 

permits such a deduction. Finally, this 

commenter requested that the 

Department clarify that required by law 

includes judicial process, such as child 

support orders. 

The Department reminds the 

commenter that under the Fair Labor 

Standards Act (FLSA) there is no legal 

difference between deducting a cost 

from a worker’s wages and shifting a 

cost to an employee to bear directly. As 

the court stated in Arriaga v. Florida 

Pacific Farms, L.L.C., 305 F.3d 1228, 

1236 (11th Cir. 2002): 

An employer may not deduct from 

employee wages the cost of facilities which 

primarily benefit the employer if such 

deduction drive wages below the minimum 

wage. See 29 C.F.R. § 531.36(b). This rule 

cannot be avoided by simply requiring 

employees to make such purchases on their 

own, either in advance of or during 

employment. See id. § 531.35; Ayres v. 127 


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Rest. Corp., 12 F.Supp.2d 305, 310 

(S.D.N.Y.1998). 

Consistent with the FLSA and the 

Department’s obligation to prevent 

adverse effects on U.S. workers by 

protecting the integrity of the H–2B 

offered wage, the Department views the 

offered wage as the effective minimum 

wage for H–2B and corresponding U.S. 

workers. 

In response to the second instance 

mentioned by the commenter, the 

Department reminds the commenter that 

deductions for damage to employerprovided items are prohibited under the 

Final Rule, regardless of State laws 

permitting such deductions. This 

prohibition is explained in detail in the 

preamble to § 655.20(k). However, as a 

general rule, if an employer reserves the 

right to make a deduction, the potential 

that such a deduction could be made 

must be disclosed in the job order to 

ensure that employees are fully 

informed of the terms and conditions of 

employment. Finally, the Department 

includes garnishments in deductions 

required by law; this is made explicit in 

the Final Rule at § 655.20(c). 

No other comments were received on 

this provision. However, for 

clarification, the Department has moved 

this section to § 655.18(b)(10) in the 

Final Rule and added language, 

previously contained in proposed 

§ 655.18(k), specifying that the job order 

must include, ‘‘if applicable, any 

deduction for the reasonable cost of 

board, lodging, or other facilities.’’ The 

Department has made another clarifying 

edit, modifying the provision to require 

the disclosure of any deductions the 

employer intends to make rather than 

those an employer will make. This 

change is consistent with the intent of 

the proposed rule. No other changes 

were made to this provision. 

e. Three-fourths guarantee (proposed 

rule § 655.18(h); Final Rule 

§ 655.18(b)(17)). The NPRM proposed to 

require that H–2B employers list in the 

job order the new obligation that the 

employer would guarantee to offer 

employment for a total number of work 

hours equal to at least three-fourths of 

the workdays of each 4-week period 

and, if the guarantee was not met, to pay 

the worker what the worker would have 

earned if the employer had offered the 

guaranteed number of days, as required 

by proposed § 655.20(f). For the reasons 

discussed in the preamble under 

§ 655.20(f), the Final Rule modifies this 

provision to lengthen the increment to 

a 12-week period instead of a 4-week 

period if the period of employment 

covered by the job order is 120 days or 

more, and lengthens the increment to a 

6-week period if the employment 

covered by the job order is less than 120 

days. As there were no comments 

specific to inclusion of this requirement 

in the job order, the Department adopts 

this provision without further change in 

the Final Rule. 

f. Transportation and visa fees 

(proposed rule § 655.18(i); Final Rule 

§ 655.18(b)(12)–(15)). The NPRM 

proposed to require the job order to 

disclose that the employer will provide, 

pay for, or fully reimburse the worker 

for inbound and outbound 

transportation and daily subsistence 

costs for U.S. workers who are not 

reasonably able to return to their 

residence within the same workday and 

H–2B workers when traveling to and 

from the employer’s place of 

employment. Additionally, the NPRM 

proposed to require employers to 

disclose if they will provide daily 

transportation to the worksite and that 

the employer will reimburse H–2B 

workers for visa and related fees. For the 

reasons discussed in the preamble 

under § 655.20(j), the Final Rule adopts 

these obligations with the modification 

that employers must arrange and pay for 

the inbound transportation and 

subsistence directly, advance the 

reasonable cost, or reimburse the 

worker’s reasonable costs if the worker 

completes 50 percent of the period of 

employment covered by the job order, 

and must provide, pay for, or reimburse 

outbound transportation and 

subsistence if the worker completes the 

job order period or is dismissed early. 

However, under § 655.18(y), if 

separation is due to the voluntary 

abandonment of employment by the H– 

2B worker or the worker in 

corresponding employment and the 

employer provides proper notice to DHS 

and DOL, the employer will not be 

responsible for providing or paying for 

the subsequent transportation and 

subsistence expenses of that worker and 

that worker is not entitled to the threefourths guarantee described in 

§ 655.20(f). As there were no comments 

specific to the disclosure requirements 

under this section, the Department 

adopts this provision without further 

change in the Final Rule. 

g. Employer-provided items (proposed 

§ 655.18(j); Final Rule § 655.18 (b)(16)). 

The proposed rule required the job 

order to disclose that the employer will 

provide workers with all tools, supplies, 

and equipment needed to perform the 

job at no cost to the employee. This 

provision, which is consistent with the 

FLSA regulations at 29 CFR part 531 

and current § 655.22(g) requiring all 

deductions to be reasonable, gives the 

workers additional protection against 

improper deductions from wages for 

items that primarily benefit the 

employer, and assures workers that they 

will not be required to pay for items 

necessary to perform the job. 

Several commenters expressed 

unqualified support for this provision. 

However, some commenters noted that 

this provision could be impractical in 

industries in which employees 

customarily prefer to use specialized, 

custom-made equipment, such as the 

skis used by some ski instructors. One 

commenter, a ski industry 

representative, suggested that the 

Department amend § 655.18(j) to require 

that employers offer standard 

equipment instead of provide * * * all 

tools, supplies, and equipment required 

to perform the duties assigned to clarify 

that employers are not responsible for 

providing employees with custom-fitted 

equipment. The Department wishes to 

clarify that this provision is intended to 

protect workers against improper 

deductions by ensuring that they are 

fully capable of performing their jobs 

without any personal investment in 

tools or equipment. Thus, employers 

must provide standard equipment that 

allows employees to perform their job 

fully, but they are not required to 

provide, for example, equipment such 

as custom-made skis that may be 

preferred, but not needed by, ski 

instructors. It does not prohibit 

employees from electing to use their 

own equipment, nor does it penalize 

employers whose employees voluntarily 

do so, so long as a bona fide offer of 

adequate, appropriate equipment has 

been made. 

Another commenter, a worker 

advocate, suggested further protections, 

requesting that the provision be revised 

to include language explicitly 

prohibiting employers from charging 

workers for broken, stolen, or lost 

equipment. Section 3(m) of the FLSA 

prohibits deductions that are primarily 

for the benefit of the employer that bring 

a worker’s wage below the applicable 

minimum wage, including deductions 

for tools, supplies, or equipment that are 

incidental to carrying out the 

employer’s business. Consistent with 

the FLSA, current § 655.22(g) (which 

requires all deductions to be 

reasonable), and the Department’s 

obligation to prevent adverse effects on 

U.S. workers, the Department believes 

this Final Rule similarly should protect 

the integrity of the H–2B offered wage 

by treating it as the effective minimum 

wage. This gives U.S. and H–2B workers 

additional protection against improper 

deductions from the offered wage for 

items that primarily benefit the 

employer. Therefore, because 


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deductions for damaged and lost 

equipment are encompassed within 

deductions for equipment needed to 

perform a job, such deductions that 

bring a worker’s wage below the offered 

wage are not permissible. The 

Department believes these principles are 

sufficiently clear as set forth in the 

FLSA regulations, 29 CFR part 531, and 

declines to adopt this commenter’s 

suggestion. No other comments were 

received on this section. Therefore, the 

Final Rule retains the requirement as 

proposed. 

h. Board, lodging, or facilities 

(proposed rule § 655.18(k)); Final Rule 

§ 655.18(b)(9). In § 655.18(k) the 

Department proposed to require that, if 

an employer provides the worker with 

the option of board, lodging, or other 

facilities or intends to assist workers to 

secure such lodging, this must be listed 

in the job order. In addition, if the 

employer intends to make any wage 

deductions related to such provision of 

board, lodging or other facilities, such 

deductions must be disclosed in the job 

order. Several commenters offered 

unqualified support for this provision. 

However, a coalition representing agents 

and employers was concerned that the 

phrase or intends to assist workers to 

secure such lodging was overly vague 

and asked the Department to clarify 

what would qualify as assistance. This 

commenter also noted that the proposed 

section did not require that the 

intention to assist be listed in the job 

order. The Department does not include 

as assistance an employer’s simple 

provision of information, such as 

providing workers coming from remote 

locations with a list of facilities 

providing short-term leases, or a list of 

extended-stay motels. However, in some 

cases, employers may reserve a block of 

rooms for employees, negotiate a 

discounted rate on the workers’ behalf, 

or arrange to have housing provided at 

cost for its employees and such 

activities would qualify as assistance. 

Any such assistance may make it more 

feasible for a U.S. worker from outside 

the area of intended employment to 

accept the job, and therefore it should 

be included in the job order. In 

addition, while the requirement to 

disclose the provision of such assistance 

was implicit in § 655.18(k) of the NPRM, 

in response to this commenter’s 

suggestion the Final Rule has been 

clarified to explicitly require the 

employer to disclose such offer of 

assistance. The Final Rule regulatory 

text now requires the disclosure of: the 

provision of board, lodging, or other 

facilities or of assistance in securing 

such lodging. Finally, this commenter 

requested that the Department add a 

definition of other facilities to the 

definition section or to this section. The 

Department declines to make such an 

addition and refers the commenter to 29 

CFR 531.32, which defines the term at 

length and has been construed and 

enforced by the Department for several 

decades. The Department has concluded 

that it is beneficial for workers, 

employers, agents, and the Wage and 

Hour Division to ground its enforcement 

of H–2B program obligations in its 

decades of experience enforcing the 

FLSA, and the decades of court 

decisions interpreting the regulatory 

language we are adopting in these 

regulations. Therefore, the Department 

notes throughout this preamble where it 

is relying on FLSA principles to explain 

the meaning of the requirements of the 

H–2B program that use similar language. 

Nevertheless, the Department has 

clarified the meaning of the term 

facilities by adding the parenthetical 

(including fringe benefits) to the Final 

Rule. This clarification makes this 

section more parallel with the 

requirement in § 655.18(a)(1), which 

requires the job order to offer U.S. 

workers no less than the same benefits, 

wages, and working conditions as 

offered to H–2B workers. Because the 

term fringe benefits is commonly used 

and understood, the Department 

believes this will provide employers 

with greater clarification about their 

obligation to disclose on the job order 

the benefits they will offer or provide to 

workers. 

An advocacy organization requested 

that the Department impose additional 

requirements on employers who intend 

to provide rental housing. This 

commenter suggested that in such cases, 

the job order should specifically 

disclose the following: whether the 

worker will be sharing the 

accommodations with other workers or 

tenants, and if so, how many; the rent 

and security deposit, if any; a 

description of the type of 

accommodations; information about 

utilities; and any other pertinent 

information related to room and board. 

This commenter also requested that the 

regulations specifically require that all 

rental housing comply with State and 

local housing codes. The Department 

acknowledges this commenter’s 

concern, but declines to implement the 

suggestion. There is no guarantee that 

an employer would have secured 

housing for potential employees at the 

point of filing the job order, which 

cannot be done less than 75 days before 

the date of need. Requiring such 

disclosures would either result in 

speculation that would undermine their 

purpose, or would force employers to 

secure housing more than 2 months 

before workers arrived, potentially 

resulting in unnecessary and 

burdensome costs. Furthermore, two of 

the suggested disclosures—the cost of 

rent or security deposit and the cost of 

utilities—are already covered under the 

Final Rule at § 655.18(b)(10) if the 

employer will make deductions for 

them. 

Responding to the Department’s 

discussion of the application of this 

section to employers operating under 

special procedures, a trade association 

argues that no DOL regulation has ever 

suggested that mobile housing is 

unworthy of deductions. The 

Department’s long-standing position is 

that facilities that are primarily for the 

benefit or convenience of the employer 

will not be recognized as reasonable and 

may not therefore be included in 

computing wages. See 29 CFR 

531.3(d)(1). The Department maintains 

that housing provided by employers 

with a need for a mobile workforce, 

such as those in the carnival or forestry 

industries where workers are in an area 

for a short period of time, need to be 

available to work immediately, and may 

not be able to procure temporary 

housing easily, is primarily for the 

employer’s benefit and convenience. 

One commenter from the reforestation 

industry wrote that the court cases the 

Department cites in the proposal have 

nothing whatsoever to do with the H– 

2B program or workers on an itinerary 

being paid wages substantially in excess 

of the federal minimum wage. As 

discussed in the preamble to § 655.15(f), 

the Department has made an exception 

for the carnival and reforestation 

industries, which use H–2B workers in 

itinerant employment over large 

interstate areas. Without this exception, 

these industries would be unable to 

readily comply with the program’s 

established processes. Having made this 

exception for these industries, the 

Department asserts that the requirement 

that the employer provide housing and 

transportation free of charge to the 

employees is both reasonable and 

reflective of the true cost of doing 

business for this type of work. It should 

also be noted that without the ability 

and flexibility to move quickly and use 

mobile workforces, these industries 

could not function. 

An employer from the reforestation 

industry suggested that the Final Rule 

require that housing for itinerant 

employees be selected by the workers, 

and that workers be reimbursed at a 

standard daily housing rate for the area 

of intended employment. The 


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10068 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

7The workers rights card is available at http:// 

travel.state.gov/pdf/Pamphlet-Order.pdf. 

Department declines to mandate such a 

practice. For the reasons stated in this 

section, the Department’s position is 

that housing for workers in itinerant 

industries must be provided or paid for 

by the employer. 

The Department has amended this 

section to require the disclosure of any 

fringe benefits that will be provided. 

This change is consistent with proposed 

§ 655.18(a), which required that the job 

order offer to U.S. workers no less than 

the same benefits, wages, and working 

conditions that the employer is offering, 

intends to offer, or will provide to H– 

2B workers. No other comments were 

received on this section. 

i. Other changes. In addition to 

commenting on the contents of the job 

order as proposed, several commenters 

suggested additional content 

requirements. 

An alliance of human rights 

organizations suggested that the job 

order contain multiple explicit 

provisions. Many of the disclosures 

suggested by the commenter were 

included in the proposed rule, such as 

a list of costs charged to the worker 

(§ 655.18(f)) and educational or 

experience requirements 

(§ 655.41(b)(3)). The commenter also 

suggested that the job order contain 

information on the visa, a statement 

prohibiting a foreign labor contractor 

from assessing fees, a notice that the 

worker be provided 48 hours to review 

and consider any changes in terms, a 

statement that changes to the terms may 

not be made without specific consent of 

the worker, and a statement describing 

worker protections under the 

Trafficking Victims Protection Act of 

2000. The Department maintains that 

the information which employers are 

required to include in the job order 

under § 655.18 of the Final Rule is 

necessary and sufficient to provide the 

worker with adequate information to 

determine whether to accept the job 

opportunity, and notes that the 

Department of State provides all H–2B 

workers with a detailed worker rights 

card at the visa application stage.7 The 

Department believes that these 

disclosures will ensure that adequate 

information is available to H–2B 

workers and therefore does not accept 

the commenters’ suggestions. 

With respect to a proposal that 

workers be provided notice of the 

changes to the job order, the Department 

notes that both the NPRM and the Final 

Rule require an employer who wishes to 

change any of the terms and conditions 

of employment listed in the job order, 

to submit such a proposed change to the 

CO for approval. The employer may not 

implement changes to the approved 

terms and conditions listed in the job 

order without the approval by CO. 

Additionally, such changes must be 

disclosed to all U.S. workers hired 

under the original job order, as required 

by § 655.35. 

Finally, a coalition of worker 

advocacy organizations and several 

other worker advocacy organizations 

suggested that the Department add a 

provision to the regulations stating that, 

in the absence of a written contract, the 

terms and conditions listed in the job 

order shall be the work contract. The 

Department does not believe it is 

necessary to add such a provision, as 

the courts will determine private 

parties’ contractual rights under state 

contract law. These commenters were 

concerned, however, that the 

Department’s reference to Garcia v. Frog 

Island Seafood, Inc. (Frog Island), 644 F. 

Supp. 2d 696, 716–18 (E.D.N.C. 2009), 

in its rationale for the three-fourths 

hours guarantee, 76 FR 15143, Mar. 18, 

2011, implied that the Department 

endorsed that court’s view that the 

terms and conditions of H–2B job orders 

are not enforceable under state contract 

law. The Department wishes to clarify 

that it does not endorse this view, and 

was simply referencing this decision as 

an example of one of several ways that 

courts have viewed the enforceability of 

an hours guarantee in the H–2B job 

order absent an explicit regulatory 

requirement. The Department believes 

that the Frog Island court’s holding 

regarding the enforceability of the H–2B 

job order is limited to the 2008 Final 

Rule, as the court’s reasoning was based 

on the explicit lack of an hours 

guarantee under that rule. See 644 F. 

Supp. 2d at 718; 73 FR 78024, Dec. 18, 

2008 (2008 Final Rule preamble 

explaining that the definition of fulltime did not constitute an actual 

obligation of the number of hours that 

must be guaranteed each week). The 

reference to Frog Island in the NPRM 

should not have been interpreted as the 

Department’s view of the enforceability 

of the three-fourths guarantee in this 

Final Rule because this Final Rule 

explicitly mandates an hours guarantee. 

Moreover, to the extent the court in Frog 

Island also based its decision on the 

premise that finding the employer 

responsible for providing the 40 hours 

listed in the H–2B job order would 

effectively negate at-will employment, 

see 644 F. Supp. 2d at 719, the 

Department notes that it views the terms 

and conditions of the job order as 

binding, regardless of workers’ at-will 

employment status. 

In addition to making the 

organizational changes discussed above, 

the Final Rule will require employers to 

list in the job order the following 

information that is essential for 

providing U.S. workers sufficient 

information about the job opportunity 

(this information was previously 

required to be included in the job order 

by a cross reference to § 655.41): the 

employer’s name and contact 

information (§ 655.18(b)(1)); a full 

description of the job opportunity 

(§ 655.18(b)(3)); the specific geographic 

area of intended employment 

(§ 655.18(b)(4)); if applicable, a 

statement that overtime will be available 

to the worker and the overtime wage 

offer(s) (§ 655.18(b)(6)); if applicable, a 

statement that on-the-job training will 

be provided to the worker 

(§ 655.18(b)(7)); a statement that the 

employer will use a single workweek as 

its standard for computing wages due 

(§ 655.18(b)(8)); and instructions for 

inquiring about the job opportunity or 

submitting applications, indications of 

availability, and/or resumes to the 

appropriate SWA (§ 655.18 (b)(18)). This 

last addition was included to ensure 

that applicants who learn of the job 

opening through the electronic job 

registry are provided with the 

opportunity to contact the SWA for 

more information or referral. 

5. § 655.19 Job Contractor Filing 

Requirements 

This Final Rule amends § 655.6 to 

provide for the limited circumstances 

under which job contractors may 

continue to participate in the H–2B 

program. However, their participation is 

still be subject to the limitations 

provided in the CATA decision, in 

which the Court invalidated and 

vacated 20 CFR 655.22(k) under the 

2008 Final Rule insofar as that provision 

permits the clients of job contractors to 

hire H–2B workers without submitting 

an application to the Department. In 

particular, the Court relied, as a basis for 

its determination, on the DHS regulation 

at 8 CFR 214.2(h)(2)(i)(C), which 

provides that ‘‘[i]f the beneficiary [i.e., 

the temporary, non-immigrant worker] 

will perform nonagricultural services 

for, or receive training from, more than 

one employer, each employer must file 

a separate petition with USCIS as 

provided in the form instructions.’’ The 

Court found that this provision, when 

coupled with the DHS regulation at 8 

CFR 214.2(h)(6)(iii)(A), which requires 

the petitioner to apply for a temporary 

labor certification with the Department 

of Labor, prohibited the Department’s 


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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 10069 

existing practice of allowing only job 

contractors to file for labor 

certifications. See CATA 2010 WL 

3431761, at *16 (E.D. Pa. Aug. 30, 2010). 

Rather, the Court found that such 

provisions 

mandate that (1) every employer must file a 

petition with DHS, and (2) before doing so, 

the employer must also file a certification 

application with DOL. By allowing certain 

employers not to file certification 

applications, DOL’s regulations 

unambiguously contradict this mandate. Id. 

(emphasis added). 

As a result of this order, we 

determined that we could no longer 

accept H–2B labor certification 

applications from job contractors if the 

job contractor’s employer-clients did not 

also submit labor certification 

applications. However, both the 2008 

Final Rule and this Final Rule only 

permit one H–2B labor certification 

application to be filed for worksite(s) 

within one area of intended 

employment for each job opportunity 

with an employer. Accordingly, both a 

job contractor and employer-client each 

would not be able to file their own 

application for a single job opportunity. 

However, we recognized that it may 

be possible for a job contractor and its 

employer-client to file a single 

application as a joint employer. Joint 

employment is defined as where two or 

more employers each have sufficient 

definitional indicia of employment to be 

considered the employer of an 

employee, those employers may be 

considered to jointly employ that 

employee. An employer in a joint 

employment relationship with an 

employee may be considered a ‘joint 

employer’ of that employee. See § 655.4. 

That approach would be consistent with 

both the CATA decision (which 

prohibits allowing only the job 

contractor to file the application) and 

§ 655.20 under the 2008 Final Rule and 

§ 655.15 under this Final Rule (which 

prohibit the filing of multiple 

applications for a single job 

opportunity). Earlier this year, we 

issued guidance on our Web site which 

addresses the requirement and 

procedures for filing and processing 

applications for joint employers (which 

could include job contractors and their 

employer-client(s)) under the H–2B 

program. See http:// 

www.foreignlaborcert.doleta.gov/ 

faqsanswers.cfm#h2b. While such 

guidance continues to remain valid, we 

are incorporating in this section the key 

procedures and requirements relating to 

the submission of the Application for 

Prevailing Wage Determination, the 

filing of the Application for Temporary 

Employment Certification, placement of 

the job order and conduct of 

recruitment, issuance of certification, 

and submission of certification to 

USCIS. 

In deciding whether to file as joint 

employers, the job contractor and its 

employer-client should understand that 

employers are considered to jointly 

employ an employee when they each, 

individually, have sufficient 

definitional indicia of employment with 

respect to that employee. As described 

in the definition of employee in 20 CFR 

655.4, some factors relevant to the 

determination of employment status 

include, but are not limited to, the 

following: The right to control the 

manner and means by which work is 

accomplished; the skill required to 

perform the work; the source of the 

instrumentalities and tools for 

accomplishing the work; the location of 

the work; discretion over when and how 

long to work; and whether the work is 

part of the regular business of the 

employer or employers. Whenever a job 

contractor and its employer client file 

applications, each employer is 

responsible for compliance with H–2B 

program assurances and obligations. In 

the event a violation is determined to 

have occurred, either or both employers 

can be found to be responsible for 

remedying the violation and attendant 

penalties. 

D. Assurances and Obligations 

1. § 655.20 Assurances and Obligations 

of H–2B Employers 

Proposed § 655.20 replaced existing 

§ 655.22 and contained the employer 

obligations that WHD will enforce. The 

Department proposed to modify, 

expand, and clarify current 

requirements to ensure that the 

employment of H–2B workers will not 

adversely affect the wages and working 

conditions of U.S. workers similarly 

employed. Requiring compliance with 

the following conditions of employment 

is the most effective way to meet this 

goal. As discussed in the preamble to 

§ 655.5, workers engaged in 

corresponding employment are entitled 

to the same protections and benefits, set 

forth below, that are provided to H–2B 

workers. 

a. Rate of pay (§ 655.20(a)). In 

proposed § 655.20(a) the Department 

expanded the current § 655.22(e). In 

addition to the existing requirements 

that employers pay the offered wage 

during the entire certification period 

and that the offered wage equal or 

exceed the highest of the prevailing 

wage, the applicable Federal minimum 

wage, the State minimum wage, and any 

local minimum wage, the Department 

added the requirement that such wages 

be paid free and clear. The proposed 

section also added requirements related 

to productivity standards and payments 

made on a piece-rate basis, and 

eliminated the current § 655.22(g)(1) 

option of paying such wages on a 

monthly basis. The Department received 

numerous comments on this section that 

were deemed out of scope, as they 

concerned the calculation of the 

prevailing wage. 

The Department’s proposed regulation 

required that the wages offered in the 

job order must be at least equal to the 

prevailing wage rate for the occupation 

in the area of employment, as set forth 

in § 655.10(b), or the appropriate 

Federal, State, or local minimum wage, 

whichever is highest. If, during the 

course of the period certified in the 

Application for Temporary Employment 

Certification, the Federal, State or local 

minimum wage increases to a level 

higher than the prevailing wage certified 

in the Application, then the employer is 

obligated to pay that higher rate for the 

work performed in that jurisdiction 

where the higher minimum wage 

applies. 

A State Attorney General’s office 

supported the obligation to pay the State 

or local minimum wage where one is 

higher than the prevailing wage or the 

Federal minimum wage, stating that this 

provision is particularly important in 

industries in which employees are often 

exempt from Federal wage and hour 

law. We concur with this assessment. 

Upon consideration, we have 

amended the provision with respect to 

productivity standards (§ 655.20(a)(3)) 

to reflect that it is incumbent upon the 

employer to demonstrate that such 

productivity standards are normal and 

usual for non-H–2B employers for the 

occupation and area of intended 

employment. Unlike in the H–2A 

program, the Department does not 

conduct prevailing practice surveys 

through the SWAs, which would 

provide such information to enable a CO 

to make this decision. If an employer 

wishes to provide productivity 

standards as a condition of job 

retention, the burden of proof rests with 

that employer to show that such 

productivity standards are normal and 

usual for employers not employing H– 

2B workers. We have adopted the rest of 

the proposed rule with minor clarifying 

edits for consistency. 

b. Wages free and clear (§ 655.20(b)). 

In § 655.20(b), the Department proposed 

to require that wages be paid either in 

cash or negotiable instrument payable at 

par, and that payment be made finally 

and unconditionally and free and clear 

in accordance with WHD regulations at 


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10070 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

29 CFR part 531. Numerous 

commenters, including several advocacy 

organizations and a state agency, wrote 

in support of this provision. A foreign 

worker advocacy organization writing in 

favor of the provision stated that in its 

experience employers too often try to 

impermissibly shift costs of tools, 

recruiting, travel, and other costs which 

impermissibly bring employees’ wages 

below the minimum and prevailing 

wage. This assurance clarifies the preexisting obligation for both employers 

and employees. 

Only one commenter, a trade 

organization wrote in opposition to the 

provision. However, this commenter 

misunderstood the proposal, writing 

that the requirement to pay prevailing 

wages free and clear will expose 

employers to the costs of local 

convenience travel (trips to Wal-Mart, 

Western Union, laundry, etc.), uniforms, 

tools, meals, etc. While the employer’s 

obligation to pay for uniforms and tools 

is covered in the Final Rule at 

§ 655.20(k), reasonable deductions for 

employer-provided local travel that is 

for the employees’ primary benefit and 

meals, if disclosed on the job order, 

would generally be viewed as 

permissible under § 655.20(c). 

c. Deductions (§ 655.20(c)). In 

proposed § 655.20(c) the Department 

sought to ensure payment of the offered 

wage by limiting deductions which 

reduce wages to below the required rate. 

The proposed section limited 

authorized deductions to those required 

by law, made under a court order, that 

are for the reasonable cost or fair value 

of board, lodging, or facilities furnished 

that primarily benefit the employee, or 

that are amounts paid to third parties 

authorized by the employee or a 

collective bargaining agreement. The 

proposed section specifically provided 

that deductions not disclosed in the job 

order are prohibited. The Department 

also specified deductions that would 

never be permissible, including: Those 

for costs that are primarily for the 

benefit of the employer; those not 

specified on the job order; kick backs 

paid to the employer or an employer 

representative; and amounts paid to 

third parties which are unauthorized, 

unlawful, or from which the employer 

or its foreign labor contractor, recruiter, 

agent, or affiliated person benefits to the 

extent such deductions reduce the 

actual wage to below the required wage. 

The proposed section referred to the 

FLSA and 29 CFR part 531 for further 

guidance. 

Numerous advocacy groups, labor 

organizations, and individuals 

commented in favor of the provision. 

One foreign worker advocacy 

organization applauded the 

Department’s proposal, writing the 

provision’s level of specificity is 

valuable and necessary to prevent 

employers from taking advantage of 

vulnerable workers with little 

understanding of what employers may 

lawfully deduct from their wages. A 

labor organization wrote that it regularly 

finds that immigrant workers are 

exploited by employers who confuse 

them as to their rate of pay, overtime, 

taxes, and other deductions, and 

therefore enthusiastically supported the 

provision. Two individuals 

misunderstood the provision as 

allowing deductions that are primarily 

for the benefit of the employer and 

requested that the Department explicitly 

prohibit such deductions. The 

Department clarifies that a deduction for 

any cost that is primarily for the benefit 

of the employer is never reasonable and 

therefore never permitted under the 

Final Rule. Some examples of costs that 

Department has long held to be 

primarily for the benefit of the employer 

are: Tools of the trade and other 

materials and services incidental to 

carrying on the employer’s business; the 

cost of any construction by and for the 

employer; the cost of uniforms (whether 

purchased or rented) and of their 

laundering, where the nature of the 

business requires the employee to wear 

a uniform; and transportation charges 

where such transportation is an incident 

of and necessary to the employment. 

This list is not an all-inclusive list of 

employer business expenses. 

A comment from a State Department 

of Labor expressed concern that the 

permissibility of a deduction was still 

subjective and requested that ETA 

provide SWAs with training and 

detailed written instructions with 

criteria to use when evaluating 

deductions listed on a job order. The 

Department believes that the guidance 

provided in this section is sufficient, but 

will provide additional training and 

guidance to SWAs as needed. 

In addition, concerns were raised by 

a coalition representing agents and 

employers and an industry group that 

the prohibition of deductions 

constituted an overstepping of the 

Department’s bounds by importing the 

de facto deduction concept from the 

FLSA. One of these commenters also 

cited the decision by the Fifth Circuit 

Court of Appeals in CastellanosContreras v. Decatur Hotels, LLC, 622 

F.3d 393 (5th Cir. 2010), contending that 

this decision definitively resolved 

whether the FLSA requires H–2B 

employers to reimburse certain 

employee pre-employment business 

expenses, and that the Department is 

bound by this decision. However, that 

decision concerned alleged FLSA 

violations relating to employees’ 

payment of transportation and visa fees 

during a time period in which the court 

found that the Department did not have 

a clear position as to whether employers 

were required to reimburse for these 

fees. Decatur, 622 F.3d at 401–02, and 

n.9. It specifically stated that the 

Department’s subsequent clarification 

that these expenses primarily benefited 

the employer and therefore could not 

bring workers’ wages below the FLSA 

minimum wage, as set forth in Field 

Assistance Bulletin No. 2009–2 (August 

2009, available at http://www.dol.gov/ 

ebsa/regs/fab2009–2.html), might be 

afforded due deference in the future but 

would not apply retroactively to the 

allegations at issue in that case. Id. at 

402. The Department acknowledges that 

it is bound by the Fifth Circuit’s 

decision with respect to the time period 

considered in that case, in the 

jurisdictions covered by the Fifth 

Circuit, with regard to how such 

expenses are treated under the FLSA. 

However, the Department does not 

interpret this decision to be the ultimate 

determination on these issues, as 

suggested by this commenter, and notes 

that the decision did not address what 

the proper deduction analysis would be 

under newly promulgated regulations 

adopted under the H–2B program. The 

Department believes that the concept of 

de facto deductions initially developed 

under the FLSA is equally applicable to 

deductions that bring H–2B workers’ 

wages below the required wage, as the 

payment of the prevailing wage is 

necessary to ensure that the 

employment of foreign workers does not 

adversely affect the wages and working 

conditions of similarly employed U.S. 

workers. To allow deductions for 

business expenses, such as tools of the 

trade, would undercut the prevailing 

wage concept and, as a result, harm U.S. 

workers. 

d. Job opportunity is full-time 

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

the Department required that all job 

opportunities be full-time temporary 

positions, consistent with existing 

language in § 655.22(h), and established 

full-time employment as at least 35 

hours per week, an increase from the 

current level of 30 hours. Additionally, 

consistent with the FLSA, the NPRM 

added the requirement that the 

workweek be a fixed and regularly 

recurring period of 168 hours or seven 

consecutive 24-hour periods which may 

start on any day or hour of the day. The 

Department received no comments 

regarding the added language 


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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 10071 

addressing the workweek requirement; 

however, there were many comments 

submitted by a variety of commenters 

expressing opinions about the definition 

of full-time employment. The 

Department carefully considered and 

responded to those comments in its 

discussion of § 655.5, Definition of 

Terms. 

e. Job qualifications and requirements 

(§ 655.20(e)). Proposed § 655.20(e) 

clarified 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 

area of intended employment. Under the 

proposed compliance model, OFLC in 

collaboration with the SWA would 

determine what is normal and accepted 

during the pre-certification process. In 

addition, we proposed to provide the 

CO with the authority to require the 

employer to substantiate any job 

qualifications specified in the job order. 

The Department is retaining this 

provision with amendments, as 

discussed below. 

The Department received one 

comment on this additional language, in 

which a coalition representing agents 

and employers requested that the 

Department limit the CO’s discretion to 

demand substantiation to those cases in 

which he or she has objective and 

reliable documentation showing that a 

requirement or qualification is unusual 

or rare. This commenter asserted that 

this limitation would not place a further 

burden on the CO and would limit the 

burden placed on employers. The 

Department concludes that such a 

requirement would in fact place a 

significant burden on the CO, who 

would have to do substantial research to 

produce such documentation, while an 

employer would presumably have 

documentation of the appropriateness of 

its own requirement or qualification 

readily available. The Department 

therefore declines to make this change. 

In addition, the Department received 

comments raising concerns regarding 

the Department’s standard for what is 

normal and accepted with respect to the 

employer’s qualifications and 

requirements. Some commenters 

expressed confusion between the use of 

the terms qualification and requirement. 

These and other comments related to 

this and related provisions are 

discussed in the preamble to paragraph 

(r) of this section as well as 

§ 655.18(a)(2). However, in response to 

these comments, the Department has 

amended this section to clarify, 

consistent with a parallel requirement 

in 655.18(a)(2), that the employer’s job 

qualifications and requirements 

imposed on U.S. workers must be no 

less favorable than the qualifications 

and requirements that the employer is 

imposing or will impose on H–2B 

workers. In addition, and in response to 

the confusion articulated by some 

commenters, we have clarified that a 

qualification means a characteristic that 

is necessary to the individual’s ability to 

perform the job in question. In contrast, 

a requirement means a term or 

condition of employment which a 

worker is required to accept in order to 

obtain the job opportunity. 

This provision, as amended, enables 

us to continue our current standard of 

review of the job qualifications and 

special requirements by looking at what 

non-H–2B employers determine is 

normal and accepted to be required to 

perform the duties of the job 

opportunity. The purpose of this review 

is to avoid the consideration (and the 

subsequent imposition) of requirements 

on the performance of the job duties that 

would serve to limit the U.S. worker 

access to the opportunity. OFLC has 

significant experience in conducting 

this review and in making 

determinations based on a wide range of 

sources assessing what is normal for a 

particular job, and employers will 

continue to be held to an objective 

standard beyond their mere assertion 

that a requirement is necessary. We will 

continue to look at a wide range of 

available objective sources of such 

information, including but not limited 

to O*NET and other job classification 

materials and the experience of local 

treatment of requirements at the SWA 

level. Ultimately, however, it is 

incumbent upon the employer to 

provide sufficient justification for any 

requirement outside the standards for 

the particular job opportunity. 

Therefore, we are retaining this 

provision with the amendments 

discussed above. 

f. Three-fourths guarantee 

(§ 655.20(f)). In § 655.20(f), the NPRM 

proposed to require employers to 

guarantee to offer employment for a 

total number of work hours equal to at 

least three-fourths of the workdays of 

each 4-week period and, if the guarantee 

was not met, to pay the worker what the 

worker would have earned if the 

employer had offered the guaranteed 

number of days. The NPRM stated these 

4-week periods would begin the first 

workday after the worker’s arrival at the 

place of employment or the advertised 

contractual first date of need, whichever 

is later, and would end on the 

expiration date specified in the job 

order or in any extensions. The NPRM 

provided that a workday would be 

based on the workday hours stated in 

the employer’s job order, and the 4- 

week period would be based on the 

employer’s workweek, with increases 

for the initial period and decreases for 

the last period on a pro rata basis, 

depending on which day of the 

workweek the worker starts or ceases 

work. 

The NPRM proposed that if a worker 

failed or refused to work hours offered 

by the employer, the employer could 

count any hours offered consistent with 

the job order that a worker freely and 

without coercion chose not to work, up 

to the maximum number of daily hours 

on the job order, in the calculation of 

guaranteed hours. The NPRM also 

allowed the employer to offer the 

worker more than the specified daily 

work hours, but stated the employer 

may not require the employee to work 

such hours or count them as offered if 

the employee chose not to work the 

extra hours. However, the NPRM 

allowed the employer to include all 

hours actually worked when 

determining whether the guarantee had 

been met. Finally, the NPRM proposed, 

as detailed in 29 CFR 503.16(g), that the 

CO can terminate the employer’s 

obligations under the guarantee in the 

event of fire, weather, or other Act of 

God that makes the fulfillment of the job 

order impossible. 

The NPRM specifically invited the 

public to suggest alternative guarantee 

systems that may better serve the goals 

of the guarantee. In particular, the 

Department sought comments on 

whether a 4-week increment is the best 

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

or longer time period would be more 

appropriate. 

Based upon all the comments 

received, the Department has decided to 

retain the three-fourths guarantee, but to 

lengthen the increment over which the 

guarantee is measured to 12 weeks, 

rather than just 4 weeks, if the period of 

employment covered by the job order is 

120 days or more, and increase the 

increment of the guarantee to 6 weeks, 

if the period of employment covered by 

the job order is less than 120 days. 

The Department received numerous 

comments, from both employers and 

employees, addressing whether to 

include a guarantee and whether a 4- 

week increment is the appropriate 

period of time. Many employers 

expressed concern about the guarantee. 

They were particularly concerned about 

the impact of the weather on their 

ability to meet the guarantee. For 

example, crab processing companies 

emphasized that unseasonably cool 

weather, weather events such as 


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hurricanes, or unforeseen events like oil 

spills or health department or 

conservation closures can make the 

harvesting and processing of crabs 

impossible. Other employers—such as 

those in the forestry industry—similarly 

emphasized that the 4-week period does 

not adequately account for the impact of 

weather because many days can be 

unworkable (because it is too hot, too 

dry, too wet, or too cold to plant 

seedlings) and the hours cannot be 

made up within 4 weeks. Ski resorts 

emphasized that they are dependent 

upon the amount and timing of snowfall 

as well as temperatures, and golf clubs 

expressed similar concerns about the 

impact of the weather. Employers also 

stated that work hours may be 

unavailable for many other reasons 

beyond their control, such as federal 

money for forestry work is unavailable, 

landowners change their minds about 

planting, or the nursery does not make 

seedlings available; the economy affects 

consumers’ willingness to travel for 

leisure; or a large group or event 

sponsor changes the schedule or cancels 

a booking. Employers also emphasized 

that it is difficult to predict with 

precision several months ahead of time 

exactly what an employer’s workforce 

needs will be throughout the season, 

and requiring employers to pay wages 

when no work is performed would 

cause financial ruin. Some employers 

focused, in particular, on their difficulty 

in meeting the guarantee during slow 

months at the beginning and end of the 

season. 

One commenter presented a survey of 

501 employers in which 34 percent of 

employers responded that the guarantee 

would severely affect their bottom line, 

26 percent were moderately concerned, 

and 40 percent stated that it would not 

affect them. The survey showed that, for 

a plurality of employers, workers 

consistently work more than 40 hours 

per week; even those employers that 

expressed concern stated that the 

guarantee would not present a problem 

during the busiest months of the season, 

but would be a burden during the first 

and last months of the season when they 

are ramping up or winding down. Many 

survey respondents were prepared to 

guarantee a minimum workload over the 

season, but not month to month. 

Numerous other employer 

commenters similarly stated that if a 

guarantee remains in the Final Rule, it 

should be spread over the entire 

certification period, as it is in the H–2A 

regulations. They noted that this would 

provide flexibility and enhance their 

ability to meet the guarantee without 

cost, because often the loss of demand 

for work in one period is shifted to 

another point in the season, but such a 

guarantee would still deter egregious 

cases of employers misstating their need 

for H–2B employees. Employers also 

suggested, in addition to a clear Act of 

God exception, that there should be an 

exception for man-made disasters such 

as an oil spill or controlled flooding. 

Some also suggested that the rule 

should allow the Department to give 

employers a short period of interim 

relief from the guarantee, when weather 

or some other catastrophic event makes 

work temporarily unavailable, rather 

than simply authorizing the termination 

of the job order. 

A number of employer commenters 

suggested that the guarantee should be 

based upon pay for three-fourths of the 

hours, rather than three-fourths of the 

hours, so that employers could take 

credit for any overtime paid at time-anda-half. They noted that, because 

agriculture is exempt from overtime, H– 

2A employers do not have to pay an 

overtime premium when employees 

work extra hours in some weeks. Other 

commenters stated that the three-fourths 

guarantee is beyond the Department’s 

statutory authority, noting the 

differences between the H–2A and H–2B 

statutory frameworks. Finally, some 

employers expressed concern about how 

they could afford to pay the guarantee 

when the employee does not or cannot 

work, seeming to suggest that employers 

are required to pay the guarantee even 

if an employee voluntarily chooses not 

to work, or that they were unaware of 

the alternative of seeking termination of 

the job order. 

Employees, in contrast, uniformly 

supported the requirement for a 

guarantee, and many suggested 

strengthening the proposed guarantee. 

For example, employee advocates 

stressed that the three-fourths guarantee 

is important to prevent foreign workers 

from being lured into the program with 

promises of far more hours of work than 

they will actually receive. When 

workers do not receive the promised 

hours, they are forced to resort to work 

that does not comply with the program 

in order to survive, and this then 

impacts the job opportunities available 

to U.S. workers. Further, where there 

are excess H–2B workers, employers are 

able to exploit them out of their 

desperation for work, resulting in an 

ability to undercut the wages of U.S. 

workers. Commenters emphasized that 

the proposed guarantee would protect 

workers who traveled in reliance on 

promises of work, who now may have 

to wait weeks or months for the work to 

begin, because it would serve as a 

barrier preventing employers from 

artificially increasing their stated need 

for H–2B workers. One commenter with 

experience working with H–2B workers 

in New Orleans described a situation in 

which the workers were provided little 

or no work after traveling from India, 

and when they complained they were 

threatened and many were fired. 

Employee commenters noted that when 

they get very limited hours because the 

jobs either do not start on the promised 

date or finish early, or have fewer hours 

per week, they would have been better 

off staying in their home country 

because they have to spend everything 

they earn to live on and have nothing 

left to send home. 

Employee advocates stated that 

applying the guarantee on a 4-week 

basis (as opposed to over the length of 

the job order) prevents employers from 

claiming artificially long seasons, in the 

hopes that workers will quit 

prematurely at the end of the season and 

lose their rights to the guarantee and 

transportation home, even if the reason 

was that the employer had very little 

work available. The shorter increment 

also protects U.S. workers because it 

prevents employers from using an 

unrealistic early start date as a method 

of encouraging them to abandon the job 

to seek alternative employment with 

more hours. The commenters noted that 

employers could simply apply for fewer 

H–2B workers and offer all workers 

more hours to minimize the impact of 

the requirement. 

Although employee advocates 

uniformly supported the concept of a 

guarantee, some advocates stressed that 

the three-fourths guarantee 

overcompensates for the effects of 

weather. Employees were particularly 

concerned about the guarantee being 

only three-fourths if the definition of 

full-time remained at 35 hours, which 

they viewed as double-counting for the 

effects of weather and which would 

result in workers only being guaranteed 

26 hours per week (105 hours per 

month). Thus, while some employee 

commenters believed the three-fourths 

guarantee to be a reasonable and 

narrowly-tailored means to prevent 

abuses, other employee advocates 

suggested adopting a more protective 

guarantee—100 percent, or 90 percent, 

or providing the guarantee on a weekly 

basis. They emphasized that employees 

are required to pay 100 percent of their 

expenses, such as rent and medical fees. 

They also noted that many H–2B 

industries are not affected by the 

weather to the same degree as 

agricultural work; therefore, some 

advocates suggested the guarantee 

should be higher than the three-fourths 

rule in the H–2A program. At a 

minimum, they emphasized the 


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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 10073 

8Testimony 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. 

9Testimony 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. 

importance of having the guarantee at 

least every 4 weeks to prevent 

employees from going through long 

periods without work or income. 

Finally, employee advocates 

expressed concern about a broad Act of 

God or impossibility exception to the 

rule and suggested that the Department 

play a direct role in assisting in the 

transfer of temporary foreign workers 

affected by such a job order termination 

to other employers, and suggested 

adopting an additional recordkeeping 

requirement, similar to the H–2A threefourths guarantee recordkeeping 

provision at § 655.122(j)(3)), requiring 

employers to record the reason a worker 

declined offered hours of work in order 

to prevent employers from overstating 

the number of hours offered. 

After carefully considering all the 

comments received, the Department has 

decided to retain the three-fourths 

guarantee, but to lengthen the increment 

over which the guarantee is measured to 

12 weeks, rather than just 4 weeks, if the 

period of employment covered by the 

job order is 120 days or more, and 

increase the increment over which the 

guarantee is measured to 6 weeks rather 

than 4 weeks, if the period of 

employment is less than 120 days. The 

Department believes that this approach 

will retain the benefits of having the 

guarantee, while offering employers the 

flexibility to spread the required hours 

over a sufficiently long period of time 

such that the vagaries of the weather or 

other events out of their control that 

affect their need for labor do not prevent 

employers from fulfilling their 

guarantee. Moreover, as discussed in 

detail later with regard to § 655.20(g), 

the CO may relieve an employer from 

the three-fourths guarantee requirement 

for time periods after an unforeseeable 

event outside the employer’s control 

occurs, such as fire, weather, or other 

Act of God. 

When employers file applications for 

H–2B labor certifications, they represent 

that they have a need for full-time 

workers during the entire certification 

period. Therefore, it is important to the 

integrity of the program, which is a 

capped visa program, to have a 

methodology for ensuring that 

employers have fairly and accurately 

estimated their temporary need. As 

explained in the NPRM, the guarantee 

deters employers from misusing the 

program by overstating their need for 

full-time, temporary workers, such as by 

carelessly calculating the starting and 

ending dates of their temporary need, 

the hours of work needed per week, or 

the total number of workers required to 

do the work available. To the extent that 

employers more accurately describe the 

amount of work available and the 

periods during which work is available, 

it gives both U.S. and foreign workers a 

better chance to realistically evaluate 

the desirability of the offered job. U.S. 

workers will not be induced to abandon 

employment, to seek full-time work 

elsewhere at the beginning of the season 

or near the end of the season because 

the employer overstated the number of 

employees it actually needed to ramp 

up or to wind down operations. Nor will 

U.S. workers be induced to leave 

employment at the beginning of the 

season or near the end of the season due 

to limited hours of work because the 

employer misstated the months during 

which it reasonably could expect to 

perform the particular type of work 

involved in that geographic area. Not 

only will the guarantee result in U.S. 

and H–2B workers actually working 

most of the hours promised in the job 

order, but it also will make the capped 

H–2B visas more available to other 

employers whose businesses need to use 

H–2B workers. Therefore, the 

Department disagrees with those 

commenters who suggested the 

Department lacks the authority to 

impose a guarantee. The guarantee is a 

necessary element to ensure the 

integrity of the labor certification 

process, to ensure that the availability of 

U.S. workers for full-time employment 

is appropriately tested, to ensure that 

there is no adverse effect on U.S. 

workers from the presence of H–2B 

workers who are desperate for work 

because the work that was promised 

does not exist, and to ensure that H–2B 

visas are available to employers who 

truly have a need for temporary labor for 

the dates and for the numbers of 

employees stated. 

The Department’s recent experience 

in enforcing the H–2B regulations 

demonstrates that its concerns about 

employers overstating their need for 

workers are not unfounded, as do the 

numerous comments from employees 

and their advocates who described 

countless private cases and testimony 

demonstrating the existence of this 

problem. The Department’s 

investigations have revealed employers 

that stated on their H–2B applications 

that they would provide 40 hours of 

work per week when, in fact, their 

workers averaged far fewer hours of 

work, especially at the beginning and/or 

end of the season. Indeed, in some 

weeks the workers have not worked at 

all. In addition, there has been 

testimony before Congress involving 

similar cases in which employers have 

overstated the period of need and/or the 

number of hours for which the workers 

are needed. For example, as the 

Department described in the NPRM, 

H–2B workers testified at a hearing 

before the Domestic Policy 

Subcommittee, House Committee on 

Oversight and Government Reform, on 

April 23, 2009, that there were several 

weeks in which they were offered no 

work; others testified that their actual 

weekly hours—and hence their weekly 

earnings—were less than half of the 

amount they had been promised in the 

job order. Daniel Angel Castellanos 

Contreras, a Peruvian engineer, was 

promised 60 hours per week at $10–$15 

per hour. According to Mr. Contreras, 

‘‘[t]he guarantee of 60 hours per week 

became an average of only 20 to 30 

hours per week—sometimes less. With 

so little work at such low pay [$6.02 to 

$7.79 per hour] it was impossible to 

even cover our expenses in New 

Orleans, let alone pay off the debt we 

incurred to come to work and save 

money to send home.’’ 8 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, 

‘‘[i]nstead of starting work, however, I 

was dropped off at an apartment and left 

for two weeks. Then I was told to attend 

a two week training course. I waited 

three more weeks before working for 

one day on a private home and then 

sitting for three more weeks.’’ 9

Testimony at the same hearing by three 

attorneys who represent H–2B workers 

stated that these witnesses’ experiences 

were not aberrations but were typical. 

Hearing on The H–2B Guestworker 

Program and Improving the Department 

of Labor’s Enforcement of the Rights of 

Guestworkers, 111th Cong. (Apr. 23, 

2009). 

Furthermore, a 2010 report by the 

American University Washington 

College of Law International Human 

Rights Law Clinic and the Centro de los 

Derechos del Migrante, Inc. documented 

the prevalence of work shortages for 

women working on H–2B visas in the 

Maryland crab industry. The researchers 

found that several women interviewed 

spent days and weeks without work 

when crabs were scarce. During this 

time most continued to make rent 


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10American 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. 

payments, and struggled to send money 

to family back in Mexico.10

The Department has not adopted the 

suggestion of employers to spread the 

three-fourths guarantee over the entire 

period covered by the job order. Using 

the entire period of the job order would 

not adequately protect the integrity of 

the program because it would not 

measure whether an employer has 

appropriately estimated its need for 

temporary workers. It would not prevent 

an employer from overstating the 

beginning date of need and/or the 

ending date of need and then making up 

for the lack of work in those two periods 

by offering employees 100 percent of the 

advertised hours in the middle of the 

certification period. Indeed the 

employer could offer employees more 

than 100 percent of the advertised hours 

in the peak season and, although they 

would not be required to work the 

excess hours, most employees could 

reasonably be expected to do so in an 

effort to maximize their earnings. 

However, in order to meet the 

legitimate needs of employers for 

adequate flexibility to respond to 

changes in climatic conditions (such as 

too much or too little snow or rain, 

temperatures too high or too low) as 

well as the impact of other events 

beyond the employer’s control (such as 

a major customer who cancels a large 

contract), the Department has modified 

the increment of time for measuring the 

guarantee by tripling it from 4 weeks to 

12 weeks (if the period of employment 

covered by the job order is at least 120 

days) and increasing the period by 2 

weeks to 6 weeks (if the employment is 

less than 120 days). The Department 

believes this provides sufficient 

flexibility to employers, while 

continuing to deter employers from 

requesting workers for 9 months, for 

example, when they really only have a 

need for their services for 7 months. If 

an employer needs fewer workers 

during the shoulder months than the 

peak months, it should not attest to an 

inaccurate statement of need by 

requesting the full number of workers 

for all the months. Rather, the proper 

approach it should follow is to submit 

two applications with separate dates of 

need, so that it engages in the required 

recruitment of U.S. workers at the 

appropriate time when it actually needs 

the workers. 

Finally, the Department has not 

adopted the suggestion of some 

employers for a guarantee tied to pay 

rather than hours. The employers’ 

attestation relates to their need for a 

particular number of full-time workers 

during a set period; thus, the attestation 

relates to the amount of full-time work, 

not the amount of pay received. The 

Department reminds employers that 

they may count toward the guarantee 

hours that are offered but that the 

employee fails to work, up to the 

maximum number of hours specified in 

the job order for a workday; thus, they 

do not have to pay an employee who 

voluntarily chooses not to work. 

Similarly, they may count all hours the 

employee actually works, even if they 

are in excess of the daily hours specified 

in the job order. Employers’ comments 

addressing the Act of God exception are 

addressed in § 655.20(g). 

The Department has not adopted the 

suggestion of many employee advocates 

to impose a more protective guarantee. 

The Department does not believe it 

would be appropriate to impose a 100 

percent, 90 percent, or weekly 

guarantee. The three-fourths guarantee 

is a reasonable deterrent to potential 

carelessness and a necessary protection 

for workers, while still providing 

employers with flexibility relating to the 

required hours, given that many 

common H–2B occupations involve 

work that can be significantly affected 

by weather conditions. Moreover, it is 

not just outdoor jobs such as 

landscaping that are affected by 

weather. For example, indoor jobs such 

as housekeeping and waiting on tables 

can be affected when a hurricane, flood, 

unseasonably cool temperatures, or the 

lack of snow deters customers from 

traveling to a resort location. The impact 

on business of such weather effects may 

last for several weeks, although (as 

employers recognized) they are likely to 

be able to make up for them in other 

weeks of the season. Moreover, the 

Department understands that it is 

difficult to predict with precision 

months in advance exactly how many 

hours of work will be available, 

especially as the period of time involved 

is shortened. Finally, the comment 

suggesting adding a recordkeeping 

requirement related to the reason an 

employee declines offered work is 

addressed in § 655.20(i). 

g. Impossibility of fulfillment 

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

the Department added language to allow 

employers to terminate a job order in 

certain narrowly-prescribed 

circumstances when approved by the 

CO. In such an event, the employer 

would be required to meet the threefourths guarantee discussed in 

paragraph (f) of this section based on the 

starting date listed in the job offer or 

first workday after the arrival of the 

worker, whichever is later, and ending 

on the job order termination date. The 

employer would also be required to 

attempt to transfer the H–2B worker (to 

the extent permitted by DHS) or worker 

in corresponding employment to 

another comparable job. Actions 

employers could take include reviewing 

the electronic job registry to locate other 

H–2B-certified employers in the area 

and contacting any known H–2B 

employers, the SWA, or ETA for 

assistance in placing workers. Absent 

such placement, the employer would 

have to comply with the proposed 

transportation requirements in 

paragraph (j) of this section. 

The Department received numerous 

comments on this section, from the 

Small Business Administration (SBA) 

Office of Advocacy, employers, 

employer advocacy groups, and trade 

organizations, requesting that the 

provision be expanded to cover 

manmade disasters. Many of these 

commenters cited the recent Deepwater 

Horizon oil spill, which forced many 

businesses to close unexpectedly. The 

Department views this suggested 

expansion as wholly in line with the 

intent of the provision, which 

acknowledged that circumstances 

beyond the control of the employer or 

the worker can result in the need to 

terminate a worker’s employment before 

the expiration date of a job order. 

Therefore, the Department has amended 

this provision in the Final Rule. The 

first sentence of the paragraph now 

reads, ‘‘If, before the expiration date 

specified in the job order, the services 

of the worker are no longer required for 

reasons beyond the control of the 

employer due to fire, weather, other 

Acts of God, or a similar unforeseeable 

man-made catastrophic event (such as 

an oil spill or controlled flooding) that 

is wholly outside the employer’s 

control, that makes the fulfillment of the 

job order impossible, the employer may 

terminate the job order with the 

approval of the CO.’’ No other changes 

were made to this section. 

h. Frequency of pay (§ 655.20(h)). 

Proposed § 655.20(h) required that the 

employer indicate the frequency of pay 

in the job order and that workers be 

paid at least every two weeks or 

according to the prevailing practice in 

the area of intended employment, 

whichever is more frequent. Further, it 

required that wages be paid when due. 

Numerous worker advocacy 

organizations submitted comments 

supporting this provision. One comment 


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stated that frequent pay is important for 

H–2B workers who often arrive in the 

United States with little money and 

need prompt payment after beginning 

work to be able to pay for their expenses 

without going into debt. Requiring 

frequent pay also negates the ability of 

unscrupulous lenders to take advantage 

of desperate workers who run out of 

money before payday by extending high 

interest loans. Another comment stated 

that this provision would allow regular 

access to funds and assist workers to 

avoid being trapped in a work situation 

because of lack of resources to leave an 

exploitative working situation. 

One employer expressed general 

opposition to this requirement but gave 

no reason explaining the opposition. 

Other employer comments expressed a 

range of concerns. 

One individual commented that the 

specific language in § 655.20(h), or 

according to the prevailing practice in 

the area of intended employment, is 

ambiguous. The commenter expressed 

concern that the regulation provides no 

process for determining what prevailing 

practice is and that area of intended 

employment has no rigid tangible 

boundaries. This commenter did not 

provide any alternative suggestions. The 

Department does not consider the 

regulation text ambiguous. The concept 

of an area of intended employment is 

defined in the regulations at § 655.5 and 

has been used in the program since its 

inception. While we do not conduct 

prevailing practice surveys in the H–2B 

program at this time, we assume 

employers are aware of prevailing 

practices for frequency of pay in their 

area. 

One employer suggested that the 

Department permit employers to use a 

monthly pay period provided that they 

give employees the option to draw a 

percentage of wages earned in the 

middle of the month, as this would 

effectively give twice-monthly pay 

periods to any employee who exercised 

the option. The Department rejects this 

suggestion. The requirement that 

workers be paid at least every 2 weeks 

was designed to protect financially 

vulnerable workers. Allowing an 

employer to pay less frequently than 

every two weeks would impose an 

undue burden on workers who 

traditionally are paid low wages and 

may lack the means to make their 

income stretch through a month until 

they get paid, and it would force these 

workers to pursue the needless step of 

requesting their earnings every month in 

the middle of the pay period. 

One commenter suggested that the 

Department require employers to pay 

wages in cash or require that wages be 

deposited directly into the employee’s 

bank account. The Department notes 

that the requirement that payments be 

made either in cash or negotiable 

instrument payable at par at § 655.20(b) 

of the Final Rule will ensure that wages 

are paid free and clear and in an 

accessible medium. 

No other comments were received on 

this section. As such, the Department 

adopts the provision as proposed. 

i. Earnings statements (§ 655.20(i)). 

Proposed § 655.20(i) added 

requirements for the employer to 

maintain accurate records of worker 

earnings and provide the worker an 

appropriate earnings statement on or 

before each payday. The proposed 

paragraph also listed the information 

that the employer must include in such 

a statement. 

The Department received numerous 

comments in support of § 655.20(i) from 

community-based organizations and 

worker advocacy organizations. One 

comment from a worker advocacy 

organization stated that earning 

statements will help workers promptly 

identify any improper deductions or 

wage violations. This commenter noted 

that, armed with such wage information, 

employees are better able to hold 

employers accountable to wage 

requirements. 

Some commenters expressed 

opposition to this provision, arguing 

that requiring employers to provide 

earnings statements will create an 

administrative burden and additional 

costs resulting from more paperwork 

and additional recordkeeping. The 

Department believes that any additional 

administrative burden resulting from 

this provision will be outweighed by the 

importance of providing workers with 

this crucial information, especially 

because an earnings statement provides 

workers with an opportunity to quickly 

identify and resolve any anomalies with 

the employer and hold employers 

accountable for proper payment. 

One employer association expressed 

concern that before in the phrase on or 

before each payday is vague. The 

comment proposed no alternative 

language. The Department finds the 

language to clearly indicate that so long 

as the earnings statement is provided no 

later than the time payment is received 

there is no violation of this provision. 

One comment submitted by a worker 

advocacy group suggested the 

Department also require that where a 

worker declines any offered hours of 

work, employers record the reason why 

the hours were declined. Similar to 

§ 655.122(j)(3) in the H–2A program, 

requiring an employer to record the 

reasons why a worker declined work 

will support the Department’s 

enforcement activities related to the 

three-fourths guarantee proposed in 

§ 655.20(f). The Department accepts this 

suggestion and adds the following 

language to § 655.20(i)(1) and 29 CFR 

503.16(i)(1): ‘‘* * * if the number of 

hours worked by the worker is less than 

the number of hours offered, the 

reason(s) the worker did not work;’’. 

Additionally, the Department has 

amended §§ 655.16(i)(2)(iv), 655.20(i)(l) 

and 655.20(i)(2)(v) and 29 CFR 

503.16(i)(l) to require employers to 

maintain records of any additions made 

to a worker’s wages and to include such 

information in the earnings statements 

furnished to the worker. Such additions 

could include performance bonuses, 

cash advances, or reimbursement for 

costs incurred by the worker. This 

requirement is consistent with the 

recordkeeping requirements under the 

FLSA in 29 CFR part 516. No other 

changes were made to this section in the 

Final Rule. 

j. Transportation and visa fees 

(§ 655.20(j)). The Department proposed 

changes relating to transportation and 

visa costs in § 655.20(j). In 

§ 655.20(j)(1)(i), the NPRM proposed to 

require an employer to provide, pay for, 

or reimburse the worker in the first 

workweek the cost of transportation and 

subsistence from the place from which 

the worker has come to the place of 

employment. If the employer advanced 

or provided transportation and 

subsistence costs to H–2B workers, or it 

was the prevailing practice of non-H–2B 

employers to do so, the NPRM proposed 

to require the employer to advance such 

costs or provide the services to workers 

in corresponding employment traveling 

to the worksite. The amount of the 

transportation payment was required to 

be at least the most economical and 

reasonable common carrier charge for 

the trip. Section 655.20(j)(1)(ii) of the 

NPRM proposed to require the 

employer, at the end of the employment, 

to provide or pay for the U.S. or foreign 

worker’s return transportation and daily 

subsistence from the place of 

employment to the place from which 

the worker departed to work for the 

employer, if the worker has no 

immediate subsequent approved H–2B 

employment. If the worker has been 

contracted to work for a subsequent and 

certified employer, the last H–2B 

employer to employ the worker would 

be required to provide or pay the U.S. 

or foreign worker’s return 

transportation. Therefore, prior 

employers would not be obligated to 

pay for such return transportation costs. 

The NPRM also proposed that all 

employer-provided transportation— 


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including transportation to and from the 

worksite, if provided—must meet 

applicable safety, licensure, and 

insurance standards (§ 655.20(j)(1)(iii)). 

Furthermore, all transportation and 

subsistence costs covered by the 

employer had to be disclosed in the job 

order (§ 655.20(j)(1)(iv)). Finally, 

§ 655.20(j)(2) of the NPRM proposed 

that employers would be required to pay 

or reimburse the worker in the first 

workweek for the H–2B worker’s visa, 

visa processing, border crossing, and 

other related fees including those fees 

mandated by the government (but not 

for passport expenses or other charges 

primarily for the benefit of the workers). 

As discussed below, a significant 

number of commenters addressed these 

proposed changes, and the Department 

has made two changes to the Final Rule 

as a result. 

Employers and their representatives 

generally opposed at least some aspects 

of the proposal. For example, some 

employers asserted that paying such 

fees would be too costly and that 

transportation costs should be the 

responsibility of the employee or paid at 

the discretion of the employer. In 

particular, some ski resorts emphasized 

the costs they face because many of 

their ski instructors travel a significant 

distance by air to remote resorts. Many 

employers were particularly concerned 

with the requirement to pay 

transportation and subsistence costs for 

U.S. workers recruited from outside the 

local commuting distance, based upon 

their experience that U.S. workers have 

high rates of turnover and rarely stay for 

the entire season. A number of 

employers recounted their experience 

with the short periods worked by U.S. 

applicants. For example, one 

commenter gave examples from various 

employers who stated that, e.g., of 25 

U.S. workers hired, only four reported 

for work and only two stayed more than 

one week; the longest a U.S. worker 

remained employed was one month; no 

U.S. worker has stayed more than 2 days 

in ten to 15 years; in 13 seasons, no 

worker stayed more than a few weeks; 

in 5 years, only one U.S. worker 

reported to work and he lasted less than 

2 weeks; and of the U.S. workers who 

report for work, fewer than 10 percent 

stay through the season. 

Employers expressed particular 

opposition to reimbursing what a 

number of them labeled as disingenuous 

U.S. applicants who could exploit the 

employer by applying for a job they had 

no intention of performing simply to get 

the transportation and subsistence to a 

new area. Having received a free trip, 

such employees would quit the job and 

be able to look for full-time, year-round 

work with another employer, because 

U.S. workers are not bound to work only 

for the H–2B employer. Such applicants 

would result in large costs to the 

employer with no return on their 

investment, and the employer could do 

nothing to mitigate its risk. Many such 

employers and their representatives 

suggested that it would be more 

appropriate to tie the reimbursement to 

either full completion of, or partial 

completion of, the term of employment. 

A number of them suggested adoption of 

the H–2A program provision requiring 

that workers must complete at least 50 

percent of the work contract to be 

reimbursed for inbound transportation 

and subsistence expenses; they stated 

that this would help to minimize the 

risk that an employee could manipulate 

the system for free travel and would 

ensure that the employer benefited from 

the employment before disbursing the 

cost. 

One commenter stated that the 

Department lacks the authority to 

require reimbursement of travel 

expenses, especially with regard to U.S. 

workers in corresponding employment, 

because the Internal Revenue Service 

does not allow employees to deduct 

such travel to the job as a business 

expense. Another commenter asserted 

that visa fees should be the 

responsibility of the employee because 

State Department regulations assign the 

cost to the foreigner. Finally, an 

employer suggested requiring employers 

to reimburse only the amount necessary 

to protect the FLSA minimum wage, but 

not the H–2B prevailing wage. 

Employee advocates strongly 

supported the proposal and commended 

the Department for it. Numerous 

advocates described why it is essential 

for the employer to provide, pay for or 

reimburse transportation, subsistence 

and visa-related expenses in the first 

workweek, in order to ensure that 

workers are not forced to go into debt 

and borrow money at exorbitant rates. 

They emphasized that, without timely 

reimbursement, employees are more 

likely to tolerate abusive work 

environments in order to be able to 

repay their loans, rather than risk 

retaliatory termination. One 

commenter’s survey of temporary 

foreign workers indicated that debts 

from such pre-employment costs are the 

main reason temporary foreign workers 

do not come forward to report violations 

of the law. Another commenter 

emphasized that employers are the 

primary beneficiaries of such 

expenditures, because they directly 

profit from the mobility of a low-wage 

workforce. Commenters stated that, if 

the costs of transportation and visarelated expenses are not reimbursed, it 

effectively lowers the employees’ wage 

rates below the required wage, which 

causes adverse effects because it puts 

downward pressure on the wages of 

similarly situated U.S. workers. And 

they noted that it is important that U.S. 

workers are provided the same benefit, 

both because the concept that there 

should be no preferential treatment for 

foreign workers is fundamental to the 

INA, and because it will make it 

possible for available U.S. workers to 

take jobs where the transportation costs 

otherwise would be an insurmountable 

hurdle. They stated that requiring 

transportation and subsistence 

reimbursement also encourages 

employers to consider more carefully 

the number of workers actually needed, 

making it less likely that employers will 

request more workers than they need 

and making it more likely that they will 

make more efforts to recruit U.S. 

workers. 

Thus, these commenters believed that 

the proposed rule requirements, and 

even stronger measures, were necessary 

in order to make progress toward 

eliminating the history of abuses in the 

H–2B program. Some employee 

advocates suggested expanding the 

proposed regulation to clarify that 

inbound transportation includes travel 

between the home community and the 

consular city as well as between the 

consular city and the place of 

employment in the U.S., or to require 

reimbursement for additional expenses, 

such as hotels while traveling to the 

worksite or while waiting in the 

consular city for visa processing. They 

suggested requiring employers to bear 

these expenses up front, rather than 

reimbursing them, so that workers do 

not have to borrow money to pay the 

fees. They also suggested clarifying that 

the employer must pay for outbound 

transportation if the employer 

terminates the employee without cause 

or the employee is constructively 

discharged, such as where the employee 

leaves due to lack of work. A union 

suggested incorporating an H–2A 

provision requiring employers to 

provide free daily transportation to the 

worksite, noting that H–2B workers 

often have no means to commute and 

are forced into dangerous transportation 

arrangements, such as being packed into 

the open beds of pick-up trucks or 

squeezed into vans in excessive 

numbers. The union also recommended 

a requirement that such transportation 

comply with applicable laws. As an 

alternative, the union suggested that 

employers be required to state in the job 

order whether they will voluntarily 


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choose to provide such daily 

transportation to the jobsite, noting that 

such transportation would be applicable 

to both H–2B workers and domestic 

workers in corresponding employment. 

Another commenter specifically 

supported the requirement to disclose 

all transportation and subsistence costs 

in the job order. 

After carefully considering the 

voluminous comments on this issue, the 

Department has made two changes in 

the Final Rule. Section 655.120(j)(1)(i) 

of the Final Rule continues to require 

employers to provide inbound 

transportation and subsistence to H–2B 

employees and to U.S. employees who 

have traveled to take the position from 

such a distance that they are not 

reasonably able to return to their 

residence each day. However, the Final 

Rule provides that employers must 

arrange and pay for the transportation 

and subsistence directly, advance at a 

minimum, the most economical and 

reasonable common carrier cost, or 

reimburse the worker’s reasonable costs 

if the worker completes 50 percent of 

the period of employment covered by 

the job order if the employer has not 

previously reimbursed such costs. The 

Final Rule reminds employers that the 

FLSA imposes independent wage 

payment obligations, where it applies. 

Section 655.20(j)(1)(ii) of the Final Rule 

continues to require employers to 

provide return transportation and 

subsistence from the place of 

employment; however, the obligation 

attaches only if the worker completes 

the period of employment covered by 

the job order or if the worker is 

dismissed from employment for any 

reason before the end of the period. An 

employer is not required to provide 

return transportation if separation is due 

to a worker’s voluntary abandonment. 

The Final Rule, like the NPRM, requires 

employers to reimburse all visa, visa 

processing, border crossing and other 

related fees in the first workweek. 

The Department continues to believe 

that under the FLSA the transportation, 

subsistence, and visa and related 

expenses for H–2B workers are for the 

primary benefit of employers, as the 

Department explained in Wage and 

Hour’s Field Assistance Bulletin No. 

2009–2 (Aug 21, 2009). The employer 

benefits because it obtains foreign 

workers where the employer has 

demonstrated that there are not 

sufficient qualified U.S. workers 

available to perform the work; the 

employer has demonstrated that 

unavailability by engaging in prescribed 

recruiting activities that do not yield 

sufficient U.S. workers. The H–2B 

workers, on the other hand, only receive 

the right to work for a particular 

employer, in a particular location, and 

for a temporary period of time; if they 

leave that specific job, they generally 

must leave the country. Transporting 

these H–2B workers from remote 

locations to the workplace thus 

primarily benefits the employer who has 

sought authority to fill its workforce 

needs by bringing in workers from 

foreign countries. Similarly, because an 

H–2B worker’s visa (including all the 

related expenses, which vary by 

country, including the visa processing 

interview fee and border crossing fee) is 

an incident of and necessary to 

employment under the program, the 

employer is the primary beneficiary of 

such expenses. The visa does not allow 

the employee to find work in the U.S. 

generally, but rather restricts the worker 

to the employer with an approved labor 

certification and to the particular 

approved work described in the 

employer’s application. 

Therefore, the Final Rule adds a 

reminder to employers that the FLSA 

applies independently of the H–2B 

requirements. As discussed above, 

employers covered by the FLSA must 

pay such expenses to nonexempt 

employees in the first workweek, to the 

level necessary to meet the FLSA 

minimum wage (outside the Fifth 

Circuit). See, e.g., Arriaga v. Florida 

Pacific Farms, LLC, 305 F.3d 1228 (11th 

Cir. 2002); Morante-Navarro v. T&Y 

Pine Straw, Inc., 350 F.3d 1163 (11th 

Cir. 2003); Gaxiola v. Williams Seafood 

of Arapahoe, Inc., 2011 WL 806792 

(E.D.N.C. 2011); Teoba v. Trugreen 

Landcare LLC, 2011 WL 573572 

(W.D.N.Y. 2011); DeLeon-Granados v. 

Eller & Sons Trees, Inc., 581 F. Supp. 2d 

1295 (N.D. Ga. 2008); Rosales v. 

Hispanic Employee Leasing Program, 

2008 WL 363479 (W.D. Mich. 2008); 

Rivera v. Brickman Group, 2008 WL 

81570 (E.D. Pa. 2008); contra 

Castellanos-Contreras v. Decatur Hotels, 

LLC, 622 F.3d 393 (5th Cir. 2010). 

Payment sufficient to satisfy the FLSA 

in the first workweek is also required 

because § 655.20(z) of the Final Rule, 

like the current H–2B regulation, 

specifically requires employers to 

comply with all applicable Federal, 

State, and local employment-related 

laws. Furthermore, because U.S. 

workers are entitled to receive at least 

the same terms and conditions of 

employment as H–2B workers, in order 

to prevent adverse effects on U.S. 

workers from the presence of foreign 

workers, the Final Rule requires the 

same reimbursement for U.S. workers in 

corresponding employment who are 

unable to return to their residence each 

workday, such as those from another 

state who saw the position advertised in 

a SWA posting or on the Department’s 

electronic job registry. The Department 

does not believe that the treatment of 

such expenses by the State Department 

or the Internal Revenue Service controls 

how they are categorized for these 

purposes. Rather, employers must 

simultaneously comply with all the 

laws that are applicable, and must do so 

by complying with the most protective 

standard. See Powell v. United States 

Cartridge Co., 339 U.S. 497 (1950). 

The Final Rule separately requires 

employers to reimburse these inbound 

transportation and subsistence 

expenses, up to the offered wage rate, if 

the employee completes 50 percent of 

the period of employment covered by 

the job order. The Department believes 

this approach is appropriate and 

adequately protects the interests of both 

U.S. and H–2B workers. It takes account 

of the concerns expressed by numerous 

employers that they would have to pay 

the inbound transportation and 

subsistence costs of U.S. workers 

recruited pursuant to H–2B job orders 

who do not remain on the job for more 

than a very brief period of time. 

Additionally, the Final Rule requires 

reimbursement of outbound 

transportation and subsistence if the 

worker completes the job order period 

or if the employer dismisses the worker 

before the end of the period of 

employment in the job order, even if the 

employee has completed less than 50 

percent of the period of employment 

covered by the job order. This 

requirement uses language contained in 

the DHS regulation at 8 CFR. 

214.2(h)(6)(vi)(E), which states that 

employers will be liable for return 

transportation costs if the employer 

discharges the worker for any reason. 

See 8 U.S.C. 1184(c)(5)(A). For example, 

if there is a constructive discharge, such 

as the employer’s failure to offer any 

work or sexual harassment that created 

an untenable working situation, the 

requirement to pay outbound 

transportation would apply. However, if 

separation from employment is due to 

voluntary abandonment by an H–2B 

worker or a corresponding worker, and 

the employer provides appropriate 

notification specified under § 655.20(y), 

the employer will not be responsible for 

providing or paying for return 

transportation and subsistence expenses 

of that worker. 

This requirement to pay inbound 

transportation at the 50 percent point 

and outbound transportation at the 

completion of the work period is 

consistent with the rule under the H–2A 

visa program. Moreover, the Final Rule 


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fulfills the Department’s obligation to 

protect U.S. workers from adverse effect 

due to the presence of temporary foreign 

workers. As discussed above, under the 

FLSA, numerous courts have held in the 

context of both H–2B and H–2A workers 

that the inbound and outbound 

transportation costs associated with 

using such workers are an inevitable 

and inescapable consequence of 

employers choosing to participate in 

these visa programs. Moreover, the 

courts have held that such 

transportation expenses are not ordinary 

living expenses, because they have no 

substantial value to the employee 

independent of the job and do not 

ordinarily arise in an employment 

relationship, unlike normal daily hometo-work commuting costs. Therefore, the 

courts view employers as the primary 

beneficiaries of such expenses under the 

FLSA; in essence the courts have held 

that inbound and outbound 

transportation are employer business 

expenses just like any other tool of the 

trade. A similar analysis applies to the 

H–2B required wage. If employers were 

permitted to shift their business 

expenses onto H–2B workers, they 

would effectively be making a de facto 

deduction and bringing the worker 

below the H–2B required wage, thereby 

risking depression of the wages of U.S. 

workers in corresponding employment. 

This regulatory requirement, therefore, 

ensures the integrity of the full H–2B 

required wage, rather than just the FLSA 

minimum wage, over the full term of 

employment; both H–2B workers and 

U.S. workers in corresponding 

employment will receive the H–2B 

required wage they were promised, as 

well as reimbursement for the 

reasonable transportation and 

subsistence expenses that primarily 

benefit the employer, over the full 

period of employment. To enhance this 

protection, the Final Rule contains the 

additional requirement that, where a 

worker pays out of pocket for inbound 

transportation and subsistence, the 

employer must maintain records of the 

cost of transportation and subsistence 

incurred by the worker, the amount 

reimbursed, and the date(s) of 

reimbursement. 

The Department made two clarifying 

edits to this section in the Final Rule. 

Paragraph (1)(ii) of this section has been 

amended to clarify that the employer is 

required to provide or pay for the return 

transportation and daily subsistence of 

a worker who has completed the period 

of employment listed on the certified 

Application for Temporary Employment 

Certification, regardless of any 

subsequent extensions. The Final Rule 

continues to provide that if a worker has 

contracted with a subsequent employer 

that has agreed to provide or pay for the 

worker’s transportation to the 

subsequent employer’s worksite, the 

subsequent employer must provide or 

pay for such expenses; otherwise, the 

employer must provide or pay for that 

transportation and subsistence. 

Paragraph (2) of this section has been 

amended to clarify that the employer 

need not, but may, reimburse workers 

for expenses that are primarily for the 

benefit of the employee. 

The Department does not believe that 

any other change to § 655.20(j) is 

necessary. The regulatory text already 

clarifies that transportation must be 

reimbursed from the place from which 

the worker has come to work for the 

employer to the place of employment; 

therefore, the employer must pay for 

transportation from the employee’s 

home community to the consular city 

and then on to the worksite. Similarly, 

the regulatory text already requires the 

employer to pay for subsistence during 

that period, so if an overnight stay at a 

hotel in the consular city is required 

while the employee is interviewing for 

and obtaining a visa, that subsistence 

must be reimbursed. See MoralesArcadio v. Shannon Produce Farms, 

Inc., 2007 WL 2106188 (S.D. Ga. 2007). 

Finally, if an employer provides daily 

transportation to the worksite, the 

regulation already requires both that the 

transportation must comply with all 

applicable safety laws and that the 

employer must disclose the fact that free 

transportation will be provided in the 

job order. 

k. Employer-provided items 

(§ 655.20(k)). The Department proposed 

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 pay for 

damage to, loss of, or normal wear and 

tear of, such items. This proposed 

provision gives workers additional 

protections against improper deductions 

for the employer’s business expenses 

from required wages. 

The Department received numerous 

comments on this provision, the 

majority of which were supportive. 

Discussing the importance of the 

requirement, one employee advocacy 

organization cited a worker testimonial 

in which a former H–2B crab picker said 

the boss doesn’t give tools to use on the 

job. Instead, he sells the workers knives 

to pick the crabmeat. He sold a worker 

a knife for $30, but they don’t have an 

option to not use it. They deduct this 

amount from the paychecks. 

Another organization referred to a 

study of H–2B crab pickers working on 

Maryland’s Eastern Shore which found 

that 54 percent of workers interviewed 

had had deductions for tools taken from 

their weekly paychecks. Numerous 

employers and employer organizations 

signed on to a report, jointly published 

by two large industry groups, that 

characterized the requirement as 

seeming unlikely to cause major 

problems for employers enrolled in the 

program. 

However, some commenters had 

objections to the proposed requirement. 

One trade organization expressed 

unqualified opposition to the proposal. 

Several employers and industry 

representatives expressed concern that 

the provision was incompatible with 

those industries in which employees 

customarily supply their own tools. 

Several of these commenters noted that 

in certain industries employees have 

personal preferences for their 

equipment and as a matter of course 

bring it with them to the job site. One 

employer requested that the Department 

simply state that any tools or equipment 

provided to domestic workers should be 

provided to similarly-employed H–2B 

workers, and argued that the 

requirement would unfairly favor H–2B 

workers by offering them a benefit that 

was not legally extended to U.S. 

workers. This commenter overlooked 

the fact that, like all of the provisions in 

§ 655.20, this requirement applies to 

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

corresponding employment, and would 

therefore not disadvantage domestic 

workers. As discussed above with 

respect to the disclosure requirement in 

§ 655.18(g), section 3(m) of the FLSA 

prohibits employers from making 

deductions for items that are primarily 

for the benefit of the employer if such 

deductions reduce the employee’s wage 

below the Federal minimum wage. 

Therefore an employer that does not 

provide tools but requires its employees 

to bring their own would already be 

required under the FLSA to reimburse 

its employees for the difference between 

the weekly wage minus the cost of 

equipment and the weekly minimum 

wage. The proposed provision simply 

extends this protection to cover the 

required H–2B offered wage, in order to 

protect the integrity of the required H– 

2B wage rate and thereby avoid adverse 

effects on the wages of U.S. workers. 

However, as discussed above with 

regard to proposed § 655.18(j), this 

requirement does not prohibit 

employees from voluntarily choosing to 


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use their own specialized equipment; it 

simply requires employers to make 

available to employees adequate and 

appropriate equipment. 

No other substantive comments were 

received on this provision; the Final 

Rule therefore retains the requirement 

as proposed. 

l. Disclosure of the job order 

(§ 655.20(l)). Proposed § 655.20(l) 

required that the employer provide a 

copy of the job order to H–2B workers 

no later than the time of application for 

a visa and to workers in corresponding 

employment no later than the first day 

of work. The job order would contain 

information about the terms and 

conditions of employment and 

employer obligations as provided in 

proposed § 655.18 and would have to be 

in a language understandable to the 

workers. The Department received 

numerous comments in support of this 

provision, and none in opposition to it. 

One advocacy organization used the 

experience of an H–2B worker, Yolanda, 

to illustrate the importance of proposed 

§ 655.20(l): 

When Yolanda went to the Eastern Shore 

for what would be her final year, she found 

that her wages were much different than 

what the recruiter promised. Yolanda was 

promised $7 per hour, but earned $5 instead. 

She was promised overtime, but never 

received it. 

This commenter concluded: 

Had Yolanda, or someone in a similar 

position, known about the actual terms and 

conditions of employment, she could make 

an informed decision as to whether 

employment in the U.S. was worthwhile. 

Yet many employee advocates urged 

the Department to go further in the Final 

Rule. Several advocacy groups 

suggested that the Department require 

written disclosure of the job order at the 

time of recruitment, as required under 

the Migrant and Seasonal Agricultural 

Worker Protection Act (MSPA), rather 

than when the worker applies for a visa 

or, in the case of U.S. workers in 

corresponding employment, on the first 

day of work. These commenters asserted 

that earlier disclosure would allow 

potential H–2B workers to more fully 

consider their options before 

committing to a U.S. employer. The 

Department notes that H–2B employers 

that are subject to MSPA are bound by 

the requirements of that Act, including 

disclosure of the appropriate job order 

at the time of recruitment. The H–2B 

and MSPA programs are not analogous, 

however. MSPA workers are often 

recruited domestically shortly before the 

start date of the job order, making the 

provision of the job order at the time of 

recruitment both logical and practical. 

In the H–2B program, as in the H–2A 

program, recruitment is often less 

directly related to the work start date, 

making immediate disclosure of the job 

order less necessary. It thus is more 

practical to require disclosure of the job 

order at the time the worker applies for 

a visa, to be sure that workers fully 

understand the terms and condition of 

their job offer before they make a 

commitment to come to the United 

States. To clarify, the time at which the 

worker applies for the visa means before 

the worker has made any payment, 

whether to a recruiter or directly to the 

consulate, to initiate the visa 

application process. The Department 

maintains that worker notification is a 

vital component of worker protection 

and program compliance, and believes 

that the proposed requirement provides 

workers with sufficient notice of the 

terms and conditions of the job so that 

they can make an informed decision. 

Some of the same commenters 

requested that the Department amend 

§ 655.20(l) to require that the job order 

be provided to workers in their primary 

language, removing the qualifying 

phrase as necessary or reasonable. The 

Department agrees that providing the 

terms and conditions of employment to 

each worker in a language that she 

understands is a key element of muchneeded worker protection. However, as 

the Department intends to broadly 

interpret the necessary or reasonable 

qualification and apply the exemption 

only in those situations where having 

the job order translated into a particular 

language would place an undue burden 

on an employer without significantly 

disadvantaging an H–2B or 

corresponding worker, it declines to 

remove the qualifying language. 

An industry group argued that this 

section was designed to transform the 

job order into an employment contract. 

The purpose of the disclosure is to 

provide workers with the terms and 

conditions of employment and of 

employer obligations to strengthen 

worker protection and promote program 

compliance. Furthermore, as discussed 

in the preamble to § 655.18, the 

Department views the terms and 

conditions of the job order as binding, 

and requires employers to attest that 

they will abide by the terms and 

conditions of the H–2B program. 

However, the Department leaves it to 

the courts to determine private parties’ 

contractual rights under state contract 

law. 

No other substantive comments were 

received on this provision; the Final 

Rule therefore retains § 655.20(l) as 

proposed. 

m. Notice of worker rights 

(§ 655.20(m)). Proposed § 655.20(m) 

required that the employer post a notice 

in English of worker rights and 

protections in a conspicuous location 

and post the notice in other appropriate 

languages if such translations are 

provided by the Department. While the 

Department received numerous 

comments in support of this provision, 

several commenters suggested 

amendments that they felt would 

strengthen worker protections. Several 

advocacy groups requested that the 

Department specify that the notice of 

worker rights must instruct workers 

how to file a complaint with WHD. The 

poster, which will be printed and 

provided by the Department, will state 

that workers who believe their rights 

under the program have been violated 

may file confidential complaints and 

will display the number for WHD’s tollfree help line. 

Another advocacy organization 

suggested that the provision be 

amended to require the employer to post 

the poster in the language of any worker 

who is not fluent in English. The 

Department acknowledges that the 

purpose of this section would be 

undermined if workers cannot read the 

notice. However, the Department cannot 

guarantee that it will have available 

translations of the notice in any given 

language, and cannot require employers 

to display a translation that may not 

exist. Translations will be made in 

response to demand; employers and 

organizations that work with H–2B 

workers are encouraged to inform the 

Department about the language needs of 

the H–2B worker population. 

n. No unfair treatment (§ 655.20(n)). 

Proposed § 655.20(n) added new 

language on nondiscrimination and 

nonretaliation protections that are 

fundamental to statutes that the 

Department enforces. Worker rights 

cannot be secured unless there is 

protection from all forms of 

intimidation or discrimination resulting 

from any person’s attempt to report or 

correct perceived violations of the H–2B 

provisions. As provided in proposed 29 

CFR 503.20, make-whole relief would be 

available to victims of discrimination 

and retaliation under this paragraph. 

The Department received numerous 

comments in support of § 655.20(n); 

among them were comments from 

worker advocacy organizations, labor 

organizations, and a State Attorney 

General’s office. One comment, 

submitted by a coalition of human rights 

organizations, stated support for 

§ 655.20(n) and noted that the provision 

will contribute to the nation’s battle 

against human rights abuses, abroad and 


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at home. Another comment, submitted 

by a worker advocacy organization, 

reinforced the importance of antiretaliatory protections, stating that over 

100 workers surveyed in April 2009 

reported across the board that they 

would not come forward to report 

abuse—even when facing severe labor 

exploitation. Ignacio Zaragoza, an H–2B 

temporary foreign worker from Mexico, 

explained the following, ‘‘Guestworkers 

are afraid to report abuse. I’ve known 

people in Mississippi that have even 

been assaulted and didn’t report it 

because they were so afraid of losing 

everything—their job, their visa, 

everything. Guestworkers are really 

afraid of retaliation.’’ 

Multiple comments suggested adding 

language to § 655.20(n)(4), which 

proposed providing protection from 

retaliation based on contact or 

consultation with an employee of a legal 

assistance organization or an attorney, 

to include contact with labor unions, 

worker centers, and worker advocacy 

organizations. These commenters 

maintain that labor unions, worker 

centers, and community organizations 

are often the first point of contact for H– 

2B workers who have experienced 

violations and who may be isolated or 

lack familiarity with the local 

community and how to obtain redress or 

legal assistance. In support of the above 

argument, one commenter cited to the 

NPRM where the Department stated that 

because H–2B workers are not eligible 

for services from federally-funded legal 

aid programs, most H–2B workers have 

no access to lawyers or information 

about their legal rights. 76 FR 15143, 

Mar. 18, 2011. In addition, a temporary 

foreign worker advocacy organization 

noted that employers frequently 

retaliated against H–2B workers upon 

learning that the H–2B workers had 

spoken with that organization regarding 

their rights under the H–2B program. 

The Department agrees with these 

commenters that proposed § 655.20(n) 

fails to cover the majority of first 

contacts between temporary foreign 

workers and those who are regularly 

communicating directly with foreign 

workers helping them to correct and/or 

report perceived violations of the H–2B 

provisions. The commenters’ suggested 

additions to § 655.20(n) are fully 

consistent with the intent of this antiretaliation provision. The Department 

recognizes that workers should be just 

as protected from retaliation if they 

contact or consult with worker centers, 

community organizations, or labor 

unions as they are if they contact or 

consult with attorneys or legal 

assistance organizations. Changes to 

§ 655.20(n)(4) will be reflected in the 

Final Rule as follows: ‘‘Consulted with 

a workers’ center, community 

organization, labor union, legal 

assistance program, or an attorney on 

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

29 CFR part 503, or this Subpart or any 

other Department regulation 

promulgated thereunder;’’. 

One comment submitted by a 

coalition of human rights organizations 

suggested that the right to federallyfunded legal services be explicitly 

provided for H–2B workers. However, 

providing the right to federally-funded 

legal services is beyond the 

Department’s jurisdiction. In addition, 

some comments referred to § 655.20(n) 

as protecting against retaliation from 

engaging in acts of worker organizing. 

To clarify, the provision protects against 

discrimination and retaliation for 

asserting rights specific to the H–2B 

program. Workers’ rights to join 

together, with or without a union, to 

improve their wages and working 

conditions are protected under the 

National Labor Relations Act and other 

similar State laws. 

A labor union suggested that the 

Department provide an avenue for H–2B 

workers to file oral complaints with the 

Department by telephone or 

electronically regarding H–2B violations 

and all other federal labor rights granted 

temporary workers. The Department 

already accepts complaints through 

these means. Section 655.20(m) requires 

all H–2B employers to display a notice 

of worker rights, which sets out the 

rights and protections for H–2B workers 

and workers in corresponding 

employment and informs workers how 

to file a complaint with WHD. 

A similar comment suggested the 

Department create a mechanism for 

H–2B workers who have returned to 

their home country or family members 

who are currently in the home country 

and hearing about ongoing worker abuse 

to file a complaint with DOL from their 

country of origin. To clarify, any person 

may contact the WHD by phone at 1– 

866–4–USWAGE or online at 

www.wagehour.dol.gov to request 

information about the H–2B program or 

to file a complaint. 

One comment, submitted by a State 

Attorney General’s office, suggested the 

Department clarify that § 655.20(n) 

provides protection to U.S. workers and 

H–2B workers alike. This commenter 

and a temporary foreign worker 

advocacy group stressed the importance 

of providing workers, especially H–2B 

workers who are particularly vulnerable 

to retaliation, protection against 

employer retaliatory acts, as well as the 

importance of encouraging workers to 

come forward when there is a potential 

workplace violation. The Department 

recognizes that H–2B workers can be 

particularly vulnerable to retaliation 

and acknowledges the importance of 

assuring that H–2B workers are 

protected against any unfair treatment 

and retaliation. The Department 

therefore clarifies that § 655.20(n) will 

apply equally to H–2B workers and 

workers in corresponding employment. 

The State Attorney General’s office 

also sought clarification of the phrase 

‘‘related to 8 U.S.C. 1184(c)’’ found in 

§ 655.20(n)(1). The commenter 

suggested the Department state that 

related complaints need not specify any 

specific provision of law, and would 

also include complaints of violations of 

related state and local laws. The 

Department rejects this suggestion, as 

the anti-retaliation provision applies 

only to the H–2B program. However, the 

Department notes that § 655.20(z) 

requires employers to abide by all other 

Federal, State, and local employmentrelated laws, including any antiretaliation provisions therein. 

Another comment submitted by a 

worker advocacy group encouraged the 

Department to clarify that legal 

assistance sought in relation to the 

terms and conditions of employment 

includes legal assistance relating to 

employer-provided housing. If a worker 

sought legal assistance after an 

employer charged for housing that was 

listed as free of charge in the job order, 

this would be a protected act; however, 

a routine landlord-tenant dispute may 

not fall under the protections of this 

section. 

o. Comply with the prohibitions 

against employees paying fees 

(§ 655.20(o)). Proposed § 655.20(o) 

prohibited employers and their 

attorneys, agents, or employees from 

seeking or receiving payment of any 

kind from workers for any activity 

related to obtaining H–2B labor 

certification or employment. The 

Department received numerous 

comments in support of this section 

from advocacy groups, labor 

organizations, and an independent 

policy institute. However, a number of 

these commenters took issue with the 

provision allowing employers and their 

agents to receive reimbursement for 

passport fees. These commenters argued 

that passport fees are not always for the 

primary benefit of the employee, 

particularly where H–2B workers 

receive passports that expire within 1 

year of their issue date, and urged the 

Department to qualify the exception to 

take such circumstances into account. 

The Department is unaware of passports 

with such extremely short validity 


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periods and with restrictions which 

would not allow the worker to use the 

passport in ways unrelated to the H–2B 

employment. As such, the Department 

declines to make the suggested change. 

The Department also received 

comments from a legal network and an 

independent policy institute expressing 

concern that the proposed section did 

not protect workers from coercion by 

recruiters tenuously affiliated with an 

employer or an employer’s designated 

agent. These commenters requested that 

the Department go beyond the 

requirement at § 655.20(p), which 

obligates employers to execute a written 

contract with any third-party agents or 

recruiters prohibiting them from seeking 

or receiving payment from prospective 

employees, and amend § 655.20(o) to 

make H–2B employers strictly liable for 

any recruitment or placement fees 

charged by third parties. The 

Department recognizes these 

commenters’ concerns but must reject 

this request for the reasons stated in the 

preamble under 29 CFR 503.20, 

Sanctions and remedies, Liability for 

prohibited fees collected by foreign 

labor recruiters and sub-contractors. 

No other comments were received on 

this section, which is adopted as 

proposed in the Final Rule. 

p. Contracts with third parties to 

comply with prohibitions (§ 655.20(p)). 

In § 655.20(p), the Department proposed 

to amend existing § 655.22(g)(2) to 

require that an employer that engages 

any agent or recruiter must prohibit in 

a written contract the agent or recruiter 

from seeking or receiving payments 

from prospective employees. 

The Department received numerous 

comments in support of this proposal. 

However, some commenters requested 

that the Department go further: One 

commenter requested that the contract 

include the full contact information for 

the agent or recruiter. The Department 

declines to require such information in 

the contract, but notes that the new 

requirements at § 655.9 of this Final 

Rule require disclosure of the 

employer’s agreements with any agent 

or recruiter whom it engages or plans to 

engage in the international recruitment 

of H–2B workers, as well as the identity 

and geographic location of any persons 

or entities hired by or working for the 

recruiter and the agents or employees of 

those persons and entities. The 

difference between § 655.9, which 

requires the employer to provide copies 

of such agreements to the Department 

when an employer files its Application 

for Temporary Employment 

Certification, and this provision’s 

requirements is that the requirements in 

this provision are of an ongoing nature. 

The employer must always prohibit the 

seeking or collection of fees from 

prospective employees in any contract 

with third parties whom the employer 

engages to recruit international workers, 

and is required to provide a copy of 

such existing agreements when the 

employer files its Application for 

Temporary Employment Certification. 

For employers’ convenience, and to 

facilitate the processing of applications, 

the Final Rule contains the exact 

language of the required contractual 

prohibition that must appear in such 

agreements. Further guidance on how 

the Department interprets the employer 

obligations in § 655.20(o) and (p) 

regarding prohibited fees can be found 

in Field Assistance Bulletin No. 2011– 

2 (May 2011, available at http:// 

www.dol.gov/whd/FieldBulletins/ 

fab2011_2.htm. 

One comment submitted by an 

advocacy group informed the 

Department that many recruiters engage 

local intermediaries in the recruitment 

process and these recruiting 

subcontractors in turn charge fees. The 

commenter suggested that in addition to 

stating that the recruiter will not charge 

a fee, the contract must insist that the 

recruiter will ensure that no 

subcontractor will charge fees and that 

no workers will pay fees. The 

Department recognizes the complexities 

of recruiters using subcontractor 

recruiters and has accounted for this in 

§ 655.20(p) by including the following 

language: ‘‘The employer must 

contractually prohibit in writing any 

agent or recruiter (or any agent or 

employee of such agent or recruiter) 

whom the employer engages, either 

directly or indirectly * * *’’. 

The specific language covers 

subcontractors. In addition, the required 

contractual prohibition applies to the 

agents and employees of the recruiting 

agent, and encompasses both direct and 

indirect fees. As these requirements 

should sufficiently address the 

commenter’s concerns, the Department 

declines to adopt this suggestion. 

A Member of Congress urged the 

Department to require that employers 

publicly disclose all recruiters and subrecruiters. In another comment 

submitted by a community-based 

organization, an H–2B worker described 

his experience with recruiters and lack 

of information regarding the recruiter, 

citing having to pay very large fees to 

the recruiters in his community, just for 

the opportunity to apply for a work visa 

and later work in the United States. He 

explained that they generally do not 

even know who the recruiter is working 

for. 

Another comment provided the 

following example of common 

recruitment violations: In January 2011, 

a group of 25 Mexican nationals in the 

state of Guanajuato had been promised 

visas and six months of work by a 

recruiter. The recruiter charged each of 

the workers 2000 pesos to process the 

visa application. Unaware of the 

legitimacy of the job offer, who the 

recruiter was, or whom he was 

representing, the 25 Mexicans sent the 

money and their passports to the 

address the ‘‘recruiter’’ provided. After 

several weeks of no response, the 

workers inquired at the address given, 

but were told by the person living there 

that the recruiter had died. The workers 

lost both their money and their 

passports. 

The Department agrees that such 

public disclosure is necessary and has 

addressed the issue under § 655.9. The 

Department will maintain a publicly 

available list of agents and recruiters 

who are party to such recruitment 

contracts, as well as a list of the identity 

and location of any persons or entities 

hired by or working for the recruiters to 

recruit H–2B workers for the H–2B job 

opportunities offered by the employer. 

q. Prohibition against preferential 

treatment of H–2B workers (§ 655.20(q)). 

In § 655.20(q) the Department proposed 

to prohibit employers from providing 

better terms and conditions of 

employment to H–2B workers than to 

U.S. workers. This provision is identical 

to that found at § 655.18(a)(1) of this 

Final Rule; a discussion of comments 

received in response to the proposal can 

be found in the preamble to that section. 

The Final Rule adopts the proposal as 

written. 

r. Non-discriminatory hiring practices 

§ 655.20(r). In § 655.20(r) the 

Department proposed to retain the nondiscriminatory hiring provision 

contained in § 655.22(c) of the 2008 

Final Rule and to clarify that the 

employer’s obligation to hire U.S. 

workers continues throughout the 

period described in proposed 

§ 655.20(t). Under this provision, 

rejections of U.S. workers continue to be 

permitted only for lawful, job-related 

reasons. An advocacy organization 

representing low wage workers 

commented in support of the proposed 

provision, stating that the provision 

helps the Department fulfill its 

obligation to ensure that U.S. workers 

are not adversely affected by the H–2B 

program. This commenter also advised 

the Department to be aware of job order 

terms that may appear to be nondiscriminatory but have a 

discriminatory impact on U.S. workers, 

such as requiring drug testing or 


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criminal background checks as a 

condition for employment. The 

Department acknowledges the potential 

problem and directs the commenter to 

§ 655.20(q), which specifies that job 

qualifications and requirements 

imposed on U.S. workers must be no 

less favorable than the qualifications 

and requirements that the employer is 

imposing or will impose on H–2B 

workers. Thus, where an employer 

requires drug tests or criminal 

background checks for U.S. workers and 

does not require the same tests and 

background checks for H–2B workers, 

the employer has violated this 

provision. Additionally, where an 

employer conducts criminal background 

checks on prospective U.S. employees, 

in order to be lawful and job-related, the 

employer’s consideration of any arrest 

or conviction history must be consistent 

with guidance from the Equal 

Employment Opportunity Commission 

on employer consideration of arrest and 

conviction history under Title VII of the 

Civil Rights Act of 1964. See http:// 

www.eeoc.gov/policy/docs/ 

convict1.html; http://www.eeoc.gov/ 

policy/docs/arrest_records.html; http:// 

www.eeoc.gov/laws/practices/ 

inquiries_arrest_conviction.cfm. Thus, 

employers may reject U.S. workers 

solely for lawful, job-related reasons, 

and they must also comply with all 

applicable employment-related laws, 

pursuant to § 655.20(z). The Final Rule 

adopts the NPRM provision as 

proposed. 

s. Recruitment requirements 

(§ 655.20(s)). The NPRM proposed that 

the employer conduct required 

recruitment as described in proposed 

§§ 655.40–.46. No substantive comments 

were received concerning employers’ 

obligation to comply with recruitment 

requirements, and the section is adopted 

in the Final Rule as proposed. 

t. Continuing obligation to hire U.S. 

workers § 655.20(t). In proposed 

§ 655.20(t), the Department extended the 

period during which the employer must 

hire qualified U.S. workers referred by 

the SWA or who respond to recruitment 

to 3 days before the date of need or the 

date the last H–2B worker departs for 

the workplace for the certified job 

opportunity, whichever is later. In order 

to determine the appropriate cutoff date 

for SWA referrals, the Department 

proposed that the employer notify the 

SWA in writing if the last H–2B worker 

has not departed by 3 days before the 

date of need and of the new departure 

date as soon as available. The 

Department characterized as inadequate 

the existing requirements under which 

an employer is under no obligation to 

hire U.S. workers after submitting the 

recruitment report, which could occur 

as early as 120 days before the first date 

of need. U.S. applicants—particularly 

unemployed workers—applying for the 

kinds of temporary positions typically 

offered by H–2B employers are often 

unable to make informed decisions 

about jobs several months in advance; it 

is far more likely that they are in need 

of a job beginning far sooner. In fact, 

many of these applicants may not even 

be searching for work as early as several 

months in advance and are therefore 

unlikely to see SWA job orders in the 

10 days they are posted or the 

newspaper advertisements on the 2 days 

they are published in accordance with 

the existing minimum recruitment 

requirements. This segment of the labor 

force cannot afford to make plans 

around the possibility of a temporary 

job several months in the future. The 

current recruitment and hiring structure 

simply cannot be reconciled with the 

Department’s obligation to protect U.S. 

workers and ensure that qualified U.S. 

applicants are unavailable for a job 

opportunity before H–2B workers are 

hired. 

The Department received many 

comments on this proposed 

requirement—predominantly from the 

SBA Office of Advocacy, employers, 

their advocates, and employer 

associations—asserting that accepting 

U.S. applicants until 3 days before the 

date of need would be unworkable for 

employers. Some of these commenters 

described this as the most troubling 

provision in the NPRM. Some of these 

commenters suggested that the 

Department instead modify existing 

§ 655.15(e) to require the SWA to keep 

the job order posted for 30 days, while 

others recommended changing the 

closing date from 3 days to 30 days or 

60 days before the date of need. 

The Department also received 

numerous comments in support of the 

proposed provision from advocacy 

groups, policy institutes, and labor 

organizations. However, some of these 

commenters felt that the provision did 

not go far enough to protect the interests 

of U.S. workers. Some commenters, 

including a labor organization, a legal 

network, and a legal policy institute, 

requested that the Department extend 

the obligation to hire qualified U.S. 

workers into the certification period, 

either until 50 percent of the period has 

elapsed, as in the H–2A program, or 

until only 2 weeks remain. 

After extensive consideration of all 

comments and mindful of its 

responsibilities to ensure that qualified, 

available U.S. workers are not precluded 

from job opportunities, the Department 

has decided to change the day through 

which employers must accept SWA 

referrals of qualified U.S. applicants 

until 21 days before the date of need, 

irrespective of the date of departure of 

the last H–2B worker. The Department 

believes this reduction in the priority 

hiring period to 21 days before from 3 

days before the date of need will allay 

a number of employer concerns, and it 

takes into consideration the USCIS 

requirement that H–2B workers not 

enter the United States until 10 days 

before the date of need. Whereas 

employers expressed concern that the 

proposed 3-day priority hiring cutoff 

opened up the possibility that a U.S. 

applicant could displace an H–2B 

workers who has been recruited, 

traveled to the consular’s office, 

obtained a visa, or even begun inbound 

transportation to the worksite, the 

21-day provision gives employers more 

certainty regarding the timing of and 

need for their efforts to recruit H–2B 

workers. At the same time, the 

Department believes that the 21-day 

requirement, which increases the 

priority hiring period by as much as 

3 months compared to the current rule, 

is sufficient to protect the interests of 

U.S. workers. Further, the Department 

notes that the extended recruitment 

period is not the only provision of this 

Final Rule enhancing U.S. applicants’ 

access to vacancies: The number and 

breadth of recruitment vehicles in place 

(i.e., contact of previous workers, a 

national job registry, a 15-day job 

posting at worksites, among others) have 

also greatly expanded. 

A number of employers, trade 

associations, and professional 

associations expressed concern that a 

continuing obligation to accept U.S. 

applicants could burden employers with 

additional expenses. They argued that if 

an employer is compelled to hire a U.S. 

worker close to the date of need, the 

employer might have to absorb the cost 

of recruitment, travel, and housing that 

it had already arranged for foreign 

workers. Employers are encouraged to 

delay recruitment of foreign workers 

until it becomes evident that it will be 

necessary to hire such workers. With 

regard to travel expenses, the 

Department asserts that the additional 

time granted to employers in the Final 

Rule will be sufficient to allow for the 

arrangement of inbound transportation 

without employers having to bear any 

risk of last-minute cancellations, pay 

premiums for refundable fares, or pay 

visa expenses that are ultimately not 

needed. Housing arrangements should 

not present an issue, as § 655.20(q) 

requires an employer to offer U.S. 

workers the same benefits that it is 


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offering, intends to offer, or will provide 

to H–2B workers. If an employer intends 

to offer housing to H–2B workers, such 

housing must also be offered to all U.S. 

applicants who live outside the area of 

intended employment. Housing secured 

for workers can just as easily be 

occupied by U.S. workers as by H–2B 

workers, or some combination of U.S. 

and H–2B workers. 

Many of the same commenters also 

worried that foreign workers no longer 

needed would have wasted their time in 

committing to the job opportunity and 

traveling to the United States, and that 

some might sue for breach of contract. 

As discussed above, the new 21-day 

provision will prevent H–2B workers 

from being dismissed after beginning 

travel from their home to the consular 

office or even to the United States as the 

obligation to hire U.S. workers now 

ends 11 days before USCIS permits 

H–2B workers to be admitted to the 

country. Additionally, in order to create 

appropriate expectations for potential 

H–2B workers, when an employer 

recruits foreign workers, it should put 

them on notice that the job opportunity 

will be available to U.S. workers until 

21 days before the date of need; 

therefore, the job offer is conditional 

upon there being no qualified and 

available U.S. workers to fill the 

positions. 

A number of employers, trade 

associations, and professional 

associations commented about what 

they called disingenuous applicants, 

e.g., U.S. workers who would be 

referred shortly before the date of need, 

triggering an employer’s obligation to 

hire them, but who would then shirk 

their responsibilities or potentially 

abandon the job altogether, leaving the 

employer with an unmet business need. 

These commenters expressed concern 

that employers would be forced to reject 

recruited foreign workers in favor of 

SWA-referred U.S. workers who would 

quickly abandon employment, leaving 

employers understaffed and unable to 

find replacement workers; several 

commenters asserted the U.S. workers 

never show up for seasonal 

employment. The Department believes 

the worker protections contained in this 

Final Rule will encourage U.S. 

applicants hired to remain on the job. In 

addition, provisions such as that found 

at § 655.20(y) (Abandonment/ 

termination of employment) offer 

protection to employers from workers 

who might accept the offer of 

employment but who subsequently 

abandon the job, as § 655.20(y) relieves 

the employer, under certain 

circumstances, of the responsibilities to 

provide transportation and to fulfill the 

three-quarter guarantee obligation. 

Some employers, trade associations, 

and professional associations expressed 

concern that the proposed structure 

would inhibit their ability to plan for 

their seasons and commit to contracts. 

The Department notes that regardless of 

the obligation to hire cutoff, the H–2B 

employer has a high degree of certainty 

that it will have access to workers, 

whether from within or outside the 

United States. Further, the Final Rule’s 

21-day obligation to hire cutoff should 

provide employers with ample time to 

identify foreign workers if they are, in 

fact, needed and to initiate their travel 

without substantial uncertainty. The 

purpose of this provision is to ensure 

that available U.S. workers have a viable 

opportunity to apply for H–2B job 

opportunities and to facilitate the 

employment of these workers. The 

Department believes that the proposed 

provisions do not pose a disadvantage to 

employers in terms of having certainty 

that positions will be filled. 

One employer noted that State laws 

requiring employers in some industries 

to submit requests for background 

checks or drug testing for their 

employees 30 to 45 days before the date 

of need would preclude the hiring of 

U.S. workers 21 days before the date of 

need. A background check or drug test 

required for employment in a State, if 

listed in the job order, would be 

considered a bona fide job requirement, 

as long as it was clearly disclosed in the 

job order and recruitment materials. An 

applicant who submitted an application 

for employment after a State-established 

deadline and was therefore unable to 

undergo such an evaluation would be 

considered not qualified for 

employment in that State. However, 

consistent with §§ 655.18(a)(2) and 

655.20(e), such a requirement must be 

disclosed in the job order, and the 

employer would bear the responsibility 

of demonstrating that it is bona fide and 

consistent with the normal and accepted 

requirements imposed by non-H–2B 

employers in the same occupation and 

area of intended employment. 

Furthermore, employers cannot treat 

U.S. workers less favorably than foreign 

workers with regard to start date; 

employers may not conduct such 

screening for H–2B workers at a later 

date if the employer does not provide 

the same late screening for U.S. workers 

who submit an application after a Stateestablished deadline. 

Due to the modification of this 

provision in the Final Rule allowing for 

a fixed, 21-day cut-off date for the 

priority hiring rights of U.S. workers, 

and with the knowledge (as reported in 

the comments discussed under 

§ 655.20(f) (three-fourths guarantee)) 

that many employers’ workforce needs 

vary throughout the season and they 

require fewer workers in slow months at 

the beginning and end of the season, the 

Department wishes to remind employers 

about the requirements of the threefourths guarantee. Specifically, the 

guarantee begins on the first workday 

after the arrival of the worker at the 

place of employment or the advertised 

first date of need, whichever is later. An 

employer cannot delay the three-fourths 

guarantee by telling workers not to come 

to work on or after the advertised first 

date of need because the employer does 

not have a need for them at that time. 

Particularly for U.S. workers who are 

not traveling to the place of 

employment, this means that when they 

present themselves at the place of 

employment on the advertised first date 

of need, the three-fourths guarantee is 

triggered, whether or not the employer 

has sufficient full-time work for all of 

them to perform. 

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

The Department proposed in § 655.20(u) 

to modify the no strike or lockout 

language in the current rule to require 

employers to assure the Department that 

there is no strike or lockout at the 

worksite for which the employer is 

requesting H–2B certification, rather 

than solely in the positions being filled 

by H–2B workers, which is the 

requirement under the current 

regulations. If there is a strike or lockout 

at the worksite when the employer 

requests H–2B workers, the CO may 

deny the H–2B certification. 

The Department received several 

comments from advocacy groups and 

labor organizations in support of the 

proposed change. These groups 

suggested that the change would 

provide a needed protection for U.S. 

workers whose employers seek to 

circumvent the current regulatory 

provisions by transferring workers to fill 

positions vacated by striking workers. 

One labor organization that generally 

supported the proposed regulation 

indicated that it believed the 

Department did not go far enough 

because employers could still transfer 

U.S. workers from one worksite to a 

second to fill positions vacated by 

striking workers, then use H–2B workers 

to fill the vacancies at the first worksite. 

This commenter suggested that if the 

Department would not extend the 

strike/layoff prohibition to all employer 

worksites it should at least consider 

expanding the prohibition to worksites 

operated by the employer within a 

particular region or geographic 

proximity, for example within a 500- 


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mile radius. The Department 

acknowledges the commenter’s concern, 

and while the Department rejects the 

proposal to expand the provision to all 

employer locations and rejects the 

proposal to extend the prohibition to all 

employer facilities within a 500-mile 

radius, the Department has concluded 

that, in order to effectuate its intent in 

expanding the no strike or lockout 

provision as proposed in the NPRM, it 

will expand the provision to include all 

employer worksites within the area of 

intended employment. Thus, the 

proposed language has been modified in 

the Final Rule to further decrease the 

chances that an unscrupulous employer 

will circumvent the regulatory 

requirement by transferring U.S. 

workers to fill positions vacated by 

striking workers and employing H–2B 

workers in the positions those U.S. 

workers vacated. The Department 

believes that this extension will provide 

added protection for workers whose 

employers have multiple locations 

within a commuting distance where 

transferring employees among locations 

would be relatively easy. 

Several trade associations commented 

that the prohibition on strikes/lockouts 

was too broad. One of these commenters 

was concerned that the Department did 

not specify that the provision was not 

intended to encompass annual layoffs 

that occur due to the end of the peak 

season. The Department did not intend 

for § 655.20(u) to include employer 

layoffs; section § 655.20(v) addresses 

employer layoffs. Other commenters 

were concerned that a work stoppage as 

a result of labor disputes could refer to 

commonly-occurring minor 

disagreements and would effectively 

mean no employer in the country could 

use the program. The Department 

maintains that the definition of strike is 

sufficiently clear, and contends that this 

provision will not inhibit the use of the 

program by a large number of 

employers. 

Another commenter indicated that the 

ability of a CO to deny an application 

due to a strike or a lockout might 

complicate the application process and 

increase delays, unsuccessful 

applications, and last-minute refusals of 

H–2B workers. The Department does not 

anticipate that this will be a problem as 

long as employers do not seek approval 

of an Application for Temporary 

Employment Certification while there is 

a strike or lockout at the worksite. 

v. No recent or future layoffs 

(§ 655.20(v)). Proposed § 655.20(v) 

modified the dates of impermissible 

layoffs of U.S. workers, extending the 

period during which an H–2B employer 

must not lay off any similarly employed 

U.S. workers from 120 days after the 

date of need to the end of the 

certification period. The Department 

also proposed adding the requirement 

that H–2B workers must be laid off 

before any U.S. worker in corresponding 

employment. 

The Department received several 

comments that expressed support for 

this revision. The Department received 

two comments that suggested the period 

be extended to 180 days prior to the 

date of need, instead of the current 

provision of 120 days prior to the date 

of need. One commenter, a labor 

organization, suggested the 180-day 

period in order to be consistent with 

one of its other proposed regulatory 

changes, discussed in the preamble to 

§ 655.20(w). The Department did not 

adopt the relevant portion of that 

suggested change, and therefore 

declines to change this provision. One 

commenter asserted that this change 

would correspond with a U.S. worker’s 

eligibility for unemployment benefits. 

Unemployment insurance eligibility 

varies by State and can change due to 

economic conditions, while the 120-day 

period in the layoff provision is tied to 

the seasonal nature of the program. The 

Department maintains the 120-day 

period in this Final Rule. 

Several employers commented that 

the regulations should specify that this 

provision is not intended to address 

annual layoffs that occur due to the end 

of the peak season. The Department 

notes that the provision specifically 

permits layoffs due to lawful, job-related 

reasons provided that the employer 

performs all required recruitment and 

contacts all former U.S. employees as 

indicated in § 655.20(w). Similarly, one 

commenter indicated that this provision 

would not allow an employer who laid 

off workers due to a natural or manmade 

disaster to request H–2B workers when 

cleanup work begins and the employer 

is unable to find U.S. workers. The 

Department concludes that these 

commenters’ concerns are unfounded, 

as the provision specifically permits 

layoffs due to lawful, job-related reasons 

such as the end of the peak season or 

a natural or manmade disaster, as long 

as, if applicable, the employer lays off 

H–2B workers first. 

w. Contact with former U.S. 

employees (§ 655.20(w)). The 

Department proposed to require 

employers to contact former U.S. 

employees who worked for the 

employer in the occupation and at the 

place of employment listed on the 

Application for Temporary Employment 

Certification within the last year, 

including any U.S. employees who were 

laid off within 120 days before the date 

of need. This expanded the existing 

requirement that employers contact only 

former employees who were laid off 

during the 120 days preceding the date 

of need. The employer is not required to 

contact those who were dismissed for 

cause or who abandoned the worksite. 

Note, however, that voluntary 

abandonment is different from a 

constructive discharge, which occurs 

when the ‘‘working conditions have 

become so intolerable that a reasonable 

person in the employee’s position 

would have felt compelled to resign.’’ 

Pennsylvania State Police v. Suders, 542 

U.S. 129, 141 (2004). 

All comments addressing this issue 

supported the change. One advocacy 

organization that supported the change 

also expressed concern about employers 

determining which workers they have 

terminated for cause because there is no 

requirement that employers keep 

records of the reasons why a person was 

dismissed. Though the regulations do 

not specify a requirement to keep 

records of reasons for termination, many 

employers keep such records as a matter 

of general business practice. Moreover, 

such a record would be useful if there 

were an investigation to show that the 

termination was in fact for cause and 

not a layoff. 

A labor organization proposed that 

the Department require employers to 

contact those employees who quit after 

having their hours reduced by 25 

percent or more during the 180-day 

period preceding the submission of the 

Application for Temporary Employment 

Certification. The Department reminds 

employers if qualified former employees 

apply during the recruitment period 

they, like all qualified U.S. applicants, 

must be offered employment. However, 

there is no definitive way to determine 

the motivation behind an employee’s 

resignation. The suggested requirement 

would place an unnecessary burden on 

both employers seeking to comply with 

the provision and Departmental 

employees seeking to verify compliance. 

The Department therefore declines to 

make the suggested change and 

maintains the proposed language in the 

Final Rule. 

x. Area of intended employment and 

job opportunity (§ 655.20(x)). Proposed 

§ 655.20(x) modified existing § 655.22(l) 

by additionally prohibiting the 

employer from placing a worker in a job 

opportunity not specified on the 

Application for Temporary Employment 

Certification, clarifying that an H–2B 

worker is only permitted to work in the 

job and in the location that OFLC 

approves unless the employer obtains a 

new labor certification. No comments 

were received on this section, and the 


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provision is adopted in the Final Rule 

without change. 

y. Abandonment/termination of 

employment (§ 655.20(y)). Proposed 

§ 655.20(y), which is largely consistent 

with the existing notification 

requirement in § 655.22(f), described the 

requirement that employers notify OFLC 

and DHS within 2 days of the separation 

of an H–2B worker or worker in 

corresponding employment if the 

separation occurs before the end date 

certified on the Application for 

Temporary Employment Certification. 

The section also deemed that an 

abandonment or abscondment begins 

after a worker fails to report for work for 

5 consecutive working days, and added 

language relieving the employer of its 

outbound transportation requirements 

introduced in the NPRM under 

§ 655.22(j) and 29 CFR 503.16(j) if 

separation is due to a worker’s 

voluntary abandonment. Additionally, 

the proposed section clarified that if a 

worker voluntarily abandons 

employment or is terminated for cause, 

an employer will not be required to 

guarantee three-quarters of the work in 

the worker’s final partial 6- or 12-week 

period, as described in proposed 

§ 655.22(f) and 29 CFR 503.16(f). 

A professional association asserted 

that an employer that fails to provide 

notice as required should be relieved of 

its three-quarter guarantee obligation if 

its notification was innocently or 

mistakenly late. Similarly, a coalition 

representing agents and employers and 

a trade association expressed concern 

that the Department’s 2-day window 

implies that an employer who waits 

until the third day to provide 

notification would be in violation. It is 

not the Department’s intention in this 

preamble to determine whether 

hypothetical situations would 

ultimately be charged as violations of 

this rule. Instead, the Department 

reminds the public that WHD will 

determine violations of this and other 

employer requirements after appropriate 

investigative actions, using the clear 

criteria defining what constitutes a 

violation found in 29 CFR 503.19. 

A coalition representing agents and 

employers commented that the 

Department should define precisely 

which day of a separation triggers the 

start of the 2-day window; articulate 

what happens if the second day falls on 

a Federal holiday; articulate what 

happens in the event that the 

notification is sent within 2 days but 

transmission failures delay the 

Department’s receipt; provide specific 

notification procedures including email 

addresses employers should use; and 

reduce its fines to conform with those 

of DHS. The Department asserts that its 

language in the proposed section 

provides employers clear guidance 

regarding their notification obligations. 

This assertion is backed up by the 

Department’s enforcement experience of 

the almost identical provision at 

existing § 655.22(f); neither WHD nor 

employers have expressed confusion 

regarding the notification requirements 

or articulated concerns similar to the 

commenter’s since the introduction of 

the requirement in the 2008 Final Rule. 

Furthermore, the Department notes that 

an identical provision in its H–2A 

regulations has not resulted in 

confusion for H–2A employers, many of 

whom also participate in the H–2B 

program. The Department advises 

employers to send notification, either in 

hard copy or via email, using the 

contact information they used to submit 

their Application for Temporary 

Employment Certification, and to retain 

records in accordance with 

documentation retention requirements 

outlined at 29 CFR 503.17. Finally, the 

commenter is correct that the 

Department’s penalties for this violation 

are different from DHS fines. The 

notification requirement serves different 

purposes for DHS and the Department, 

and the Department believes it is fair 

and consistent to treat this violation in 

the same way it treats other violations 

of employers’ H–2B obligations. 

The same commenter also claimed 

that the proposed language is unclear 

and that the Department should clarify 

that an employer is relieved of its 

obligations under the three-quarter 

guarantee not only in the event of a 

voluntary abandonment but also of a 

lawful termination. The Department 

cites its final sentence in § 655.20(y) and 

29 CFR 503.16(y) as unambiguous in 

relieving an employer from the 

guarantee for both a voluntary 

abandonment and a termination for 

cause. 

Two worker advocacy groups claimed 

that unscrupulous employers could 

misuse the DHS notification as a threat 

to coerce workers, whose immigration 

status is tied inextricably to the job, to 

endure abusive work conditions. The 

Department emphasizes that the 

notification requirements in § 655.20(y) 

are not intended to be used as threats 

against vulnerable foreign workers to 

keep them in abusive work situations. 

Further, the Department cautions that 

coercing workers into performing labor 

by threatening potential deportation or 

immigration enforcement may violate 

anti-trafficking laws such as the William 

Wilberforce Trafficking Victims 

Protection Act of 2008 (TVPRA), 18 

U.S.C. 1584, 1589, among other laws. 

While the worker advocates argue that 

the Final Rule should eliminate the DHS 

portion of the notification and replace it 

with a requirement to notify WHD, the 

Department reminds the public that 

DHS regulations already compel 

employers to notify DHS of early 

separations by assisting the agency in 

keeping track of foreign nationals in the 

United States. Both OFLC’s (which may 

share information with WHD) and 

DHS’s awareness of early separations 

are critical to program integrity, 

allowing the agencies to appropriately 

monitor and audit employer actions. If 

not for proper notification, employers 

with histories of frequent and 

unjustified early dismissals of workers 

could continue to have an Application 

for Temporary Employment 

Certification certified and an H–2B 

Petition approved. In addition, the same 

two worker advocacy groups stated that 

WHD should investigate and confirm 

the veracity of purported terminations 

for cause to ensure that employers do 

not misuse this provision to escape their 

outbound travel obligations and the 

three-quarter guarantee. One worker 

advocacy group argued that retaliation 

for workers asserting their rights should 

not be considered legitimate cause for 

termination and suggested the 

Department require employers to inform 

workers that they can quit abusive 

conditions and work for another 

employer, provided the new 

employment is authorized. The 

Department reminds the public that 

WHD, as part of its enforcement 

practices, may in fact investigate 

conditions behind the early termination 

of foreign workers to ensure that the 

dismissals were not effected merely to 

relieve an employer of its outbound 

transportation and three-quarter 

guarantee obligations. Further, 

§ 655.20(n) already protects workers 

from a dismissal in retaliation for 

protected activities. 

Several comments related to the 

Department’s language describing 

abscondment. A private citizen and a 

coalition representing agents and 

employers claimed there is an 

inconsistency between the proposed 

rule, which considers abscondment to 

occur after 5 days, and some employer 

personnel rules that purportedly set the 

threshold at 3 days. A worker advocacy 

group argued that workers who fail to 

report for work due to legitimate injury 

or illness should not be considered to 

have abandoned employment. The 

Department maintains that the proposed 

language does not intrude upon or 

supersede employer attendance policies. 

The proposed requirement that an 


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11As provided in the discussion of § 655.11, each 

employer filing an Application for Temporary 

Employment Certification is required under the 

Final Rule to establish temporary need through the 

registration process. However, in limited 

circumstances where the employer has applied for 

a temporary labor certification on an emergency 

basis under emergency procedures in § 655.17 

without an approved H–2B Registration, the CO 

may be required to also make a determination of 

temporary need. 

employer provide appropriate 

notification if a worker fails to report for 

5 consecutive working days does not 

preclude an employer from establishing 

a different standard for dismissing its 

workers. Further, the Department did 

not intend the H–2B regulations to 

provide job protection to workers in the 

case of illness or injury and considers 

such determinations beyond its 

authority. The proposed rule leaves it 

largely to employers to determine the 

worker behaviors that trigger a dismissal 

for cause, beyond the protected 

activities described in § 655.20(n) and 

the requirement in § 655.20(z) that the 

employer comply with all applicable 

employment-related laws. 

z. Compliance with applicable laws 

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

which requires H–2B employers to 

comply with all other applicable 

Federal, State, and local employment 

laws, the Department retained much of 

the language from the existing provision 

at § 655.22(d) and added an explicit 

reference to the TVPRA. The 

Department received comments from 

several worker advocacy organizations 

expressing general support for 

referencing the Act, which prohibits 

employers from holding or confiscating 

workers’ immigration documents such 

as passports or visas under certain 

circumstances. One worker advocacy 

organization suggested the Department 

broaden the proposed section in two 

ways: By including employers’ attorneys 

and agents in the prohibition and by 

expanding the documents employers are 

barred from holding to incorporate 

deeds to a worker’s auto, land and 

home. The Department does not have 

the authority to include documents not 

specified in the TVPRA at 18 U.S.C. 

1592(a), such as the deeds to an H–2B 

worker’s auto, land, or home. However, 

the Department agrees that the 

prohibition must include attorneys and 

agents in order to achieve the intended 

worker protection. The Department has 

added appropriate language to 

§ 655.20(z) of this Final Rule to reflect 

the change. 

aa. Disclosure of foreign worker 

recruitment (§ 655.20(aa)). The NPRM 

proposed to require the employer and 

its attorney and/or agents to provide a 

copy of any agreements with an agent or 

recruiter whom it engages or plans to 

engage in the international recruitment 

of H–2B workers under this Application 

for Temporary Employment 

Certification (proposed § 655.9), at the 

time of filing the application (proposed 

§ 655.15(a)). As explained in the 

preamble under § 655.9, this Final Rule 

adopts that provision as modified to 

also include disclosure of persons and 

entities hired by or working for the 

recruiter or agent, and any of their 

agents or employees, to recruit 

prospective foreign workers for the H– 

2B job opportunities offered by the 

employer. Therefore, the Department is 

adding this obligation to the list of 

Assurances and Obligations in this Final 

Rule, as it as a critical obligation that 

will significantly enhance the 

recruitment process. 

E. Processing of an Application for 

Temporary Employment Certification 

1. § 655.30 Processing of an 

Application and Job Order 

In the NPRM, we proposed that, upon 

receipt of an Application for Temporary 

Employment Certification and copy of 

the job order, the CO will promptly 

conduct a comprehensive review. The 

CO’s review of the Application for 

Temporary Employment Certification, 

in most cases,11 will no longer entail a 

determination of temporary need 

following H–2B Registration. Instead, as 

proposed, this aspect of the CO’s review 

is limited to verifying that the employer 

previously submitted a request for and 

was granted H–2B Registration, and that 

the terms of the Application for 

Temporary Employment Certification 

have not significantly changed from 

those approved under the H–2B 

Registration. 

The proposed rule also required the 

use of next day delivery methods, 

including electronic mail, for any notice 

or request sent by the CO requiring a 

response from the employer and the 

employer’s response to such a notice or 

request. This proposed section also 

contained a long-standing program 

requirement that the employer’s 

response to the CO’s notice or request 

must be sent by the due date or the next 

business day if the due date falls on a 

Saturday, Sunday, or a Federal holiday. 

The Final Rule adopts the language of 

the NPRM without change. 

One labor organization urged us to 

strictly scrutinize applications 

requesting 10 or more workers to 

perform construction or constructiontype work to guard against 

unscrupulous employers’ applications. 

While we appreciate the commenter’s 

concern, we do not believe that it is 

necessary to strictly scrutinize only 

certain types of applications but rather 

will continue to thoroughly review all 

applications. 

Some commenters expressed concern 

that the H–2B program would be more 

efficient and predictable if we were 

subject to more deadlines governing our 

decision-making. We have set 

timeframes throughout these regulations 

for our decision-making (e.g., the CO’s 

issuance of Notices of Deficiency and 

Notices of Acceptance) that are designed 

to ensure application processing 

progresses efficiently without sacrificing 

program integrity. Different applications 

require different periods of time for 

review, depending on the quality and 

completeness of the application. While 

we cannot set more specific timeframes 

that would ensure appropriate 

adjudication of all applications, we will 

process each application as quickly as 

possible. 

2. § 655.31 Notice of Deficiency 

We proposed to require the CO to 

issue a formal Notice of Deficiency 

where the CO determines that the 

Application for Temporary Employment 

Certification and/or job order contains 

errors or inaccuracies, or fails to comply 

with applicable regulatory and program 

requirements. The proposed provision 

required the CO to issue the Notice of 

Deficiency within 7 business days from 

the date on which the Chicago NPC 

receives the employer’s Application for 

Temporary Employment Certification 

and job order. 

As proposed, once the CO issues a 

Notice of Deficiency to the employer, 

the CO will provide the SWA and the 

employer’s attorney or agent, if 

applicable, a copy of the notice. The 

Notice of Deficiency would include the 

specific reason(s) why the Application 

for Temporary Employment 

Certification and/or job order is 

deficient, identify the type of 

modification necessary for the CO to 

issue a Notice of Acceptance, and 

provide the employer with an 

opportunity to submit a modified 

Application for Temporary Employment 

Certification and/or job order within 10 

business days from the date of the 

Notice of Deficiency. The Notice of 

Deficiency would also inform the 

employer that it may, alternatively, 

request administrative review before an 

Administrative Law Judge (ALJ) within 

10 business days of the date of the 

Notice of Deficiency and instruct the 

employer how to file a request for such 

review in accordance with the 

administrative review provision under 

this subpart. Finally, the Notice of 

Deficiency would inform the employer 


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that failing to timely submit a modified 

Application for Temporary Employment 

Certification and/or job order, or request 

administrative review, will cause the 

CO to deny that employer’s Application 

for Temporary Employment 

Certification. In the Final Rule, we have 

adopted the proposed provisions 

without change. 

Some commenters suggested limiting 

the CO to one Notice of Deficiency, 

covering all deficiencies, while another 

suggested limiting an employer to a 

certain number of Notices of Deficiency 

received before restricting it from using 

the program in the future. We 

understand that these commenters are 

interested in processing efficiency, as 

are we. However, we have decided to 

retain the CO’s ability to issue multiple 

Notices of Deficiency, if necessary, to 

provide the CO with the needed 

flexibility to work with employers 

seeking to resolve deficiencies that are 

preventing acceptance of their 

Application for Temporary Employment 

Certification. For example, there are 

situations in which a response to a 

Notice of Deficiency raises other issues 

that must be resolved, requiring the CO 

to request more information. The CO 

must have the ability to address these 

situations. Additionally, we do not 

believe that it would be appropriate to 

restrict an employer from participating 

in the program in the future based on its 

receipt of multiple Notices of 

Deficiency, as this result would be 

unduly harsh, especially if the employer 

is new to the program or committed 

unintentional errors when submitting its 

Application for Temporary Employment 

Certification or job order. 

3. § 655.32 Submission of a Modified 

Application or Job Order 

In the NPRM, we proposed to permit 

the CO to deny any Application for 

Temporary Employment Certification 

where the employer neither submits a 

modification nor requests a timely 

administrative review, and that such a 

denial cannot be appealed. The 

proposed rule also required the CO to 

deny an Application for Temporary 

Employment Certification if the 

modification(s) made by the employer 

do not comply with the requirements for 

certification in § 655.50. A denial of a 

modified Application for Temporary 

Employment Certification may be 

appealed. 

Under the proposed rule, if the CO 

deems a modified application 

acceptable, the CO issues a Notice of 

Acceptance and requires the SWA to 

modify the job order in accordance with 

the accepted modification(s), as 

necessary. In addition to requiring 

modification before the acceptance of an 

Application for Temporary Employment 

Certification, we proposed to permit the 

CO to require the employer to modify a 

job order at any time before the final 

determination to grant or deny the 

Application for Temporary Employment 

Certification if the CO determines that 

the job order does not contain all the 

applicable minimum benefits, wages, 

and working conditions. The proposed 

rule required the CO to update the 

electronic job registry to reflect the 

necessary modification(s) and to direct 

the SWA(s) in possession of the job 

order to replace the job order in their 

active files with the modified job order. 

The proposed rule also required the 

employer to disclose the modified job 

order to all workers who were recruited 

under the original job order or 

Application for Temporary Employment 

Certification. The Final Rule adopts 

these provisions. 

One commenter suggested that, if we 

decide to retain the CO’s ability to 

require post-acceptance modifications, 

we should provide employers with an 

opportunity for immediate de novo 

hearings. As discussed further in the 

larger discussion of administrative 

review process contained in the Final 

Rule, we decline to add de novo 

hearings in this post-acceptance 

certification model. Since the 

application will be denied under 

§ 655.53, an employer will have the 

right of appeal. We decline, however, to 

provide for a de novo hearing. 

Some commenters opposed the CO 

having the ability to require 

modifications post-acceptance, arguing 

the CO’s ability to issue unlimited 

modifications at any point in the 

process is inefficient for both the CO 

and the employer and is contrary to the 

employer’s interest in finality. We have 

determined it is contrary to the integrity 

of the H–2B program to limit the CO’s 

ability to require modification(s) of a job 

order, even after acceptance. In some 

cases, information may come to the CO’s 

attention after acceptance indicating 

that the job order does not contain all 

the applicable minimum benefits, 

wages, and working conditions that are 

required for certification. This provision 

enables the CO to ensure that the job 

order meets all regulatory requirements. 

4. § 655.33 Notice of Acceptance 

We proposed to require the CO to 

issue a formal notice accepting the 

employer’s Application for Temporary 

Employment Certification for 

processing. Specifically, we proposed 

that the CO would send a Notice of 

Acceptance to the employer (and the 

employer’s attorney or agent, if 

applicable), with a copy to the SWA, 

within 7 business days from the CO’s 

receipt of the Application for 

Temporary Employment Certification or 

modification, provided that the 

Application for Temporary Employment 

Certification and job order meet all the 

program and regulatory requirements. 

As proposed, the Notice of 

Acceptance directs the SWA: (1) To 

place the job order in intra- and 

interstate clearance, including (i) 

circulating the job order to the SWAs in 

all other States listed on the employer’s 

Application for Temporary Employment 

Certification and job order as 

anticipated worksites and (ii) to any 

States to which the CO directs the SWA 

to circulate the job order; (2) to keep the 

job order on its active file and continue 

to refer U.S. workers to the employer 

until the end of the recruitment period 

defined in § 655.40(c), as well as 

transmit those instructions to all other 

SWAs to which it circulates the job 

order; and (3) to circulate a copy of the 

job order to certain labor organizations, 

where the job classification is 

traditionally or customarily unionized. 

As proposed, the Notice of 

Acceptance also directs the employer to 

recruit U.S. workers in accordance with 

employer-conducted recruitment 

provisions in §§ 655.40–655.47, as well 

as to conduct any additional 

recruitment the CO directs, consistent 

with § 655.46, within 14 calendar days 

from the date of the notice. The Notice 

of Acceptance would inform the 

employer that such employer-conducted 

recruitment is required in addition to 

SWA circulation of the job order in 

intrastate and interstate clearance under 

§ 655.16. In addition, the Notice of 

Acceptance would require the employer 

to submit a written report of its 

recruitment efforts as specified in 

§ 655.48. 

Under the proposed rule, the Notice 

of Acceptance would have also advised 

the employer of its obligation to notify 

the SWA with which it placed its job 

order if the last H–2B worker has not 

departed for the place of employment by 

the third day preceding the employer’s 

date of need. This would have indicated 

to the SWA when to stop referring 

potential U.S. workers to the employer. 

We are adopting the proposed 

provisions on the Notice of Acceptance 

content, with one modification. For 

consistency with an amendment made 

to the employer’s obligation to continue 

hiring qualified U.S. workers in § 655.20 

until 21 days before the date of need, we 

have deleted proposed paragraph (b)(3) 

of this section, which would have 

notified the employer that it must 

inform the SWA(s) handling the job 


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12See, Employment and Training Guidance Letter 

21–06, Change 1: Procedures for H–2B Certification 

of Temporary Non-Agricultural Occupations. 

Attachment A at 7. http://wdr.doleta.gov/directives/ 

attach/TEGL/TEGL21-06c1a1.pdf. See also, General 

Administration Letter 1–95: Procedures for 

Temporary Labor Certification in Non-agricultural 

Occupations (December 31, 1999). http:// 

wdr.doleta.gov/directives/attach/GAL1- 

95_attach.pdf. 

order in writing if the last H–2B worker 

has not departed for the place of 

employment by the third day preceding 

the employer’s date of need. Further 

discussion of this modified position 

may be found in the discussion of an 

employer’s assurances and obligations 

under § 655.20. 

Comments about the content of the 

Notice of Acceptance focused on the 

recruitment instructions contained in 

the Notice. One commenter suggested 

that we permit SWAs to circulate job 

orders nationwide and put the job order 

on the Internet to broaden the reach of 

U.S. labor market recruitment. In 

contrast, another commenter suggested 

that the requirement for a SWA to place 

the job order in interstate clearance is 

both unnecessary and burdensome, 

given the introduction of the electronic 

job registry, the absence of supply States 

for non-agricultural work, and the 

difficulty of coordinating processing 

among multiple SWAs. We believe both 

the electronic job registry and the 

interstate clearance process serve 

important, but distinct, purposes in 

testing the U.S. labor market. The 

electronic job registry, available to 

anyone with Internet access, 

accomplishes the objective of 

disseminating job opportunity 

information to the widest U.S. audience 

possible. Adding nationwide circulation 

to the SWAs’ responsibilities would 

duplicate the function of the electronic 

job registry, unnecessarily burdening 

the SWAs. The interstate clearance 

process, however, targets local labor 

markets that are most likely to have 

available U.S. workers, so that those 

SWAs can make the job opportunity 

information available to the interested, 

available, and qualified U.S. workers in 

that particular local labor market. While 

there are not traditional supply States 

for non-agricultural work, the CO may 

identify States in which circulating the 

job order is likely to target additional 

local markets with potentially available 

U.S. workers (e.g., designated areas of 

substantial unemployment or areas 

where mass layoffs have occurred). 

Some commenters discussed the 

community-based organization contact 

requirement. While the Notice of 

Acceptance notifies the employer when 

the CO has determined that such contact 

is appropriate to the occupation and 

areas of intended employment, the 

community-based organization contact 

requirement is an employer recruitment 

activity, when appropriate, appearing in 

§ 655.45. Accordingly, we have 

addressed these comments in the 

discussion of § 655.45. 

We received many comments on the 

proposals in this section that the SWA 

circulate the job order to the applicable 

labor organizations and in § 655.44 that 

the employer contact the local union. 

While some opposed the proposal that 

employers not party to a collective 

bargaining agreement would be required 

to contact a labor organization, others 

supported the return to this historic 

practice. Many commenters expressed 

concern about an employer’s ability to 

discern when and what type of labor 

organization contact was required, 

finding the phrase, where the 

occupation or industry is traditionally 

or customarily unionized, vague. These 

commenters feared that using this 

language meant employers and the CO 

would disagree about when labor 

organization contact was required. Some 

suggested changing or removing this 

language. 

After reviewing the comments, we 

have decided to remove this 

requirement from the employer’s 

recruitment steps in § 655.44, and to 

retain the requirement that the SWA 

circulate the job order to the applicable 

labor organizations under this section. 

We believe this modification will 

eliminate duplicative efforts and resolve 

concerns about an employer’s ability to 

determine when and what type of labor 

organization contact is required. The 

CO, in consultation with the SWA, will 

make a determination about whether 

labor organization contact is required 

and include specific directions to the 

SWA in the Notice of Acceptance, as 

specified in paragraph (b)(6) of this 

section. Under the Final Rule, an 

employer will neither have to determine 

when such contact is required nor have 

to contact the local union; rather, the 

Notice of Acceptance will notify the 

employer whether the CO has directed 

the SWA to initiate such contact. 

While the standard used for labor 

organization contact is based on 

historical knowledge and practice,12 we 

are mindful of the fluidity of unionized 

occupations and will gauge trends 

accordingly. As discussed in the NPRM, 

unions have traditionally been 

recognized as a reliable source of 

referrals of U.S. workers. Because the 

SWAs have greater knowledge of the 

local labor markets, including labor 

organizations, and have traditionally 

included labor organizations in their 

efforts to match workers with job 

opportunities, the SWAs are in the best 

position to identify whether there are 

local labor organizations which cover 

the occupation and which local labor 

organizations are most likely to refer 

qualified and available U.S. workers for 

the job opportunity. 

In addition to commenting on the 

return to this long-standing program 

requirement, some commenters 

responded to our request for suggestions 

on how to best determine the 

circumstances which would trigger the 

requirement for contacting labor 

organizations. Some commenters 

suggested we specifically identify 

certain industries and/or occupations as 

customarily unionized and require 

contact with organizations which 

represent workers in those occupations/ 

industries. Other commenters suggested 

that we and/or the SWAs work together 

with labor organizations to develop a 

list of organizations and/or an email 

listserv to be publicized for purposes of 

ensuring appropriate and consistent 

application of the contact requirement. 

We appreciate the suggestions for the 

circumstances or criteria for contacting 

labor organizations. Specifically, we 

have taken under advisement the 

suggestion that we develop a list of 

organizations for the uniform 

application of the contact requirement. 

Some commenters noted the fluidity of 

unionized occupations over time. We 

are also mindful that unionization 

within industries, occupations, and 

areas of intended employment is not 

uniform. Because of this lack of 

uniformity, we do not think it is 

appropriate to base the contact 

requirement on a specified industry or 

occupation. Rather than create a general 

rule in the regulation, we think that a 

list of labor organizations to be 

contacted must focus on specific 

occupations in specific areas of 

intended employment and must be 

responsive to trends in the marketplace. 

Therefore, we believe retaining the labor 

organization contact requirement as 

proposed in paragraph (b)(5) of this 

section will most appropriately include 

labor organizations in the U.S. labor 

market test. We will notify the public 

when such a list is devised. We will 

work closely with the SWAs to ensure 

a complete and appropriate test of the 

labor market, including contacting the 

applicable labor organizations, is made 

before approving an Application for 

Temporary Employment Certification. 

Some commenters offered suggestions 

about the particular entities that should 

be contacted with respect to this 

requirement. These suggestions 

included requiring contact with a 

specific federation of labor 


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organizations, requiring contact with all 

unions within a State or with 

jurisdiction over the area of intended 

employment or within an equivalent 

geographic distance, or requiring 

contact with all unions representing 

workers of a specific skill and wage 

level. As discussed above, we think the 

contact requirement should be based on 

the situation in the local labor market, 

not on an absolute rule about which 

labor organizations to contact. We will 

work with the SWAs to develop a 

flexible list tailored to local 

circumstances. 

Finally, some commenters proposed 

that we require employers to prove 

contact with labor organizations. As this 

Final Rule requires the SWA, not the 

employer, to initiate contact with labor 

organizations as a component of testing 

the U.S. labor market, the proof 

suggested by these commenters is not 

necessary. 

One labor and worker advocacy 

organization expressed general support 

for the application process described in 

the proposed rule and agreed with the 

provisions ensuring that only the final 

job order is used and an employer may 

not commence recruitment until the CO 

accepts the modified job order. Like the 

commenter, we believe the final, 

approved version of the job order, 

containing the applicable minimum 

benefits, wages, and working 

conditions, is essential to an appropriate 

test of the U.S. labor market. 

Some commenters expressed support 

for the regulations requiring employers 

to submit a recruitment report, asserting 

that the requirement makes it more 

difficult for unscrupulous employers to 

bypass U.S. workers in favor of more 

vulnerable foreign workers. We agree 

that the requirement adds accountability 

and supports program integrity. Further 

discussion of the recruitment report 

provision can be found in the 

discussion of § 655.48. 

5. § 655.34 Electronic Job Registry 

In the NPRM, we proposed posting 

employers’ H–2B job orders, including 

modifications and/or amendments 

approved by the CO, on an electronic 

job registry to disseminate the job 

opportunities to the widest audience 

possible. The electronic job registry was 

initially created to accommodate the 

posting of H–2A job orders, but we 

proposed to expand the electronic job 

registry to include H–2B job orders. As 

proposed, the CO would post the job 

orders on the electronic job registry after 

accepting an Application for Temporary 

Employment Certification for the 

duration of the recruitment period, as 

provided in § 655.40(c). At the 

conclusion of the recruitment period, 

we would maintain the job order on the 

electronic job registry in inactive status, 

making the information available for a 

variety of purposes. In the Final Rule, 

we have adopted the proposed 

provisions without change. 

Many commenters supported the 

introduction of the electronic job 

registry, viewing it as a means to 

increase the program’s transparency and 

improve U.S. worker awareness of and 

access to nonagricultural jobs. Some 

also contended that the electronic job 

registry will facilitate earlier and more 

frequent detection of program abuse. 

Commenters supporting the 

introduction of the electronic job 

registry suggested expanding electronic 

job registry postings to the Application 

for Temporary Employment 

Certification, other job-offer-related 

documents, and contracts between 

employers and foreign recruiters to 

further improve transparency. However, 

other commenters expressed concern 

about the volume and nature of 

information potentially exposed in the 

job order posted on the electronic job 

registry. These commenters contended 

that since employment contracts 

typically incorporate employee 

handbooks and other documents by 

reference, it would be difficult, if not 

impossible, to draft a document that 

contains all material terms and 

conditions and that would be 

appropriate to disclose, in its entirety, 

on the Internet. The commenters argued 

that while an employer could submit 

detailed information to the CO for 

review (e.g., employee contracts or 

handbooks), making such information 

available for public viewing would 

infringe on an employer’s legitimate 

business interest in maintaining the 

confidentiality of employment terms. 

Comments about transparency and 

exposure concerns have been addressed 

in the larger discussion of public 

disclosure of information under 

§ 655.63. Also, as outlined further in the 

discussion of the job order content 

requirements, the Final Rule details 

specific minimum content requirement 

for job orders, sensitive to these 

concerns, which in turn affect the job 

order content to be posted on the 

electronic job registry. 

One commenter suggested that the job 

opportunity appear in the electronic job 

registry until the end of the certification 

period, rather than just the recruitment 

period. As articulated in the NPRM, the 

purpose of posting job orders on the 

electronic job registry is to serve as an 

effective, useable tool for alerting U.S. 

workers to jobs for which employers are 

recruiting H–2B workers. These jobs are 

accessible to the public through the 

Department’s resources, including its 

One-Stop Career Centers, and through a 

link to the electronic job registry on the 

OFLC’s Web site http:// 

www.foreignlaborcert.doleta.gov/. As a 

recruitment tool, we believe it is 

appropriate for the job order to appear 

as active during the recruitment period 

and to be placed in inactive status, but 

still accessible, on the electronic job 

registry after the recruitment period 

ends. 

One commenter suggested we give 

H–2B workers access to the electronic 

job registry so that they can find other 

H–2B employment, if they are displaced 

(e.g., replaced by a U.S. worker) or 

experiencing improper treatment. While 

our purpose in introducing the 

electronic job registry is to alert U.S. 

workers of job opportunities, the 

electronic job registry will be accessible 

via the Internet to anyone seeking 

employment. 

One commenter asserted that an 

Application for Temporary Employment 

Certification involving two or more 

SWAs would result in the CO posting 

the job order of each of the States on the 

electronic job registry, potentially 

confusing applicants about the location 

of work sites and terms and conditions 

of employment, such as requirements to 

withhold or pay State income taxes. 

While a job order may be circulated 

among multiple SWAs, only the job 

order placed with the initial SWA, 

which identifies all work locations, will 

be posted on the electronic job registry. 

We also received a suggestion that we 

create a simple mechanism, such as an 

email listserve, for notifying interested 

parties, such as labor organizations who 

may have unemployed members seeking 

employment in new areas, of job 

opportunities. While the Final Rule 

adopts the electronic job registry 

provisions as proposed, we will also 

work with the SWAs to devise 

procedures to further publicize the 

electronic job registry. 

6. § 655.35 Amendments to an 

Application or Job Order 

We proposed to permit an employer 

to request to amend its Application for 

Temporary Employment Certification 

and/or job order to increase the number 

of workers, to change the period of 

employment, or to make other changes 

to the application, before the CO makes 

a final determination to grant or deny 

the Application for Temporary 

Employment Certification. The 

proposed rule would permit an 

employer to seek such amendments 

only before certification, not after 

certification. As discussed in the NPRM, 


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these provisions were proposed to 

provide clarity to employers and 

workers alike of the limitations on and 

processes for amending an Application 

for Temporary Employment 

Certification and the need to inform any 

U.S. workers already recruited of the 

changed job opportunity. We recognized 

that business is not static and employers 

can face changed circumstances from 

varying sources—from climatic 

conditions to cancelled contracts; we 

included these provisions to provide 

some flexibility to enable employers to 

assess and respond to such changes. 

At the same time, we proposed certain 

limitations to ensure that these job 

opportunities are not misrepresented or 

materially changed as a result of such 

amendments. Specifically, as proposed, 

the employer may request an 

amendment of the Application for 

Temporary Employment Certification 

and/or job order to increase the number 

of workers initially requested. However, 

we proposed limiting such amendments 

to increase the number of workers to no 

more than 20 percent (50 percent for 

employers requesting fewer than 10 

workers) above the number specified in 

the H–2B Registration. 

In addition, we proposed to permit 

minor changes to the period of 

employment at any time before the CO’s 

final determination. However, the 

NPRM stated such amendments to the 

period of employment may not exceed 

14 days and may not cause the total 

period to exceed 9 months, except in the 

event of a demonstrated one-time 

occurrence. This limitation to 14 days 

was designed to ensure that the 

employer had a legitimate need before 

commencing the registration process 

and accurately estimated its dates of 

need. 

As proposed, the employer must 

request any amendment(s) to the 

Application for Temporary Employment 

Certification and/or job order in writing 

and any such amendment(s) will not be 

effective until approved by the CO. 

After reviewing an employer’s request to 

amend its Application for Temporary 

Employment Certification and/or job 

order, the CO will approve these 

changes if the CO determines the 

proposed amendment(s) are justified 

and will not negatively affect the CO’s 

ability to make a timely labor 

certification determination, including 

the ability to thoroughly test the labor 

market. Changes will not be approved 

which affect the underlying job 

registration. Once the CO approves an 

amendment to the Application for 

Temporary Employment Certification 

and/or job order, the CO will submit to 

the SWA any necessary change(s) to the 

job order and update the electronic job 

registry to reflect the approved 

amendment(s). We have decided to 

adopt this provision in the Final Rule, 

with the modifications discussed below. 

We received a few comments on this 

proposed provision. One commenter 

noted that the following sentence 

appeared in the proposed rule at 

paragraph (c) of this section, but not at 

paragraphs (a) or (b) of this section: ‘‘In 

considering whether to approve the 

request, the CO will determine whether 

the proposed amendment(s) are 

sufficiently justified and must take into 

account the effect of the changes on the 

underlying labor market test for the job 

opportunity.’’ The commenter expressed 

concern that employers requesting one 

type of amendment would be required 

to justify their request to the satisfaction 

of the CO, while employers requesting 

the other types of amendments would 

not be required to justify their requests. 

We had no intention of applying 

different standards and have modified 

the language of paragraphs (a) and (b) of 

this section to include the sentence that 

appears in paragraph (c) of this section. 

Some commenters were suspicious of 

post-acceptance modification requests, 

fearing that employers will use this 

provision as an opportunity to move 

from their approved H–2B Registration 

period of need or number of workers. 

We do not intend this provision to allow 

employers to amend their applications 

beyond the parameters contained in 

§ 655.12; rather, part of the CO’s review 

will involve comparing the requested 

amendments to the content of the 

approved H–2B Registration. However, 

the Final Rule provision has been 

slightly revised to clarify that an 

employer may not request a post-filing 

amendment that would modify the 

number of workers beyond that which 

would have been acceptable at the time 

of filing under § 655.12. Similarly, an 

employer will not be permitted to 

expand the period of employment 

beyond 9 months. We expect the stated 

parameters, which limit the extent of 

the change in number of workers or 

period of need permitted, and the CO 

review process to control the frequency 

with which post-acceptance and precertification job order amendments are 

requested or approved and maintain the 

integrity of the H–2B Registration 

process. One commenter expressed 

concern about the resources used to 

update both the SWA’s labor exchange 

system and the electronic job registry to 

replace obsolete versions of the job 

order, if the CO approves amendments. 

As discussed above, we believe the job 

order posting on both the SWA’s labor 

exchange system and electronic job 

registry serve valuable purposes and 

must accurately reflect the final job 

order contents, validating the use of 

resources. 

We have not amended the provision 

to reflect the corresponding change 

made to the registration provision that 

allows an employer to adjust its date of 

need by up to 30 days without having 

to re-register. Registration covers the 

entire period of need for up to 3 years. 

This provision, by contrast, allows an 

employer to request a deviance of up to 

14 days from the previous year, 

allowing for up to 2 such deviations 

from the initial dates provided in the 

registration, as long as the deviations do 

not result in a total period of need 

exceeding 9 months. 

F. Recruitment Requirements 

We proposed to maintain and expand 

some of the requirements relating to the 

recruitment of U.S. workers under the 

2008 Final Rule. These efforts included 

a requirement that the employer contact 

its former U.S. workers; a requirement 

to contact labor organizations as well as 

community-based organizations, if 

appropriate to the occupation and area 

of intended employment; and a 

requirement to conduct additional 

recruitment at the discretion of the CO. 

We received a number of comments 

from individuals, labor organizations, 

worker advocacy organizations, and 

coalitions expressing support for the 

additional recruitment efforts as 

imperative to ensuring the appropriate 

test of the labor market and providing 

U.S. workers with appropriate access to 

these job opportunities. In addition, we 

received comments from employers and 

industry organizations expressing 

opposition to or concerns about the 

specific recruitment efforts required in 

the NPRM. As discussed in more detail 

below, except for the requirement under 

§ 655.44 that the employer contact labor 

organizations where the occupation or 

industry is customarily unionized, the 

Final Rule retains these recruitment 

requirements as proposed or with 

amendments where noted. 

1. § 655.40 Employer-Conducted 

Recruitment 

Unlike under the 2008 Final Rule, in 

the NPRM we proposed that the 

employer conduct recruitment of U.S. 

workers after its Application for 

Temporary Employment Certification is 

accepted for processing by the CO. We 

received a number of comments on this 

proposal, most of them in support. 

Several commenters suggested that we 

take this requirement further by 

requiring employers to conduct 

recruitment efforts comparable to ones 


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that they normally use to recruit 

workers in corresponding employment 

for the job opportunity. Although the 

Department’s Final Rule includes 

requirements which are aimed at 

approximating the recruitment efforts 

typically used by employers outside the 

H–2B program, we are not able to adopt 

this suggestion because we have no 

mechanism for ascertaining those efforts 

or ensuring compliance. In addition, we 

believe that the existing regulatory 

language gives the CO sufficient 

authority to order any appropriate 

recruitment which will ensure that U.S. 

workers get adequate access to these job 

opportunities. 

We proposed that the employer 

conduct recruitment of U.S. workers 

within 14 calendar days from the date 

of the Notice of Acceptance, unless the 

CO provides different instructions to the 

employer in the Notice of Acceptance, 

and that the employer must accept all 

qualified U.S. applicants referred by the 

SWA until the third day before the 

employer’s date of need or the date the 

last H–2B worker departs for 

employment, whichever is later. We are 

amending this requirement, as described 

below. 

We received a number of comments 

and alternatives for the duration of the 

recruitment period. For example, 

several labor organizations and worker 

advocates proposed that we extend the 

recruitment period until 3 days before 

the date of need, while one other labor 

organization proposed to instead extend 

the duration for the posting of the job 

order. Employers and industry 

commenters generally opposed a longer 

recruitment period, but expressed 

willingness to accept a recruitment 

period of either 30 days or ending 30 

days before the date of need. 

Most of these comments demonstrate 

a misunderstanding of the proposal and 

the difference between the 14-day 

employer-conducted recruitment period 

and the SWA referral period. As 

indicated above, we proposed to require 

that employers complete specific 

recruitment steps outlined in §§ 655.42 

through 655.46 within 14 days from the 

date of the Notice of Acceptance. 

Separate from the employer-conducted 

recruitment, the NPRM proposed to 

require the SWA, upon acceptance of 

the job order and Application for 

Temporary Employment Certification by 

the CO, to place the job order in 

interstate clearance and indicated that 

we would post the job order to the 

electronic job registry. Thereafter, we 

proposed to require employers to 

continue to accept all qualified U.S. 

applicants referred for employment by 

the SWA or who apply for the position 

directly with the employer until the 

third day preceding the employer’s date 

of need or the date the last H–2B worker 

departs for employment, whichever is 

later. In order to further the 

effectiveness of the longer referral 

period and ensure that U.S. workers are 

notified of the job opportunities, we 

proposed that the job order remain 

posted with the SWA for the duration of 

the referral period or until the employer 

notifies the SWA that the last H–2B 

worker has departed. This aspect of the 

proposal balanced the need to ensure an 

adequate test of the labor market 

without requiring the employer to incur 

any additional costs in conducting 

independent recruitment efforts beyond 

the sources and the 14 days specified in 

the Notice of Acceptance. As discussed 

more fully below, the Final Rule retains 

the 14-day recruitment period. After 

considering comments on this issue, we 

have determined that the 14-day 

recruitment period provides an 

appropriate timeframe for the employer 

to conduct the recruitment described in 

§§ 655.42 through 655.46, especially 

when combined with the longer referral 

period discussed further below. 

In addition, we proposed to require 

employers to report to the SWA the 

actual date of departure of H–2B 

workers, if different from the date that 

is 3 days before the date of need. 

However, for the reasons discussion at 

§ 655.20(t), in the Final Rule employers 

will only be required to hire qualified 

and available U.S. workers until 21 days 

before the date of need. Employers are 

therefore relieved of the obligation to 

report this information to the SWAs. 

In the context of the proposal 

requiring employers to report to the 

SWA the date of last departure of the 

last H–2B worker, we specifically 

solicited comments on whether it 

should also require employers to inform 

the Department of the actual number of 

H–2B workers hired under the approved 

Application for Temporary Employment 

Certification, as well as whether the H– 

2B workers were hired from a foreign 

country or were already present in the 

U.S. We have determined to adopt a 

modified version of this proposal. Based 

on comments received, we have 

determined that the best approach to 

collecting this type of information is to 

request the employer’s information for 

the prior year on the Application for 

Temporary Employment Certification. 

However, we are not requiring that the 

employer engage in such reporting in 

the context of conducting its 

recruitment efforts. 

We received several comments 

supporting this proposal. One worker 

advocacy organization espoused the 

importance of such a collection based 

on its value to program integrity. 

Another commenter supporting this 

proposal suggested that we implement a 

reporting requirement that would be 

triggered at three specific points 

beginning during the referral period and 

ending during the period of certified 

employment (the first report would be at 

30 days before the date of need, the 

second 30 days into the period of 

employment and the third 30 days 

before the end of the period of 

employment). This commenter 

expressed a concern that we certify 

more H–2B positions than the employer 

ultimately fills. Another commenter 

suggested that we should collect the 

information about both the number of 

H–2B and the number of U.S. workers 

actually hired. Another commenter, a 

worker advocacy organization, 

suggested that we should collect the age 

and gender of H–2B workers who are 

hired. 

Our role in the H–2B program is to 

certify that the employer has a need to 

fill a specific number of temporary 

positions for which the employer is 

unable to find qualified and available 

U.S. workers. We do not, however, have 

control over how many of those 

positions are ultimately filled with H– 

2B workers nor the identity of those 

workers; the names of alien 

beneficiaries are not captured on ETA 

Form 9142 since in most cases the 

identity of the workers is not known at 

that time. We agree, however, that 

requiring employers to report the 

number of H–2B and U.S. workers 

actually hired, and whether the H–2B 

workers are hired from within the U.S. 

or from abroad, is in the interest of 

overall H–2B program integrity and will 

assist the Department and other Federal 

agencies with ascertaining the actual 

use of the program. This is especially so 

given the limited number of visas 

available, because an employer who 

significantly overstates its need for 

temporary workers may preclude 

another employer with a bona fide 

temporary need from getting visas for 

workers it equally needs. With respect 

to comments that we should collect both 

the number of H–2B and the number of 

U.S. workers actually hired, our 

regulations under § 655.48 already 

require the employer to report the 

disposition of each U.S. worker who 

was referred or self-referred to the 

employer for employment. With respect 

to the other commenters’ suggestion that 

we collect the age and gender of H–2B 

workers who are hired by the employer, 

the Paperwork Reduction Act requires 

the Department to collect only such 


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10092 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

information as is reasonably related to 

the administration of our program; at 

this time we feel that requiring 

employers to report such information 

would not be reasonably related to our 

administration of the H–2B program. As 

discussed above, we have adopted the 

proposal to collect the number of H–2B 

workers actually hired during the 

previous year on the Application for 

Temporary Employment Certification. 

The NPRM provided that employers 

are not required to conduct employment 

interviews but that where the employer 

wishes to conduct interviews with U.S. 

workers, it must do so by telephone or 

at a location where workers can 

participate at little or no cost to the 

workers. The Final Rule retains this 

requirement. 

We received several comments 

supporting this proposal. One 

commenter also suggested that we 

prohibit employers from interviewing 

U.S. workers unless it also conducts 

interviews of H–2B workers. Another 

commenter proposed that we require 

employers to promise to be available for 

interviews during normal business 

hours throughout the referral period. As 

indicated in the NPRM and retained in 

the Final Rule, we have explicitly 

prohibited employers from offering 

preferential treatment to H–2B workers, 

including any requirement to interview 

for the job opportunity. In addition, 

both the NPRM and the Final Rule seek 

to ensure that employers conduct a fair 

labor market test by requiring employers 

that require interviews to conduct them 

by phone or provide a procedure for the 

interviews to be conducted in the 

location where the worker is being 

recruited so that the worker incurs little 

or no cost. With respect to the 

commenters’ suggestion that the 

employer be required to be available to 

conduct interviews during normal 

business hours, we are declining to 

adopt this suggestion as it may 

unnecessarily infringe on the 

employer’s business operations. 

However, an employer who requires a 

U.S. worker to undergo an interview 

must provide such worker with a 

reasonable opportunity to meet such a 

requirement. The purpose of these 

requirements is to ensure that that the 

employer does not use the interview 

process to the disadvantage of U.S. 

workers. For all the reasons articulated 

above, we are retaining this provision as 

proposed. 

2. § 655.41 Advertising Requirements 

We proposed to retain the 2008 Final 

Rule requirement that all employer 

advertisements contain terms and 

conditions of employment no less 

favorable than those offered to the H–2B 

workers and reflect, at a minimum, the 

terms and conditions contained in the 

job order. The NPRM also required that 

all advertisements direct applicants to 

apply for the job opportunity through 

the SWA. We have made revisions to 

this provision to clarify which terms 

and conditions of employment 

contained in job orders must be 

included in advertisements, and to 

clarify that the employer must comply 

with but need not actually include the 

job order assurances in advertisements. 

We received a number of comments 

on this proposal. The majority of 

commenters expressed strong support 

for extending job order requirements to 

all recruitment, including the 

requirement to identify when the 

employer is offering board, lodging or 

facilities. Other commenters expressed 

concern that including all of the job 

order requirements in advertisements 

may prove to be costly and burdensome, 

particularly where it would result in 

lengthy and expensive newspaper 

advertisements. Another commenter, 

referring to the H–2A program, although 

supporting full disclosure, suggested 

that the job order requirements often 

serve to discourage rather than 

encourage applicants from pursuing the 

job opportunity due to the sheer length 

and complexity of information required 

to be included. This commenter 

suggested that we should require that a 

summary form be provided to the 

applicants. 

In considering the issues raised by 

commenters, we have amended this 

section to ensure that all advertisements 

include, at a minimum, the terms and 

conditions of employment necessary to 

apprise U.S. workers of the job 

opportunity and have clarified that 

those terms and conditions must 

conform to the job order assurances, 

required by the amended § 655.18(a), 

but need not contain those assurances. 

Based on the commenter’s suggestions 

and in order to ensure that all 

recruitment complies with the 

requirements applicable to job orders, 

we have amended the language of this 

section to clarify that advertisements 

need not include the text of assurances 

applicable to job orders, but that they 

must include the minimum terms and 

conditions of employment. These 

minimum terms and conditions of 

employment include a requirement that 

the employer make the appropriate 

disclosure when it is offering or 

providing board, lodging or facilities, as 

well as identify any deductions, if 

applicable, that will be applied to the 

employee’s pay for the provision of such 

accommodations. These minimum 

content requirements will address 

industry concerns about the cost 

inherent in placing potentially lengthy 

advertisements, while also ensuring that 

entities disclose all necessary 

information to all potential applicants. 

In addition, as a continuing practice in 

the program, employers will be able to 

use abbreviations in the advertisements 

so long as the abbreviation clearly and 

accurately captures the underlying 

content requirement. 

In order to assist employers to comply 

with these requirements, we provide 

below specific language which is 

minimally sufficient to apprise U.S. 

applicants of required items in the 

advertisement, and which is intended to 

assist the employer in complying with 

such requirements. In response to 

industry concerns over the potential 

length and cost of advertising, the 

employer may also abbreviate some of 

this language so long as the underlying 

guarantee can be clearly understood by 

a prospective applicant. The employer 

may include the following statements in 

its advertisements: 1. Transportation: 

Transportation (including meals and, to 

the extent necessary, lodging) to the 

place of employment will be provided, 

or its cost to workers reimbursed, if the 

worker completes half the employment 

period. Return transportation will be 

provided if the worker completes the 

employment period or is dismissed 

early by the employer. 2. Three-fourths 

guarantee: For certified periods of 

employment lasting fewer than 120 

days: The employer guarantees to offer 

work for hours equal to at least threefourths of the workdays in each 6-week 

period of the total employment period. 

For certified periods of employment 

lasting 120 days or more: The employer 

guarantees to offer work for hours equal 

to at least three-fourths of the workdays 

in each 12-week period of the total 

employment period. 3. Tools, 

equipment and supplies: The employer 

will provide workers at no charge all 

tools, supplies, and equipment required 

to perform the job. 

Another commenter expressed 

concern that some employers have a 

legitimate need to keep the terms and 

conditions of employment confidential. 

Although we recognize that some 

employers may wish for more discretion 

in recruitment, our statutory mandate 

requires that the employer be permitted 

to hire H–2B workers only in 

circumstances where there are no 

qualified and available U.S. workers, 

and where the employment of those H– 

2B workers does not have an adverse 

effect on the wages and working 

conditions of U.S. workers. Therefore, 

in the context of the H–2B program, an 


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13 General Administration Letter 1–95, 

Procedures for H–2B Temporary Labor Certification 

in Nonagricultural Occupations (December 31, 

1995). 

employer must forego some of its 

preferences for its usual recruitment 

practices in order to comply with our 

regulations. 

As indicated above, we retained the 

requirement that all recruitment 

conducted under this section and 

§§ 655.42–655.46 comply with the 

prohibition on preferential treatment 

and also that each job opportunity be 

bona fide as required by § 655.18. Some 

commenters objected to the bona fide 

job opportunity requirement because it 

permits the CO to require the employer 

to substantiate any job qualification or 

requirement contained in the job order. 

In particular, one commenter was 

concerned that this requirement may 

preclude the employers from 

conducting background checks. 

Our longstanding policy on job 

qualifications and requirements has 

been that they must be customary; i.e., 

they may not be used to discourage 

applicants from applying for the job 

opportunity. Including requirements 

that do not meet this standard would 

undermine a true test of the labor 

market. The standard for employment of 

H–2B workers in the U.S. is that there 

are no U.S. workers capable of 

performing such service or labor who 

are available for employment. In 

accordance with this standard, the 

regulations require as a condition of 

certification that no qualified persons 

who are available to perform the job can 

be found. For purposes of complying 

with this requirement, we have clarified 

in § 655.20(e) the meaning of 

qualifications and requirements. A 

qualification means a characteristic that 

is necessary to the individual’s ability to 

perform the job in question. Such 

characteristics include but are not 

limited to, the ability to use specific 

equipment or any education or 

experience required for performing a 

certain job task. A requirement on the 

other hand, means a term or condition 

of employment which a worker is 

required to accept to obtain or retain the 

job opportunity, e.g., the willingness to 

complete the full period of employment 

or commute to and from the worksite. 

This interpretation is consistent with 

program history, primarily under the 

General Administration Letter 1–95,13

where the State Employment Security 

Agencies (now SWAs) were specifically 

directed to reject any restrictive job 

requirements. To the extent an employer 

has requirements that are related to the 

U.S. workers’ qualifications or 

availability we will examine those in 

consultation with the SWAs to 

determine whether they are normal. We 

recognize that background checks are 

legitimately used in private industry 

and it is not our intent here to preclude 

the employer from conducting such 

checks to the extent that the employer 

applies the same criteria to both H–2B 

and U.S. workers. However, where such 

job requirements are included in the 

recruitment materials, we reserve the 

right to inquire further as to whether 

such requirements are normal and 

accepted. 

Some comments addressed the 

proposal that employer-conducted 

recruitment must direct all applicants to 

the SWA. Most commenters supported 

this proposal, indicating that this 

requirement will enhance the likelihood 

that workers will be fully apprised of 

the job opportunities. A SWA expressed 

concern over the availability of funding 

to perform the additional referral 

functions. We have retained this 

requirement because we believe that 

allowing SWAs to apprise job applicants 

of the terms and conditions of 

employment is an essential aspect of 

ensuring an appropriate labor market 

test. However, notwithstanding the 

many benefits of being referred to the 

job opportunity by the SWA, U.S. 

workers may contact the employer 

directly and the Final Rule requires that 

employers include their contact 

information to enable such direct 

contact. With respect to the SWAs’ 

concerns regarding the availability of 

sufficient funding, we anticipate that 

the enhanced role of the SWA and the 

additional duties inherent in that role 

will be offset through the elimination of 

the requirement to conduct employment 

verification activities. 

3. § 655.42 Newspaper Advertisements 

We proposed to continue to require 

the employer to place two 

advertisements in a newspaper of 

general circulation for the area of 

intended employment that is 

appropriate to the occupation and the 

workers likely to apply for the job 

opportunity and to permit the employer 

to place the advertisement(s) in a 

language other than English where the 

CO determines it appropriate. However, 

we proposed to eliminate an employer’s 

option to replace one of the newspaper 

advertisements with an advertisement 

in a professional, trade, or ethnic 

newspaper. Instead, we proposed to 

allow the CO the discretion to require 

an employer to place such an 

advertisement in addition to the 

required newspaper advertisements 

where such an advertisement is 

appropriate for the particular 

occupation and area of employment. We 

are retaining this provision as proposed 

with minor clarifying edits. 

Several commenters agreed that we 

should continue to require newspaper 

advertisements. Others disagreed. One 

commenter indicated that newspaper 

advertisements are outdated as a 

recruitment source and are increasingly 

unavailable due to an overall reduction 

in newspapers with print editions. This 

commenter expressed regret that we did 

not use this rulemaking as an 

opportunity to replace this requirement 

with recruitment efforts that are more 

reflective of the current labor market 

realities and the decline in newspaper 

subscriptions and readership. A worker 

advocacy group suggested that 

eliminating newspaper advertising will 

have a minimal impact on domestic 

worker recruitment because very few 

U.S. workers search for jobs through 

newspapers. This commenter 

recommended that the regulations 

instead incorporate innovations which 

are now widely used by employers of 

domestic workers to recruit new 

employees, such as web-based 

advertising on job search sites and 

participation in job fairs. Another 

commenter offered as an alternative to 

newspaper advertising the use of road 

signs as more apt to appeal to workers 

typically employed in the H–2B 

program. Industry commenters also 

noted the expense of placing newspaper 

advertisements. 

While several other commenters 

offered suggestions for disseminating 

information about the job opportunity, 

they did not indicate whether these 

alternatives should be considered in 

addition to newspaper advertisements 

or instead of them. Consequently, these 

suggestions are further discussed under 

§ 655.46. It is worth noting, however, in 

response to commenters who suggested 

web-based advertisements, this Final 

Rule requires the CO to post H–2B job 

orders on the electronic job registry 

maintained by the Department in order 

to widely disseminate the job 

opportunities. 

After due consideration, we continue 

to believe that newspapers of general 

circulation remain an important source 

for recruiting U.S. workers because they 

are among the means most likely to 

reach the broadest audiences, 

particularly those interested in positions 

typically found in the H–2B program. 

Newspaper advertisements are also 

recognized as information sources likely 

to generate informal, word of mouth 

referrals. Although we do not dispute 

that available statistics on subscriptions 

and readership favor a view that these 


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publications are in decline, we are not 

aware of any reliable means for tracking 

how many persons have access to a 

single printed newspaper before it is 

discarded, particularly due to their 

availability through community 

organizations, centers, public libraries, 

and other venues which provide 

important access to information for 

those seeking jobs. As to one 

commenter’s proposal to require the use 

of road signs, we note that such a 

requirement would not offer appropriate 

substitution for newspaper 

advertisements, would be costly to the 

employer, and would be difficult to 

administer and enforce. 

We received no comments on the 

proposal to prohibit substitution of ads 

between newspapers and trade and 

ethnic publications. Therefore, after 

considering alternatives to newspaper 

advertisements proposed by 

commenters, we have determined that 

no single alternative method of 

advertising uniformly applies to the 

variety of H–2B job opportunities or is 

likely to reach as broad a potential 

audience. For that reason, the Final Rule 

retains the proposed section in its 

entirety with a clarifying edit that 

requires the employer that placed any 

advertisement in a language other than 

English to retain the translations of such 

advertisements, as required by § 655.56. 

4. § 655.43 Contact With Former U.S. 

Employees 

The NPRM proposed to require the 

employer to contact by mail or other 

effective means its former U.S. workers 

who were employed by the employer in 

the same occupation and the place of 

employment during the previous year 

before the date of need listed in the 

Application for Temporary Employment 

Certification. This proposal expanded 

the 2008 Final Rule requirement for 

contact with former U.S. workers who 

have been laid off within 120 days of 

the employer’s date of need. Under the 

proposal, employers are not required to 

contact U.S. workers who abandoned 

the worksite or who were terminated for 

cause. We have retained the proposed 

requirement. 

We received a number of comments 

from labor organizations and worker 

advocates supporting the expanded 

requirement contained in the proposal. 

Most of the comments focused on the 

importance of offering access to these 

job opportunities to the greatest number 

of U.S. workers, particularly during 

times of high unemployment. One 

commenter endorsed the expanded 

requirement but indicated that the INA 

includes a preference for U.S. workers 

which is unlimited. According to this 

commenter, U.S. workers quit their jobs 

for a variety of reasons and should not 

be disqualified in this fashion. 

We agree with this commenter and for 

that reason the NPRM proposed to limit 

the exception to the contact requirement 

only to workers who were dismissed for 

cause or who abandoned the worksite. 

For purposes of this provision, 

abandonment has the same meaning as 

it does in § 655.20(y), i.e., a worker who 

fails to report for work at the regularly 

scheduled time for 5 consecutive 

working days without the consent of the 

employer. 

The same commenter raised further 

concerns about an employer being 

released from contact requirements 

where an employee was terminated for 

cause, noting experience in the program 

where employers use termination for 

cause or threat of termination as a 

means for retaliating against workers 

who were dissatisfied with illegal 

treatment. Under the NPRM, as well as 

this Final Rule, each employer must 

affirmatively attest that it has not 

engaged in unfair treatment as defined 

in § 655.20(n), i.e., that it has not 

retaliated against complaining 

employees. Although this commenter 

proposes to require the employer to 

contact all former workers regardless of 

why they left employment with the 

employer, we have determined that 

such a requirement is overbroad and not 

necessary to ensure an appropriate test 

of the labor market. 

Another commenter suggested that we 

expand the window for contacting 

former U.S. workers who have been laid 

off within 120 days before the date of 

need to layoffs within 180 days before 

the date of need. Because the provision 

as proposed and retained in the Final 

Rule requires the employer to contact all 

its former U.S. workers who were 

employed by the employer in the 

occupation at the place of employment 

in the last year, expanding the 

requirement to contact those laid off 

within 180 days will not have any 

effect, as those workers are already 

included in the provision. Therefore, we 

are not accepting this proposal. 

A few commenters addressed the 

issue of protecting workers whose hours 

have been reduced by the employer. 

One commenter suggested that we 

redefine layoff to include a separation 

following a 25 percent reduction in 

hours in a 180-day period preceding the 

employer’s date of need in order to 

expand the exposure of U.S. workers to 

the job opportunity. As discussed in the 

preamble to § 655.20(w), there is no 

definitive way to determine whether a 

worker quit because of a reduction in 

hours. The suggested requirement 

would place an unnecessary burden 

both on employers seeking to comply 

with the provision and Departmental 

employees seeking to verify compliance, 

and we therefore do not accept this 

recommendation. 

Finally, other commenters proposed 

that we require the employer to contact 

laid off employees in accordance with 

the terms governing recall for the 

duration of the recall period provided in 

the collective bargaining agreement that 

covers the employees in the occupation 

and area of intended employment. We 

have addressed this commenter’s 

concerns by proposing a requirement 

that the employer contact former 

employees employed by the employer 

during the prior year. In addition, the 

employer is separately obligated to 

comply with the terms and conditions 

of the bargaining agreement, to the 

extent that the recall provisions cover 

workers employed by the employer 

beyond the prior year, pursuant to both 

the agreement and the requirement at 

§ 655.20(z). 

Therefore, the Final Rule retains this 

provision as proposed. 

5. § 655.44 Contact With Labor 

Organizations 

We proposed to require employers to 

formally contact local labor 

organizations to inquire about the 

availability of U.S. workers to fill the job 

opportunities for which the employer 

seeks to hire H–2B workers where union 

representation is customary in the 

occupation or industry. We have 

decided to remove this requirement. 

We received a number of comments 

on the proposal to expand the contact 

requirement with labor organizations 

beyond those employers who are party 

to a collective bargaining agreement 

(CBA). Most labor organizations and 

worker advocates expressed support for 

the proposed requirement and offered 

suggestions to enhance it, i.e., by 

clarifying when union contact is 

required. In addition, we received 

comments from industry representatives 

and employers objecting to this 

requirement as burdensome and 

unlikely to result in a greater number of 

legitimate applicants who will meet the 

employers’ temporary need for workers. 

Many commenters strongly objected to 

overall enhanced recruitment 

requirements, as costly, burdensome, 

and unlikely to result in legitimate 

applicants or ultimately meet the 

employers’ need for temporary labor. 

Some industry commenters indicated 

that the customarily unionized standard 

was vague or ambiguous, and requested 

clarification. Others objected to the 

application of the requirement to 


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employers who were not party to a CBA 

or who did not otherwise employ 

unionized workers. One commenter also 

requested that we eliminate this section 

in its entirety. 

We agree that the provision should be 

deleted. We realize that this 

requirement is duplicative of the 

activity undertaken by the SWAs in 

§ 655.33, where the Notice of 

Acceptance will direct the SWAs to 

circulate a copy of the job order to both 

the State Federation of Labor in the 

States(s) in which work will be 

performed and to the local unions 

representing employees in the same or 

substantially equivalent job 

classification in the area of intended 

employment, where the occupation or 

industry is traditionally or customarily 

unionized. For this reason, we have 

decided to remove this requirement, but 

retain in this Final Rule a mechanism by 

which labor organizations are still 

contacted, increasing the exposure of 

such job opportunities to U.S. workers 

while reducing the burden on the 

employer. For a more detailed 

discussion about contacting labor 

organizations and the Department’s 

request for suggestions on how to best 

determine the circumstances which 

would trigger the requirement for 

contacting labor organizations, please 

see § 655.33 above. 

6. § 655.45 Contact With Bargaining 

Representative and Posting 

Requirements and Other Contact 

Requirements 

The NPRM proposed to require 

employers that are party to a CBA to 

provide written notice to the bargaining 

representative(s) of the employer’s 

employees in the job classification in 

the area of intended employment. 

Where there is no bargaining 

representative of the employer’s 

employees, we proposed to require the 

employer to post a notice to its 

employees of the job opportunities for at 

least 10 consecutive business days in at 

least two conspicuous locations at the 

place of intended employment or in 

some other manner that provides 

reasonable notification to all employees 

in the job classification and area in 

which work will be performed by the 

H–2B workers. We requested comments 

on the likelihood this requirement will 

result in finding qualified and available 

applicants. 

The majority of comments supported 

this proposal. Most of the commenters 

indicated that keeping the bargaining 

representative apprised of these job 

opportunities will likely result in the 

job opportunities being available to U.S. 

workers. Most commenters specifically 

supported the new alternative 

requirement that the employer post 

notice of the job opportunity. A few 

commenters offered suggestions for 

enhancing the requirement, one of them 

proposing that the notice of the job 

opportunity be posted at each facility 

owned and operated by the employer. A 

few commenters suggested that we 

extend the duration of the posting. 

These suggestions ranged from requiring 

a posting through the duration of the 

referral period to a recommendation to 

increase the posting duration from 10 

days to 14 days, or 30 days in some 

instances. 

After thorough consideration of these 

comments, we are unable to accept the 

proposal which would require the 

posting of the notice at each facility 

owned and operated by the employer, as 

this requirement is overbroad both with 

respect to the burden on the employer 

and with respect to the administrative 

feasibility of oversight and enforcement. 

We have, however, adopted the other 

commenters’ suggestion to extend the 

duration of the posting from 10 to 15 

consecutive business days. This 

increase in duration will provide greater 

opportunity for the employer’s workers 

to learn of the job opportunity and 

enhance the likelihood that unemployed 

U.S. workers will learn of the job 

opportunity. 

We also received comments opposing 

this proposal. Most of these comments 

generally objected to the requirement to 

contact the bargaining representative 

and indicated that the contacts will not 

result in meaningful candidates for the 

job opportunities, some indicating that 

most referred U.S. workers cannot be 

relied upon to complete the duration of 

the certified period of employment. 

Other commenters specifically objected 

to the posting requirement. One 

employer association whose members 

are subject to special procedures 

indicated infeasibility of complying 

with the requirement due to the 

itinerant nature of their work. 

The requirement to contact the 

bargaining representative(s) is intended 

to ensure that each employer’s existing 

U.S. workers receive timely notice of the 

job opportunities, thereby increasing the 

likelihood that those workers will apply 

for the available positions for the 

subsequent temporary period of need 

and that other U.S. workers, possibly 

including former workers, will be more 

likely to learn of the job opportunities 

as well. The posting of the notice at the 

employer’s worksite, in lieu of formal 

contact with a representative when one 

does not exist, is intended to ensure that 

all of the employer’s U.S. workers are 

afforded the same access to the job 

opportunities for which the employer 

intends to hire H–2B workers. In 

addition, the posting of the notice may 

result in the sharing of information 

between the employer’s unionized and 

nonunionized workers and therefore 

result in more referrals and a greater 

pool of qualified U.S. workers. With 

respect to one commenter’s concern 

regarding the ability of an itinerant 

employer to comply with the posting 

requirement, we included in the NPRM 

and have retained in the Final Rule a 

degree of flexibility for complying with 

this requirement; specifically, the 

regulation includes the language ‘‘or in 

some other manner that provides 

reasonable notification to all employees 

in the job classification and area in 

which the work will be performed by 

the H–2B workers.’’ This permits the 

employer to devise an alternative 

method for disseminating this 

information to the employer’s 

employees, such as posting the notice in 

the same manner and location as for 

other notices, such as safety and health 

occupational notices, that the employer 

is required by law to post. The Final 

Rule includes such flexibility and 

provides that electronic posting, such as 

displaying the notice prominently on 

any internal or external Web site that is 

maintained by the employer and 

customarily used for notices to 

employees about terms and conditions 

of employment, is sufficient to meet this 

posting requirement as long as it 

otherwise meets the requirements of this 

section. However, under this Final Rule, 

employers who are subject to special 

procedures under the program will 

continue to conduct recruitment 

activities in accordance with those 

procedures unless or until such a time 

when these procedures are modified or 

withdrawn by the Administrator, OFLC 

in accordance with the regulatory 

requirements under § 655.4, except to 

the extent that such procedures are in 

direct conflict with these regulations. 

For all of the reasons discussed above, 

we are retaining the requirement that 

the employer contact the bargaining 

representative or post a notice of the job 

opportunity and are extending the 

duration for such posting from 10 to 15 

business days. 

In addition to requiring the employer 

to contact the bargaining representative 

or post a notice of the job opportunity, 

the NPRM included a proposal to, 

where appropriate, require the employer 

to contact community-based 

organizations to disseminate the notice 

of the job opportunity. Communitybased organizations are an effective 

means of reaching out to domestic 

workers interested in specific 


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occupations. ETA administers our 

nation’s public exchange workforce 

system through a series of One-Stop 

Career Centers. These One-Stop Centers 

provide a wide range of employment 

and training services for workers 

through job training and outreach 

programs such as job search assistance, 

job referral and job placement services, 

and also provide recruitment services to 

businesses seeking workers. 

Community-based organizations with 

employment programs including 

workers who might be interested in 

H–2B job opportunities have established 

relationships with the One-Stop Career 

Center network. The One-Stop Center in 

or closest to the area of intended 

employment will be, in most cases, the 

designated point of contact the CO will 

give employers to use to provide notice 

of the job opportunity. This provides the 

employer with access not only to the 

community-based organization, but to a 

wider range of services of assistance to 

its goal of meeting its workforce needs. 

This contact is to be made when 

designated specifically by the CO in the 

Notice of Acceptance, as appropriate to 

the job opportunity and the area of 

intended employment. We have decided 

to retain this provision as proposed with 

minor revisions. 

We received several comments on this 

proposal. The majority of commenters 

expressed strong support for the 

requirement that the employer contact 

community-based organizations, 

indicating that these organizations in 

many cases possess specialized 

knowledge of local labor market 

conditions and practices, and are in the 

position to assist with recruitment 

efforts, thus ensuring a complete test of 

the labor market as well as assist the CO 

with identifying potential problems 

with the offered terms and conditions of 

employment. 

Commenters opposing this proposed 

requirement suggested that it will not 

result in meaningful applicants for the 

job opportunity. We note that, not 

unlike additional recruitment, contact 

with community-based organizations is 

intended to broaden the pool of 

potential applicants and assist the many 

unemployed U.S. workers with finding 

meaningful job opportunities. These 

organizations are especially valuable 

because they are likely to serve those 

workers in greatest need of assistance in 

finding work, particularly with respect 

to H–2B occupations that require little 

or no specialized knowledge. Although 

we will not require each employer to 

make this type of contact, we have 

determined that keeping this provision 

in the Final Rule will assist with 

fulfilling the intent of the H–2B program 

and enhancing the integrity of the labor 

market test. Therefore the Final Rule 

retains the requirement that the 

employer, where ordered by the CO, 

contact community-based organizations. 

7. § 655.46 Additional EmployerConducted 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, the proposed rule authorized 

the CO to require the employer to 

engage in additional recruitment 

activities. In addition to proposing that 

the CO require additional recruitment, 

we solicited suggestions from the public 

on the recruitment means most suitable 

for the CO to require. We also proposed 

that the CO would specify the 

documentation or evidence that the 

employer must maintain as proof it met 

the additional recruitment step(s). We 

are retaining this provision as proposed 

with minor clarifying edits. 

We received many comments on this 

proposal. The majority of commenters 

expressed strong support for the 

proposal and indicated that the 

additional recruitment requirement is 

particularly welcome in times of high 

unemployment because it will ensure 

that U.S. workers have the broadest 

exposure to these job opportunities. In 

contrast, several other commenters 

objected to the proposal on the ground 

that it provides the CO with potentially 

unfettered discretion to impose 

additional requirements on employers; 

some requested clarification of when the 

additional recruitment will take place. 

We also invited comments on the 

proposed additional recruitment 

methods, including examples of the 

types of recruitment typically 

conducted in specific industries, 

occupations, or job classifications. 

Several commenters provided 

suggestions for potential recruitment 

sources such as the use of the 

employer’s Web site, job search Web 

sites (such as Craig’s List or 

Monster.com), staffing agencies, and 

other outreach efforts. Some 

commenters also suggested recruitment 

efforts they use or have used in the past 

to recruit U.S. workers. However, none 

of the commenters provided information 

about the types of recruitment that are 

typically conducted in specific 

industries. We thank the commenters 

for their input. Where appropriate, the 

CO will draw upon these suggestions 

when making a determination about 

what types of additional recruitment are 

appropriate. We have made a clarifying 

edit in this section, adding the word 

additional to indicate that CO-ordered 

efforts to contact community-based 

organizations and/or One-Stop Career 

Centers are in addition to the 

requirements in §§ 655.16 and 655.45. 

A few comments reflected confusion 

over the requirement, and encouraged 

us to expand it beyond areas of 

substantial unemployment. Others 

commenters requested that we revisit 

the requirement and proposed 

alternatives for redefining an area of 

substantial unemployment. 

Our intention in requiring additional 

recruitment including, where 

appropriate, in areas of substantial 

unemployment, is predicated on the 

belief that more recruitment will result 

in more opportunities for U.S. workers. 

In addition, we recognize that the 

increased rate of innovation in the arena 

of technology, including its implications 

for communication of information about 

job opportunities, is changing the way 

many U.S. workers search for and find 

jobs. In part due to these changes, the 

inclusion of this requirement is 

intended to allow the CO flexibility to 

keep apace with the ever-changing labor 

market trends. 

In response to comments about not 

limiting additional recruitment only to 

job opportunities located in areas of 

substantial unemployment, we agree 

that the recruitment sources the CO uses 

should go beyond just the areas of 

substantial unemployment, which is 

why we only listed areas of substantial 

unemployment as one example of an 

additional source and why we solicited 

information about other available 

sources. The requirement as proposed 

and retained is intended to provide the 

CO with discretion to order additional 

positive recruitment whenever the CO 

deems it to be appropriate. This 

discretion is also not an absolute 

requirement but permits us to ensure 

the appropriateness and integrity of the 

labor market test and determine the 

appropriate level of recruitment based 

on the specific situation. The COs, with 

advice from the SWAs which are 

familiar with local employment patterns 

and real-time market conditions, are 

well-positioned to judge where 

additional recruitment may or may not 

be required as well as the sources that 

should be used by the employer to 

conduct such additional recruitment. 

For example, it may be reasonable to 

require additional recruitment for a job 

that requires little training or experience 

in an area of substantial unemployment, 

since a larger group of available workers 

would be qualified for the job. While the 

employer will be required to conduct all 

the recruitment efforts required under 

this section and §§ 655.42–655.46 in 

certain circumstances, in other 


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circumstances, the CO may determine 

that such additional efforts are unlikely 

to result in meaningful applications for 

the job opportunity. In each instance, 

the CO, often in consultation with the 

SWAs, will carefully weigh the 

projected benefits of additional 

recruitment to potential U.S. applicants 

against the benefit the employer is 

seeking through certification. 

We also note that OIG’s October 17, 

2011 report recommended the 

Department reassess the existing 

recruitment provisions that require 

employers with itinerant positions 

subject to special procedures to actively 

recruit only in the State of initial 

employment. While recruitment 

requirements prior to this Final Rule did 

not necessarily limit recruitment of 

workers to just one State, neither did 

those provisions require recruitment 

outside the area of intended 

employment, in most cases. This Final 

Rule expands required recruitment 

activity, when appropriate for labor 

market test quality, to additional areas 

and sources likely to result in U.S. 

worker applicants. 

Although we recognize that some 

commenters may be concerned over the 

discretion the CO has to order 

additional positive recruitment, as 

discussed above, such discretion is 

necessary to permit the CO the 

flexibility to ensure an adequate test of 

the labor market. However, any 

additional positive recruitment will be 

conducted in addition to, and occur 

within the same time period as the 

circulation of the job order and the other 

mandatory employer-conducted 

recruitment described above, and will 

not result in any delay in certification. 

While we may not endorse a specific 

commercially-available publication or 

Web site, the sources used by the CO 

will include, but will not be limited to: 

additional print advertising; advertising 

on the employer’s Web site or another 

Web site; contact with additional 

community-based organizations that 

have contact with potential worker 

populations; additional contact with 

labor unions; contact with faith-based 

organizations; and radio advertisements. 

When assessing the appropriateness of a 

particular recruitment method, the CO 

will take into consideration all options 

at her/his disposal, including relying on 

the SWA experience and expertise with 

local labor markets, and where 

appropriate, will opt for the least 

burdensome and costly method(s). 

8. § 655.47 Referrals of U.S. Workers 

We proposed to require SWAs to refer 

for employment individuals who have 

been informed of the details of the job 

opportunity and indicate that they are 

qualified and will be available for 

employment. We also eliminated the 

requirement that the SWAs conduct 

employment (I–9) eligibility 

verification. We are retaining the 

provision as proposed in part and 

revising the proposed provision in other 

part. 

We received three comments on this 

proposal to eliminate the requirement 

that the SWAs conduct employment 

(I–9) eligibility verification. One 

commenter indicated a preference that 

the SWAs continue to conduct 

employment eligibility verification, 

while another supported its elimination. 

None of these commenters provided a 

rationale for its opinion. 

In light of limited resources, we have 

determined that the requirement that 

SWAs conduct employment eligibility 

verification of job applicants is 

duplicative of the employer’s 

responsibility under the INA. In 

addition, the INA provides that SWAs 

may, but are not required to, conduct 

such verification for those job 

applicants they refer to employers. DHS 

regulations permit employers to rely on 

the employment eligibility verification 

voluntarily performed by a State 

employment agency in certain limited 

circumstances. 

We also received several comments 

regarding the proposal to require SWAs 

to refer for employment individuals 

who have been informed of the details 

of the job opportunity and who indicate 

that they are qualified and will be 

available for employment. Some 

commenters, primarily worker 

advocates and labor organizations, 

commended the Department for 

ensuring that U.S. workers are provided 

with the opportunity to be fully 

apprised of the job opportunity prior to 

being referred to the employer. These 

commenters indicated that this will lead 

to greater opportunities for U.S. workers 

as well as curb program abuse. 

Other commenters focused more on 

the proposed role of the SWAs in 

referring U.S. applicants to the 

employer. One commenter understood 

the provision as proposed to require 

SWAs to inform prospective U.S. 

workers of the details of the job 

opportunity and to screen them for 

qualifications and availability. Other 

commenters, namely employer 

associations and employers, expressed 

concern regarding this provision, 

particularly in the context of the referral 

period proposed in the NPRM, 

indicating that it will result in an 

increase of disingenuous applicants or 

unqualified workers replacing available 

and qualified H–2B workers that the 

employer already secured under an 

arduous process. Two State agencies 

expressed some uncertainty over the 

scope of their duties in the context of 

this proposal and their hope that we 

will provide them with resources to 

conduct additional employee screenings 

and referrals resulting from the new 

recruitment requirements. 

As stated in the NPRM, it is our 

intention that the elimination of the 

employment eligibility requirement will 

allow the SWAs to focus their staff and 

resources on ensuring that U.S. workers 

who come to them are apprised of job 

opportunities for which the employer 

seeks to hire H–2B workers, which is 

one of the basic functions of the SWAs 

under their foreign labor certification 

grants, and to ensure such workers are 

qualified and available for the job 

opportunities. This does not mean that 

every referral must be assisted by SWA 

staff to be apprised of the job 

opportunity. To the contrary, many H– 

2B referrals are not staff-assisted but are 

instead self-referrals and we have no 

intention of interfering with the current 

processes established by most SWAs to 

handle these job orders. However, to the 

extent that staff are directly involved in 

a referral, we expect that the referrals 

made would be only of qualified 

workers. We do not expect this to be an 

additional burden on SWA staff. 

Moreover, we do not presume that the 

judgment of the SWAs as to an 

applicant’s qualifications is irrebuttable 

or a complete substitute for the 

employer’s business judgment with 

respect to any candidate’s suitability for 

employment. However, to the extent 

that the employer does not hire a SWA 

referral who was screened and assessed 

as qualified, the employer will have a 

heightened burden to demonstrate to us 

that the applicant was rejected only for 

lawful, job-related reasons. 

With respect to the comments 

expressing concerns over the ability of 

the employer to rely on U.S. workers 

completing the duration of the certified 

period of employment, the SWAs will 

be required to, as part of the screening 

process, ascertain that the unemployed 

U.S. applicants who request referral to 

the job opportunity are sufficiently 

informed about the job opportunity, 

including the start and end dates of 

employment and that they commit to 

accepting the job offer if extended by 

the employer. However, as discussed 

under § 655.57, in recognition that some 

employers may nonetheless require 

relief in the form of replacing U.S. 

workers who fail to show up or 

complete the certified period of 

employment, we have developed a 


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redetermination process to 

accommodate these employers. 

9. § 655.48 Recruitment Report 

Consistent with the requirements of 

the 2008 Final Rule, we proposed to 

continue to require the employer to 

submit to the Chicago NPC a signed 

recruitment report. Unlike the 2008 

Final Rule, however, we also proposed 

to require the employer to send the 

recruitment report on a date specified 

by the CO in the Notice of Acceptance 

instead of at the time of filing its 

Application for Temporary Employment 

Certification. This change 

accommodates the proposed 

recruitment model under which the 

employer does not begin its recruitment 

until directed by the CO in the Notice 

of Acceptance. The proposed rule 

detailed the information the employer is 

required to include in the recruitment 

report, such as the recruitment steps 

undertaken and their results, as well as 

other pertinent information. In addition, 

we proposed to require the employer to 

update the recruitment report 

throughout the referral period to ensure 

that the employer accounts for contact 

with each prospective U.S. worker. The 

proposed rule does not require the 

employer to submit the updated 

recruitment report but does require the 

employer to retain it and make it 

available in the event of a postcertification audit, a WHD or other 

Federal agency investigation, or upon 

request by the CO. We are retaining the 

provision as proposed with minor 

clarifying edits. 

We received a number of comments 

offering strong support for the 

requirement that employers document 

that they have conducted the required 

recruitment efforts. One commenter 

suggested that we expand the 

recruitment report and require the 

employer to list all U.S. and foreignborn applicants for the job opportunity. 

The provision, as proposed and 

retained, requires the employer to 

provide the name and contact 

information of each U.S. worker who 

applied or was referred for the job 

opportunity. This reporting allows us to 

ensure the employer has met its 

obligation and to meet our 

responsibility to determine whether 

there were insufficient U.S. workers 

who are qualified and available to 

perform the job for which the employer 

seeks certification. In addition, when 

WHD conducts an investigation, WHD 

may contact U.S. workers listed in the 

report to verify the reasons given by the 

employer as to why they were not hired, 

where applicable. While we do not 

foreclose the possibility of expanding 

the content of the recruitment report in 

the future, requiring that employers 

identify all applicants, including foreign 

workers, would impose a heavy burden 

on employers and is not necessary for 

carrying out our responsibilities under 

the H–2B program. 

Some commenters objected to the 

record-keeping requirements, generally 

and as included in the proposed rule. 

Because these objections are not specific 

to the recruitment report, we address 

them in the discussion of document 

retention requirements. Other 

commenters suggested that the 

recruitment report be made available to 

the public so they may provide input to 

the CO on the contents before a Final 

Determination is made on the 

Application for Temporary Employment 

Certification. For the reasons discussed 

under § 655.63, we are not accepting 

this suggestion at this time. However, 

we continue to reserve the right to post 

any documents received in connection 

with the Application for Temporary 

Employment Certification and will 

redact information accordingly. 

Therefore we are retaining this 

provision as proposed with a minor 

clarifying edit that is consistent with 

requirements under § 655.43, indicating 

that, where applicable, the employer’s 

recruitment report must contain 

confirmation the employer posted the 

job availability to all employees in the 

job classification and area in which the 

work will be performed by the H–2B 

workers. 

G. Labor Certification Determinations 

1. § 655.50 Determinations 

We proposed to retain the same 

requirements under this provision as 

proposed in the 2008 Final Rule. We are 

retaining this provision as proposed 

with minor clarifying edits. 

We received no comments on the 

substance of this provision. However, 

we received a number of comments 

critical of our failure to provide 

processing timeliness or a deadline for 

issuing a final determination. One 

commenter referred to our past 

performance before the attestation-based 

model in the 2008 Final Rule and 

argued that the processing of 

applications under the pre-2008 Final 

Rule system involved delays and that 

we have fallen short of our processing 

targets even under the 2008 Final Rule. 

This commenter, along with others, 

proposed that we commit to a deadline 

such as a return to the 60 days 

discussed in the preamble of the 2008 

Final Rule or 30 days. 

Unlike the other programs we 

administer, the INA does not provide a 

statutory deadline for processing H–2B 

applications. In order to maximize 

integrity in the H–2B program it is 

imperative that we take the time 

necessary to carefully review each 

application and to make certain that 

each application we review represents a 

legitimate need for temporary workers. 

We will be implementing a completely 

reengineered program with a new 

registration process, new recruitment 

requirements, and new obligations that 

must be reviewed. OFLC has no baseline 

for these processes and therefore cannot 

predict at this time the likely processing 

time parameters. While we anticipate 

that registration, with its emphasis on 

the determination of temporary need, 

will decrease application adjudication 

times, we cannot know to what extent 

that additional process will streamline 

processing times. However, as is our 

practice, we will make every effort to 

timely process each application and to 

keep employers and other program users 

apprised of current processing times. 

In addition, we received a few 

comments requesting that third parties 

be allowed to participate in the 

adjudication of a particular Application 

for Temporary Employment 

Certification or the job order. Some of 

these comments are related to the public 

availability of the Application for 

Temporary Employment Certification 

and are discussed elsewhere in this 

Final Rule. 

Responsibility for the adjudication of 

each Application of Temporary 

Employment Certification rests with the 

Secretary, who has delegated that 

responsibility to OFLC. Historically, we 

have never permitted third parties to 

participate in the adjudication of labor 

certification decisions. Such 

involvement would create operational 

difficulties that would make it 

impossible to process these applications 

in a timely fashion. For that reason, we 

do not adopt the commenters’ 

suggestion. However, we would 

certainly accept, as we do now, any 

information bearing on the application 

from any interested party. 

For the reasons discussed above, we 

are retaining this provision as proposed 

with a minor clarifying edit to 

paragraph (b) of the regulation that 

replaces ‘‘grant, partially grant or deny’’ 

with ‘‘certify or deny.’’ This clarification 

was based on our determination that the 

word certify encompasses both 

determinations to certify or partially 

certify an Application for Temporary 

Employment Certification. 

2. § 655.51 Criteria for Certification 

In the majority of cases, the 

certification determination will rest on 


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a finding that the employer has a valid 

H–2B Registration and has demonstrated 

full compliance with the requirements 

of this subpart. As under the 2008 Final 

Rule, in ensuring that the employer 

meets its recruitment obligations with 

respect to U.S. workers, the CO will 

treat as available all those individuals 

who were rejected by the employer for 

any reason other than a lawful, jobrelated reason. We are retaining this 

provision as proposed with a minor 

clarifying edit. 

We received only one comment 

specific to the proposed regulatory 

provision. This commenter encouraged 

us to add a clause to the certification 

criteria indicating that lawful job-related 

reasons for rejecting U.S. workers do not 

include requirements which are applied 

to U.S. workers but not to H–2B 

workers. 

As discussed elsewhere in this Final 

Rule, these regulations expressly 

prohibit an employer from offering 

preferential treatment to H–2B workers. 

That obligation extends to all aspects of 

the H–2B program, including 

recruitment and consideration of U.S. 

workers. Although an employer may not 

reject U.S. workers based on 

requirements that would not otherwise 

disqualify an H–2B worker, we do not 

believe that a change in this particular 

provision is needed to clarify this 

requirement. 

Additionally, we proposed to clarify 

that we will not grant certifications to 

employers that have failed to comply 

with one or more sanctions or remedies 

imposed by final agency actions under 

the H–2B program. We did not receive 

any comments on this proposal. 

Accordingly, we are retaining this 

section as proposed except that we have 

clarified that the employer must comply 

with criteria necessary to grant the 

certification, rather than all program 

criteria. This clarification was 

necessary, as the criteria for certification 

cannot reasonably encompass the 

employer’s future compliance, as 

contemplated by some of the program 

requirements. Such compliance is 

addressed through post-certification 

audits, integrity measures and 

enforcement activities. 

3. § 655.52 Approved Certification 

We proposed that the CO use next day 

delivery methods, and preferably, 

electronic mail, to send the Final 

Determination letter to the employer. 

We are doing so in an effort to expedite 

the transmittal of information and 

introduce efficiency and cost savings 

into the application determination 

process. The proposed rule also 

provided that the CO will send the 

approved certification to the employer, 

with a copy to the employer’s attorney 

or agent, if applicable. This is a 

departure from the 2008 Final Rule. 

This change in procedure has resulted 

from years of OFLC program experience 

evidencing complications in the 

relationship between employers and 

their agents or attorneys. Because the 

employer must attest to the assurances 

and obligations contained in the 

Application for Temporary Employment 

Certification and be ultimately 

responsible for upholding those 

assurances and obligations, the 

employer should receive and maintain 

the original approved certification. We 

are retaining this regulatory provision, 

as proposed with one minor 

clarification. 

We received only one comment of 

general approval about the proposal to 

use next day delivery and no comments 

addressing the proposal to send the 

approved certification to the employer. 

For the reasons above, we are 

retaining the provisions as proposed 

with one minor edit clarifying that 

when and if the Application for 

Temporary Employment Certification is 

permitted to be filed electronically, the 

employer must print, sign and retain the 

approved temporary labor certification. 

4. § 655.53 Denied Certification 

The NPRM proposed to retain the 

general provisions on denying 

certifications from the 2008 Final Rule, 

except that we proposed that the CO 

will send the Final Determination letter 

by means guaranteeing next day 

delivery to the employer, with a copy to 

the employer’s attorney or agent. Under 

the proposal, the Final Determination 

letter will continue to state the reason(s) 

that the certification was denied, cite 

the relevant regulatory provisions and/ 

or special procedures that govern, and 

provide the applicant with information 

sufficient to appeal the determination. 

We received no comments on this 

proposal and retain the provision as 

proposed with a minor clarifying edit 

that electronic mail is encompassed in 

means normally assuring next day 

delivery. 

5. § 655.54 Partial Certification 

The NPRM proposed to retain the 

2008 Final Rule provision explicitly 

providing that the CO may issue a 

partial certification, reducing either the 

period of need or the number of H–2B 

workers requested, or both. The 

proposed rule clarified that the CO may 

reduce the number of workers certified 

by subtracting the number of qualified 

and available U.S. workers who have 

not been rejected for lawful job-related 

reasons from the total number of 

workers requested. The Final Rule 

retains this provision as proposed. 

We received few comments on this 

proposal. The majority of commenters 

supported the requirement that the 

employer not be permitted to hire H–2B 

workers unless it has demonstrated that 

no qualified U.S. workers are available. 

In addition, most commenters 

supported the proposal that an 

employer must consider for 

employment and hire all qualified and 

available U.S. workers who are referred 

to the employer within the referral 

period. 

Many industry commenters expressed 

concern over the need to have a stable 

workforce throughout their certified 

period of need. One commenter 

requested that we provide a recertification process to allow employers 

to hire H–2B workers when U.S. 

workers become unavailable. These 

commenters expressed significant 

concerns over the viability of their 

businesses if, after expending significant 

resources to hire H–2B workers, those 

workers are displaced or not hired due 

to the requirement that the employer 

hire each U.S. worker who is qualified 

and available for employment and the 

U.S. workers hired do not report for 

work or fail to complete the work 

contract period. We agree with these 

commenters and have added a new 

§ 655.57 to address this issue. 

6. § 655.55 Validity of Temporary 

Employment Certification 

We proposed to retain the provision 

in the 2008 Final Rule that an approved 

temporary labor certification is only 

valid for the period, the number of H– 

2B positions, the area of intended 

employment, the job classification and 

specific services or labor to be 

performed as provided on the 

Application for Temporary Employment 

Certification. While the proposed rule 

continued to prohibit the employer from 

transferring the labor certification to 

another employer, we proposed to allow 

the employer to transfer the approved 

labor certification to a successor in 

interest in case of a merger or 

acquisition where the new employer is 

willing to continue to employ the 

workers certified and take on all of the 

legal obligations associated with the 

labor certification. We are retaining this 

provision as proposed, with minor 

clarifying edits. 

Most commenters supported the 

proposal to limit the validity of the 

labor certification as proposed. We 

received one comment suggesting that 

the transfer to a successor in interest be 

limited to legally documented mergers 


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or acquisitions. Another commenter 

indicated that the prohibition on 

transfers will promote appropriate 

recruitment of U.S. workers and 

prohibit employers from skirting 

program requirements. 

Similar to the prohibition on transfers 

of an H–2B Registration, we believe that 

limiting the validity of each certification 

to the employer to which it was issued 

is essential to ensuring program 

integrity. As we have stated elsewhere, 

we consider it our obligation to protect 

a labor certification against being treated 

as a commodity; limiting its use to the 

employer who applied for it achieves 

that protection. Labor Certification for 

the Permanent Employment of Aliens in 

the United States; Reducing the 

Incentives and Opportunities for Fraud 

and Abuse and Enhancing Program 

Integrity; Final Rule, 72 FR 27904, 

27918, May 17, 2007. As discussed in 

the preamble to the proposed rule, we 

intend to limit transfers to the successor 

in interest solely to legally documented 

business transactions such as mergers or 

acquisitions, whereby the new owner 

assumes all obligations and liabilities of 

the employer who originally obtained 

the certification. 

Therefore, we are retaining this 

provision as proposed except that we 

have clarified that each temporary labor 

certification is valid for the period 

approved on the Application for 

Temporary Employment Certification, 

including any approved modifications. 

7. § 655.56 Document Retention 

Requirements of H–2B Employers 

We proposed to add a section that 

delineates all of the document retention 

requirements, including the period of 

time during which documents must be 

retained. These retention requirements 

were included solely under their 

individual sections under the 2008 

Final Rule. The document retention 

requirements apply to all employers 

who file an Application for Temporary 

Employment Certification, regardless of 

whether such applications have been 

certified, denied, or withdrawn. The 

proposed provision outlines the 

documents that an employer must 

retain. We are keeping this portion of 

the provision as proposed, with a minor 

expansion to include any documents 

that must be retained by the employer 

resulting from revisions in the Final 

Rule, as well as other minor clarifying 

edits, including expressing what the 

NPRM already implied, i.e., that the 

documents and records retained under 

this section must be made available to 

the Department as well as other Federal 

agencies in the event of an audit or 

investigation. 

In addition, we proposed to require 

employers to make these documents and 

records available to the Administrator, 

OFLC within 72 hours following a 

request. In response to comments, we 

have made certain clarifying edits to 

this provision, but are retaining most of 

the substantive aspects as proposed. 

The majority of commenters 

supported this proposal because it 

requires employers to document, rather 

than merely attest to, compliance. One 

commenter expressed strong support for 

this requirement and suggested that we 

expand it to include records on the 

amounts spent by the employer for 

transportation, subsistence, visa fees, 

and other costs which the employer is 

prohibited from shifting to its workers. 

Another commenter requested the 

record keeping requirement be 

expanded to include records about 

recruiting fees, including amounts and 

recipients. 

Some commenters objected to the 

requirement, as generally unnecessary 

or burdensome in terms of cost and 

effort required by the employer, while 

other commenters offered suggestions 

for enhancing or curbing the 

requirements related to specific records 

such as payroll/earning records. Where 

the substance of those comments is 

specific to a particular provision in the 

proposed rule, we will address it there. 

We agree with commenters 

supporting this proposal. The records 

that the employer is required to retain 

are invaluable to ensuring program 

integrity. We use them both in making 

current determinations, where needed, 

and in evaluating any future 

Application for Temporary Employment 

Certification. These records permit us to 

ensure that the employer complied with 

the assurances and obligations of the H– 

2B labor certification program. We 

believe that the proposed recordkeeping 

requirement already encompasses the 

commenters’ request to expand that 

requirement to information about costs 

for subsistence, transportation, visa fees, 

or recruiting fees. For example, under 

§ 655.20(i), an employer is required to 

keep accurate and adequate records 

with respect to the workers’ earnings. 

This obligation encompasses records of 

the amount of any and all deductions 

taken from the workers’ wages and 

additional payments to the worker. For 

clarity, as described below, we added a 

new paragraph (c)(6) specifically 

addressing transportation and 

subsistence. Furthermore, this section in 

paragraph (c)(9) requires the employer 

to retain copies of all contracts with 

agents or recruiters, which will provide 

additional information regarding 

payments involved in these contracts. 

These records, which may be 

maintained electronically, together with 

the requirement to keep accurate 

earning statements, will assist us in 

determining whether the employer has 

paid or provided for all other costs 

required in the H–2B employment. 

Requiring additional documentation is 

unnecessary. 

We disagree with the commenters 

who opposed the document retention 

requirement. Document retention has 

been an integral part of the H–2B 

program, and the proposed regulation is 

substantively similar to the existing 

requirement under the 2008 Final Rule. 

Moreover, it is essential to the 

performance of program integrity 

activities. 

One commenter objected to the 

requirement that the employer make 

such records available within a 72-hour 

period, indicating that the requirement 

is burdensome, or impossible to comply 

with based on the nature of the 

employer’s business. This commenter 

further requested clarification of when 

the timeframe starts and asked us to 

indicate whether electronic records may 

be maintained. Other commenters 

offered suggestions for the timeframe for 

document retention, one suggesting that 

all records should be retained for a year 

after any H–2B Registration expires and 

others proposing a period of time based 

on the end of the job opportunity. 

We revised paragraph (d) of this 

section to clarify that the requirement to 

produce records within a 72-hour 

period is to produce such records to the 

Administrator, WHD for enforcement 

purposes, rather than Administrator, 

OFLC. When the Administrator, OFLC 

makes a request to make records 

available, an employer must comply 

with the timeframes in the provision 

governing the request, e.g., Request for 

Information, Notice of Deficiency, 

Revocation or Debarment. Additionally, 

OFLC will continue to include in the 

correspondence requesting records the 

deadline by which they must be 

produced. This timeframe will 

correspond to the regulatory 

requirement for the type of request. For 

example, in an audit letter under 

§ 655.70, the CO will specify a date, not 

to exceed 30 calendar days from the 

date of the audit letter, to provide a 

response, including any documents 

which are requested in the audit letter. 

Finally, we received several 

comments addressing the 3-year 

requirement for document retention. 

One commenter expressed support for 

the 3-year retention requirement noting 

that the familiar requirement will make 

compliance easy for employers. Another 

commenter opposed the 3-year retention 


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requirement for applications that have 

been withdrawn or denied. One 

commenter indicated that the retention 

period should be 1 year after the 

expiration of the H–2B registration, 

while another expressed concerns that 

the 3-year retention requirement may 

permit an employer with a 3-year 

certification to destroy records before 

the completion of the job; this 

commenter suggested that employers be 

required to maintain records and 

documents for at least 1 year after the 

completion of the job. Finally a 

commenter suggested a longer retention 

requirement of 5 years. 

In response to these comments, we 

wish to clarify that employers must 

maintain all records required in this 

section for the period of 3 years after the 

Application for Temporary Employment 

Certification is adjudicated or from the 

date the CO receives a letter of 

withdrawal. The Final Rule also 

includes a separate requirement in 

§ 655.11(i) that the employer retain 

documents pertaining to the H–2B 

Registration for a 3-year period after the 

end of the validity of the H–2B 

Registration. We have concluded that 

the two document retention 

requirements taken together adequately 

address the need to document 

compliance with program requirements. 

In addition, the regulatory scheme does 

not allow that records be destroyed until 

the certified period of employment has 

concluded. Although we recognize that 

the employer may have a temporary 

need based on a one-time occurrence 

which lasts up to 3 years, the 

Department will not grant a 3-year 

certification but will require the 

employer to file additional Applications 

for Temporary Employment 

Certification and conduct a labor market 

test where the period of employment 

exceeds 9 months. Each application 

filed by the employer will trigger a new 

document retention requirement and 

therefore ensure that records are 

available to assist the Department in 

ascertaining compliance with all 

program requirements. The Department 

believes, however, that a longer 

requirement such as the suggested 5 

years is not necessary to ensure program 

integrity and would be inconsistent 

with document retention requirements 

in other labor certification programs. 

Finally, the Department disagrees with 

a commenter who opposed the 3-year 

retention requirement for withdrawn or 

denied applications. Based on our 

program experience, we have concluded 

that requiring all employers to retain 

this information will bolster program 

integrity and aid in the enforcement of 

program obligations, particularly since 

many employers are repeat filers in the 

H–2B program. For these reasons we are 

retaining the 3-year retention period, as 

proposed. 

To reflect changes made to § 655.20, 

we have added a new subparagraph 

(c)(6) to this section to require 

employers to retain records of 

reimbursement of transportation and 

subsistence costs incurred by the 

worker. Additionally, in response to 

comments and changes made to § 655.9, 

we have made edits to subparagraph 

(c)(9) of this section to indicate that the 

retention of written contracts with 

agents or recruiters must also include 

the list of the identities and locations of 

persons hired by or working for the 

recruiter and their agents or employees. 

Finally, the provision in the Final 

Rule also reminds the employer that if 

and when the Application for 

Temporary Employment Certification 

and the H–2B Registration are permitted 

to be filed electronically, the employer 

must print, sign, and retain each 

adjudicated Application for Temporary 

Employment Certification and the H–2B 

Registration including any approved 

modifications, amendments, or 

extensions. 

8. § 655.57 Determinations Based on 

the Unavailability of U.S. Workers 

As discussed earlier in this preamble, 

several commenters expressed 

significant concerns over the viability of 

their businesses if, after expending 

significant resources to hire H–2B 

workers, those workers are displaced or 

not hired due to the requirement that 

the employer hire each U.S. worker who 

is qualified and available for 

employment and the U.S. workers hired 

do not report for work or fail to 

complete the work contract period. 

Specifically, one commenter requested 

that we provide a re-certification 

process to allow employers to hire H– 

2B workers when U.S. workers become 

unavailable. We agree with these 

commenters and have added this 

provision to provide an option to 

employers to address their workforce 

needs in the continuing absence of U.S. 

workers. 

Under the Final Rule, as under the 

NPRM, an employer is required to hire 

all qualified and available U.S. workers 

who are referred to it by the SWA 

during the referral period specified in 

§ 655.40(c). Where the employer’s 

request for H–2B workers is reduced by 

the number of qualified and available 

U.S. workers or denied because the 

employer has hired U.S. workers for all 

of the positions it seeks to fill and the 

U.S. worker(s) subsequently become 

unavailable, the employer has the 

option to voluntarily contact the SWA 

for additional referrals of U.S. workers. 

While this is not a requirement, the 

SWA may be able to provide the 

employer with replacement workers 

without an additional request to the CO. 

However, we recognize that there are 

circumstances where an employer’s U.S. 

workers fail to report to work or quit 

before the end of the certified period of 

employment, and it is at times not 

viable for an employer to seek 

additional workers from the SWA. We 

have determined that it is prudent to 

provide an avenue for relief for those 

employers. In the event that some or all 

of the employer’s U.S. workers become 

unavailable, we are adopting a 

regulation similar to that in the H–2A 

program which provides the CO with 

the authority to issue a redetermination 

based on the unavailability of U.S. 

workers, upon a timely and proper 

request by the employer. Under this 

added section, the employer must make 

a written request directly to the CO for 

a new determination by electronic mail 

or other appropriate means, such as a 

private courier. The request must be 

accompanied by a signed statement 

confirming the employer’s assertion and 

providing reasons for the 

nonavailability (e.g., information 

regarding the departure of the workers 

after one day, the fact they never 

showed up for work on the first day.). 

If the employer has not previously 

provided notification of abandonment 

or termination of a U.S. worker under 

655.20(y), the employer will be required 

to include in the signed statement the 

name and contact information for each 

U.S. worker who has become 

unavailable. Before granting the 

employer’s request, the CO will contact 

the SWA in an attempt to locate 

qualified replacement workers who are 

available or are likely to become 

available for the job opportunity. If no 

such workers are found, the CO will 

grant the employer’s request for a new 

determination. The employer may 

appeal a denial of its request under the 

administrative appeal process in 

§ 655.61. For these reasons, we are 

adding this new section, Request for 

determination based on unavailability of 

U.S. workers, to address the concerns 

raised by commenters. 

H. Post Certification Activities 

1. § 655.60 Extensions 

In the proposed rule, we identified 

instances when an employer will have 

a reasonable need for an extension of 

the time period that was not foreseen at 

the time the employer originally filed 


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the Application for Temporary 

Employment Certification. This 

provision provides flexibility to the 

employer in the event of such 

circumstances while maintaining the 

integrity of the certification and the 

determination of temporary need. 

We proposed that the employer make 

its request to the CO in writing and 

submit documentation showing that the 

extension is needed and that the 

employer could not have reasonably 

foreseen the need. Extensions would be 

available only to employers whose 

original certified period of employment 

is less than the maximum period 

allowable in this subpart and under 

DHS H–2B regulations. Extensions differ 

from amendments to the period of need 

because extensions are requested after 

certification, while amendments are 

requested before certification. 

Extensions will only be granted if the 

employer demonstrates that the need for 

the extension arose from unforeseeable 

circumstances, such as weather 

conditions or other factors beyond the 

control of the employer (including 

unforeseen changes in market 

conditions). We have decided to keep 

this provision as proposed, with a few 

edits to remove redundancy related to 

the maximum period allowable through 

extension and employer obligations and 

otherwise clarify the provision. 

A comment received from a labor 

organization suggested that the words 

reasonably unforeseeable, when 

referring to changes in market 

conditions, should replace 

unforeseeable. We have determined that 

adding the term reasonably would not 

confer any additional clarity as it is the 

CO who determines whether the 

employer has provided a sufficient 

reason for the extension based on the 

facts of the specific case and evidence 

presented. 

2. § 655.61 Administrative Review 

The Administrative Review provision 

in the NPRM was substantially the same 

as the 2008 Final Rule, with a proposed 

adjustment in the timeframe from 5 to 

7 business days each for the submission 

of the appeal file by the CO, the 

submission of a brief by the CO’s 

counsel, and the issuance of a decision 

by BALCA. We are adopting the 

provision of the NPRM without change 

in this Final Rule. 

Two commenters recommended that 

we provide de novo review in the 

administrative review process. As 

proposed in the NPRM, a request for 

administrative review may contain only 

legal arguments and such evidence as 

was actually submitted to the CO before 

the date the determination was issued. 

By contrast, de novo review would 

permit the parties to add additional 

information for the BALCA to consider 

beyond what was actually submitted to 

the CO. After considering this issue, we 

decline to change the administrative 

process to provide de novo review. 

Given that an employer is provided with 

multiple opportunities to submit 

information and respond to the CO at 

each step of the labor certification 

adjudication process, record review 

provides employers with a fair and 

efficient process to appeal the CO’s 

determinations. De novo review, if 

anything, provides employers with less 

of an incentive to submit the required 

information or documentation when 

requested. Additionally, establishing de 

novo proceedings would further 

lengthen the adjudication process and 

require additional resources that may 

produce a backlog in H–2B appeals. 

Furthermore, the regulations have 

limited BALCA review to the record 

considered by the CO for the past 18 

months without any problems, and we 

believe continuing with this process is 

unlikely to cause problems in the future, 

for the reasons mentioned previously. 

One of these commenters also 

recommended that the rule require us to 

include all information relating to a 

particular matter in the administrative 

file. The commenter stated that placing 

all material relating to a particular 

matter in the administrative file as a 

matter of course would enhance public 

perception of the fairness of the process 

and would likely produce better 

outcomes on the merits. The CO already 

includes in the administrative file any 

documents that it receives from the 

employer and third parties that pertain 

to the adjudication of the certification. 

Therefore, we do not believe that it is 

necessary to add to the regulatory 

language a requirement that the CO 

include in the administrative file all 

information that any party states is 

related to particular matter in the 

administrative file. 

This commenter also requested 

modification of the rule to establish that 

appellate proceedings are adversary 

proceedings for the purposes of the 

Equal Access of Justice Act (EAJA). 

However, Federal courts have 

recognized the EAJA is a waiver of the 

sovereign’s traditional immunity from 

claims for attorneys’ fees and therefore 

must be construed strictly in favor of the 

U.S. Ruckelshaus v. Sierra Club, 463 

U.S. 680, 103 S.Ct. 3274 (1983); Fidelity 

Construction Co. v. United States, 700 

F.2d 1378, 1385 (Fed. Cir. 1983). In 

Smedberg Mach. & Tool, Inc. v. 

Donovan, 730 F.2d 1089 (7th Cir. 1984), 

the court specifically found that labor 

certification review proceedings are not 

adversary adjudication for the purposes 

of the EAJA. While the Smedberg 

decision dealt with the administrative 

review process for the permanent labor 

certification program, it is just as 

applicable to the H–2B program. The 

court found that unless an agency 

hearing is statutorily mandated, the 

EAJA does not provide for the award of 

attorney fees to the prevailing party. See 

Smedberg, 730 F.2d at 1092. Because 

the INA does not mandate an agency 

hearing for the granting or denial of 

H–2B labor certifications, EAJA does not 

provide for attorneys fee awards to 

plaintiffs who prevail in those 

proceedings. Therefore, we decline to 

establish an H–2B appeal is an 

adversary proceeding. 

We received a comment about the 

provision which increased the time for 

the CO to assemble and submit the 

appeal file in § 655.61(b) from 5 

business days to 7 business days. The 

commenter recommended that the rule 

require the submission within 3 

business days. However, 3 business 

days is not, in many cases, enough time 

to assemble, review and submit an 

appeal file, particularly when coupled 

with the CO’s continuing responsibility 

to adjudicate other pending applications 

within a short timeframe and to prepare 

appeal files for other cases on appeal. 

Furthermore, 7 business days is an 

administratively efficient timeframe, 

consistent with similar deadlines for the 

Chicago NPC in our other labor 

certification programs. Therefore, we 

decline to change the deadline to 

assemble and submit the appeal file to 

3 days and instead maintain the 7 

business day deadline proposed. 

One commenter recommended that 

we establish procedures which would 

allow for intervention by workers and/ 

or organizations of workers to 

participate in ALJ hearings. For the 

reasons provided in the general 

discussion of integrity measures later in 

this preamble, we decline to accept this 

suggestion. 

3. § 655.62 Withdrawal of an 

Application for Temporary Employment 

Certification 

Under the proposed rule, an employer 

may withdraw an Application for 

Temporary Employment Certification 

before it is adjudicated. We are retaining 

this provision as proposed with one 

clarifying edit. We received one 

comment on the withdrawal provision. 

This commenter encouraged us to adopt 

additional language providing that if an 

employer withdraws a pending H–2B 

Application for Temporary Employment 

Certification, any U.S. workers hired or 


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in corresponding employment must still 

receive the benefits and protections 

provided under that Application for 

Temporary Employment Certification. 

We decline to accept this suggestion, as 

we do not have the authority to enforce 

the benefits and protections provided 

under an Application for Temporary 

Employment Certification if there is no 

final determination. Presumably, an 

employer can withdraw its application 

the day after submission, at which point 

no recruitment has begun. Hence, we 

distinguish between a request to 

withdraw an Application for Temporary 

Employment Certification before 

adjudication, where the employer makes 

a decision not to participate in the 

program and is likely to have not 

completed the recruitment process, and 

a request to withdraw an adjudicated, 

i.e. certified (full or partial) or denied, 

Application for Temporary Employment 

Certification where the employer has 

already initiated the recruitment process 

on which the CO based the 

determination. Where the CO has 

already made a final decision on an 

employer’s Application for Temporary 

Employment Certification, regardless of 

whether it is denied or certified, and 

where the employer requests 

withdrawal after such adjudication, we 

have maintained as proposed, within 

the integrity measures of both 29 part 

503 and this subpart, that the employer 

is bound by the assurances and 

obligations of the Application for 

Temporary Employment Certification to 

any U.S. worker hired or any 

corresponding workers under the 

positions listed in the Application for 

Temporary Employment Certification. 

Therefore, we are retaining this 

provision with one clarifying change. 

Although implied in the NPRM, we 

have included language in the 

regulations to clarify that a withdrawal 

of an Application for Temporary 

Employment Certification must be 

requested in writing. 

4. § 655.63 Public Disclosure 

This proposed section codifies our 

practice of maintaining, apart from the 

electronic job registry, an electronic 

database accessible to the public 

containing information on all employers 

that apply for H–2B labor certifications. 

The database will continue to include 

information such as the number of 

workers the employer requests on an 

application, the date an application is 

filed, and the final disposition of an 

application. The continued accessibility 

of such information will increase the 

transparency of the H–2B program and 

process and provide information to 

those currently seeking such 

information from the Department 

through FOIA requests. 

The comments that were received in 

regard to public disclosure were 

requests that we include additional 

information or documentation. These 

comments are addressed below. 

We received several suggestions as to 

the types of documents that should be 

posted on the OFLC Web site or 

electronic job registry. One labor 

organization requested that all 

information received from an employer 

seeking registration in the H–2B 

program be placed on an online 

database, in order to facilitate private 

enforcement of the regulations. An 

advocacy group also stated that program 

integrity would be better served by 

expanding the database to include all of 

the materials that the NPC receives from 

employers. While we are committed to 

transparency, we have determined that 

there are several reasons why it may not 

be appropriate or feasible to disclose 

every document to the public. Again, 

many of the documents now required to 

be submitted under the Final Rule may 

contain privileged information, which 

for legitimate reasons cannot be 

disclosed to a third party. In addition, 

the amount of time it would take OFLC 

staff to appropriately redact and upload 

all documentation is beyond OFLC’s 

capabilities at this time. That being said, 

we reserve the right to post, as 

appropriate, any documents pertaining 

to an Application for Temporary 

Employment Certification in order to 

align with the government’s goal to be 

as open and transparent as possible. 

Another advocacy group specified 

different types of information and 

documentation that should be included 

within the public disclosure such as: the 

type of work, the prevailing wage, the 

beginning and the ending dates of 

employment, and if housing is 

provided, then location of the housing. 

An additional concern was the 

timeliness of disclosure, so as to allow 

workers and advocates to participate in 

the administrative review processes. 

Much of the information listed by the 

commenter is contained within the 

Application for Temporary Employment 

Certification and/or the job order, which 

is already disclosed through the 

electronic job registry. We decline to 

accept the suggestion that documents 

related to pre-certification review such 

as agreements with agents and/or 

recruitment reports, or administrative 

actions such as audits should be posted 

before a determination is made by the 

CO and/or an ALJ to give the public 

time to review the documents and 

provide information. In addition to 

causing delays in processing, such 

information if disseminated during the 

administrative process could undermine 

the integrity of the certification and 

appeal processes. There are mechanisms 

for relaying information regarding an 

H–2B job opportunity or an employer 

application; such information may be 

relayed in a complaint lodged through 

the Job Service Complaint System, or 

may be provided to the Administrator, 

OFLC and/or CO at any time. Employers 

filing applications are also reminded 

that where the employer or its agent/ 

attorney is found to have provided false 

information on the Application for 

Temporary Employment Certification, 

the application may be subject to 

revocation, and that person or entity 

may be subject to debarment or 

additional penalties, as appropriate. 

Several commenters also 

recommended that we create a 

searchable database with all 

enforcement actions. OFLC already 

maintains a publically available list of 

debarred entities on its Web site, and 

WHD also maintains a list of 

enforcement actions in closed cases, 

which include the violations, on its 

Web. As stated above, we continue to be 

open to transparency and potentially 

developing a process to make additional 

information, such as final 

determinations, publically available. 

However, we do not believe that it 

would be appropriate to disclose 

information on pending enforcement 

actions, as doing so may undermine the 

integrity of the audit, investigation, or 

adjudication process. Therefore, we 

decline to adopt the commenter’s 

proposal. 

Another commenter recommended 

that ETA and WHD file an annual 

public report about their enforcement 

actions. The commenter is concerned 

that without such public reporting the 

public will have little idea whether the 

changes to the rule are making a 

difference. We decline to adopt this 

requirement in this Final Rule, as such 

information is already available to the 

public. As stated above, OFLC already 

maintains a publically available list of 

debarred entities on its Web site, and 

WHD also maintains a list of 

enforcement actions in closed cases, 

which include the violations, on its Web 

site. 

Several commenters recommended 

that additional information and 

documentation should be included on 

the electronic job registry, in order to 

provide potential workers with a better 

sense of the job opportunity and 

employer. Some wanted us to include 

ETA Forms and other job-offer-related 

documents, while others wanted us to 

go as far as including contracts between 


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employers and foreign recruiters. Other 

commenters expressed concern about 

the type and amount of information that 

could become public via the electronic 

job registry. These commenters asserted 

that employers have a legitimate 

business interest in maintaining the 

confidentiality of employment terms. At 

this time we have decided not to 

include any additional information to 

the electronic job registry other than 

what was proposed under § 655.34. 

Many commenters requested that the 

H–2B Registration be included as part of 

the public disclosure process. These 

commenters contend that such 

transparency would permit public 

monitoring compliance with regulatory 

requirements. For example, members of 

the general public could bring to light 

evidence that an employer 

misrepresented its actual need or the 

employer’s need materially changed 

after the employer received a multi-year 

H–2B Registration. The types of 

information that these commenters 

wanted incorporated under our public 

disclosure are: employer names, 

worksite addresses, number of H–2B 

workers each employer is seeking to 

employ, the industries in which each 

employer operates, indication of the 

employer’s application stage (e.g. 

registration or application), while others 

wanted on-going public disclosure of an 

employer’s certified payrolls 

demonstrating compliance with the 

minimum wage requirements of the 

H–2B program. Though we understand 

why the public may want to see the 

H–2B Registration and the specific 

information listed above, at this time 

because the registration process is one 

by which employers may demonstrate 

their ability to participate in the H–2B 

program and does not provide an 

explicit right to access H–2B workers, 

we decline to make it part of our public 

disclosure. 

I. Integrity Measures 

Proposed §§ 655.70 through 655.73 

have been grouped together under the 

heading Integrity Measures, describing 

those actions we propose to take to 

ensure that an Application for 

Temporary Employment Certification 

filed with the Department in fact 

complies with the requirements of this 

subpart. 

Several commenters suggested that we 

establish procedures to allow for 

workers and organizations of workers to 

intervene and participate in the audit, 

revocation, and debarment processes. 

We find that such procedures would be 

administratively infeasible and 

inefficient and would cause numerous 

delays in the adjudication process. For 

example, under this proposal, we would 

have to identify which workers and/or 

organizations of workers should receive 

notice and should be allowed to 

intervene. Processing delays would be 

exacerbated by the fact that once 

identified, we would have to provide 

additional time and resources to notify 

the parties and provide them with the 

opportunity to prepare and present their 

information, regardless of whether they 

have any specific interest or information 

about the particular proceedings at 

hand. Workers and worker advocates 

continue to have the opportunity to 

contact the OFLC or WHD with any 

findings or concerns that they have 

about a particular employer or 

certification, even without a formal 

notice and intervention process in 

place. For these reasons, we are not 

adding procedures to allow workers and 

organizations of workers to participate 

in the audit, revocation, and debarment 

processes. 

1. § 655.70 Audits 

This proposed section outlined the 

process under which OFLC would 

conduct audits of adjudicated 

applications. The proposed provisions 

were similar to the 2008 Final Rule. The 

Final Rule retains this provision as 

proposed with one clarifying edit. 

Our regulatory mandate to ensure that 

qualified workers in the U.S. are not 

available and that the foreign workers’ 

employment will not adversely affect 

wages and working conditions of 

similarly employed U.S. workers serves 

as the basis for our authority to audit 

adjudicated applications, even if the 

employer’s application is ultimately 

withdrawn after adjudication or denied. 

Adjudicated applications include those 

that have been certified, denied, or 

withdrawn after certification. There is 

real value in auditing denied 

applications because they could be used 

to establish a record of employer noncompliance with program requirements 

and because the information they 

contain assists us in determining 

whether we need to further investigate 

or debar an employer or its agent or 

attorney. 

Under the proposed rule, OFLC had 

the discretion to choose which 

Applications for Temporary 

Employment Certification will be 

audited, including selecting 

applications using a random assignment 

method. When an Application for 

Temporary Employment Certification is 

selected for audit, the CO will send a 

letter to the employer and, if 

appropriate, its attorney or agent, listing 

the documentation the employer must 

submit and the date by which the 

documentation must be sent to the CO. 

The NPRM also provided that an 

employer’s failure to comply with the 

audit process may result in the 

revocation of its certification or in 

debarment, under proposed §§ 655.72 

and 655.73, or require assisted 

recruitment in future filings of an 

Application for Temporary Employment 

Certification, under § 655.71. The CO 

may provide any findings made or 

documents received in the course of the 

audit to DHS or other enforcement 

agencies, as well as WHD. The CO may 

also refer any findings that an employer 

discriminated against a qualified U.S. 

worker to the Department of Justice, 

Civil Rights Division, and Office of 

Special Counsel for Unfair Immigration 

Related Employment Practices. 

We received many comments on this 

provision. The comments were equally 

divided between those that opposed 

post-adjudication audits and those that 

believed that audits are an effective tool 

to enhance integrity and successfully 

root out bad actors. 

Most comments supported OFLC’s 

ability to audit, though one individual 

had concerns about the discretion that 

OFLC has under the NPRM to choose 

which employer that is audited. OFLC 

audits both employers about which it 

has information suggesting that the 

employer may have violated one or 

more provisions of the application and 

employers selected either randomly or 

by industry or other area of concern for 

quality assurance purposes. We do not 

believe that it is appropriate to limit our 

discretion as to which applications may 

be audited, as such a limitation could 

reduce the effectiveness of the integrity 

measures in the H–2B program. 

Several commenters brought up the 

issue of allowing others to intervene in 

the OFLC audit process. As stated above 

in the general discussion of the integrity 

measures, we have decided that such 

procedures would be administratively 

infeasible and inefficient and would 

cause numerous delays in the 

adjudication process. 

A comment submitted by several 

employer advocacy groups 

recommended that the post-adjudication 

audit procedure be eliminated as 

unnecessary and duplicative. They 

argued that post-adjudication audits are 

appropriate in the attestation-based 

certification model; however, there is no 

justification for them under the 

compliance model. These groups also 

stated that the incorporation of ETA’s 

audit procedure coupled with WHD 

enforcement cannot be justified at a 

time when Federal funding resources 

are extremely limited. We disagree with 


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these commenters. We have a duty to 

use the tools and resources in our power 

to protect all workers in the U.S. By 

creating multiple checks and balances 

within the H–2B program, and allowing 

both ETA and WHD the ability to ensure 

compliance, we are meeting our goal of 

ensuring the protection of workers as 

well as keeping employers accountable. 

One commenter wanted to be sure 

that all findings made by OFLC and all 

documents provided during an audit 

would be provided to DHS or other 

enforcement agencies. We work very 

closely with our sister agencies in all 

aspects of the H–2B program and will 

continue to do so. But we have come to 

recognize that providing documentation 

before the determination of an audit 

may result in unnecessary confusion 

and cause unwarranted delays, costs, or 

penalties to an employer. In addition, 

this commenter requested that we share 

information submitted in response to an 

audit or action for revocation or 

debarment with the SWA, so that the 

SWA can provide any relevant 

information to promote informed DOL 

decisions. As previously discussed, we 

have decided that incorporating such 

procedures could cause numerous 

delays in the adjudication process. A 

worker advocacy group suggested that 

any person should be able to request 

that the CO audit a particular employer. 

We reiterate that workers and worker 

advocates always have had the 

opportunity to contact us with any 

information or concerns that they have 

about a particular employer or 

certification, and they will continue to 

have that opportunity, even without a 

formal notice and intervention process 

in place. We cannot, however, commit 

to auditing every employer about which 

we receive a complaint or information. 

We will evaluate all information and 

complaints we receive to determine 

whether an audit is appropriate. 

This same commenter requested that 

the provisions of 29 CFR 503.6 and 

503.7 be incorporated into the audit 

section under this subpart. However, 

though this subpart and 29 CFR part 503 

in many instances parallel each other, 

there are many provisions in one part 

that, based on the different roles of 

OFLC and WHD, may not be deemed 

appropriate for the other. For example, 

one of the provisions in 29 CFR 503.6 

(Waiver of rights prohibited) provides 

that a person may not seek to have an 

H–2B worker, a worker in 

corresponding employment, or any 

other person’s rights waived. This 

provision is not necessarily applicable 

to the audits requirements under the 

post-adjudication audit section, where 

OFLC is auditing the employer’s 

application. It is highly unlikely that the 

documentation provided or requested in 

an audit would provide evidence of any 

waiver of a worker’s rights. Under 29 

CFR 503.7 (Investigation authority of the 

Secretary) WHD has assumed the 

authority delegated to the Secretary 

under 8 U.S.C. 1184(c)(14)(B). WHD is 

the primary agency within the 

Department for investigating employer 

compliance with the requirements of the 

H–2A and H–2B programs. WHD has the 

necessary expertise and knowledge to 

enforce and investigate the various 

regulatory provisions. Requiring OFLC 

to have duplicative investigative 

authority under the audit provision 

would not be the best use of the 

Department’s resources. For the reasons 

stated above, we are retaining the 

substance of this provision as proposed, 

except for several clarifying edits. We 

clarified that the Audit Letter will 

advise the employer of its obligation to 

fully comply with the audit process and 

included a consistency change in the 

last sentence of paragraph (c) by 

replacing the word additional with the 

word supplemental. 

2. § 655.71 CO-Ordered Assisted 

Recruitment 

The proposed rule permitted OFLC to 

determine that a violation that does not 

warrant debarment has occurred and, as 

a result, to require an employer to 

participate in assisted recruitment. This 

provision also applied to those 

employers that due to either program 

inexperience or confusion, have made 

mistakes in their Application for 

Temporary Employment Certification 

that indicate a need for further 

assistance from OFLC. 

Under this provision the CO will 

notify the employer (and its attorney or 

agent, if applicable) in writing of the 

requirement to participate in assisted 

recruitment for any future filed 

Application for Temporary Employment 

Certification for a period of up to 2 

years. The assisted recruitment will be 

at the discretion of the CO, and 

determined on the unique 

circumstances of the employer. 

The assisted recruitment may consist 

of, but is not limited to, requiring the 

employer to conduct additional 

recruitment, reviewing the employer’s 

advertisements before posting and 

directing the employer where such 

advertisements are to be placed and for 

how long, requesting and reviewing 

copies of all advertisements after they 

have been posted, and requiring the 

employer to submit proof of contact 

with past U.S. workers, and proof of 

SWA referrals of U.S. workers. If an 

employer fails to comply with the 

requirements of this section, the 

employer’s application will be denied 

and the employer may be debarred from 

future program participation under 

§ 655.73. 

We also invited comments and 

suggestions of industry-specific 

recruitment and advertising sources to 

be used by the CO in administering 

assisted recruitment in the H–2B 

program under this section. We are 

retaining the proposed provision with 

one change. While we received no 

suggestions about industry-specific 

recruitment sources, the comments did 

indicate general support for allowing 

the CO to order assisted recruitment as 

a means of helping an employer rectify 

recruitment problems before more 

severe administrative actions are 

pursued. One individual stated that the 

COs should refrain from inserting 

themselves into the employer-attorney/ 

agent relationship and should only 

notify the employer of the need to 

participate in assisted recruitment. We 

disagree with this commenter. An 

employer has the right under the 

regulations to seek the advice and 

assistance of an attorney or agent. We 

know of no reason why we should limit 

the areas in which the employer can 

seek that advice and assistance. 

Having considered comments on this 

proposal, we are retaining this provision 

in its entirety with one edit in paragraph 

(d), where we clarify that the employer’s 

failure to comply must be material in 

nature. 

3. § 655.72 Revocation 

Under this section, OFLC can revoke 

an approved temporary labor 

certification under certain conditions, 

including where there is fraud or willful 

misrepresentation of a material fact in 

the application process or a substantial 

failure to comply with the terms and 

conditions of the certification. The 2008 

Final Rule did not include a similar 

revocation provision. We are adopting 

the provisions of the NPRM without 

change in this Final Rule. 

Many commenters expressed general 

approval of the new revocation 

provision as an important enforcement 

technique. Commenters also submitted 

comments on specific provisions of this 

section. 

Several of these commenters 

discussed the bases for revocation in 

paragraph (a) of this section. The basis 

generating the most comments is 

paragraph (a)(2), which lists a 

substantial failure to comply with the 

terms and conditions of the certification 

as a basis for revocation and defines a 

substantial failure as a willful failure to 

comply. Several worker advocacy 


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organizations stated the willful standard 

is too high. Many of these organizations 

suggested an intentional standard, 

instead. Several stated an intentional 

standard would be consistent with the 

Job Service Complaint System and with 

the MSPA. One organization noted that 

the courts have provided considerable 

interpretation of the intentional 

standard under MSPA, so use of the 

intentional standard would enhance the 

standard’s clarity. Another worker 

advocacy organization proposed a new 

eight-part definition for substantial 

failure that included failure to provide 

wages, benefits or acceptable working 

conditions; violations of H–2B 

regulations; and violations of other 

laws. 

We elect to maintain the willful 

standard. The reason for maintaining 

this standard is discussed in more depth 

at 29 CFR 503.19 (Violations) of the 

WHD preamble. 

A labor organization suggested that all 

of an employer’s existing labor 

certifications be revoked if one is 

revoked, because the employer has been 

found to be untrustworthy. While we 

recognize that an employer would be 

undermining the integrity of the labor 

certification program if it meets any of 

the bases for revocation set forth in this 

section, we are retaining the language as 

proposed in the NPRM, because we do 

not believe that violations relating to a 

particular certification should not 

necessarily be imputed to an employer’s 

other certifications. We recognize the 

serious impact that a revocation would 

have on employers and H–2B workers 

alike and do not believe that it should 

be applied to certifications for which 

there has been no finding of employer 

culpability. 

However, we acknowledge that in 

some situations, the Administrator, 

OFLC, may revoke all of an employer’s 

existing labor certifications where the 

underlying violation applies to all of the 

employer’s certifications. For instance, 

if the Administrator, OFLC finds that 

the employer meets either the basis for 

revocation in paragraph (a)(3) of this 

section (failure to cooperate with a 

Department investigation or with a 

Department official performing an 

investigation, inspection, audit, or law 

enforcement function) or in paragraph 

(a)(4) of this section (failure to comply 

with sanctions or remedies imposed by 

WHD or with decisions or orders of the 

Secretary with respect to the H–2B 

program), this finding could provide a 

basis for revoking any and all of the 

employer’s existing labor certifications. 

Additionally, where we find violations 

of paragraphs (a)(1) or (a)(2) of this 

section affect all of the employer’s 

certifications, such as where an 

employer misrepresents its legal status, 

we also may revoke all of that 

employer’s certifications. Lastly, where 

an employer’s certification has been 

revoked, we certainly would take a more 

careful look at the employer’s other 

certifications to determine if similar 

violations exist that would warrant their 

revocation. 

Representing the opposite 

perspective, one coalition of employers 

expressed concern about the effect of 

revocation on businesses and concern 

that revocation may be too frequent 

under the bases proposed in the NPRM. 

The coalition wants us to clarify that 

revocation is an extreme penalty for 

egregious violations. This commenter 

also suggested that we consider the 

totality of the circumstances, not just 

the potential bases listed in paragraph 

(a) of this section, when considering 

whether or not to revoke a temporary 

labor certification. 

We cannot say how often revocation 

will occur under the Final Rule, because 

a similar provision did not exist in the 

2008 Final Rule or before. We recognize 

the seriousness of revocation as a 

remedy; accordingly, the bases for 

revocation in paragraph (a) reflect 

violations that significantly undermine 

the integrity of the H–2B program. We 

intend to use the authority to revoke 

only when an employer’s actions 

warrant such a severe consequence. We 

do not intend to revoke certifications if 

an employer commits minor mistakes. 

Several worker advocacy 

organizations also submitted comments 

on paragraph (b) of this section, which 

details the procedures for revocation. 

Three organizations suggested that the 

rules should provide for notice to 

employees of revocation proceedings 

and for intervention by employees in 

revocation proceedings. One 

organization suggested giving notice of 

revocation to entities listed as potential 

recruitment sources, such as former 

employees. We have decided not to add 

procedures for employee or third party 

notification and intervention to the 

revocation section for the reasons set 

forth in the Integrity Measures preamble 

at §§ 655.70–655.73. 

4. § 655.73 Debarment 

The NPRM proposed to revise the 

existing debarment provision to 

strengthen the enforcement of H–2B 

labor certification requirements and to 

clarify the bases for a debarment. It also 

proposed that WHD have debarment 

authority independent of OFLC. The 

Final Rule adopts these provisions with 

minor changes. 

A number of commenters had 

concerns about the willfulness standard 

that would apply not only to debarment, 

but also to the assessment of violations 

and other remedies. However, many of 

the comments were based on a 

misunderstanding of what a willful 

violation entailed. The violations 

discussion at 29 CFR 503.19 of the WHD 

preamble discusses the willfulness 

standard. As explained in that section, 

we will judge all violations by the 

willfulness standard and will not debar 

for minor, unintentional violations. 

a. Debarment of an employer. A labor 

union encouraged us to extend 

debarment to the individual principals 

of a company or legal entity to foreclose 

the ability of these individuals to 

reconstitute under another business 

entity. Although we do not have the 

authority to routinely seek debarment of 

entities that are not listed on the ETA 

Form 9142, in appropriate 

circumstances, we may pierce the 

corporate veil in order to more 

effectively remedy the violations found. 

b. Debarment of an agent or attorney. 

As discussed under § 655.8, the NPRM 

raised explicit concerns about the role 

of agents in the program, and whether 

their presence and participation have 

contributed to problems with program 

compliance, such as the passing on of 

prohibited costs to employees. These 

concerns were so significant that we 

solicited comments on whether to 

continue to permit the representation of 

employers by agents in the H–2B 

program. As discussed in the preamble 

discussion of § 655.8, we have decided 

to continue to allow agents to represent 

employers. However, as the NPRM also 

explained, if we were to continue to 

accept applications from agents, 

additional requirements might need to 

be applied to strengthen program 

integrity and we solicited comments on 

this issue as well. 

Several employers and employer 

organizations responded by 

acknowledging that bad actors exist in 

the H–2B program, and urging us to use 

our enforcement authority to pursue 

fraud involving agents rather than 

prohibiting the legitimate work of agents 

in preparing and filing H–2B 

applications on behalf of employers. In 

addition, several worker advocacy 

organizations’ comments expressed 

concern about violations committed by 

agents and attorneys, and encouraged us 

to take stronger actions to prevent such 

abuses, primarily by holding employers 

strictly liable for the actions of their 

agents. We are unable to do that for the 

reasons discussed in the preamble 

discussion at 29 CFR 503.20. 


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As a number of both employer and 

worker advocacy organizations noted, 

the Department’s statistics show that in 

FY 2010, 86 percent of employers filed 

H–2B applications using an agent. These 

agents are intimately familiar with the 

H–2B program requirements. As 

commenters affirmed, agents have a 

high level of program knowledge and 

help guide employers through the 

process. The agents and attorneys who 

file applications on behalf of employers 

certify under penalty of perjury on the 

ETA Form 9142 Application for 

Temporary Employment Certification 

that everything on the application is 

true and correct. However, where, for 

example, a bad actor agent passes on 

prohibited fees to workers in violation 

of the prohibition on collecting such 

fees in § 655.20(o) and 29 CFR 503.16(o) 

while affirming that everything on the 

application is true and correct, 

including the employer’s declaration 

that its agents and/or attorneys have not 

sought or received prohibited fees, the 

agent is not currently held accountable 

for such a violation absent a link to an 

employer violation. 

In addition, § 655.20(p) and 29 CFR 

503.16(p) require an employer to 

contractually prohibit an agent or 

recruiter from seeking or receiving 

payments from prospective employees. 

This creates a loophole, under which an 

employer may contractually prohibit the 

attorney or agent (and agents and 

employees) from collecting prohibited 

fees, yet the attorney or agent 

independently charges the workers for 

prohibited fees. In this situation, the 

employer will not be debarred for the 

independent violation of the agent or 

attorney because the employer has not 

committed any violation. A coalition of 

worker advocacy organizations pointed 

out that the proposed regulations 

‘‘continue the Department’s efforts to 

eliminate the pernicious practice of 

foreign workers paying substantial fees 

to recruiters to obtain H–2B jobs. While 

the proposed changes are praiseworthy, 

they are not sufficient to curb these 

abuses and may actually help relieve 

employers of responsibility for such 

charges.’’ 

In light of the concerns expressed in 

the NPRM and the comments received, 

we have decided to strengthen program 

integrity in the Final Rule by applying 

debarment to independent violations by 

attorneys and agents, recognizing that 

agents and attorneys should be held 

accountable for their own independent 

willful violations of the H–2B program, 

separate from an employer’s violation. 

Language to this effect has been added 

to the OFLC and WHD debarment 

provisions at § 655.73(b) and 29 CFR 

503.24(b), as well as the WHD sanctions 

and remedies section, as discussed 

further in the preamble at 29 CFR 

503.20. These enhanced compliance 

measures apply only to the agents and 

attorneys who are signatories on the 

ETA Form 9142, as these agents and 

attorneys have become directly involved 

with the H–2B program and have made 

attestations to the Department. 

A coalition of agents and employers 

suggested that we provide guidance on 

how we would apply the reckless 

disregard standard to agents and 

attorneys and the extent to which agents 

and attorneys must intrude into the 

details of the employer’s business to 

avoid showing reckless disregard for the 

truthfulness of the agent’s or attorney’s 

representations or for whether their 

conduct satisfies the required 

conditions. We do not intend to make 

attorneys or agents strictly liable for 

debarrable offenses committed by their 

employer clients, nor do we intend to 

debar attorneys who obtain privileged 

information during the course of 

representation about their client’s 

violations or whose clients disregard 

their legal advice and commit willful 

violations. We will be sensitive to the 

facts and circumstances in each 

particular instance, and when 

considering whether an attorney or 

agent has participated in an employer’s 

violation; we will seek to debar only 

those attorneys or agents who work in 

collusion with their employer-clients to 

either willfully misrepresent material 

facts or willfully and substantially fail 

to comply with the regulations. 

Similarly, where employers have 

colluded with their agents or attorneys 

to commit willful violations, we will 

consider debarment of the employer as 

well. 

We did not propose in the NPRM to 

debar recruiters who are not agent or 

attorney signatories to the ETA Form 

9142. However, several commenters 

specifically recommended that we 

maintain a public list of debarred 

recruiters. Since recruiters are not 

subject to debarment unless they are 

signatories to the ETA Form 9142, we 

will not maintain a list of debarred 

recruiters. However, both OFLC and 

WHD already publicly post a list of 

employers, agents, or attorneys that 

have been debarred under all of the 

labor certification programs and to the 

extent that a recruiter might also be 

debarred, the recruiter would also 

appear on the list. 

Another commenter requested that we 

report debarred attorneys to State bar 

associations. We note that there is 

nothing in the regulations that restricts 

us from making such a report. Where 

circumstances warrant, we may decide 

to report debarred attorneys to State bar 

associations using the information 

provided in the ETA Form 9142 which 

provides a field for the attorney’s State 

bar association number and State of the 

highest court where the attorney is in 

good standing. However, we note that 

these fields are limited to only one State 

bar association. Therefore, while we 

may be able to notify the State bar 

association listed on the ETA Form 

9142, there may be other State bar 

associations unknown to us, of which 

the attorney is a member that we are 

unable to notify. However, as stated in 

20 CFR 655.73(h) and 29 CFR 503.24(e), 

copies of all final debarment decisions 

will be forwarded to DHS and DOS 

promptly. 

c. Period of debarment. The NPRM 

proposed that the Administrator, OFLC 

may not debar an employer, attorney, or 

agent for less than 1 year nor more than 

5 years from the date of the final 

debarment decision. The Final Rule 

adopts this provision as proposed. One 

commenter stated that increasing the 

maximum debarment period to 5 years 

based on what could be a single 

innocent act could result in a 

disproportionate and overly harsh 

penalty. In addition, a trade association 

questioned why a debarment period of 

up to 5 years was included in the 

NPRM, recommending that we adopt 

the-up- to-3-year debarment maximum 

rule from the current H–2A regulations 

or at least articulate why a more extreme 

penalty is justified under the H–2B 

program. On the other hand, several 

commenters suggested that the 

Department remove the 5-year cap and 

impose debarment for up to 10 years, or 

in some cases permanent debarment, on 

repeat violators. 

The 1- to 5-year range for the period 

of debarment is consistent with the H– 

2B enforcement provisions in the INA, 

and we believe that it is appropriate to 

apply the same standard in our 

regulations. 8 U.S.C. 1184(c)(14)(A)(ii). 

We do not intend to debar employers, 

attorneys, or agents who make minor, 

unintentional mistakes in complying 

with the program, but rather those who 

commit a willful misrepresentation of a 

material fact, or a substantial failure to 

meet the terms and conditions, in the 

H–2B Registration, Application for 

Temporary Employment Certification, 

or H–2B Petition. Additionally, just 

because the Administrator, OFLC has 

the authority to debar a party for up to 

5 years does not mean that would be the 

result for all debarment determinations, 

as the Administrator, OFLC retains the 

discretion to determine the appropriate 


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period of debarment based on the 

severity of the violation. 

d. Violations. The NPRM proposed 

that a single act, as opposed to a pattern 

or practice of such actions, would be 

sufficient to merit debarment. A labor 

union noted that the proposed 

regulation text, stating at § 655.73(f)(12) 

and 29 CFR 503.24(a)(10) that a single 

heinous act showing such flagrant 

disregard for the law that future 

compliance with program requirements 

cannot be reasonably expected implies 

that a single violation in one of the 

eleven categories listed before the single 

act language is insufficient for 

debarment. The commenter noted that 

this implication was at odds with our 

stated intent to make any of the listed 

acts sufficient for debarment. The 

commenter suggested that the regulation 

establish that failure to comply with any 

representation, requirement, or offer in 

the registration, application, or job order 

would warrant per se debarment. By 

contrast, a professional organization 

took issue with debarment for a single 

act, rather than a pattern or practice of 

repeat violations, where there was no 

evidence of fraud or misrepresentation. 

We agree that the single heinous act 

language is potentially confusing. We 

did not intend to suggest that a single 

violation falling into one of the other 13 

listed categories of violations may not 

be sufficient for debarment. Thus, we 

have added language in the Final Rule 

text at § 655.73 and 29 CFR 503.24 

making one or more acts of commission 

or omission debarrable for all of the 

listed violations, and have revised 

§ 655.73(f)(12) and 29 CFR 503.24(a)(10) 

to encompass any other act as opposed 

to a single heinous act. As discussed in 

the preamble discussion of 29 CFR 

503.19, which explains the standard 

that applies to all H–2B debarment 

actions, any act or omission would have 

to be willful to warrant debarment. 

A State attorney general 

recommended that we add failure to 

cooperate in State and local 

investigations to the grounds for 

debarment. It is beyond our jurisdiction 

and the scope of our responsibilities 

under the H–2B program to evaluate 

whether an entity cooperated with a 

State or local investigation and to 

penalize the entity for failing to so. 

A coalition of worker advocacy 

organizations and several additional 

worker advocacy organizations 

encouraged us to add to the nonexhaustive list of debarrable offenses the 

failure to disclose a recruiter’s identity 

under the requirement proposed in 

§ 655.9, the use of a debarred recruiter, 

and the failure of an employer to report 

recruiter violations to OFLC and WHD. 

The NPRM did not propose violations 

for employer use of a debarred recruiter, 

nor did it propose a reporting 

requirement for recruiter violations 

known to the employer but not to us. 

Further, as the list of debarrable offenses 

is explicitly non-exhaustive, we decline 

to add non-compliance with § 655.9 to 

the list. However, we are adding 

obligations under § 655.9 to the list of 

employer assurances and obligations in 

§ 655.20 and 29 CFR 503.16 to clarify 

that we view employer (and its agent or 

attorney, as applicable) disclosure of 

foreign worker recruitment by an agent 

or recruiter as a critical obligation. We 

will pursue enforcement where 

employers (and their agents or 

attorneys, as applicable) commit willful 

violations of this provision. 

A labor union expressed concern 

about employer misclassification of 

immigrant workers as independent 

contractors, and suggested that we add 

to the list of debarrable offenses the 

misclassification of H–2B workers or 

corresponding U.S. employees as 

independent contractors. Although the 

misclassification of workers as 

independent contractors is a matter 

WHD might pursue as it relates to its 

enforcement authority under statutes 

such as the Fair Labor Standards Act, 

this type of misclassification has not 

been characterized as a violation of the 

H–2B regulations, where an employer is 

explicitly seeking permission to hire 

foreign workers as employees. 

Therefore, it would not be appropriate 

to add to the list of debarrable offenses. 

e. Debarment procedure. A worker 

advocacy organization commented that 

the debarment timeline should allow 

debarment to take place before 

employers are able to recruit and hire 

workers for the next season, to ensure 

that employers who violate worker 

protection laws are removed before the 

next recruitment cycle. However, the 

debarment timeline varies greatly 

depending on the timing of when 

violations are discovered through OFLC 

audits, WHD targeted investigations, or 

WHD investigations initiated by 

complaints. In other words, there is no 

one time within a season when a 

debarment proceeding might be 

initiated. Additionally, various factors 

affect the timing of an investigation that 

may lead to debarment, including the 

complexity of the case and the number 

of violations involved. Parties subject to 

debarment also have the right to appeal 

the debarment decision. Thus, we 

cannot ensure any particular timing for 

the debarment process. 

f. Concurrent debarment jurisdiction. 

Several commenters objected to WHD’s 

concurrent debarment authority. These 

comments are fully discussed in the 

concurrent actions section at 29 CFR 

503.21 of the WHD preamble. 

g. Interagency communication. A 

commenter recommended amending the 

proposed rule to require us to share 

information about problem entities with 

other departments and agencies that 

administer U.S. visa programs to 

prevent the offender from refocusing its 

efforts on possible alternative visa 

programs outside of our jurisdiction. 

Also, the commenter recommended that 

in more serious cases we should 

permanently debar the entity and refer 

the entity to the Department of Justice 

for prosecution. Similarly, another 

commenter recommended that the 

regulations require the provision of 

regular notices to other agencies about 

investigations and enforcement actions 

that we have taken against employers 

for possible or adjudicated violations of 

Department-administered visa programs 

and that we should ask other 

departments and agencies, i.e., DOS, 

USCIS, and ICE, to provide similar 

notices to us. We decline to make these 

recommended changes to the regulation 

text. Paragraph (h) of this section 

already provides that copies of final 

debarment decisions will be forwarded 

to DHS and DOS promptly. Clearly, 

where it is warranted, we will notify 

additional agencies, such as DOJ, of the 

violations, but we do not believe that it 

is necessary for the regulation to 

provide that as an additional 

requirement. Also, we do not believe 

that it is appropriate to provide regular 

notices to other agencies, or require 

such agencies to notify us, of pending 

enforcement actions and investigations 

of possible violations because that 

information is of little practical use 

until these actions have been concluded 

and a final determination has been 

issued. Finally, for the reasons 

discussed above, we do not believe that 

permanent debarment is appropriate but 

rather have determined that the 5-year 

maximum period is consistent with the 

H–2B enforcement provisions under the 

INA. 

h. Additional penalties for debarred 

employers. Two commenters requested 

that the regulations add discontinuation 

of job services to the list of sanctions of 

debarred employers. Because 

discontinuation of services under the 

employment service system, along with 

other sanctions for non-compliant H–2B 

employers, is already governed at 

§ 658.500 subpart F of this part, we do 

not believe that it is necessary to make 

any change to the regulations in this 

subpart to reflect that provision. 

Additional remedies offered by 

commenters that would apply to all 


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non-compliant employers, including 

those that are debarred, are discussed in 

the preamble discussion of the sanctions 

and remedies at 29 CFR 503.20. 

III. Addition of 29 CFR Part 503 

Effective January 18, 2009, pursuant 

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

transferred to the Secretary enforcement 

authority for the provisions in section 

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

petitions to admit H–2B workers. The 

2008 Final Rule contains the regulatory 

provisions governing ETA’s processing 

of the employer’s Application for 

Temporary Employment Certification 

and the WHD’s enforcement 

responsibilities in ensuring that the 

employer has not willfully 

misrepresented a material fact or 

substantially failed to meet a condition 

of such application. 

The Department carefully reviewed 

the 2008 Final Rule and proposed 

substantive changes to both the 

certification and enforcement processes 

to enhance protection of U.S. and H–2B 

workers. 

The proposed rule added a new part, 

29 CFR part 503, to further define and 

clarify the protections for workers. This 

proposal and the proposed changes in 

20 CFR part 655, Subpart A added 

workers in corresponding employment 

to the protected worker group, imposed 

additional recruitment obligations and 

employer obligations for laid off U.S. 

workers, and increased wage protections 

for H–2B workers and workers in 

corresponding employment. 

Additionally, the Department proposed 

to enhance the WHD’s enforcement role 

in administrative proceedings following 

a WHD investigation, such as by 

allowing WHD to pursue debarment 

rather than simply recommending to 

ETA that it debar an employer as occurs 

under current § 655.65(h). 

To ensure consistency and clear 

delineation of responsibilities between 

Departmental agencies implementing 

and enforcing H–2B provisions, this 

new Part 503 was written in close 

collaboration with ETA and is being 

published concurrently with ETA’s 

Final Rule in 20 CFR part 655, Subpart 

A to amend the employer certification 

process. Some editorial changes have 

been made to the text of the proposed 

regulations, for clarity and to improve 

readability. Those changes are not 

intended to alter the meaning or intent 

of the regulations and are not further 

discussed in this preamble. A 

discussion of the comments received on 

the proposal and substantive changes 

made by the Department are discussed 

at length below. 

A. General Provisions and Definitions 

Proposed §§ 503.0 through 503.8 

provided general background 

information about the H–2B program 

and its operation. Proposed § 503.1 and 

§ 503.2 are similar to the existing 

regulations at 20 CFR 655.1 and 655.2. 

Proposed § 503.3 described how the 

Department will coordinate both 

internally and with other agencies. One 

commenter expressed concerns that the 

provision at § 503.3 did not provide 

specific information on where to file a 

complaint. The Department considers 

the guidance provided in § 503.7 to be 

sufficient notice to potential 

complainants. 

Sections 503.0, 503.1, 503.2, and 

503.3 are adopted in the Final Rule as 

proposed. 

1. § 503.4 Definition of Terms 

Under this section of the NPRM, the 

proposed definitions were identical to 

those contained in proposed 20 CFR 

part 655, Subpart A, except that this 

section contained only those definitions 

applicable to this part. The preamble to 

20 CFR part 655, Subpart A contains the 

relevant discussion of comments 

received on and changes made to those 

definitions. For the reasons discussed 

there, the Final Rule makes identical 

conforming changes in this section. 

2. § 503.5 Temporary Need 

Under this proposed section, the 

provision regarding temporary need was 

identical to the requirements set forth in 

proposed 20 CFR 655.6; the preamble to 

that section includes a full discussion of 

the comments received in response to 

the proposed provisions. The Final Rule 

adopts the provision as proposed. 

3. § 503.6 Waiver of Rights Prohibited 

The Department proposed in § 503.6 

to add new language that would 

prohibit any employer from seeking to 

have workers waive or modify any 

rights granted them under these 

regulations. The proposed paragraph 

would have, with limited exceptions, 

voided any agreement purporting to 

waive or modify such rights. The 

proposed language was consistent with 

similar prohibitions against waiver of 

rights under other laws, such as the 

Family and Medical Leave Act, see 29 

CFR 825.220(d), and the H–2A program, 

see 29 CFR 501.5. The Department 

received several comments concerning 

this proposed addition, all of which 

supported the change. One advocacy 

group cited the vulnerability of the H– 

2B workers as a reason for needing this 

provision. One union mentioned 

concerns that without the provision 

unscrupulous employers might attempt 

to use waivers to gut the program. The 

Department has retained the section as 

proposed in the Final Rule. 

4. § 503.7 Investigation Authority of 

Secretary 

In § 503.7 of the NPRM, the 

Department proposed to retain the 

current authority established under 20 

CFR 655.50, affirming WHD’s authority 

to investigate employer compliance 

with these regulations and WHD’s 

obligation to protect the confidentiality 

of complainants. This proposed section 

also discussed the reporting of 

violations. No comments were received 

on this section; the proposed language 

has been maintained in the Final Rule. 

5. § 503.8 Accuracy of Information, 

Statements, Data 

Under this proposed section, making 

false representations to the government 

would make an entity subject to 

penalties, including a fine of up to 

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

A few commenters expressly supported 

this provision, stating that the inclusion 

of this provision makes it clear to 

employer that there are serious 

consequences for criminal acts. The 

proposed language has been maintained 

in the Final Rule. 

B. Enforcement Provisions 

1. § 503.15 Enforcement 

In order to ensure that U.S. workers 

are not adversely affected by the 

employment of H–2B workers, the 

NPRM proposed expanding the type of 

workers entitled to protection by WHD 

enforcement to workers in 

corresponding employment, as defined 

under 20 CFR 655.5. Comments 

regarding corresponding employment 

are discussed fully in that section. The 

NPRM proposed to continue WHD 

enforcement for H–2B workers and U.S. 

workers improperly rejected, laid off, or 

displaced. Labor unions supported 

WHD’s proposed enforcement, with one 

commenting that giving U.S. workers 

this means of redress is critical to 

effectuating the Secretary of Labor’s 

mandate to ensure that the certification 

and employment of H–2B aliens does 

not harm similarly-situated U.S. 

workers, and asserting that it also 

prevents U.S. workers being employed 

alongside H–2B aliens who might 

otherwise receive greater pay, benefits, 

and protection from abuse through the 

H–2B program than their domestic 

counterparts enjoy. Similarly, a State 

Attorney General’s office strongly 

supported the Department’s 

strengthened efforts to protect 


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workers—U.S. workers as well as H–2B 

workers laboring along side them. 

A trade association expressed its 

concern that the proposed investigation 

and enforcement regulations in this Part 

would only be complaint-driven, i.e., 

that WHD would only investigate where 

there were complaints from foreign 

workers, which would potentially 

overlook violations because foreign 

workers may be reluctant to file 

complaints. However, WHD investigates 

complaints filed by both foreign and 

U.S. workers affected by the H–2B 

program, as well as concerns raised by 

other federal agencies, such as USCIS, 

regarding particular employers and 

agents. WHD also conducts targeted or 

directed investigations of H–2B 

employers to evaluate program 

compliance. 

An individual stakeholder questioned 

the avenue for filing a complaint 

alleging non-compliance with the H–2B 

program. Complaints may be filed by 

calling WHD at 866–4US–WAGE or by 

contacting a local WHD office. Contact 

information for local offices is available 

online at http://www.dol.gov/whd/ 

america2.htm. 

Several agents and employer 

organizations contended that the 

Department’s proposed enforcement 

authority over H–2B program 

compliance exceeded its statutory 

authority, as delegated by DHS. Based 

on the enforcement authority outlined 

in the preamble under 20 CFR 655.2 and 

the addition of 29 CFR part 503, and the 

detailed discussion of the Department’s 

enforcement authority in the 2008 Final 

Rule in response to similar comments, 

73 FR78020, 78043–44 (debarment) 

78046–47 (civil monetary penalties and 

remedies), Dec. 19, 2008, the 

Department has concluded that it is 

authorized to conduct the enforcement 

activities described in this Final Rule. 

2. § 503.16 Assurances and Obligations 

of H–2B Employers 

The provisions proposed in this 

section were identical to those proposed 

in 20 CFR 655.20, with the exception of 

the additional obligation in proposed 

paragraph (aa) (Cooperation with 

investigators) requiring employers to 

cooperate in any administrative or 

enforcement proceeding. No comments 

were received on that paragraph and the 

provision is adopted in the Final Rule 

as paragraph (bb). Proposed paragraph 

§ 503.16(aa) is redesignated as 

§ 503.16(bb) in the final rule. Proposed 

paragraph (aa), paragraph (bb) in the 

Final Rule matches the language of a 

new provision at 20 CFR 655.20(aa), 

which is consistent with 20 CFR 655.9 

of the proposed rule and this Final Rule, 

requiring an employer to provide with 

its Application for Temporary 

Employment Certification copies of 

agreements with foreign labor 

contractors and recruiters (see 

discussion of 20 CFR 655.9 in this 

preamble). The Department carefully 

reviewed all comments concerning 

employer assurances and obligations (a) 

through (z), a full discussion of which 

is included in the preamble to 20 CFR 

655.20. Identical conforming changes 

are made in this Final Rule section as 

are made there, for the reasons 

discussed in that preamble. 

3. § 503.17 Documentation Retention 

Requirements of H–2B Employers 

In § 503.17 the Department proposed 

to consolidate the document retention 

requirements previously found 

throughout 20 CFR 655, subpart A. 

These requirements are similar to those 

in 20 CFR 655.56, with minor 

differences related to OFLC’s and 

WHD’s separate interests. A coalition 

representing agents and employers 

commented in support of this proposal, 

noting that most employers are already 

familiar with their obligation to keep 

documents for three years to comply 

with the FLSA. However one employer 

stated that the documentation provision 

was complex and demanding for the 

employer. As stated in the preamble to 

the proposed rule, this section does not 

require employers to create any new 

documents but simply to preserve those 

documents that are already required for 

applying for participation in the H–2B 

program, and therefore should not place 

any further burden on employers. A 

commenter representing the outdoor 

entertainment industry indicated that it 

would be difficult to comply with the 

72-hour availability requirement and 

urged the Department to allow retention 

and provision of required documents in 

electronic format. This request was 

repeated by an employer advocacy 

group. The Department recognizes these 

commenters’ concern and reminds them 

that under the FLSA employers who 

maintain records at a central 

recordkeeping office, other than in the 

place(s) of employment, are required to 

make records available within 72 hours 

following notice from WHD. See 29 CFR 

516.7. This provision, which has been 

in place for decades, has not created 

undue burden for employers; as many 

H–2B employers are likely covered by 

the FLSA, this provision results in no 

additional burden. A full discussion of 

the use of electronic records can be 

found in the preamble to 20 CFR 655.56. 

A commenter stated that a retention 

period of 3 years was insufficient and 

expressed concern that in the case of a 

3-year certification, the employer could 

destroy records before completion of the 

job. Another comment included a 

recommendation that records be 

retained for 5 years in case of an 

investigation for criminal fraud. The 

Department has decided that a 3-year 

record retention requirement is 

adequate for its civil enforcement 

purposes. 

Finally, a number of comments 

included recommendations that 

employers be required to retain records 

of the visa, subsistence, transportation, 

and recruitment costs, including the 

amount, by whom and to whom they 

were paid and the time of payment. The 

Department considers the general 

requirement that employers retain 

documents and records to prove 

compliance with the regulations to be 

sufficient for its enforcement purposes. 

Further discussion of recordkeeping 

provisions is included in the preamble 

of 20 CFR 655, subpart A. The proposed 

provision is adopted without change. 

4. § 503.18 Validity of Temporary 

Labor Certification 

In § 503.18 the Department proposed 

to include clarifying edits to this section 

(which corresponds to existing 20 CFR 

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

frame and scope for which an 

Application for Temporary Employment 

Certification is valid. A discussion of 

comments received on this section can 

be found in the preamble to 20 CFR 

655.55. The proposed provision is 

adopted without change. 

5. § 503.19 Violations 

The NPRM proposed retention of the 

willfulness standard for the assessment 

of violations, monetary remedies, and 

civil money penalties, as well as 

determinations concerning revocation 

and debarment. As discussed below, 

comments from employers, agents, 

industry organizations, labor unions, 

and worker advocacy organizations 

reflected a significant amount of 

confusion about the standards by which 

violations are determined under the H– 

2B program, as well as whether the 

standards apply equally to revocation, 

debarment, monetary or other remedies, 

and civil money penalties. After briefly 

summarizing the comments received, 

the Department will attempt to clarify 

for the benefit of all affected parties the 

basis for the continued use of a 

willfulness standard for determining 

whether a violation has occurred, 

regardless of whether the violation 

results in revocation imposed by OFLC 

pursuant to 20 CFR 655.72, debarment 

imposed by OFLC pursuant to 20 CFR 

655.73 or WHD pursuant to § 503.24, 


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monetary or other remedies assessed by 

WHD pursuant to § 503.20, and/or civil 

money penalties assessed by WHD 

pursuant to § 503.23. 

Several worker advocacy 

organizations stated the willful standard 

is too high. Many of these organizations 

suggested an intentional standard, 

instead. Several stated an intentional 

standard would be consistent with the 

Job Service Complaint System and with 

the Migrant and Seasonal Agricultural 

Worker Protection Act. One 

organization noted that the courts have 

provided considerable interpretation of 

the intentional standard under MSPA, 

so use of the intentional standard would 

enhance the standard’s clarity. Another 

worker advocacy organization proposed 

a new eight-part definition for 

substantial failure. 

Conversely, several employers, 

employer coalitions, and trade 

associations commented that the 

substantial failure standard was too low, 

believing this standard would lead the 

Department to debar for unintentional, 

negligent failures or technical 

violations, as opposed to knowing 

failures. In addition, several agents and 

employer organizations wanted the 

Department to clarify that it views the 

punishments of revocation and 

debarment as extreme penalties for 

egregious violations rather than routine 

remedies, indistinguishable from back 

pay and civil money penalties. 

In light of the numerous comments 

suggesting what commenters believed to 

be the adoption of essentially a higher 

or lower standard than the standard 

currently in place, the Department 

wishes to clarify that violations under 

these regulations, both in the 2008 Final 

Rule and in the 2011 NPRM, have been 

defined to be consistent with the INA’s 

provisions regarding violations for H–2B 

workers. Specifically, INA section 

214(c)(14)(A), 8 U.S.C. 1184(c)(14)(A), 

sets forth two potential violations under 

the H–2B program: (1) ‘‘a substantial 

failure to meet any of the conditions of 

the petition’’ and (2) ‘‘a willful 

misrepresentation of a material fact in 

such petition.’’ The INA further defines 

a substantial failure to be a ‘‘willful 

failure to comply * * * that constitutes 

a significant deviation from the terms 

and conditions of a petition.’’ 8 U.S.C. 

1184(c)(14)(D). The H–2B Petition 

includes the approved Application for 

Temporary Employment Certification. 

See § 503.4; 20 CFR § 655.5. Therefore, 

it is the Department’s view that nonwillful violations are not cognizable 

under the H–2B program, and that it is 

not appropriate for the Department to 

select a lower standard for determining 

H–2B violations. 

Thus, in this Final Rule, the basis for 

determining violations has not changed 

since the 2008 Final Rule, and 

continues to be either a 

misrepresentation of material fact or a 

substantial failure to comply with terms 

and conditions, both of which continue 

to be willful. See 20 CFR 655.72(a)(1) & 

(2) (revocation), 20 CFR 655.73(a)(1)-(3) 

(OFLC debarment), § 503.19(a)(1) & (2) 

(WHD violations, which lead to 

remedies, civil monetary penalties, and/ 

or debarment). To determine whether a 

violation is willful, the Department will 

consider whether the employer, 

attorney, or agent knows its statement is 

false or that its conduct is in violation, 

or shows reckless disregard for the 

truthfulness of its representation or for 

whether its conduct satisfies the 

required conditions. See 20 CFR 

655.73(d), § 503.19(b). This is consistent 

with the longstanding definition of 

willfulness. See McLaughlin v. Richland 

Shoe Co., 486 U.S. 128 (1988); see also 

Trans World Airlines, Inc. v. Thurston, 

469 U.S. 111 (1985). Further, tracking 

the INA language, a substantial failure 

continues to be defined as willful as 

well as a significant deviation from the 

terms or conditions of a petition. 20 CFR 

655.72(a)(2), 20 CFR 655.73(a)(2), 

§ 503.19(a)(2). OFLC revocation and 

debarment are tied to the definitions in 

20 CFR 655.73(d) and (e), which explain 

how to determine willfulness and how 

to determine whether a substantial 

violation is a significant deviation; these 

provisions mirror the definitions for 

WHD violations in § 503.19(b) and (c). 

A labor union that approved of the 

willfulness standard and recognized 

that it encompasses reckless disregard 

suggested that the Department impute 

willfulness where there are multiple, 

non-willful violations because such 

repeated violations evidence reckless 

disregard. Rather than imputing 

willfulness, when the Department 

encounters violations that do not rise to 

the level of willfulness, it puts the party 

on notice regarding future compliance 

and will consider subsequent violations 

committed with the knowledge that 

such acts or omissions violate H–2B 

program requirements to be willful. 

The NPRM also proposed an 

additional change in the description of 

violations in § 503.19. Unlike the 

definition of violations in the 2008 Final 

Rule, which only mentioned employer 

violations specifically, the proposed 

definition of violations does not specify 

a violator, thus encompassing violations 

committed by an employer, attorney 

and/or agent. After receiving no 

comments, the Department is adopting 

this provision of the NPRM without 

change in the Final Rule. 

6. § 503.20 Sanctions and Remedies— 

General 

The NPRM proposed that the 

Department continue to pursue 

essentially the same remedies upon a 

WHD determination that a violation has 

occurred, including but not limited to 

payment of back wages, recovery of 

prohibited fees paid or impermissible 

deductions, enforcement of the 

provisions of the job order, assessment 

of CMPs, make-whole relief for victims 

of discrimination, and reinstatement 

and make-whole relief for U.S. workers 

who were improperly denied 

employment. The NPRM also proposed 

to give WHD independent debarment 

authority, concurrent with ETA’s 

debarment authority. Comments 

regarding WHD’s debarment authority 

are discussed under § 503.21. 

Sanctions and remedies in general. In 

general, worker advocacy organizations 

favored the enforcement measures 

proposed in the NPRM, noting that the 

H–2B program has been plagued by 

wage and hour violations, fraudulent 

applications for non-existent jobs, race 

and gender discrimination and human 

trafficking. Worker advocacy 

organizations commented that 

debarment, revocation, civil money 

penalties, and traditional remedies such 

as payment of back wages and 

impermissible fees and deductions, as 

well as reinstatement for workers 

improperly rejected for employment, 

were important tools to encourage 

compliance. One worker advocacy 

organization proposed that the 

Department should allow workers who 

have been subjected to H–2B violations 

and who live outside the United States 

to participate in related investigations or 

proceedings, recover any damages, and 

be recommended for visas for this 

purpose. The Department does not 

prohibit such participation by workers 

who may have returned to their home 

country, and it often distributes back 

wages to workers who have experienced 

violations and have returned to their 

home countries. Where appropriate 

given the circumstances in any given 

investigation or proceeding, the 

Department might seek a means for the 

worker to travel to the U.S. to 

participate in such proceedings. 

Liability for prohibited fees collected 

by foreign labor recruiters and subcontractors. A coalition of worker 

advocacy organizations, several 

additional worker advocacy 

organizations, and a federation of 

national and international labor unions 

explained that although the NPRM took 

important steps toward reducing 

exploitative foreign labor recruiting 


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practices by prohibiting the collection of 

transportation, visa, recruiting, and 

other fees from workers, these 

prohibitions would be unenforceable as 

a practical matter unless the Department 

held employers strictly liable for such 

charges levied on workers by the 

employer’s recruiters, agents, or subcontracted recruiters and agents. These 

commenters cited instances where 

employers were insulated from liability 

for unlawful fee-charging because the 

employers obtained assurances from 

their agents that fees were not being 

charged, noting that the NPRM would 

similarly shield employers from liability 

for prohibited fees charged by recruiters 

where an employer complied with the 

provision requiring it to contractually 

prohibit agents from seeking or 

receiving payments from workers. In 

addition, these commenters noted that 

exploitative practices, which leave H– 

2B workers in significant preemployment debt, are often left 

unchecked because most of the local 

recruiters who charge these fees are 

beyond the direct regulatory reach of the 

Department and it is difficult for 

workers to bring actions against 

recruiters operating overseas due to 

issues of personal jurisdiction, solvency, 

cost and collectability. 

As the preamble to the 2008 Final 

Rule emphasized, 73 FR 78037, the 

Department is adamant that recruitment 

of foreign workers is an expense to be 

borne by the employer and not by the 

foreign worker. Examples of 

exploitation of foreign workers, who in 

some instances have been required to 

give recruiters thousands of dollars to 

secure a job, have been widely reported 

in the comments received by the 

Department and elsewhere. The 

Department is concerned about the 

exploitation of workers who have 

heavily indebted themselves to secure a 

place in the H–2B program, and believes 

that such exploitation may adversely 

affect the wages and working conditions 

of U.S. workers by creating conditions 

akin to indentured servitude, driving 

down wages and working conditions for 

all workers, foreign and domestic. 

The Department believes that 

requiring employers to incur the costs of 

recruitment is reasonable, even when 

taking place in a foreign country. 

However, the Department recognizes 

that an employer’s ability to control the 

actions of agents and sub-contractors 

across international borders is 

constrained, just as the Department’s 

ability to enforce regulations across 

international borders is constrained. As 

discussed in the preamble to 20 CFR 

655.20 (p), the Department is requiring 

that the employer, as a condition of 

applying for temporary labor 

certification for H–2B workers, 

contractually forbid any foreign labor 

contractor or recruiter (or any agent or 

employee of such agent or recruiter) 

whom the employer engages in 

international recruitment of H–2B 

workers to seek or receive payments 

from prospective employees. The 

Department will attempt to ensure the 

bona fides of such contracts and will 

work together with DHS, whose 

regulations also generally preclude the 

approval of an H–2B Petition and 

provide for denial or revocation if the 

employer knows or has reason to know 

that the worker has paid, or has agreed 

to pay, fees to a recruiter, facilitator, 

agent, and similar employment service 

as a condition of an offer or maintaining 

condition of H–2B employment. See 8 

CFR 214.2(h)(6)(i)(B). As explained in 

WHD Field Assistance Bulletin No. 

2011–2, any fee that facilitates an 

employee obtaining the visa in order to 

be able to work for that employer will 

be considered a recruitment fee, which 

must be borne by the H–2B employer. In 

addition, although employees may 

voluntarily pay some fees to 

independent third-party facilitators for 

services such as assisting the employee 

to access the Internet or in dealing with 

DOS, such fees may be paid by 

employees only if they are not made a 

condition of access to the job 

opportunity. When employers use 

recruiters, and in particular when they 

impose the contractual prohibition on 

collecting prohibited fees, they must 

make it abundantly clear that the 

recruiter and its agents or employees are 

not to receive remuneration from the 

foreign worker recruited in exchange for 

access to a job opportunity or in 

exchange for having that worker 

maintain that job opportunity. For 

example, evidence showing that the 

employer paid the recruiter no fee or an 

extraordinarily low fee, or continued to 

use a recruiter about whom the 

employer had received credible 

complaints, could be an indication that 

the contractual prohibition was not 

bona fide. In addition, where the 

Department determines that workers 

have paid these fees and the employer 

cannot demonstrate the requisite bona 

fide contractual prohibitions, the 

Department will require the employer to 

reimburse the workers in the amount of 

these prohibited fees. However, where 

an employer has complied in good faith 

with this provision and has 

contractually prohibited the collection 

of prohibited fees from workers, there is 

no willful violation. Thus, the Final 

Rule does not impose strict liability on 

employers for the collection of 

prohibited fees from workers by others. 

Agent and attorney liability. For the 

reasons stated in the discussion under 

Debarment of Agents and Attorneys in 

20 CFR 655.73, this Final Rule holds 

agent and attorney signatories to the 

Form 9142 liable for their independent 

willful violations of the H–2B program, 

separate from an employer’s violation. 

As noted earlier, the Final Rule adopts 

the language proposed in § 503.19 that: 

‘‘A willful misrepresentation of a 

material fact or a willful failure to meet 

the required terms and conditions 

occurs when the employer, attorney, or 

agent knows its statement is false or that 

its conduct is in violation, or shows 

reckless disregard for the truthfulness of 

its representation or for whether its 

conduct satisfies the required 

conditions.’’ The Final Rule also adopts 

the language proposed in § 503.20(a) 

that WHD can seek appropriate relief for 

any violation defined in § 503.19, 

including recovery of prohibited 

recruitment fees. Clarifying language 

has been added to § 503.20(b) to reflect 

that remedies will be sought directly 

from the employer or its successor, or 

from the employer’s agent or attorney, 

where appropriate. For example, it 

would be appropriate to seek 

reimbursement of prohibited fees to 

affected workers from an attorney or 

agent, as opposed to an employer, where 

the employer has contractually 

prohibited the attorney or agent from 

collecting such fees yet the agent or 

attorney does so, despite the employer 

having affirmed on the Application for 

Temporary Employment Certification 

that everything in the application is true 

and correct, including the employer’s 

attestation that ‘‘[t]he employer and its 

attorney, agents and/or employees have 

not sought or received payment of any 

kind from the H–2B worker for any 

activity related to obtaining temporary 

labor certification, including but not 

limited to payment of the employer’s 

attorney or agent fees, application fees, 

or recruitment costs.’’ On the other 

hand, it would not be appropriate to 

hold the attorney or agent liable for 

unpaid wages when an employer fails to 

pay the required wage during the period 

of the application where the attorney or 

agent was uninvolved in such a 

violation. 

Make-whole relief. A coalition 

representing agents and employers 

requested that the Department clarify 

the meaning of make-whole relief in this 

provision. Specifically, these 

commenters were concerned that makewhole relief would include 

compensatory damages for injuries 

beyond those that occur because of acts 


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or omissions related to violations of the 

terms and conditions of the H–2B 

program, as these damages would 

typically be available in a civil court 

action but employers would be 

disadvantaged if the Department 

imposed them in informal 

administrative proceedings. These 

commenters suggested that make-whole 

relief be deleted if the Department did 

not provide a clearer definition. 

These commenters’ concerns are 

unfounded. The Department intended 

make-whole relief to be limited to its 

traditional meaning, which is that the 

party subjected to the violation is 

restored to the position, both 

economically and in terms of 

employment status, that he or she 

would have occupied had the violation 

never taken place. Make-whole relief 

includes equitable and monetary relief 

such as reinstatement, hiring, front pay, 

reimbursement of monies illegally 

demanded or withheld, or the provision 

of specific relief such as the cash value 

of transportation or subsistence 

payments which the employer was 

required to, but failed to provide, in 

addition to the recovery of back wages, 

where appropriate. Nothing in the 

regulations allows recovery for injuries 

or losses in addition to actual damages 

and equitable relief. Therefore, the 

Department has decided to retain makewhole relief as one of the types of 

remedies available when a violation has 

been found, without further 

specification. 

A federation of national and 

international labor unions suggested 

that the Department include a new 

subsection under this provision 

clarifying that ‘‘[i]n any proceeding 

concerning unpaid wages or make 

whole relief, any monetary remedy will 

be determined based on the actual 

number of hours worked by similarly 

situated employees or the three-fourths 

guarantee described in 20 CFR 655.20(f), 

whichever is greater.’’ The Department 

agrees that this statement accurately 

summarizes how such monetary 

remedies are calculated under this 

section. However, just as the 

Department believed it unnecessary to 

further define make-whole relief with 

respect to compensatory damages, it has 

determined that it is not necessary to 

add the suggested language to this 

section because these concepts and 

comparators are already encompassed 

under make-whole relief and are 

reflected in § 503.23(b) and (c), which 

explain that the civil money penalty for 

such violations is the difference 

between what should have been paid or 

earned and the amount that was actually 

paid. 

Finally, a State Attorney General 

commented specifically regarding the 

importance of providing remedies for 

unlawful retaliation, particularly so that 

H–2B workers who are vulnerable to 

retaliation will have adequate protection 

when making meritorious complaints 

about workplace violations. This 

Attorney General’s Office noted that, 

because reinstatement is a critical 

component of make-whole relief and 

may not be possible if the employer is 

debarred or chooses not to use the H– 

2B program in the future, the 

Department might wish to adopt a 

provision similar to a recent amendment 

to the New York labor law that provides 

up to $10,000 in liquidated damages for 

each instance of unlawful retaliation. 

While the Department appreciates the 

utility of this suggestion, liquidated 

damages are not consistent with makewhole relief for actual damages. 

However, as this Attorney General’s 

Office further suggested, the Department 

wishes to clarify that make-whole relief 

for unlawful retaliation and 

discrimination may include front pay 

(such as for the duration of the work 

remaining in the job order) where 

reinstatement is not possible. 

Additional comments regarding 

sanctions and remedies. A legal 

organization suggested that the 

Department should encourage the 

reporting of non-compliant employers 

by offering a reward to employee 

whistleblowers equal to a portion of the 

fines collected from the non-compliant 

employers. The Department does not 

believe authority exists to offer rewards 

to whistleblowers under the 

enforcement authority that has been 

delegated by DHS. This commenter also 

suggested that non-compliant employers 

be required to register for and use EVerify. It is unclear how E-Verify is 

relevant to violations of these H–2B 

regulations, and mandating the use of EVerify by employers is beyond the 

Department’s jurisdiction. 

7. § 503.21 Concurrent Actions 

The NPRM proposed that OFLC and 

WHD would have concurrent 

jurisdiction to impose a debarment 

remedy under 20 CFR 655.73 and under 

§ 503.24, while recognizing the differing 

roles and responsibilities of each agency 

under the program, as set forth in 

§ 503.1. The cross-reference in § 503.3(c) 

proposed the safeguard that a specific 

violation for which debarment is sought 

will be cited in a single debarment 

proceeding, and that OFLC and WHD 

would coordinate their activities to 

achieve this result. This will ensure 

streamlined adjudications and that an 

employer will not face two debarment 

proceedings for a specific violation. The 

Department is adopting the provisions 

as proposed without change. 

Numerous labor unions, worker 

advocacy organizations, and a 

congressman welcomed WHD’s 

independent debarment authority. On 

the other hand, a coalition representing 

agents and employers, employer 

associations, and a legal association 

opposed the Department’s proposal to 

grant debarment authority to WHD. 

They primarily contended that allowing 

both agencies to exercise debarment 

authority would likely result in 

inefficient and duplicative actions. 

However, as noted earlier, the NPRM 

proposed a safeguard that requires 

coordination rather than duplicative 

debarment proceedings. 

The coalition representing agents and 

employers felt that OFLC should 

continue to have exclusive debarment 

authority because OFLC has greater 

familiarity with the nature and extent of 

employer violations in the application 

and recruitment process, and would 

therefore be better equipped to 

determine whether a violation 

warranted this type of punishment. This 

comment ignores the fact that employers 

and the Department have important 

roles and obligations during both the H– 

2B application and recruitment process 

and during the validity of the job order, 

when employers must comply with 

critical assurances and program 

obligations. While OFLC has more 

expertise in the application and 

recruitment process, and will retain 

specific authority to debar for failure to 

comply with the Notice of Deficiency 

and assisted recruitment processes, 

WHD has extensive expertise in 

conducting workplace investigations 

under numerous statutes, and has been 

enforcing H–2B program violations 

since the 2008 Final Rule became 

effective on January 18, 2009. 

Providing WHD with the ability to 

order debarment, along with or in lieu 

of other remedies, will streamline and 

simplify the administrative process, and 

eliminate unnecessary bureaucracy by 

removing extra steps. Under the 2008 

Final Rule, WHD conducts 

investigations of H–2B employers, and 

may assess back wages, civil money 

penalties, and other remedies, which 

the employer has the right to challenge 

administratively. However, under the 

2008 Final Rule, WHD cannot order 

debarment, no matter how egregious the 

violations, and instead must take the 

extra step of recommending that OFLC 

issue a Notice of Debarment based on 

the exact same facts, which then have to 

be litigated again. Contrary to the 

commenters’ assertions, allowing WHD 


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to impose debarment along with the 

other remedies it can already impose in 

a single proceeding will simplify and 

speed up this duplicative enforcement 

process, and result in less bureaucracy 

for employers who have received a 

debarment determination. Instead, 

administrative hearings and appeals of 

back wage and civil money penalties, 

which the WHD already handles, will 

now be consolidated with challenges to 

debarment actions based on the same 

facts, so that an employer need only 

litigate one case and file one appeal 

rather than two. This means that both 

matters can be resolved more 

expeditiously. Moreover, WHD has 

extensive debarment experience under 

regulations implementing other 

programs, such as H–1B, the DavisBacon Act, and the Service Contract 

Act. See, e.g., 29 CFR 5.12. 

The commenters opposing WHD’s 

debarment authority also argued that 

WHD’s debarment process was not as 

fair as OFLC’s because WHD’s process 

does not include a 30-day rebuttal 

period. These commenters were 

concerned that WHD might make a 

determination about a violation and 

initiate debarment proceedings before 

employers had an opportunity to 

provide critical information relating to 

the alleged violation. This concern is 

misplaced, however, and may reflect a 

lack of familiarity with how WHD 

conducts investigations and reaches a 

determination about whether violations 

have occurred and which remedies are 

appropriate. During the course of an 

investigation, WHD contacts and 

interviews both the employer and 

workers. WHD investigators discuss 

potential violations with the employer 

and, when requested, with his or her 

legal representative, providing the 

employer ample notice and an 

opportunity to provide any information 

relevant to WHD’s final determination. 

Rather than a formal, 30-day rebuttal 

period, employers have numerous 

opportunities during the course of a 

WHD investigation and during a final 

conference to provide critical 

information regarding violations that 

may lead to debarment. 

Finally, an employer association 

opposed the Department’s proposal to 

grant WHD debarment authority because 

it believed it would make it easier for 

the Department to remove employers 

from the program without impartial 

review by an independent review panel 

or judge. However, the NPRM 

specifically included procedural 

protections for parties subject to WHD 

debarment proceedings, including 

notice of debarment, the right to a 

hearing before an Administrative Law 

Judge (ALJ), the right to seek judicial 

review of an ALJ’s decision by the 

Administrative Review Board (ARB). 

See Subpart C, Administrative 

Proceedings. 

8. § 503.22 Representation of the 

Secretary 

The NPRM proposed to continue to 

have the Solicitor of Labor represent the 

Administrator, WHD and the Secretary 

in all administrative hearings under 8 

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

After receiving no comments, the 

Department is adopting this provision of 

the NPRM without change in the Final 

Rule. 

9. § 503.23 Civil Money Penalty 

Assessment 

The NPRM proposed a civil money 

penalty (CMP) assessment scheme 

similar to the CMP assessment 

contained in the 2008 Final Rule, with 

additional and clarifying language 

specifying that WHD may find a 

separate violation for each failure to pay 

an individual worker properly or to 

honor the terms or conditions of the 

worker’s employment, as long as the 

violation meets the willfulness standard 

and/or substantial failure standard in 

§ 503.19. Similar to the CMPs in the 

2008 Final Rule, the proposed CMP 

assessments set CMPs at the amount of 

back wages owed for violations related 

to wages and impermissible deductions 

or prohibited fees, and at the amount 

that would have been earned but for an 

illegal layoff or failure to hire, up to 

$10,000 per violation. The NPRM also 

proposed to retain the catch-all CMP 

provision for any other violation that 

meets the standards in § 503.19, and set 

forth the factors WHD will consider in 

determining the level of penalties to 

assess for all violations but wage 

violations. 

A coalition representing agents and 

employers was concerned that the 

NPRM blurred the lines between back 

pay remedies and civil money penalties. 

Specifically, these commenters 

questioned whether the CMPs that are 

set at the amount of unpaid wages 

(§ 503.23(b) and (c)) were treated as back 

wages or as a penalty payable to the U.S. 

Treasury rather than to the employee or 

applicant. As indicated in the NPRM, 

unpaid wages, including the recovery of 

wages owed for work performed, 

prohibited fees paid or impermissible 

deductions from pay, or recovery of 

wages due for improperly placing 

workers in areas of employment or in 

occupations other than those identified 

on the Application for Temporary 

Employment Certification, are 

recoverable as monetary remedies under 

§ 503.20. These monetary remedies 

serve to make workers whole based on 

the violations to which they have been 

subjected. By contrast, the CMP 

provision, § 503.23, represents a penalty 

for non-compliance, and is payable to 

WHD for deposit with the Treasury. 

These commenters also noted that the 

CMP assessment provision is confusing 

because § 503.23(b) and (c) suggest a 

formulaic means to determine a CMP 

(i.e., the CMP is equal to the wages 

owed, up to a maximum of $10,000 per 

violation), whereas § 503.23(e) sets forth 

the factors WHD will consider in 

determining the level of CMPs to assess, 

yet the NPRM states that these factors 

apply to both § 503.23(c) and (d). The 

Department agrees that this is confusing, 

and is an unintentional holdover from 

the 2008 Final Rule, which contained 

the same language. Therefore, in this 

Final Rule, the reference to § 503.23(c) 

is deleted, in order to clarify that, as the 

commenters pointed out, § 503.23(b) 

and (c) use a fixed CMP amount and the 

factors set forth in § 503.23(e) apply 

only to the catch-all provision in 

§ 503.23(d). 

An individual U.S. worker felt that 

the Department should not limit CMPs 

to a $10,000 maximum, and should 

instead impose treble damages payable 

to the worker and a fine covering the 

costs of the Department’s investigation 

and enforcement. The maximum CMP 

amount is set at $10,000 in order to be 

consistent with the statutory limit under 

8 U.S.C. 1184(c)(14)(A), the statutory 

enforcement authority delegated to 

WHD by DHS. As stated earlier, the 

Department does not believe this 

enforcement authority permits 

liquidated damages. 

10. § 503.24 Debarment 

The NPRM’s proposal to provide 

WHD with independent debarment 

authority is discussed under § 503.21. 

For the reasons stated under Debarment 

of Agents and Attorneys in 20 CFR 

655.73, the Final Rule allows WHD to 

seek debarment of agents and attorneys 

for their own independent violations, 

and § 503.24(b) has been amended to 

that effect. Comments received 

regarding debarment that apply equally 

to OFLC and WHD are also discussed in 

the OFLC preamble discussion of 

debarment (20 CFR 655.73). With 

respect to the comments received from 

several worker advocacy organizations 

suggesting that the Department establish 

procedures to allow for workers and 

organizations of workers to intervene in 

and participate in WHD’s debarment 

process, the Department has concluded 

that the Final Rule will not adopt 

additional procedures mandating that it 


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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 10115 

provide workers a right to intervene and 

participate in every case, for the reasons 

stated in OFLC’s preamble under 

Integrity Measures (20 CFR 655.70– 

655.73). In addition to that discussion, 

which applies to both OFLC and WHD 

proceedings, WHD further notes that 

workers already participate in WHD 

investigations, which involve interviews 

with workers regarding program 

compliance. It is WHD’s practice to 

provide notice to the individual 

complainants and their designated 

representatives and/or any third-party 

complainants when WHD completes an 

investigation by providing them a copy 

of the WHD Determination Letter. To 

further protect their interests, workers 

can seek, and have sought, intervention 

upon appeal to an Administrative Law 

Judge. See 20 CFR 18.10(c) and (d). 

11. § 503.25 Failure To Cooperate With 

Investigators 

The NPRM defined and expanded the 

penalties for failure to cooperate with a 

WHD investigation, noting the federal 

criminal laws prohibiting interference 

with federal officers in the course of 

official duties and permitting WHD to 

recommend revocation to OFLC and/or 

initiate debarment proceedings. Several 

worker advocacy organizations 

commended the Department for making 

it clear to employers that they may face 

serious consequences for certain 

violations of the regulations. The 

Department is adopting this provision of 

the NPRM without change in the Final 

Rule. 

12. § 503.26 Civil Money Penalties— 

Payment and Collection 

The NPRM proposed revised language 

instructing employers how to submit 

payment to WHD. After receiving no 

comments, the Department is adopting 

this provision of the NPRM without 

change in the Final Rule. 

C. Administrative Proceedings 

The NPRM proposed few changes to 

the administrative proceedings from the 

2008 Final Rule. These minor changes 

were intended to bring clarity to the 

administrative proceedings that govern 

H–2B hearings, and to achieve general 

consistency with the procedural 

requirements applicable to H–2A 

proceedings. The Department received 

no comments on the particular 

provisions proposed in subpart C of the 

NPRM. However, upon further internal 

review, the Department concluded that 

additional minor changes were 

necessary to make clear that the 

procedures contained in this subpart 

apply to any party or entity subject to 

the Administrator, WHD’s 

determination to assess a civil money 

penalty, to debar, or to impose other 

appropriate administrative remedies, 

including for the recovery of monetary 

relief—not just the employer. Therefore, 

in the Final Rule, in §§ 503.41, 503.42, 

503.43, and 503.50, the term employer 

is replaced with the term party or 

recipient(s) of the notice. The 

Department intends the terms party or 

recipient(s) of the notice to include the 

employer, agent, or attorney, as 

appropriate. These changes correct 

internal inconsistencies in the 

provisions proposed in this subpart of 

the NPRM, and will make these 

provisions consistent with the language 

used in 20 CFR 655.73(g) (OFLC 

debarment procedure). 

The Department received numerous 

comments from worker advocacy 

organizations suggesting that workers 

should be provided notice of 

administrative actions and a right to 

intervene, as workers possess valuable 

information relevant to these 

proceedings such as the appropriateness 

of job qualifications and the assessment 

of unlawful recruitment fees. Similarly, 

an individual stakeholder, commented 

that employers are afforded procedures 

for seeking review of the Department’s 

determinations, yet such procedures are 

not provided for workers. 

The importance of worker 

communication with WHD by filing 

complaints, participating in 

investigations, and serving as witnesses 

in administrative or judicial 

proceedings cannot be understated; it is 

essential in carrying out WHD’s 

enforcement obligations. However, the 

Department has concluded that the 

Final Rule will not adopt additional 

procedures mandating that it provide 

workers notice of administrative actions 

and a right to intervene in every case, 

for the reasons stated in OFLC’s 

preamble under Integrity Measures (20 

CFR 655.70–655.73), which also apply 

to WHD’s administrative actions. 

Further, as noted under § 503.24, 

workers already participate in WHD 

investigations, which involve interviews 

with workers regarding program 

compliance. It is WHD’s practice to 

provide notice to the individual 

complainants and their designated 

representatives and/or any third-party 

complainants when WHD completes an 

investigation by providing them a copy 

of the WHD Determination Letter. To 

further protect their interests, workers 

can seek, and have sought, intervention 

upon appeal to an Administrative Law 

Judge. See 20 CFR 18.10(c) and (d). 

Thus, the Department is adopting the 

provisions of this Subpart of the NPRM 

without further change in the Final 

Rule. 

IV. Administrative Information 

A. Executive Orders 12866 and 13563 

Under Executive Order (E.O.) 12866 

and E.O. 13563, the Department must 

determine whether a regulatory action is 

significant and, therefore, subject to the 

requirements of the E.O. and to review 

by the OMB. Section 3(f) of the E.O. 

defines an economically significant 

regulatory action as an action that is 

likely to result in a rule that: (1) Has an 

annual effect on the economy of $100 

million or more, or adversely and 

materially affects a sector of the 

economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local or tribal 

governments or communities (also 

referred to as economically significant); 

(2) creates serious inconsistency or 

otherwise interferes with an action 

taken or planned by another agency; (3) 

materially alters the budgetary impacts 

of entitlement grants, user fees, or loan 

programs, or the rights and obligations 

of recipients thereof; or (4) raises novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the E.O. 

The Department has determined that 

this rule is an economically significant 

regulatory action under section 3(f)(1) of 

E.O. 12866. This regulation would have 

an annual effect on the economy of $100 

million or more; however, it would not 

adversely affect the economy or any 

sector thereof, productivity, 

competition, jobs, the environment, or 

public health or safety in a material 

way. The Department also has 

determined that this rule is a significant 

regulatory action under sec. 3(f)(4) of 

E.O. 12866. Accordingly, OMB has 

reviewed this rule. 

1. Need for Regulation 

The Department has determined for a 

variety of reasons that a new rulemaking 

effort is necessary for the H–2B 

program. The Department believes that 

the practical ramifications of the 2008 

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

process to defer many determinations of 

program compliance until after an 

application has been adjudicated, 

inadequately protecting U.S. workers 

who may be paid less than H–2B 

workers performing the same jobs, 

failing to ensure the integrity of the 

program by not requiring employers to 

guarantee U.S. and H–2B employees 

work for any number of weeks during 

the period of the job order) have 

undermined the program’s intended 


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10116 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

14For the purposes of the cost-benefit analysis, 

the 10-year period starts on July 1, 2012. 

protection of both U.S. and foreign 

workers. 

For these reasons the Department is 

promulgating the changes contained in 

the Final Rule. 

2. Alternatives 

The Department has considered a 

number of alternatives: (1) To 

promulgate the policy changes 

contained in this rule; (2) to take no 

action, that is, to leave the 2008 Final 

Rule intact; and (3) to consider a 

number of other options discussed in 

more detail below. We believe that this 

rule retains the best features of the 2008 

Final Rule and adopts additional 

provisions to best achieve the 

Department’s policy objectives, 

consistent with its mandate under the 

H–2B program. 

The Department considered 

alternatives to a number of program 

provisions. First, the Department 

considered another alternative to the 

definition of full-time work: a 40-hour 

threshold instead of the 35-hour level 

proposed and actually implemented in 

this Final Rule. As discussed in detail 

in the preamble to proposed 20 CFR 

655.5, the Department established a 35- 

hour minimum as the definition of fulltime employment because it more 

accurately reflects full-time employment 

expectations when coupled with the 

obligation for the employer to accurately 

disclose the hours of work that will be 

offered each week, and is consistent 

with other existing Department 

standards and practices in the industries 

that currently use the H–2B program to 

obtain workers. 

Second, this rule included a threefourths guarantee requirement, with the 

Final Rule requiring that the guarantee 

be measured based on 12-week periods 

(if the period of the job order is 120 or 

more days) and 6 weeks (if the period 

of the job order is less than 120 days). 

The Department considered using 4- 

week periods, as proposed, and also 

considered retaining the language of the 

H–2A requirement, under which 

employers must guarantee to offer the 

worker employment for a total number 

of work hours equal to at least threefourths of the workdays of the total 

length of the contract. The Department 

rejected this alternative because, while 

this would provide workers with 

significant protection, it would not be 

sufficient to discourage the submission 

of imprecise dates of need and/or 

imprecise numbers of employees 

needed and would therefore fail to 

protect U.S. and H–2B workers from 

periods of unforeseen 

underemployment. 

The Department believes that the rule, 

which calculates the hours of 

employment offered in 12-week and 6- 

week periods, better ensures that 

workers’ commitment to a particular 

employer will result in real jobs that 

meet their reasonable expectations. We 

do not believe this Final Rule will create 

any additional financial burden on 

employers who have accurately 

represented their period of need and 

number of employees needed, and will 

provide an additional incentive for 

applicants to correctly state all of their 

needs on the H–2B Registration and the 

Application for Temporary Employment 

Certification. 

Third, the Department considered 

omitting the registration of H–2B 

employers and instead retaining the 

current practice for the adjudication of 

the employer’s temporary need and the 

labor market analysis to occur 

simultaneously. While this might be 

more advantageous for employers new 

to the program, it delays the vast 

majority of employers that are recurring 

users with relatively stable dates of need 

and that would benefit from separate 

adjudication of need and adequacy of 

recruitment. Moreover, employers and 

potential workers benefit from a 

recruitment process close in time to the 

actual date of need which a registration 

process, by pre-determining temporary 

need, expressly permits. Therefore, the 

Department rejected the alternative of 

simultaneous adjudication because it 

undercuts the Secretary’s fulfillment of 

her obligations under the program. 

Fourth, the Final Rule provides that 

employers may arrange and pay for 

workers’ transportation and subsistence 

from the place from which the worker 

has come to the place of employment 

directly, advance at a minimum, the 

most economical and reasonable 

common carrier cost, or reimburse the 

worker’s reasonable costs if the worker 

completes 50 percent of the period of 

employment covered by the job order if 

the employer has not previously 

reimbursed such costs. The Final Rule 

continues to require employers to 

provide return transportation and 

subsistence from the place of 

employment; however, the obligation 

attaches only if the worker completes 

the period of employment covered by 

the job order or if the worker is 

dismissed from employment for any 

reason before the end of the period. In 

addition, the Final Rule continues to 

provide that if a worker has contracted 

with a subsequent employer that has 

agreed to provide or pay for the worker’s 

transportation to the subsequent 

employer’s worksite, the subsequent 

employer must provide or pay for such 

expenses; otherwise, if this agreement is 

not made, the employer must provide or 

pay for that transportation and 

subsistence. The Final Rule reminds 

employers that the FLSA imposes 

independent wage payment obligations, 

where it applies. The Department 

considered requiring employers to 

reimburse the worker in the first 

workweek any cost of transportation 

and subsistence, as proposed, but 

rejected this alternative in response to 

commenter concerns. 

Finally, the proposed rule required 

the employers to extend offers of 

employment to qualified U.S. workers 

referred by the SWAs until 3 days before 

the date of need or the date of departure 

of the last H–2B worker, whichever is 

later. In consideration of commenter 

concerns, and to taking into 

consideration USCIS regulations 

governing the arrival of H–2B workers, 

the Department has modified this 

requirement. In the Final Rule, 

employers are required to accept SWA 

referrals of qualified U.S. applicants 

until 21 days before the date of need, 

irrespective of the date of departure of 

the last H–2B worker. 

3. Economic Analysis 

The Department derives its estimates 

by comparing the baseline, that is, the 

program benefits and costs under the 

2008 Final Rule, against the benefits and 

costs associated with the 

implementation of the provisions in this 

Final Rule. The benefits and costs of the 

provisions of this Final Rule are 

estimated as incremental impacts 

relative to the baseline. Thus, benefits 

and costs attributable to the 2008 Final 

Rule are not considered as benefits and 

costs of this Final Rule. We explain how 

the actions of workers, employers, and 

government agencies resulting from the 

Final Rule are linked to the expected 

benefits and costs. 

The Department sought to quantify 

and monetize the benefits and costs of 

this Final Rule where feasible. Where 

we were unable to quantify benefits and 

costs—for example, due to data 

limitations—we describe them 

qualitatively. The analysis covers 10 

years (2012 through 2021) to ensure it 

captures major benefits and costs that 

accrue over time.14 We have sought to 

present benefits and costs both 

undiscounted and discounted at 7 

percent and 3 percent. 

In addition, the Department provides 

an assessment of transfer payments 

associated with certain provisions of the 


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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 10117 

15The specific provisions associated with transfer 

payments are: wages paid to corresponding U.S. 

workers, payments for transportation, subsistence, 

and lodging for travel to and from the place of 

employment, and visa-related fees. 

16Office of Foreign Labor Certification, Public 

Disclosure Data. 

17U.S. Bureau of Labor Statistics (BLS). 2011. 

Employees on nonfarm payrolls by major industry 

sector, 1961 to date. Available at ftp://ftp.bls.gov/ 

pub/suppl/empsit.ceseeb1.txt. 

18U.S. Census Bureau. 2007. 2007 Economic 

Census. Available at http://www.census.gov/econ/ 

census07/. 

rule.15 Transfer payments, as defined by 

OMB Circular A–4, are payments from 

one group to another that do not affect 

total resources available to society. 

Transfer payments are associated with a 

distributional effect, but do not result in 

additional benefits or costs to society. 

The rule would alter the transfer 

patterns and increase the transfers from 

employers to workers. The primary 

recipients of transfer payments reflected 

in this analysis are U.S. workers and H– 

2B workers. The primary payors of 

transfer payments reflected in this 

analysis are H–2B employers, and under 

the rule, those employers who choose to 

participate are likely to be those that 

have the greatest need to access the H– 

2B program. When summarizing the 

benefits or costs of specific provisions of 

this rule, we present the 10-year 

averages to reflect the typical annual 

effect. 

The inputs used to calculate the costs 

of this rule are described below. 

a. Number of H–2B Workers 

The Department estimates that from 

FY 2000–2007, there were an average of 

185,879 16 H–2B workers requested per 

year and 154,281 H–2B positions 

certified. Because the number of H–2B 

visas is statutorily limited, only some 

portion of these certified positions were 

ultimately filled by foreign workers. 

The number of visas available in any 

given year in the H–2B program is 

66,000, assuming no statutory changes 

in the number of visas available. Some 

costs, such as travel, subsistence, visa 

and border crossing, and reproducing 

the job order apply to these 66,000 

workers. Employment in the H–2B 

program represents a very small fraction 

of the total employment in the U.S. 

economy, both overall and in the 

industries represented in this program. 

The H–2B program’s annual cap of 

66,000 visas issued per year (33,000 

allocated semi-annually) represents 

approximately 0.05 percent of total 

nonfarm employment in the U.S. 

economy (129.8 million).17 The number 

of visas per year does not fully capture 

the number of H–2B workers in the U.S. 

at any given time as there are exceptions 

to the H–2B cap; additionally, a 

nonimmigrant’s H–2B classification may 

be extended for qualifying employment 

for a total stay of up to 3 years without 

being counted against the cap. The 

Department assumes that half of all H– 

2B workers entering the United States 

(33,000) in any year stay at least 1 

additional year, and half of those 

workers (16,500) will stay a third year, 

for a total of 115,500 H–2B workers 

employed at any given time. This 

suggests that 57 percent of H–2B 

workers (66,000/115,500) are new 

entrants in a given year. Extending the 

analysis to the 115,500 H–2B workers 

we estimate are in the country at any 

given time, the number of H–2B workers 

represents approximately 0.09 percent 

of total nonfarm employment. 

According to H–2B program data for 

FY 2007–2009, the average annual 

numbers of H–2B positions certified in 

the top five industries were as follows: 

Landscaping Services—78,027 

Janitorial Services—30,902 

Construction—30,242 

Food Services and Drinking Places—22,948 

Amusement, Gambling, and Recreation— 

14,041 

These numbers overestimate the 

number of actual H–2B workers, as the 

number of positions certified exceeds 

the number of H–2B workers in the 

country at a given time. 

The Department estimates the number 

of H–2B workers in these industries 

based on the number of positions 

certified by dividing 115,500 H–2B 

workers (66,000 plus 33,000 staying one 

additional year plus 16,500 staying a 

third year) by the 236,706 positions 

certified per year on average during FY 

2007–2009. This produces a scalar of 

48.8 percent. Applying this scalar to the 

number of positions certified suggests 

that the number of H–2B workers in the 

top five industries is: 

Landscaping Services—38,073 

Janitorial Services—15,079 

Construction—14,756 

Food Services and Drinking Places—11,197 

Amusement, Gambling, and Recreation— 

6,851 

These employment numbers represent 

the following percentages of the total 

employment in each of these 

industries: 18

Landscaping Services—6.5 percent (38,073/ 

589,698) 

Janitorial Services—1.6 percent (15,079/ 

933,245) 

Construction—0.2 percent (14,756/7,265,648) 

Food Services and Drinking Places—0.1 

percent (11,197/9,617,597) 

Amusement, Gambling, and Recreation—0.5 

percent (6,851/1,506,120) 

As these data illustrate, the H–2B 

program represents a small fraction of 

the total employment even in each of 

the top five industries in which H–2B 

workers are found. 

b. Number of Affected Employers 

The Department estimates that from 

FY 2000–2007, an average of 6,425 

unique employers applied for H–2B 

workers, and of these, an average of 

5,298 were granted certifications. 

Several of the Final Rule’s provisions 

(the requirement for employers to 

translate the job order from English to 

a language understood by the foreign 

workers, and payment of visa and visarelated fees) will predominantly or only 

apply to employers that ultimately 

employ H–2B workers. As there is no 

available source of data on the number 

of H–2B employer applicants who 

ultimately employ H–2B workers, the 

Department uses the ratio of estimated 

H–2B workers in the country at a given 

time (115,500) to the number of 

positions certified in an average year 

(154,281) to derive a scale factor of 74.9 

percent. Multiplying the average 

number of unique certified H–2B 

employer applicants from FY2000–2007 

(5,298) by the scale factor (74.9) suggests 

that there are 3,966 unique certified H– 

2B employer applicants who ultimately 

employ H–2B workers. 

c. Number of Corresponding Workers 

Several provisions of the Final Rule 

extend to workers in corresponding 

employment, defined as those non-H– 

2B workers who perform work for an H– 

2B employer, where such work is 

substantially the same as the work 

included in the job order, or is 

substantially the same as other work 

performed by H–2B workers. 

Corresponding workers are U.S. workers 

employed by the same employer 

performing the substantially the same 

tasks at the same location as the H–2B 

workers, and they are entitled to at least 

the same terms and conditions of 

employment as the H–2B workers. 

Corresponding workers might be 

temporary or permanent; that is, they 

could be employed under the same job 

order as the H–2B workers for the same 

period of employment, or they could 

have been employed prior to the H–2B 

workers, and might remain after the H– 

2B workers leave. However, the Final 

Rule excludes two categories of workers 

from the definition of corresponding 

employment. Corresponding workers 

are entitled to the same wages and 

benefits that the employer provides to 

H–2B workers, including the threefourths guarantee, during the period 

covered by the job order. The 


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10118 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

19The Department only recently began asking 

employers (in a non-required field) to state on an 

H–2B Application for Temporary Employment 

Certification the number of full-time equivalent 

employees that they employ. Further, the 

Department does not have this information from 

concluded investigations. 

20Comments by the SBA, for example, (ETA– 

2011–0001–0438) stated that in some industries 

(e.g., landscaping, restaurants), supervisors and 

H–2B workers might sometimes perform the same 

task (e.g., a landscaping supervisor might mow 

lawns if someone calls in sick; a supervisor at a 

small restaurant might help clear tables during busy 

times). Therefore, as explained in the preamble, the 

commenters mistakenly believed that because the 

H–2B worker and the supervisor ‘‘perform the same 

work,’’ they are corresponding employees, and the 

firm must pay the H–2B worker the same wage rate 

as the supervisor, which then means all other 

workers must be paid the same as the H–2B worker. 

corresponding workers would also be 

eligible for the same transportation and 

subsistence payments as the H–2B 

workers if they travel a long distance to 

reach the job site and cannot reasonably 

return to their residence each workday. 

In addition, as a result of the enhanced 

recruiting in this rule, including the 

new electronic job registry, certain costs 

may be avoided as employers are able to 

find U.S. workers in lieu of some H–2B 

workers. The Department believes that 

the costs associated with hiring a new 

U.S. worker would be lower than the 

costs associated with hiring an H–2B 

worker brought to the U.S. from abroad, 

as the costs of visa and border crossing 

fees to be paid for by the employer will 

be avoided and travel costs may likely 

be less (or zero for workers who are able 

to return to their residence each day). 

There are no reliable data sources on 

the number of corresponding workers at 

work sites for which H–2B workers are 

requested or the hourly wages of those 

workers. The Department does not 

collect data regarding what we have 

defined as corresponding employees, 

and therefore cannot identify the 

numbers of workers to whom the 

obligations would apply.19 The 

Department extensively examined 

alternative data sources that might be 

used to accurately estimate the number 

of corresponding workers. First, in the 

proposed rule, the Department asked the 

public to propose possible sources of 

data or information on the number of 

corresponding workers at work sites for 

which H–2B workers were requested 

and the current hourly wage of those 

corresponding workers. The Department 

reviewed comments received in 

response to this request, but 

unfortunately, no data were provided by 

commenters. Perhaps the most 

interesting qualitative feedback from 

comments was the apparent dichotomy 

in perceptions of the issue of 

corresponding workers. Some 

commenters indicated there would be 

no corresponding workers whose wages 

were affected by this rule: they hired 

H–2B workers because they could not 

find corresponding U.S. workers willing 

to do the job. At the opposite end of the 

spectrum were commenters who 

asserted that many, if not most, of their 

permanent employees might require 

wage increases as a result of this rule. 

However, at least some of the latter 

comments reflected a potential 

misunderstanding of the rule; most 

commenters who made such assertions 

were misguided in their assumption that 

any activity performed by any worker 

that is also performed by H–2B workers 

would make those workers 

corresponding.20

Second, the Department asked its 

WHD field staff to provide information 

they might have on the number of 

corresponding workers employed by 

H–2B employers based on the data 

gathered during investigations. The 

number of U.S. workers similarly 

employed varies widely among the 

companies investigated, ranging from 0 

to 310. No data on the number of H–2B 

workers was collected, though, so it is 

impossible to compare the pattern of 

employment of U.S. and H–2B workers. 

Because such data gathering was not the 

principal goal of the investigation, the 

data provided are the result of chance 

and what the investigator happened to 

record, rather than a systematic 

collection of worker counts relevant to 

the estimation of corresponding 

employment. Furthermore, the results of 

only 36 investigations were available. 

Finally, they did not represent a random 

sample of H–2B employers, but just that 

subset of employers that the Department 

had some reason to investigate. 

Third, the Department reviewed a 

random sample of 225 certified and 

partially certified applications from 

FY2010 submitted by employers in 

response to Request for Information 

(RFIs) during the application process. 

While the 2011 version of ETA Form 

9142 includes an optional item on the 

number of non-family full-time 

equivalent employees, that number 

includes all employees and not only the 

employees in corresponding 

employment. (See also the instructions 

to the Form 9142, which inform the 

employer to ‘‘[e]nter the number of fulltime equivalent (FTE) workers the 

employer employs.’’) Moreover, even if 

this number accounted for the number 

of corresponding employees, none of the 

applications in the random sample used 

the 2011 version of the form. Of the 225 

applications reviewed, two applications 

gave the current number of employees 

as part of the other information 

submitted. Additionally, DOL examined 

data in 34 payroll tables that were 

provided to supplement the application. 

The payroll tables reported data by 

month for at least 1 year from 2007 to 

2010 and included information such as 

the total number of workers, hours 

worked, and earnings for all workers 

performing work covered by the job 

order. These workers were broken down 

into categories for permanent workers 

(those already employed and performing 

the certified job) and for temporary 

workers (both H–2B workers and 

corresponding workers who responded 

to the job order). The Department 

divided the total payroll by the total 

hours worked across the two categories 

of workers to estimate an average hourly 

wage per permanent and temporary 

worker. The Department compared the 

total number of workers in months 

where permanent workers were paid 

more than and less than temporary 

employees for those months in which 

both were employed. 

The Department found 7,548 

temporary and 10,310 permanent 

worker-months (defined as one worker, 

whether full- or part-time, employed 

one month) in the 34 payroll tables 

examined. Of these, permanent 

employees were paid more than 

temporary employees in 9,007 workermonths, and were paid less than 

temporary employees in 1,303 worker 

months. This suggests the rule would 

have no impact on wages for 87 percent 

of permanent workers (9,007/10,310). 

Conversely, 13 percent of permanent 

workers (1,303/10,310), were paid less 

than temporary employees and would 

receive an increase in wages as a result 

of the rule. Calculating the ratio of 1,303 

permanent worker-months to 7,548 

temporary worker-months when 

permanent workers are paid less than 

temporary workers suggests that for 

every temporary worker-month, there 

are 0.17 worker-months where the 

permanent worker wage is less than the 

temporary worker wage. Extrapolating 

this ratio based on the Department’s 

estimate that there are a total of 115,500 

H–2B employees at any given time, this 

suggests that 19,939 permanent workers 

(115,500 × 0.17) would be eligible for 

pay raises due to the rule. 

The Department also calculated the 

percentage difference in the 

corresponding and temporary worker 

wages in months where temporary 

workers were paid more. On average, 

corresponding workers earning less than 

temporary employees would need their 

wages to be increased 4.5 percent to 

match temporary worker wages. 


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21U.S. Bureau of Labor Statistics (BLS). 2011a. 

Employer Costs for Employee Compensation news 

release text. June 8, 2011. Available at http:// 

www.bls.gov/news.release/ecec.nr0.htm (Accessed 

July 12, 2011). 

22U.S. Bureau of Labor Statistics (BLS). 2011b. 

Occupational Employment and Wages, May 2010— 

43–6011 Executive Secretaries and Executive 

Administrative Assistants. Available at http:// 

www.bls.gov/oes/current/oes436011.htm (Accessed 

June 3, 2011). 

23U.S. Bureau of Labor Statistics (BLS). 2011c. 

Occupational Employment and Wages, May 2010— 

11–3121 Human Resources Managers. Available at 

http://www.bls.gov/oes/current/oes113121.htm 

(Accessed July 12, 2011). 

For several reasons, however, the 

Department did not believe it was 

appropriate to use the data in the 

payroll tables to extrapolate to the entire 

universe of H–2B employers. First, 

because of the selective way in which 

these payroll records were collected by 

the Department, the distribution of 

occupations represented in the payroll 

tables is not representative of the 

distribution of occupations in H–2B 

applications. The 34 payroll tables 

examined by the Department included 

the following occupations: 

Nonfarm Animal Caretakers (12 payroll 

tables) 

Landscaping and Groundskeeping Workers 

(four payroll tables) 

Maids and Housekeeping Cleaners (four 

payroll tables) 

Cooks (two payroll tables) 

Waiters and Waitresses (two payroll tables) 

Forest and Conservation Workers (two 

payroll tables) 

Dishwashers (one payroll table) 

Dining Room and Cafeteria Attendants and 

Bartender Helpers (one payroll table) 

Separating, Filtering, Clarifying, 

Precipitating, and Still Machine Setters, 

Operators, and Tenders (one payroll table) 

Food Cooking Machine Operators and 

Tenders (one payroll table) 

Floor Sanders and Finishers (one payroll 

table) 

Production Workers, All Other (one payroll 

table) 

Receptionists and Information Clerks (one 

payroll table) 

Grounds Maintenance Workers, All Other 

(one payroll table) 

The four payroll tables for 

landscaping and groundskeeping 

workers made up only 12 percent of the 

payroll tables, while applications for 

these workers comprised 35 percent of 

FY 2010 applications. Conversely, the 

12 payroll tables from nonfarm animal 

caretakers made up 35 percent of the 

payroll tables in our sample, while 

applications for such workers made up 

only 6 percent of the FY 2010 

applications. 

Second, the total number of payroll 

tables or payroll records provided to the 

Department was very small. We found 

only 34 payroll tables in 225 randomly 

selected applications. Furthermore, 

payroll records in H–2B applications are 

provided in specific response to an RFI 

or in the course of a post-adjudication 

audit. In both instances the primary 

purpose of these records is to 

demonstrate compliance with program 

requirements, usually either to 

demonstrate proactively that the need 

for workers is a temporary need, or to 

demonstrate retroactively compliance 

with the wage obligation. Because 

payroll tables were submitted in 

response to an RFI rather than as a 

matter of routine in the application 

process, it is not clear that the data in 

the limited number of payroll tables for 

a given occupation are representative of 

all workers within that occupation in 

the H–2B program. Something triggered 

the RFI, presumably some indication 

that the need for temporary workers was 

not apparent, and therefore these 

applications are not representative of 

the 85 percent of applications that did 

not require a payroll table. 

Third, the payroll wage information 

in these tables is provided at the group 

level, and the Department is unable to 

estimate how many individual 

corresponding workers are paid less 

than temporary workers in any given 

month. The payroll tables only allow a 

gross estimate of whether corresponding 

or temporary workers were paid more, 

on average, in a given month. Because 

wages would only increase for those 

U.S. workers currently making less than 

the prevailing wage, this information is 

necessary to determine the effect the 

rule would have on workers in 

corresponding employment. Finally, the 

Department has no data regarding the 

number of employees who would fall 

under the two exclusions in the 

definition of corresponding 

employment. 

The Department, therefore, cannot 

confidently rely upon the payroll tables 

alone and has no other statistically valid 

data to quantify the total number of 

corresponding workers or the number 

that would be eligible for a wage 

increase to match the H–2B workers. 

Nevertheless, the Department believes 

that the payroll tables show that the 

impact of the corresponding 

employment provision would be 

relatively limited, both as to the number 

of corresponding workers who would be 

paid more and as to the amount their 

wages would increase. 

Based upon all the information 

available to us, including the payroll 

tables, the anecdotal evidence in the 

comments, and the Department’s 

enforcement experience, the Department 

has attempted to quantify the impact of 

the corresponding employment 

provision. We note that the 2008 Final 

Rule already protects U.S. workers hired 

in response to the required recruitment, 

including those U.S. workers who were 

laid off within 120 days of the date of 

need and offered reemployment. 

Therefore, this rule will have no impact 

on their wages. This Final Rule simply 

extends the same protection to other 

employees performing substantially the 

same work included in the job order or 

substantially the same work that is 

actually performed by the H–2B 

workers. Based in particular upon the 

numerous employer commenters who 

asserted that they were unable to find 

U.S. workers to perform the types of 

jobs typically encompassed within their 

job orders, the Department believes that 

a reasonable estimate is that H–2B 

workers make up 75% to 90% of the 

workers in the particular job and 

location covered by a job order; we 

assume, therefore, that 10% to 25% of 

the workers will be U.S. workers newly 

covered by the rule’s wage requirement. 

This assumption does not discount at all 

for the fact, as noted above, that some 

of these U.S. workers already are 

covered by the prevailing wage 

requirement or could be covered by one 

of the two exclusions from the 

definition of corresponding 

employment. Carrying forward with our 

estimate that there are a total of 115,500 

H–2B workers employed at any given 

time, we thus estimate that there will be 

between 12,833 (if 90% are H–2B 

workers) and 38,500 (if 75% are H–2B 

workers) U.S. workers newly covered by 

the corresponding employment 

provision. 

d. Wages Used in the Analysis 

The Department updated the wage 

and benefit costs under the proposed 

rule by incorporating the most recent 

OES wage data available from BLS, and 

its most recent estimate of the ratio of 

fringe benefit costs to wages, 30.4 

percent.21

To represent the hourly compensation 

rate for an administrative assistant/ 

executive secretary, the Department 

used the median hourly wage ($22.06) 

for SOC 43–6011 (Executive Secretaries 

and Executive Administrative 

Assistants).22 The hourly compensation 

rate for a human resources manager is 

the median hourly wage of $47.68 for 

SOC 11–3121 (Human Resources 

Managers).23 Both wage rates were 

multiplied by 1.304 to account for 

private-sector employee benefits. 

For registry development and 

maintenance activities, the proposed 

rule used fully loaded rates based on an 

Independent Government Cost Estimate 


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10120 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

24OFLC. 2010. Independent Government Cost 

Estimates. 

25The Department would not typically use a wage 

that included overhead costs, but here the 

Department uses the services of a contractor to 

develop the registry, and therefore the fully loaded 

wage is more reflective of costs. 

(IGCE) produced by OFLC,24 which are 

inclusive of direct labor and overhead 

costs for each labor category.25 Because 

the BLS data used to update other wages 

does not include overhead costs, the 

Department updated these wage 

estimates using the Producer Price 

Index (PPI) for software publishers 

producing application software to 

inflate the loaded wage rates for each 

labor category from 2010 (average 

annual PPI, 96.8) to 2011 (average of 

first five months’ PPIs, 97.0). 

The 2011 wages used in the analysis 

are summarized in Table 3. 

TABLE 3—WAGES USED IN THE ANALYSIS

Occupation Hourly wage Loaded 

wage [a]

PPI adjusted 

wage [b]

Administrative Assistant ............................................................................................................... $22 $29 ........................

HR Manager ................................................................................................................................ 48 62 N/A 

Program Manager ........................................................................................................................ N/A 138 $139 

Computer Systems Analyst II ...................................................................................................... N/A 92 92 

Computer Systems Analyst III ..................................................................................................... N/A 110 110 

Computer Programmer III ............................................................................................................ N/A 90 90 

Computer Programmer IV ........................................................................................................... N/A 108 108 

Computer Programmer Manager ................................................................................................. N/A 124 124 

Data Architect .............................................................................................................................. N/A 105 105 

Web Designer .............................................................................................................................. N/A 125 125 

Database Analyst ......................................................................................................................... N/A 78 78 

Technical Writer II ........................................................................................................................ N/A 85 85 

Help Desk Support Analyst ......................................................................................................... N/A 55 55 

Production Support Manager ....................................................................................................... N/A 126 126 

[a]Accounts for 30.4 percent fringe. 

[b] Multiplied by ratio of 2011 PPI to 2010 PPI (97.0/96.8). 

N/A: Not Applicable. 

Sources: BLS, 2011a; BLS, 2011b; BLS, 2011c; BLS, 2011d; BLS, 2011e. 

e. H–2B Employment in the Territory of 

Guam 

This Final Rule applies to H–2B 

employers in the Territory of Guam only 

in that it requires them to obtain 

prevailing wage determinations in 

accordance with the process defined at 

20 CFR 655.10. To the extent that this 

process incorporates the new 

methodology defined in the January 

2011 prevailing wage rule, it is possible 

that some H–2B employers in Guam will 

experience an increase in their H–2B 

prevailing wages. The Department 

expects that the H–2B employers in 

Guam working on Federally-funded 

construction projects subject to the 

Davis-Bacon and Related Acts (DBRA) 

are already paying the Davis-Bacon Act 

prevailing wage for the classification of 

work performed and that such 

employers may not experience an 

increase in the wage levels they are 

required to pay. Employers performing 

work ancillary or unrelated to DBRA 

projects, and therefore paying a wage 

potentially lower than the Davis-Bacon 

Act prevailing wage, may receive 

increased prevailing wage 

determinations under this Final Rule. 

However, because the H–2B program in 

Guam is administered and enforced by 

the Governor of Guam, or the Governor’s 

designated representative, the 

Department is unable to quantify the 

effect of this provision on H–2B 

employers in Guam due to a lack of 

data. 

4. Subject-by-Subject Analysis 

The Department’s analysis below 

considers the expected impacts of the 

Final Rule provisions against the 

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

sections detail the costs of provisions 

that provide additional benefits for H– 

2B and/or workers in corresponding 

employment, expand efforts to recruit 

U.S. workers, enhance transparency and 

worker protections, and reduce the 

administrative burden on SWAs. 

a. Three-Fourths Guarantee 

Under the Proposed Rule, the 

Department specified that employers 

guarantee to offer hours of employment 

equal to at least three-fourths of the 

certified work days during the job order 

period, and that they use successive 4- 

week periods to measure the threefourths guarantee. The use of 4-week 

periods was proposed (as opposed to 

measuring the three-fourths guarantee 

over the course of the entire period of 

need as in the H–2A program) in order 

to ensure that work is offered during the 

entire certified period of employment. 

The Department received comments 

from employers expressing concern that 

they are unable to predict the exact 

timing and flow of tasks by H–2B 

workers, particularly at the beginning 

and end of the period of certification, 

and that they need more scheduling 

flexibility due to unexpected events 

such as extreme weather or catastrophic 

man-made events. Acknowledging these 

commenters’ concerns, the Department 

lengthened the calculation period from 

4 weeks to 12 weeks for job orders 

lasting at least 120 days and 6 weeks for 

job orders lasting less than 120 days. In 

order to ensure that the capped H–2B 

visas are appropriately made available 

to employers based upon their actual 

need for workers, and to ensure that 

U.S. workers can realistically evaluate 

the job opportunity, the Department 

maintains that employers should 

accurately state their beginning and end 

dates of need and the number of H–2B 

workers needed. To the extent that 

employers submit Applications for 

Temporary Employment Certification 

accurately reflecting their needs, the 

three-fourths guarantee provision 

should not represent a cost to 

employers, particularly given the 

extended 12-week and 6-week periods 

over which to calculate the guarantee. 

b. Application of H–2B Wages to 

Corresponding Workers 

There are two cohorts of 

corresponding workers: (1) The U.S. 

workers hired in the recruitment 

process and (2) other U.S. workers who 

work for the employer and who perform 


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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 10121 

the substantially the same work as the 

H–2B workers, other than those that fall 

under one of the two exclusions in the 

definition. The former are part of the 

baseline for purposes of the wage 

obligation, as employers have always 

been required to pay U.S. workers 

recruited under the H–2B program the 

same prevailing wage that H–2B 

workers get. Of the latter group of 

corresponding workers, some will 

already be paid a wage equal to or 

exceeding the H–2B prevailing wage so 

their wages represent no additional cost 

to the employer. Those who are 

currently paid less than the H–2B 

prevailing wage will have to be paid at 

a higher rate, with the additional cost to 

the employer equal to the difference 

between the former wage and the H–2B 

wage. 

As discussed above, the Department 

was unable to identify a reliable source 

of data providing the number of 

corresponding workers at work sites for 

which H–2B workers are requested or 

the hourly wages of those workers. 

Nevertheless, the Department has 

attempted to quantify the impacts 

associated with this provision. All 

increases in wages paid to 

corresponding workers under this 

provision represent a transfer from 

participating employers to U.S. workers. 

In the absence of reliable data, the 

Department believes it is reasonable to 

assume that H–2B workers make up 75 

to 90 percent of the workers in a 

particular job and location covered by 

the job-order, with the remaining 10 to 

25 percent of workers being 

corresponding workers newly covered 

by the rule’s wage requirement. When 

these rates are applied to our estimate 

of the total number of H–2B workers 

(115,500) employed at any given time, 

we estimate that the number of 

corresponding workers newly covered 

by the corresponding employment 

provision will be between 12,833 and 

38,500. This is an overestimate of the 

rule’s impact, since some of the 

employees included in the 10–25 

percent proportion of corresponding 

workers are those hired in response to 

required recruitment and are therefore 

already covered by the existing 

regulation, and some employees will fall 

within one of the two exclusions under 

the definition. 

The prevailing wage calculation 

represents a typical worker’s wage for a 

given type of work. Since the prevailing 

wage calculation is based on the current 

wages received by all workers in the 

occupation and area of intended 

employment, it is reasonable to assume 

that 50 percent of the corresponding 

workforce earns a wage that is equal to 

or greater than the calculated prevailing 

wage. Conversely, it would be 

reasonable to assume that 50 percent of 

the workers in corresponding 

employment earn less than the 

prevailing wage and would have their 

wages increased as a result of the Final 

Rule. Applying this rate to our estimate 

of the number of workers covered by the 

corresponding employment provision 

would mean that the number of newlycovered workers is between 6,417 and 

19,250. 

We also believe it is reasonable to 

assume that the typical hourly wage 

increase for the newly-covered U.S. 

workers will be less than the average 

increase for H–2B workers resulting 

from the Wage Rule. This reflects our 

expectation that a majority of the newlycovered corresponding workers are 

currently earning close to the new H–2B 

prevailing wage (which represents the 

mathematical mean wage for the 

occupation in the area of intended 

employment). These corresponding 

workers, who would already be part of 

an employer’s staff in occupations for 

which a certification is being sought, 

have likely experienced some wage 

growth during their tenure with the 

employer; therefore, their wage increase 

should be significantly less than the 

hourly wage increase for the H–2B 

workers in that occupations. 

We also expect that few 

corresponding workers are likely to 

receive a wage increase that is close to 

or greater than the weighted average 

hourly increase for H–2B workers. This 

small number of incumbent employees 

would likely be limited to those hired 

shortly before an employer applied for 

an H–2B Temporary Employment 

Certification. Because they would not 

have had sufficient tenure to experience 

any wage growth, their hourly wage 

increase may be equivalent to the 

average wage increases provided to 

H–2B workers under the Wage Rule. 

Therefore, we believe that U.S. 

workers’ wage increases will be largely 

distributed between the previous H–2B 

prevailing wage and the new prevailing 

wage. Using the weighted average 

hourly wage increase for H–2B workers 

to approximate an upper bound for the 

increase in corresponding workers’ 

wages, we assume that the wage 

increases for newly-covered workers 

will be distributed between three 

hourly-wage intervals: 30 percent of the 

newly-covered corresponding workers 

will receive an average hourly wage 

increase of $1.00; 15 percent will 

receive a wage increase of $3.00 per 

hour; and, 5 percent will receive an 

average hourly increase of $5.00, which 

encompasses the weighted average 

hourly wage increase for H–2B workers 

from the Wage Rule. 

Finally, we estimate that these 

workers in corresponding employment 

will have their wages increased for 

1,365 hours of work. This assumes that 

every H–2B employer is certified for the 

maximum period of employment of nine 

months (39 weeks), and that every 

corresponding worker averages 35 hours 

of work per week for each of the 39 

weeks. This is an upper-bound estimate 

since it is based upon every employer 

voluntarily providing in excess of the 

number of hours of work required by the 

three-fourths guarantee for the 

maximum number of weeks that can be 

certified. 

Therefore, based on all the 

assumptions noted above, we estimate 

the total annual transfer incurred due to 

the increase in wages for newly-covered 

workers in corresponding employment 

ranges from $17.5 million to $52.6 

million. See Table 4. 

Also, based on our review of available 

information on the characteristics of 

industries employing H–2B workers, 

there will be natural limit on the 

number of corresponding workers 

whose wages might be affected by the 

revised rule. The Department found that 

the two industries that most commonly 

employ H–2B workers are landscaping 

services and janitorial services. 

Establishments in these industries 

tend to be small: Approximately 7 

percent of janitorial service and 3 

percent of landscaping establishments 

have more than 50 year-round 

employees; and, 86 percent of janitorial 

services and 91 percent of landscaping 

establishments have fewer than 20 yearround employees. Therefore, we believe 

that a majority of H–2B employers are 

small-sized firms whose workforces are 

comprised predominately of H–2B 

workers. 

This assertion is consistent with 

employer comments on the proposed 

rule that firms hire H–2B workers 

primarily because they find it difficult 

to fill those positions with U.S. workers. 

This is also consistent with the fact that 

20 percent in janitorial services and 30 

percent in landscaping do not even 

operate year-round. Taken in total, the 

small size of a typical H–2B employer 

would place limits on the number of 

potential corresponding workers. 

Finally, to the extent that firms in 

landscaping and janitorial services incur 

increased payroll costs, those increased 

costs are unlikely to have a significant 

aggregate impact. U.S. Bureau of 

Economic Analysis (BEA) input-output 

analysis of the economy demonstrates 

that the demand for ‘‘Services to 

Buildings and Dwellings’’ (the sector in 


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10122 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

26For the purpose of this analysis, H–2B workers 

are considered temporary residents of the United 

States. 

which janitorial and landscaping 

services are classified) is highly diffused 

throughout the economy. 

BEA calculates Direct Requirements 

tables that indicate the dollar amount of 

input from each industry necessary to 

produce one dollar of a specified 

industry’s output. These results show 

that building services account for a 

relatively negligible proportion of 

production costs: Of 428 sectors, 

building services account of less than 

$0.01 for each dollar of output in 414 

sectors, and less than $0.005 for each 

dollar of output in 343 sectors. The 

largest users of these services tend to be 

retail trade, government and educational 

facilities, hotels, entertainment and 

similar sectors. In other words, these 

services do not impact industrial 

productivity or the production of 

commodities that will result in large 

impacts that ripple throughout the 

economy. To further place this in 

perspective, Services to Buildings and 

Dwellings, upon which this 

characterization is based includes more 

than just the janitorial and landscaping 

service industries. The estimated 53,173 

H–2B workers hired by these industries 

account for only 3.1 percent of 

employment in the Services to 

Buildings and Dwellings sector, even 

including impacts through 

corresponding employee provisions 

(described above as limited), and are 

only a small fraction of the already 

small direct requirements figures for 

this sector. 

Therefore, based on the characteristics 

of industries that use H–2B workers, 

only a relatively small fraction of 

employees and firms in those industries 

likely will be affected by corresponding 

worker provisions. 

However, because the Department 

does not have data on the number of 

corresponding workers or their wages 

relative to prevailing wages, it cannot 

project firm-level impacts to those firms 

that do have permanent corresponding 

workers. Standard labor economic 

models suggest that an increase in the 

cost of employing U.S. workers in 

corresponding employment would 

reduce the demand for their labor. 

Because employers cannot replace U.S. 

workers laid off 120 days before the date 

of need or through the period of 

certification with H–2B workers, the 

Department concludes that there would 

be no short-term reduction in the 

employment of corresponding workers 

among participating employers. In the 

long-run, however, these firms might be 

reluctant to hire additional permanent 

staff. The extent to which such 

unemployment effects might result from 

the prevailing wage provision will be a 

function of: The number of permanent 

staff requiring wage increases; the 

underlying demand for the product or 

service provided by the firm during offpeak periods; and the firm’s ability to 

substitute for labor to meet that off-peak 

demand for its products or services. 

First, the fewer the number of 

permanent staff receiving wage 

increases, then the smaller the increase 

in the cost of producing the good or 

service. Second, the demand for labor 

services is a ‘‘derived demand.’’ That is, 

if the product or service provided has 

few substitutes, purchasers would prefer 

to pay a higher price rather than do 

without the product. Third, some goods 

and services are more difficult to 

produce than others by substituting 

equipment or other inputs for labor 

services. In summary, if increased wages 

result in a small overall cost increase, 

demand for the product is inelastic, and 

there are few suitable substitutes for 

labor in production, then 

unemployment effects are likely to be 

relatively small. 

TABLE 4—COST OF CORRESPONDING WORKER WAGES

Hourly wage increase 

Percent 

corresponding 

employees 

Corresponding 

employees Total cost 

H2B Workers 90% of Occupation at Firm 

$0.00 ............................................................................................................................................ 50 6,417 $0 

1.00 .............................................................................................................................................. 30 3,850 5,255,250 

3.00 .............................................................................................................................................. 15 1,925 7,882,875 

5.00 .............................................................................................................................................. 5 642 4,379,375 

Total ...................................................................................................................................... 100 12,833 17,517,500 

H2B Workers 75% of Occupation at Firm 

$0.00 ............................................................................................................................................ 50 19,250 $0 

$1.00 ............................................................................................................................................ 30 11,550 15,765,750 

$3.00 ............................................................................................................................................ 15 5,775 23,648,625 

$5.00 ............................................................................................................................................ 5 1,925 13,138,125 

Total ...................................................................................................................................... 100 38,500 52,552,500 

Source: DOL assumptions. 

c. Transportation to and From the Place 

of Employment for H–2B Workers 

The Final Rule requires H–2B 

employers to provide workers—both H– 

2B workers and those in corresponding 

employment who are unable to return to 

their permanent residences—with 

transportation and daily subsistence to 

the place of employment from the place 

from which the worker has come to 

work for the employer, whether in the 

U.S. or abroad, if the worker completes 

50 percent of the period of the job order. 

The employer must also pay for or 

provide the worker with return 

transportation and daily subsistence 

from the place of employment to the 

place from which the worker, 

disregarding intervening employment, 

departed to work for the employer if the 

worker completes the period of the job 

order or is dismissed early. The impacts 

of requiring H–2B employers to pay for 

employees’ transportation and 

subsistence represent transfers from H– 

2B employers to workers because they 

represent distributional effects, not a 

change in society’s resources.26

To estimate the transfer related to 

transportation, the Department first 


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27U.S. Department of Homeland Security (DHS). 

2009. Yearbook of Immigration Statistics. Available 

at http://www.dhs.gov/files/statistics/publications/ 

yearbook.shtm (Accessed June 12, 2011). 

28Exchange rates sourced from Google’s currency 

converter. If no exchange rate is mentioned, then 

costs were provided in U.S. dollars. 

29Where possible, we used a selection of cities to 

represent travel from different regions of the 

country. 

30ETA–2011–0001–0456. 

calculated the average number of 

certified H–2B positions per year during 

FY 2007–2009 from the ten most 

common countries of origin, along with 

each country’s proportion of this total.27

These figures, presented in Table 5, are 

used to create weighted averages of 

travel costs in the analysis below. 

TABLE 5—NUMBER OF CERTIFIED H– 

2B WORKERS BY COUNTRY OF ORIGIN, FY 2007–2009 

Country Positions 

certified 

Percent of 

total 

Mexico .............. 134,226 75.6 

Jamaica ............ 17,068 9.6 

Guatemala ........ 6,530 3.7 

Philippines ........ 4,963 2.8 

Romania ........... 3,251 1.8 

South Africa ...... 3,239 1.8 

UK ..................... 2,511 1.4 

Canada ............. 2,371 1.3 

Israel ................. 1,784 1.0 

Australia ............ 1,577 0.9 

Total .............. 177,520 100.0 

Source: H–2B Program Data and DHS, 

2009. 

The Department received a comment 

from a worker advocacy organization 

requesting clarification that inbound 

and outbound transportation costs 

include the expenses incurred between 

their home community and the consular 

city, and between the consular city and 

the place of employment in the United 

States. In response, the Department 

confirms that this is the intent of the 

rule. Therefore, in this section the 

Department accounts for a cost not 

clearly accounted for in the proposed 

rule: The cost of travel from the 

worker’s home to the consular city to 

obtain a visa. As in the proposed rule, 

the Department also accounts for travel 

from the consular city to the place of 

employment (assumed to be St. Louis, 

MO for the purpose of cost estimation). 

Where these costs were given in foreign 

currency, the Department converted 

them to U.S. dollars using exchange 

rates effective July 11, 2011.28

Transportation costs were calculated 

by adding two components: the 

estimated cost of a bus or ferry trip from 

a regional city 29 to the consular city to 

obtain a visa, and the estimated cost of 

a trip from the consular city to St. Louis. 

Workers from Mexico and Canada (77 

percent of the total) are assumed to 

travel by bus; workers from all other 

countries, by air. In response to the 

proposed rule, an employer 

representative submitted a comment 

expressing concern that the travel 

expenses underestimated the cost of 

airfare.30 The Department reviewed air 

transport costs, found that some have 

risen significantly since the NPRM was 

published, and revised them 

accordingly. The increases are likely 

attributable to a combination of 

increased fuel costs and decreases in 

passenger capacity. The same 

commenter expressed concern that the 

proposed rule’s requirement that 

employers continue hiring U.S. workers 

up to 3 days before the listed job start 

date means that employers will need to 

pay a premium for refundable tickets. 

Because this Final Rule changed the last 

day an employer must hire U.S. 

applicants to 21 days before the date of 

need, employers will not have to pay a 

premium for refundable fares. This 

analysis, therefore, includes only the 

cost for non-refundable tickets. 

The revised travel cost estimates are 

presented in Table 6. The Department 

estimated the roundtrip transportation 

costs by doubling the weighted average 

one-way cost (for a roundtrip travel cost 

of $929), then multiplying by the annual 

number of H–2B workers entering the 

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

average annual transfer payments 

associated with transportation 

expenditures to be approximately $61.3 

million. This estimate is an increase of 

approximately $23.5 million over the 

Proposed Rule estimate of $37.8 million. 

The addition of travel costs from the 

worker’s hometown to the consular city 

accounts for approximately $2.9 million 

(12 percent) of this increase and the 

overall increase in average airfares 

accounts for $20.6 million (88 percent). 

It is not possible for the Department to 

determine how much of the cost of 

transportation the employer is already 

paying, however, in order to secure the 

workers or because of the employer’s 

obligations under the FLSA. (Under the 

FLSA, the majority of H–2B employers 

are required to pay for the proportion of 

inbound and outbound transportation 

costs that would otherwise bring a 

worker’s earnings below the minimum 

wage in the first and last workweeks of 

employment.) To the extent that this 

does already occur, this transportation 

transfer is an upper-bound estimate. The 

Department also believes we have overestimated this transfer for the additional 

reason that inbound transportation is 

only due for workers who complete 50 

percent of the job order and outbound 

transportation is due only for those who 

complete the full job order or are 

dismissed early. 

TABLE 6—COST OF TRAVEL FOR H–2B WORKERS

Item Value 

New entrants per Year ........................................................................................................................................................................ 66,000 

Mexico: 

One way travel (bus)—Hometown to Monterrey 31 ...................................................................................................................... $50 

One way travel (bus)—Monterrey to Juarez 32 ............................................................................................................................ $83 

One way travel (bus)—El Paso to St. Louis 33 ............................................................................................................................ $214 

Total one way travel .............................................................................................................................................................. $347 

Jamaica: 

One way travel (bus)—Hometown to Kingston 34 ........................................................................................................................ $3 

One way travel (air)—Kingston to St. Louis 35 ............................................................................................................................. $499 

Total one way travel .............................................................................................................................................................. $502 

Guatemala: 

One way travel (bus)—Hometown to Guatemala City 36 ............................................................................................................. $4 

One way travel (air)—Guatemala City to St. Louis 37 .................................................................................................................. $490 

Total one way travel .............................................................................................................................................................. $594 


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31Omnibus de Me ́xico. 2011. Venta en Lı ́nea. 

Available at http://www.odm.com.mx/ (Accessed 

July 22, 2011). Averages cost of a bus ticket to 

Monterrey from: Tampico (473 pesos), Actopan (680 

pesos); and Aca ́mbaro (585 pesos). Converted from 

pesos to US dollars at the rate of 0.0861 pesos per 

dollar for an average cost of $50. 

32Omnibus de Me ́xico. 2011. Venta en Lı ́nea. 

Available at http://www.odm.com.mx/ (Accessed 

July 22, 2011). The cost of a bus ticket from 

Monterrey to Ciudad Juarez is 970 pesos, converted 

from pesos to US dollars at the rate of 0.0861 pesos 

per dollar for a cost of $83. 

33 Greyhound. 2011. Tickets. Available at 

https://www.greyhound.com/farefinder/step1.aspx 

(Accessed July 8, 2011). 34 Jamaica Guide. 2011. Getting around. Available 

at http://jamaica-guide.info/getting.around/buses/ 

(Accessed July 11, 2011). 35Orbitz. 2011. Home Page. Available at http:// 

www.orbitz.com/ (Accessed July 22, 2011). 36 Virtual Tourist. 2011. Guatemala City 

Transportation. Available at http:// 

www.virtualtourist.com/travel/ 

Caribbean_and_Central_America/Guatemala/ 

Departamento_de_Guatemala/Guatemala_City1671108/Transportation-Guatemala_City-TG–C– 

1.html (Accessed July 10, 2011). 

37Lonely Planet. 2011a. Ferry travel in the 

Philippines. Available at http:// 

www.lonelyplanet.com/philippines/transport/ 

getting-around (Accessed July 10, 2011). 

38Mersul Trenulior. 2011. Mersul Trenulior. 

Available at http://www.mersultrenurilor.ro 

(Accessed July 8, 2011). 

39Computicket. 2011. Computicket Home Page. 

Available at http://www.computicket.com/web/ 

bus_tickets/ (Accessed July 22, 2011). 

40Megabus. 2011. Megabus UK Home Page. 

Available at http://uk.megabus.com/ 

default.aspxhttp\:uk.megabus.com (Accessed July 

10, 2011) and Raileasy. 2011. Raileasy Home Page. 

Available at https://www.raileasy.co.uk/ (Accessed 

July 10, 2011); average of the cost of a bus ticket 

from three cities in England to London (GBP 15) 

and a train from Northern Ireland to London (GBP 

50); Converted at the rate of 1.36 GBP per USD for 

an average of $32. 

41Air Canada. 2011. Air Canada Home Page. 

Available at http://www.aircanada.com (Accessed 

July 10, 2011). 

42Wikitravel. 2011. Bus travel in Israel. Available 

at http://wikitravel.org/en/Bus_travel_in_Israel 

(Accessed July 10, 2011). 

43 Greyhound Australia. 2011. Greyhound 

Australia Home Page. Available at htttp:// 

www.greyhound.com.au (Accessed July 11, 2011). 

44 Greyhound. 2011. Tickets. Available at 

https://www.greyhound.com/farefinder/step1.aspx 

(Accessed July 8, 2011). 

TABLE 6—COST OF TRAVEL FOR H–2B WORKERS—Continued 

Item Value 

Philippines: 

One way travel (ferry)—Hometown to Manila 37 .......................................................................................................................... $41 

One way travel (air)—Manila to St. Louis 37 ................................................................................................................................ $1,083 

Total one way travel .............................................................................................................................................................. $1,124 

Romania: 

One way travel (bus)—Hometown to Bucharest 38 ...................................................................................................................... $21 

One way travel (air)—Bucharest to St. Louis 37 ........................................................................................................................... $1,388 

Total one way travel .............................................................................................................................................................. $1,409 

South Africa: 

One way travel (bus)—Hometown to Pretoria 39 ......................................................................................................................... $41 

One way travel (bus)—Pretoria to O.R. Tambo International Airport (ORTIA) 39 ....................................................................... $17 

One way travel (air)—ORTIA to St. Louis 37 ................................................................................................................................ $1,391 

Total one way travel .............................................................................................................................................................. $1,449 

United Kingdom: 

One way travel (bus or rail)—Hometown to London 40 ................................................................................................................ $32 

One way travel (air)—London to St. Louis 37 ............................................................................................................................... $1,111 

Total one way travel .............................................................................................................................................................. $1,143 

Canada: 

One way travel (air)—Hometown to Ottawa 41 ............................................................................................................................ $175 

One way travel (bus)—Ottawa to St. Louis 35 .............................................................................................................................. $178 

Total one way travel .............................................................................................................................................................. $353 

Israel: 

One way travel (bus)—Hometown to Tel Aviv 42 ......................................................................................................................... $11 

One way travel (air)—Tel Aviv to St. Louis 37 .............................................................................................................................. $1,176 

Total one way travel .............................................................................................................................................................. $1,187 

Australia: 

One way travel (bus)—Hometown to Canberra 43 ....................................................................................................................... $92 

One way travel (air)—Canberra to St. Louis 37 ............................................................................................................................ $2,064 

Total one way travel .............................................................................................................................................................. $2,156 

All: 

One way travel—Weighted average ............................................................................................................................................ $465 

Roundtrip travel—Weighted average ........................................................................................................................................... $929 

Total Travel Costs—H2B Workers ........................................................................................................................................ $61,328,243 

d. Transportation to and From the Place 

of Employment for Corresponding 

Workers 

The proposed rule did not address 

inbound and outbound transportation to 

and from the place of employment for 

corresponding workers who are unable 

to return daily to their permanent 

residences. The Department estimates 

an approximate unit cost for each 

traveling corresponding worker by 

taking the average of the cost of a bus 

ticket to St. Louis from Fort Wayne, IN 

($91), Pittsburgh, PA ($138), Omaha, NE 

($93), Nashville, TN ($86), and 

Palmdale, CA ($233).44 Averaging the 

cost of travel from these five cities 

results in an average one way cost of 

$128.20, and a round trip cost of 

$256.40 (see Table 7). 


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45Lonely Planet. 2011b. Hotels & Hostels Search. 

Available at http://hotels.lonelyplanet.com/ 

(Accessed July 12, 2011). 

TABLE 7—UNIT COSTS OF

CORRESPONDING WORKER TRAVEL

One way travel to St. Louis Cost 

Fort Wayne, IN ............................. $91 

Pittsburgh, PA ............................... 138 

Omaha, NE ................................... 93 

Nashville, TN ................................ 86 

Palmdale, CA ................................ 233 

One way travel—Average ............ 128 

Roundtrip travel ............................ 256 

Source: Greyhound, 2011. 

Some employers have expressed 

concern that the rule’s provision that 

employers reimburse workers for 

transportation costs will lead to workers 

quitting soon after the start date and 

thus in effect receiving a free trip to the 

city of their employment. The 

Department has addressed this concern 

with a provision that workers are not 

reimbursed for inbound travel until they 

work for half of the job order work 

period, and they do not receive 

outbound travel unless they complete 

the work period or are dismissed early. 

Therefore, this estimate also is an 

upper-bound estimate for these reasons 

as well. Because the Department has no 

basis for estimating the number of 

workers in corresponding employment 

who will travel to the job from such a 

distance that they are unable to return 

daily to their permanent residence, or to 

estimate what percentage of them will 

remain on the job through at least half 

or all of the job order period, we are 

unable to further estimate the total 

transfer involved. 

e. Subsistence Payments 

We estimated the transfer related to 

subsistence payments by multiplying 

the annual cap set for the number of H– 

2B workers generally entering the U.S. 

(66,000) by the subsistence per diem 

($10.64), and the roundtrip travel time 

for the top ten H–2B countries (4 days). 

In the Proposed Rule the Department 

estimated a weighted average roundtrip 

travel time of 1.055 days, but in 

response to a comment from a workers’ 

advocacy organization the Department 

has increased this estimate to account 

for workers’ travel to the consular city 

to obtain a visa. The roundtrip travel 

time now includes 3 days to account for 

travel from the worker’s home town to 

the consular city and from the consular 

city to the place of employment, and 1 

day to account for the workers’ 

transportation back to their home 

country. Multiplying by 66,000 new 

entrants per year and the subsistence 

per diem of $10.64 results in average 

annual transfers associated with the 

subsistence per diem of approximately 

$2.8 million (see Table 8). Again, this is 

an upper-bound estimate because the 

inbound subsistence reimbursement 

only is due for workers who complete 

50 percent of the period of the job order 

and outbound subsistence is due only 

for those who complete the full job 

order period or are dismissed early. 

TABLE 8—COST OF SUBSISTENCE

PAYMENTS

Cost component Value 

New entrants per year .............. 66,000 

Subsistence Per Diem .............. $11 

One way travel days—Inbound 3 

One way travel days—Outbound .................................... 1 

Roundtrip travel days ............... 4 

Total annual subsistence 

costs—H2B workers ...... $2,808,960 

This provision applies not only to H– 

2B workers, but also to workers in 

corresponding employment on H–2B 

worksites who are recruited from a 

distance at which the workers cannot 

reasonably return to their residence 

within the same workday. Assuming 

that each worker can reach the place of 

employment within 1 day and thus 

would be reimbursed for a total of 2 

roundtrip travel days at a rate of $10.64 

per day, each corresponding worker 

would receive $21.28 in subsistence 

payments. The Department was unable 

to identify adequate data to estimate the 

number of corresponding workers who 

are unable to return to their residence 

daily or, as a consequence, the percent 

of corresponding workers requiring 

payment of subsistence costs; thus the 

total cost of this transfer could not be 

estimated. 

f. Lodging for H–2B Workers 

The Department received a comment 

from a workers’ advocacy organization 

requesting clarification that inbound 

and outbound transportation costs 

include the expenses incurred between 

their home community and the consular 

city and between the consular city and 

the place of employment in the U.S. The 

Department clarifies that the proposed 

rule considered any expenses incurred 

between a worker’s hometown and the 

consular city to be within the scope of 

inbound transportation and subsistence 

costs, and therefore includes an 

additional cost not accounted for in the 

proposed rule: lodging costs while H–2B 

workers travel from their hometown to 

the consular city to wait to obtain a visa 

and from there to the place of 

employment. The Department estimates 

that H–2B workers will spend an 

average of two nights in an inexpensive 

hostel-style accommodation and that the 

costs of those stays in consular cities of 

the ten most common countries of origin 

are as follows: Monterrey, $11; 

Kingston, $13; Guatemala City, $14; 

Manila, $7; Bucharest, $11; Pretoria, 

$19; London, $22; Ottawa, $30; Tel 

Aviv, $22; and Canberra, $26.45 Using 

the number of certified H–2B workers 

from the top ten countries of origin, we 

calculate a weighted average of $11.99 

for one night’s stay, and $23.98 for two 

nights’ stay. Multiplying by the 66,000 

new entrants per year suggests total 

transfers associated with travel lodging 

of $1.6 million per year (see Table 9). 

This cost would not apply to U.S. 

workers. 

TABLE 9—COST OF LODGING FOR H– 

2B WORKERS

Cost component Value 

New entrants per year .......... 66,000 

Nights in Hostel .................... 2 

City Lodging cost 

Monterrey .............................. $11 

Kingston ................................ 13 

Guatemala City ..................... 14 

Manila ................................... 7 

Bucharest .............................. 11 

Pretoria ................................. 19 

London .................................. 22 

Ottawa .................................. 30 

Tel Aviv ................................. 22 

Canberra ............................... 26 

Weighted Average—One 

Night .................................. 12 

Weighted Average—Two 

Nights ................................ 24 

Total Cost of Lodging ........... 1,582,673 

Source: Lonely Planet, 2011b. 

g. Visa and Consular Fees 

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

the Department of State for scheduling 

and/or conducting an interview at the 

consular post—may be paid by the 

temporary worker. This Final Rule, 

however, requires employers to pay visa 

fees and associated consular expenses. 

Requiring employers to bear the full cost 

of their decision to hire foreign workers 

is a necessary step toward preventing 

the exploitation of foreign workers with 

its concomitant adverse effect on U.S. 

workers. As explained in the Preamble, 

government-mandated fees such as 

these are integral to the employer’s 

choice to use the H–2B program to bring 

temporary foreign workers into the 

United States. 

The reimbursement by employers of 

visa application fees and fees for 

scheduling and/or conducting an 


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10126 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

46U.S. Department of State. 2011a. Citizens of 

Canada, Bermuda and Mexico—When is a Visa 

Required? Available at http://travel.state.gov/visa/ 

temp/without/without_1260.html (Accessed July 22, 

2011). 

47Consulate General of the United States— 

Monterrey—Mexico. 2011. Temporary worker. 

Available at http://monterrey.usconsulate.gov/ 

work_visa.html (Accessed July 22, 2011). 

48The U.S. Visa Information Service in Jamaica. 

2011. How the Online System Works. Available at 

http://www.usvisa-jamaica.com/jam/ (Accessed 

July 22, 2011). 

49Embassy of the United States—Guatemala. 

2011. Application Process. Available at http:// 

guatemala.usembassy.gov/ 

niv_how_to_apply.html#appointment (Accessed 

July 22, 2011). 

50Embassy of the United States—Manila— 

Philippines. 2011. Visa PointTM—The Online Visa 

Information and Appointment System. Available at 

http://manila.usembassy.gov/wwwhvpnt.html 

(Accessed July 22, 2011). 

51Embassy of the United States—Bucharest— 

Romania. 2011. Non Immigrant Visas. Available at 

http://romania.usembassy.gov/visas/ 

visa_application_process.html (Accessed July 22, 

2011). 

52The U.S. Visa Information Service in South 

Africa. 2011. Fee Payment Options. Available at 

http://usvisa-info.com/en-ZA/selfservice/ 

us_fee_payment_options (Accessed July 22, 2011). 

53Embassy of the United States—London—U.K. 

2011. MRV Application Fee. Available at http:// 

london.usembassy.gov/fee.html (Accessed July 22, 

2011). 

54U.S. Department of State. 2011a. Citizens of 

Canada, Bermuda and Mexico—When is a Visa 

Required? Available at http://travel.state.gov/visa/ 

temp/without/without_1260.html (Accessed July 22, 

2011). 

55 VisaPoint—Tel Aviv—Jerusalem. 2011. Create 

New Login. Available at https://visainfo.usvisaservices.com/Forms/CreateGroupUser.aspx 

(Accessed July 22, 2011). 

56Embassy of the United States—Canberra— 

Australia. 2011. Nonimmigrant Visas. Available at 

http://canberra.usembassy.gov/niv_fees.html 

(Accessed July 22, 2011). 

57U.S. Department of State. 2011b. Reciprocity by 

Country. Available at http://travel.state.gov/visa/ 

fees/fees_3272.html (Accessed July 22, 2011). 

interview at the consular post is a 

transfer from employers to H–2B 

workers. The Department estimates the 

total cost of these expenses by adding 

the cost of an H–2B visa and any 

applicable appointment and reciprocity 

fees. The H–2B visa fee is $150 in all of 

the ten most common countries of origin 

except Canada, where citizens traveling 

to the U.S. for temporary employment 

do not need a visa,46 resulting in a 

weighted average visa fee of $148. The 

same countries charge the following 

appointment fees: Mexico ($0),47

Jamaica ($10),48 Guatemala ($12),49

Philippines ($10),50 Romania ($11),51

South Africa ($0),52 the U.K. ($0),53

Canada ($0),54 Israel ($22),55 and 

Australia ($105),56 for a weighted 

average appointment fee of $3.05. 

Additionally, South Africa and 

Australia charge reciprocity fees of $85 

and $105, respectively, resulting in a 

weighted average of $2.48.57

Multiplying the weighted average visa 

cost, appointment fee, and reciprocity 

fee by the 66,000 H–2B workers entering 

the U.S. annually results in an annual 

average transfer of visa-related fees from 

H–2B employers to H–2B workers of 

$10.1 million (see Table 10). Again, this 

is an upper-bound estimate because 

many H–2B employers already are 

paying these fees in order to ensure 

compliance with the FLSA’s minimum 

wage requirements. 

TABLE 10—COST OF VISA AND

CONSULAR FEES

Cost component Value 

New Entrants per Year ......... 66,000 

Visa Application Fee: 

Mexico ............................... $150 

Jamaica ............................. 150 

Guatemala ......................... 150 

Philippines ......................... 150 

Romania ............................ 150 

South Africa ...................... 150 

UK ..................................... 150 

Canada .............................. 0 

Israel ................................. 150 

Australia ............................ 150 

Weighted Average Visa 

Fee ................................ 148 

H2B Visa—Total Costs ..... 9,767,773 

Appointment Fee: 

Mexico ............................... 0 

Jamaica ............................. 10 

Guatemala ......................... 12 

Philippines ......................... 10 

Romania ............................ 11 

South Africa ...................... 0 

UK ..................................... 0 

Canada .............................. 0 

Israel ................................. 22 

Australia ............................ 105 

Weighted Average Appointment Fee ............... 3 

Appointment Fee—Total 

Costs ............................. 201,439 

Reciprocity Fee: 

Mexico ............................... 0 

Jamaica ............................. 0 

Guatemala ......................... 0 

Philippines ......................... 0 

Romania ............................ 0 

South Africa ...................... 85 

UK ..................................... 0 

Canada .............................. 0 

Israel ................................. 0 

Australia ............................ 105 

Weighted Average Reciprocity Fee ..................... 2 

Reciprocity Fee—Total 

Costs ............................. 163,922 

Total Costs: 

Total Visa and Consular 

Fees ............................... 10,133,134 

Sources: Given in text. 

h. Enhanced U.S. Worker Referral 

Period 

The Final Rule ensures that U.S. 

workers are provided with better access 

to H–2B job opportunities by requiring 

employers to continue to hire any 

qualified and available U.S. worker 

referred to them from the SWA until 21 

days before the date of need, 

representing an increase in the 

recruitment period compared to the 

baseline. The rule also introduces 

expanded recruitment provisions, 

including requiring employers to notify 

their current workforce of the job 

opportunity and contact their former 

U.S. employees from the previous year. 

The enhanced recruitment period and 

activities improve the information 

exchange between employers, SWAs, 

the public and workers about job 

availability, increasing the likelihood 

that U.S. workers will be hired for those 

jobs. 

The benefits to U.S. workers also 

apply to sections ‘‘i’’ through ‘‘k’’ below, 

which discuss additional provisions 

aimed at further improving the 

recruitment of U.S. workers. 

The extension of the referral period in 

this Final Rule will likely result in more 

U.S. workers applying for these jobs, 

requiring more SWA staff time to 

process additional referrals. The 

Department does not have estimates of 

the additional number of U.S. 

applicants, and thus is unable to 

estimate the costs to SWAs associated 

with this provision. 

The Department believes that hiring a 

U.S. worker will cost employers less 

than hiring an H–2B worker, as 

transportation and subsistence expenses 

will likely be reduced, if not avoided 

entirely. The cost of visa fees will be 

entirely avoided if U.S. workers are 

hired. Because the Department has not 

identified appropriate data to estimate 

any increase in the number of U.S. 

workers that might be hired as a result 

of the Final Rule’s enhanced 

recruitment, it is unable to estimate total 

cost savings. Likewise, the enhanced 

recruitment period along with more 

extensive recruitment activities and a 

number of program changes that should 

make these job opportunities more 

desirable should generate an increased 

number of local referrals for whom no 

transportation or subsistence costs will 

be incurred. Since the number of such 

workers cannot be estimated with 

precision, these cost saving are not 

factored into this analysis however we 

are confident the actual overall costs to 

employers for transportation and 

subsistence will be lower than the 

estimates provided here. 

i. Additional Recruitment Directed by 

the CO 

Under the Final Rule, an employer 

may be directed by the CO to conduct 

additional recruitment if the CO has 

determined that there may be qualified 


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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 10127 

58The calculation in the NPRM included 

classified advertising rates from five newspapers 

(Augusta Chronicle, Huntsville Times, Los Alamos 

Monitor, San Diego Union-Tribune, and Advertiser 

Times in Detroit) not included in this final analysis 

and one newspaper that is included (Austin 

Chronicle). 

59http://selfserve.pilotezads.com/vp-adportal/

classified/index.html. 

60Austin Chronicle. 2011. Place an Ad. Available 

at https://ssl.austinchronicle.com/gyrobase/

PlaceAd (Accessed August 1, 2011). 

61http://gainesvillesun.adperfect.com/. 62http://plaqueminesgazette.com/?page_id=118). 63https://classifieds.swiftcom.com/webentry/url/ 

consumer/c_category.html. 64 Data collected by phone interview with a 

member of classified staff, August 12, 2011. 65Monster.com. 2011. Job Postings Inventory. 

Available at http://hiring.monster.com/index

Prospect.Redux.aspx (Accessed August 8, 2011). 

66CareerBuilder. 2011. Job Posting. Available at 

https://www.careerbuilder.com/JobPoster/

ECommerce/CartOrderSummary.aspx?cblid=epjob

btn&sc_cmp2=JP_HP_PostJobButton&ssl

RedirectCnt=1 (Accessed August 9, 2011). 

67U.S. Census Bureau. 2008. Population: 

Ancestry, Language Spoken At Home—Table 53: 

Languages Spoken at Home by Language. Available 

at http://www.census.gov/compendia/statab/cats/

population/ancestry_language_spoken_at_

home.html (Accessed August 3, 2011). 

68LanguageScape. 2011. How it Works—Cost 

Calculator. Available at http://www.language

scape.com/how_works_1.asp (Accessed June 7, 

2011). 

U.S. workers available, particularly 

when the job opportunity is located in 

an area of substantial unemployment. 

This provision applies to all employer 

applicants regardless of whether they 

ultimately employ H–2B workers. 

Therefore, the Department estimates 

costs using the average number of 

unique employer applicants for FY 

2000–2007 (6,425), rather than the 

average number of employer applicants 

that ultimately hire H–2B workers 

(4,810). The Department conservatively 

estimates that 50 percent of these 

employer applicants (3,213) will be 

directed by the CO to conduct 

additional recruitment. 

In response to the NPRM, the 

Department received a comment from 

an employer expressing concern that the 

NPRM understated the cost of placing a 

newspaper advertisement that would 

capture all the requirements of proposed 

20 CFR 655.41. The Department 

reexamined its original estimate 

($25.09), agrees that it was too low, and 

has updated the original calculation. 

While the cost estimate has increased, it 

does not reflect any additional 

advertising requirements beyond those 

proposed. The higher estimate is rather 

a more accurate reflection of the cost of 

an advertisement of sufficient length to 

include the required information and 

assurances contained in 20 CFR 655.41. 

The Department also updated the mix of 

newspapers used in the analysis to 

better represent different sized 

communities in areas in which a 

significant number of H–2B positions 

were certified in FY 2009.58

To estimate the cost of a newspaper 

advertisement, we calculated the cost of 

placing a classified advertisement in the 

following newspapers: Virginia-Pilot 

($725),59 Austin Chronicle ($120),60

Gainesville Sun ($337),61 Plaquemines 

(LA) Gazette ($50),62 Aspen Times 

($513),63 and Branson Tri-Lakes News 

($144),64 for an average cost of $315. 

Employers may use other means of 

recruiting, such as listings on 

Monster.com ($375) 65 and Career 

Builder ($419).66 Because so many 

newspapers include posting of the 

advertisement on their Web sites and/or 

Career Builder in the cost of the print 

advertisement, we based the estimate on 

the cost of newspaper recruiting. 

Multiplying the number of unique 

employer applicants who will be 

directed to conduct additional 

recruitment by the average cost of a 

newspaper advertisement ($315) results 

in a total cost for newspaper ads of 

$1.01 million. 

The Department estimates that no 

more than 10 percent of employer 

applicants (i.e., 20 percent of those 

directed to conduct additional 

recruiting) will need to translate the 

advertisement in order to recruit 

workers whose primary language is not 

English. The Department calculated 

translation costs by creating a weighted 

average based on U.S. Census data on 

the top five non-English languages 

spoken in the home 67 and the cost of 

translating a one-page document from 

English to Spanish ($25.50), Chinese 

($28.50), Tagalog ($28.50), French 

($25.50), and Vietnamese ($28.50), for a 

weighted average cost of $25.88.68

Multiplying the number of employers 

performing translation (643) by the 

weighted average translation cost results 

in total translation costs of $16,627. 

To account for labor costs in posting 

additional ads, the Department 

multiplied the estimated number of 

unique employer applicants required to 

conduct additional recruiting (3,213) by 

the estimated time required to post the 

advertisement (0.08 hours, or 5 minutes) 

and the loaded hourly compensation 

rate of an administrative assistant/ 

executive secretary ($28.77). The result, 

$0.01 million, was added to the average 

annual cost of CO-directed recruiting 

activities for a total of approximately 

$1.1 million (see Table 11). 

TABLE 11—COST OF ADDITIONAL RECRUITING

Cost component Value 

Number of unique H–2B employer applicants .............................................................................................................................. 6,425 

Percent directed to conduct additional recruiting .......................................................................................................................... 50% 

Employer applicants conducting additional recruiting ................................................................................................................... 3,213 

Newspaper Advertisement: 

Newspaper advertisement—Unit cost .................................................................................................................................... $315 

Total Cost of Newspaper Ad .................................................................................................................................................. $1,011,274 

Translating Newspaper Advertisement: 

Percent workers needing translation ...................................................................................................................................... 10% 

Employers performing translation ........................................................................................................................................... 643 

English to Spanish Translation ............................................................................................................................................... $26 

English to Chinese Translation .............................................................................................................................................. $29 

English to Tagalog Translation ............................................................................................................................................... $29 

English to French Translation ................................................................................................................................................ $26 

English to Vietnamese Translation ......................................................................................................................................... $29 

Weighted Average Translation Cost ...................................................................................................................................... $26 

Total Cost of Translation ........................................................................................................................................................ $16,627 

Labor to Post Newspaper Ad: 

Time to post advertisement .................................................................................................................................................... 0.08 

Administrative Assistant hourly wage w/fringe ....................................................................................................................... $29 

Administrative Assistant labor per ad ..................................................................................................................................... $2 

Total Cost of Labor to Post Newspaper Ad ........................................................................................................................... $7,701 


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10128 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

69U.S. Department of Homeland Security (DHS). 

2009. Yearbook of Immigration Statistics. Available 

at http://www.dhs.gov/files/statistics/publications/ 

yearbook.shtm (Accessed June 12, 2011). 

TABLE 11—COST OF ADDITIONAL RECRUITING—Continued 

Cost component Value 

Total Cost: 

Total Cost of Additional Recruiting ......................................................................................................................................... $1,035,601 

Sources: BLS, 2011a; BLS, 2011b; U.S. Census, 2008; LanguageScape, 2011; Branson Tri-Lake News; Aspen Times; Austin Chronicle; 

Gainesville Sun; Plaquemines Gazette; Virginia-Pilot. 

It is possible that employers will 

incur costs from interviewing applicants 

who are referred to H–2B employers by 

the additional recruiting activities. 

However, the Department is unable to 

quantify the impact. 

j. Cost of Contacting Labor 

Organizations 

The analysis performed for the 

Proposed Rule included a cost for 

employers to contact the local union to 

locate qualified U.S. workers when 

seeking to fill positions in occupations 

and industries that are traditionally 

unionized. Under this Final Rule, union 

notification is the responsibility of the 

SWA, and no costs to employers are 

included. 

k. Electronic Job Registry 

Under the Final Rule, the Department 

will post and maintain employers’ H–2B 

job orders, including modifications 

approved by the CO, in a national and 

publicly accessible electronic job 

registry. The electronic job registry will 

serve as a public repository of H–2B job 

orders for the duration of the referral 

period. The job orders will be posted in 

the registry by the CO upon the 

acceptance of each submitted 

Application for Temporary Employment 

Certification. The posting of the job 

orders will not require any additional 

effort on the part of H–2B employers or 

SWAs. 

i. Benefits 

The electronic job registry will 

improve the visibility of H–2B jobs to 

U.S. workers. In conjunction with the 

longer referral period under the Final 

Rule, the electronic job registry will 

expand the availability of information 

about these jobs to U.S. workers, and 

therefore improve their employment 

opportunities. In addition, the 

establishment of an electronic job 

registry will provide greater 

transparency of the Department’s 

administration of the H–2B program to 

the public, members of Congress, and 

other stakeholders. Transferring these 

job orders into electronic records for the 

electronic job registry will result in a 

more complete, real-time record of job 

opportunities for which H–2B workers 

are sought. Employers seeking 

temporary workers, in turn, will likely 

experience an increase in job 

applications from U.S. workers, and 

thus may not incur the additional 

expenses of hiring H–2B workers. The 

Department, however, is not able to 

estimate the increase in job applications 

resulting from the electronic job 

registry, and thus is unable to quantify 

this benefit. 

ii. Costs 

The establishment of an electronic job 

registry in this Final Rule represents 

increased maintenance costs to the 

Department. The Department has 

reduced its cost estimates from the 

proposed rule as it can rely on design 

and development resources already 

used in implementing the H–2A job 

registry. The Department estimates that 

first year costs will be 25 percent of the 

first year costs under the H–2A program 

(25 percent of $561,365, or $140,341) 

and that subsequent year costs will be 

10 percent of the costs under the H–2A 

program (10 percent of $464,341, or 

$46,434). Using the loaded hourly rate 

for all relevant labor categories ($1,238) 

suggests that 113 labor hours will be 

required in the first year, and 38 labor 

hours will be required in subsequent 

years (see Table 12). 

TABLE 12—COST OF ELECTRONIC JOB

REGISTRY

Cost component Value 

Sum of All Labor Category 

Loaded Wages ...................... $1,238 

Registry development and 

maintenance hours—Year 1 113 

Registry maintenance hours— 

Year 2–10 ............................. 38 

Cost to DOL to Maintain Job 

Registry—Year 1 ................... $140,341 

Cost to DOL to Maintain Job 

Registry—Year 2–10 ............. $46,434 

l. Disclosure of Job Order 

The Final Rule requires an employer 

to provide a copy of the job order to H– 

2B workers outside of the United States 

no later than the time at which the 

worker applies for the visa, and to a 

worker in corresponding employment 

no later than the day that work starts. 

For H–2B workers changing 

employment from one certified H–2B 

employer to another, the copy must be 

provided no later than the time the 

subsequent H–2B employer makes an 

offer of employment. The job order must 

be translated to a language understood 

by the worker. 

We estimate two cost components for 

the disclosure of job orders: The cost of 

reproducing the document containing 

the terms and conditions of 

employment, and the cost of translation. 

The cost of reproducing job orders 

does not apply to employers of 

reforestation workers because the 

Migrant and Seasonal Agricultural 

Worker Protection Act already requires 

these employers to make this disclosure 

in a language common to the worker. 

According to H–2B program data for FY 

2000–2007, 88.3 percent of H–2B 

workers work in an industry other than 

reforestation, suggesting that the job 

order will need to be reproduced for 

102,012 (88.3 percent of 115,500) H–2B 

workers. We estimate the cost of 

reproducing the terms and conditions 

document by multiplying the number of 

affected H–2B workers (102,012) by the 

number of pages to be photocopied 

(three) and by the cost per photocopy 

($0.12). The Department estimates 

average annual costs of reproducing the 

document containing the terms and 

conditions of employment to be 

approximately $0.04 million (see Table 

13). 

For the cost of translation, we assume 

the provision will impact only 

employers who are hiring H–2B 

workers. Therefore, the Department uses 

its estimate of the number of certified 

employer applicants who ultimately 

hire H–2B workers in this calculation. 

This suggests that translation costs 

potentially apply to 3,966 H–2B 

employers. The Department estimates 

that 83.9 percent of H–2B workers from 

the top ten countries of origin do not 

speak English,69 so approximately 3,328 

H–2B employers will need to translate 

their job orders. The Department 

assumes that an employer hires all of its 

H–2B workers from a country or set of 

countries that speak the same foreign 

language; thus, only one translation is 


sroberts on DSK5SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 10129 

70LanguageScape. 2011. How it Works—Cost 

Calculator. Available at http:// 

www.languagescape.com/how_works_1.asp 

(Accessed June 7, 2011). 

necessary per employer needing 

translation. The Department has 

updated its estimates of the cost of 

translating a three-page document into 

English from languages spoken in the 

top ten countries of origin as follows: 

English to Tagalog, $76.50; English to 

Hebrew/Arabic, $76.50; English to 

Romanian, $72.00; and English to 

Spanish, $67.50.70 Using the percentage 

of entrants from the top ten countries of 

origin produces a weighted average 

translation cost of $68.00 per job order. 

Multiplying the number of H–2B 

employers who will need to translate 

the job order (3,328) by the weighted 

average cost of translation ($68) suggests 

translation costs will total $0.2 million 

(see Table 13). 

Summing the costs of reproducing 

and translating the job order results in 

total costs related to disclosure of the 

job order of $0.3 million (see Table 13). 

TABLE 13—COST OF DISCLOSURE OF JOB ORDER

Cost component Value 

Reproducing Job Order: 

H2B workers ........................................................................................................................................................................... 115,500 

Percent workers not in reforestation ...................................................................................................................................... 88.3% 

Affected workers ..................................................................................................................................................................... 102,012 

Pages to be photocopied ....................................................................................................................................................... 3 

Cost per page ......................................................................................................................................................................... $0.12 

Cost per job order .................................................................................................................................................................. $0.36 

Total Cost of Reproducing Document .................................................................................................................................... $36,724 

Translating Job Order: 

Scaled number of unique certified H–2B employers ............................................................................................................. 3,966 

Percent workers needing translation ...................................................................................................................................... 83.9% 

Employers performing translation ........................................................................................................................................... 3,328 

English to Tagalog—3 page document, 3 day delivery ......................................................................................................... $77 

English to Hebrew/Arabic—3 page document, 3 day delivery .............................................................................................. $77 

English to Romanian—3 page document, 3 day delivery ...................................................................................................... $72 

English to Spanish—3 page document, 3 day delivery ......................................................................................................... $68 

Weighted average translation cost ......................................................................................................................................... $68 

Total Translation Cost ............................................................................................................................................................ $226,337 

Total Cost: 

Total Cost of Disclosure of Job Order ................................................................................................................................... $263,061 

Sources: DHS, 2009; LanguageScape, 2011. 

m. Elimination of Attestation-Based 

Model 

The 2008 Final Rule used an 

attestation-based model: employers 

conducted the required recruitment 

before submitting an Application for 

Temporary Employment Certification 

and, based on the results of that effort, 

applied for certification from the 

Department for a number of foreign 

workers to fill the remaining openings. 

Employers simply attested that they had 

undertaken the necessary activities and 

made the required assurances to 

workers. The Department has 

determined that this attestation-based 

model does not provide sufficient 

protection to workers. In eliminating the 

attestation-based model, the recruitment 

process under this rule now occurs after 

the Application for Temporary 

Certification is filed so that employers 

have to demonstrate—and not merely 

attest—that they have performed an 

adequate test of the labor market. 

Therefore, the primary effect of 

eliminating the attestation based-model 

is to change the timing of recruitment 

rather than a change in substantive 

requirements. 

The return to a certification model in 

which employers demonstrate 

compliance with program obligations 

before certification will improve worker 

protections and reduce various costs for 

several different stakeholders. Greater 

compliance will provide improved 

administration of the program, 

conserving government resources at 

both the State and Federal level. In 

addition, employers will be subject to 

fewer requests for additional 

information and denials of 

Applications, decreasing the time and 

expense of responding to these 

Department actions. Finally, it will 

result in the intangible benefit of 

increased H–2B visa availability to those 

employers who have conducted bona 

fide recruitment around an actual date 

of need. The Department, however, is 

not able to estimate the economic 

impacts of these several effects and is 

therefore unable to quantify the related 

benefits. 

The elimination of the attestationbased model will impose minimal costs 

on employers because they will not be 

required to produce new documents, 

but only to supplement their 

recruitment report with additional 

information (including the additional 

recruitment conducted, means of 

posting the job opportunity, contact 

with former U.S. workers, and contact 

with labor organizations where the 

occupation is customarily unionized). 

We estimated two costs for the 

elimination of the attestation-based 

model: The material cost of reproducing 

and mailing the documents, and the 

associated labor cost. The Department 

estimated material cost equal to $2,023, 

calculated by multiplying the scaled 

number of H–2B employers (3,966) by 

the estimated additional number of 

pages that must be submitted (three) and 

the additional postage required to ship 

those pages ($0.17). Estimated labor cost 

of $9,087 was calculated by multiplying 

the scaled number of H–2B employers 

(3,966) by the time needed to reproduce 

and mail the documents (0.08 hours, or 

5 minutes) and the hourly labor 

compensation of an administrative 

assistant/executive secretary ($28.77). 

Summing these two components results 

in incremental costs of $11,531 per year 

associated with the elimination of the 

attestation-based model (see Table 14). 


sroberts on DSK5SPTVN1PROD with RULES
10130 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

71Prices at Stapes, the source cited in the 

proposed rule, have risen to $69.99. The current 

price is for a similar item at a lower price. 

OfficeMax. 2011. Vertical File Cabinets. Available 

at http://www.officemax.com/office-furniture/filecabinets-accessories/vertical-file-cabinets?

history=utozftma%7CcategoryId%7E10001%5

EcategoryName%7EOffice%2BFurniture%5Eparent

CategoryID%7Ecategory_root%5Eprod

Page%7E25%5Eregion%7E1%40porkedzu%7

CcategoryId%7E40%5EcategoryName%7EFile%2

BCabinets%2B%2526%2BAccessories%5Eparent

CategoryID%7Ecat_10001%5EprodPage%7E25%5

Eregion%7E1%5Erefine%7E1%40wih8mfsy%7C

prodPage%7E15%5Erefine%7E1%5

Eregion%7E1%5EcategoryName%7Evertical-filecabinets%5EcategoryId%7E91%5EparentCategory

ID%7Ecat_40&view=list&position=1&

prodPage=15&sort=Price+%28Low-High%29 

(Accessed July 11, 2011). 

TABLE 14—COST OF ELIMINATION OF ATTESTATION-BASED MODEL

Cost component Value 

Postage Costs: 

Scaled number of unique certified H–2B employers ............................................................................................................. 3,966 

Additional pages to submit ..................................................................................................................................................... 3 

Additional postage .................................................................................................................................................................. $0.17 

Total Postage Costs ............................................................................................................................................................... $2,023 

Labor Costs to Photocopy and Mail Documents: 

Scaled number of unique certified H–2B employers ............................................................................................................. 3,966 

Labor time to photocopy and mail documents (hours) .......................................................................................................... 0.08 

Administrative Assistant hourly wage with fringe ................................................................................................................... $29 

Total Labor Costs to Photocopy and Mail Documents .......................................................................................................... $9,508 

Total Cost: 

Total Costs of Elimination of Attestation-Based Model .......................................................................................................... $11,531 

Sources: BLS, 2011a; BLS, 2011b. 

n. Document Retention 

Under the Final Rule, H–2B 

employers must retain documentation 

in addition to that required by the 2008 

Final Rule. The Department assumes 

that each H–2B employer will purchase 

a filing cabinet at a cost of $49.99 71 (an 

increase of the proposed rule estimate of 

$21.99) in which to store the additional 

documents starting in the first year of 

the rule. To obtain the cost of storing 

documents, we multiply the scaled 

number of H–2B employers (6,425) by 

the cost per file cabinet for a total onetime cost of $0.3 million (see Table 15). 

This cost is likely an overestimate, since 

the 2008 Final Rule also required 

document retention and many 

employers who already use the H–2B 

program will already have bought a file 

cabinet to store the documents they 

must retain under that rule. 

TABLE 15—COST OF DOCUMENT

RETENTION

Cost component Value 

Scaled number of unique certified H–2B employers ........... 6,425 

Filing cabinet ............................ $50 

TABLE 15—COST OF DOCUMENT

RETENTION—Continued 

Cost component Value 

Total Document Retention 

Costs ..................................... $321,186 

Source: OfficeMax, 2011. 

o. Departure Time Determination 

The Proposed Rule would have 

required employers to notify the local 

SWA of the time at which the last H– 

2B worker departs for the place of 

employment, if the last worker has not 

departed for the work site at least 3 days 

before the date of need. Under the Final 

Rule, the obligation to hire U.S. workers 

will end 21 days before the date of need 

and the employer is not required to 

provide any notice to the local SWA, 

thus eliminating the costs associated 

with this proposed provision. 

p. SWA Administrative Burden 

Under this Final Rule, SWAs will see 

both additions to and reductions from 

its current, baseline workload. 

Additional responsibilities that the 

SWAs will take on include contacting 

labor organizations to inform them 

about a job opportunity when the 

occupation or industry is customarily 

unionized, and accepting and 

processing a likely higher number of 

U.S. applicants during the newly 

extended recruitment period. The 

Department, however, does not have 

reliable data to measure these increased 

activities and is therefore unable to 

provide an estimate of any increased 

workload. 

In contrast, SWAs will no longer be 

responsible for conducting employment 

eligibility verification activities. These 

activities include completion of Form I– 

9 and vetting of application documents 

by SWA personnel. 

Under the 2008 Final Rule, SWAs are 

required to complete Form I–9 for 

applicants who are referred through the 

SWA to non-agricultural job orders, and 

inspect and verify the employment 

eligibility documents furnished by the 

applicants. Under this Final Rule SWAs 

will no longer be required to complete 

this process, resulting in cost savings. 

Due to a lack of data on the number of 

SWA referrals, we are not able to 

quantify this benefit. 

q. Read and Understand the Rule 

During the first year that the Final 

Rule will be in effect, H–2B employer 

applicants will need to learn about the 

new processes and requirements. We 

estimate the cost to read and understand 

the rule by multiplying the average 

number of unique H–2B employer 

applicants in FY 2000–2007 (6,425) by 

the time required to read the new rule 

and associated educational and outreach 

materials (3 hours), and the loaded 

hourly wage of a human resources 

manager ($62.17). In the first year of the 

rule, this amounts to approximately $1.2 

million in labor costs (see Table 16). 

TABLE 16—COST TO READ AND

UNDERSTAND RULE

Cost component Value 

Number of unique H–2B employer applicants ................... 6,425 

Time to read rule and materials 3 

HR Manager hourly wage ........ $62 

Total Cost to Read and Understand Rule ............................. $1,198,418 

Sources: BLS, 2011a; BLS, 2011c. 

r. Job Posting Requirement 

The Final Rule requires employers 

applying for H–2B certification to post 

a notice of the job opportunity in two 

conspicuous locations at the place of 

anticipated employment (when there is 

no union representative) for at least 15 

consecutive days. This provision entails 

additional reproduction costs. To obtain 

the total cost incurred due to the job 

posting requirement, we multiplied the 


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average number of unique H–2B 

employer applicants FY 2000–2007 

(6,425) by the cost per photocopy 

($0.12) and the number of postings per 

place of employment (2), which 

amounts to $1,542 per year (see Table 

17). 

TABLE 17—COST OF JOB POSTING

REQUIREMENT

Cost component Value 

Number of unique H–2B employer applicants ................... 6,425 

Job Postings per Website ........ 2 

Cost per photocopy .................. $0.12 

Total Cost to Post Job Opportunity ...................................... $1,542 

s. Workers’ Rights Poster 

In addition, the Final Rule requires 

employers to post and maintain in a 

conspicuous location at the place of 

employment a poster provided by the 

Secretary which sets out the rights and 

protections for workers. The poster must 

be in English and, to the extent 

necessary and as provided by the 

Secretary, foreign language(s) common 

to a significant portion of the workers if 

they are not fluent in English. To 

estimate the cost of producing workers’ 

rights posters, we multiply the 

estimated number of H–2B employers 

(6,425) by the cost of downloading and 

printing the poster ($0.12). In total, the 

cost of producing workers’ rights posters 

is $771 per year (see Table 18). If an 

employer needs to download and print 

additional versions of the poster in 

languages other than English, this 

would result in increased costs. 

TABLE 18—COST OF WORKERS’ 

RIGHTS POSTER

Cost component Value 

Number of unique certified H– 

2B employers ........................ 6,425 

Cost per Poster ........................ $0.12 

Total Cost of Workers’ Rights 

Poster .................................... $771 

5. Summary of Cost-Benefit Analysis 

Table 19 presents a summary of the 

costs associated with this Final Rule. 

Because of data limitations on the 

number of corresponding workers and 

U.S. workers expected to fill positions 

currently held by H–2B workers, the 

Department was not able to monetize 

any costs of the rule that would arise as 

a result of deadweight losses associated 

with higher employment costs under the 

Final Rule. However, because the size of 

the H–2B program is limited, the 

Department expects that any 

deadweight loss would be small. 

The monetized costs displayed are the 

yearly summations of the calculations 

described above. The total undiscounted 

costs of the rule in Years 1–10 are 

expected to total approximately $15.2 

million. 

TABLE 19—TOTAL COSTS—UNDISCOUNTED

Cost component Year 1 costs Year 2–10 costs Year 1–10 costs 

Transfers: 

Corresponding Workers’ Wages—90 Percent ......................................................... $17,517,500 $17,517,500 $17,517,500 

Corresponding Workers’ Wages—75 percent .......................................................... 52,552,500 52,552,500 525,525,000 

Transportation ........................................................................................................... 61,328,243 61,328,243 613,282,432 

Subsistence .............................................................................................................. 2,808,960 2,808,960 28,089,600 

Lodging ..................................................................................................................... 1,582,673 1,582,673 15,826,727 

Visa and Border Crossing Fees ............................................................................... 10,133,134 10,133,134 101,331,343 

Total Transfers—Low ............................................................................................... 93,370,510 93,370,510 933,705,103 

Total Transfers—High .............................................................................................. 128,405,510 128,405,510 1,284,055,103 

Annual Costs to Employers: 

Additional Recruiting ................................................................................................. 1,035,601 1,035,601 10,356,014 

Disclosure of Job Order ........................................................................................... 263,061 263,061 2,630,608 

Elimination of Attestation-Based Model ................................................................... 11,531 11,531 115,307 

Post Job Opportunity ................................................................................................ 1,542 1,542 15,420 

Workers Rights Poster ............................................................................................. 771 771 7,710

Total Annual Costs to Employers ............................................................................. 1,312,506 1,312,506 13,125,058 

First Year Costs to Employers: 

Read and Understand Rule ...................................................................................... 1,198,418 0 1,198,418 

Document Retention ................................................................................................. 321,186 0 321,186 

Total First Year Costs to Employers ........................................................................ 1,519,603 0 1,519,603 

First Year Costs to Government: 

Electronic Job Registry ............................................................................................. 140,341 46,434 558,248 

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

Total First Year Costs to Government ..................................................................... 140,341 46,434 558,248

Total Costs: 

Total Costs & Transfers—Low ................................................................................. 96,342,961 94,729,450 948,908,012 

Total Costs & Transfers—High ................................................................................ 131,377,961 129,764,450 1,299,258,012 

Total Transfers—Low ............................................................................................... 93,370,510 93,370,510 933,705,103 

Total Transfers—High .............................................................................................. 128,405,510 128,405,510 1,284,055,103 

Total Costs ............................................................................................................... 2,972,451 1,358,940 15,202,910 

Note: Totals may not sum due to rounding. 

Summing the present value of the 

costs in Years 1–10 results in total 

discounted costs over 10 years of $10.3 

million to $12.8 million (with 7 percent 

and 3 percent discounting, respectively) 

(see Table 20). 


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TABLE 20—TOTAL COSTS—SUM OF

PRESENT VALUES

Cost component Year 1–10 costs 

Present Value—7%: 

Total Costs & Transfers—Low .................. 623,222,403 

Total Costs & Transfers—High .................. 853,195,468 

Total Transfers—Low .... 612,892,890 

Total Transfers—High ... 842,865,955 

Total Costs .................... 10,329,513 

Present Value—3%: 

Total Costs & Transfers—Low .................. 786,046,544 

Total Costs and Transfers—High .................. 1,076,197,666 

Total Transfers—Low .... 773,271,254 

Total Transfers—High ... 1,063,422,377 

Total Costs .................... 12,775,290 

Note: Totals may not sum due to rounding. 

Because the Department was not able 

to monetize any benefits for this Final 

Rule due to the lack of adequate data, 

the monetized costs exceed the 

monetized benefits both at a 7 percent 

and a 3 percent discount rate. 

The Department was unable to 

identify data to provide monetary 

estimates of several important benefits 

to society, including increased 

employment opportunities for U.S. 

workers and enhancement of worker 

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

These important benefits result from the 

following provisions of this Final Rule: 

transportation to and from the place of 

employment, payment of visa and 

consular fees, the enhanced U.S. worker 

referral period, additional recruiting 

directed by the CO, the electronic job 

registry, the job posting requirement, 

and enhanced integrity and enforcement 

provisions. Because the enhanced 

referral period extends the time during 

which jobs are available to U.S. workers, 

it increases the likelihood that U.S. 

workers are hired for those jobs. In 

addition, the electronic job registry will 

improve the visibility of H–2B jobs to 

U.S. workers and enhance their 

employment opportunities. In addition, 

the establishment of a electronic job 

registry will provide greater 

transparency with respect to the 

Department’s administration of the H– 

2B program to the public, members of 

Congress, and other stakeholders. These 

benefits, however, are difficult to 

quantify due to data limitations. 

Several unquantifiable benefits result 

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

workers are hired as a result of this 

Final Rule, employers will avoid visa 

and consular fees for positions that 

might have otherwise been filled with 

H–2B workers; it is also likely that 

transportation costs will be lower. 

Under the 2008 Final Rule, SWAs are 

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

verify the employment eligibility 

documents furnished by the applicants. 

Under this Final Rule, SWAs will no 

longer be required to complete this 

process, resulting in cost savings to 

SWAs. We were not able to quantify 

these cost savings due to a lack of data 

regarding the number of I–9 

verifications SWAs have been 

performing for H–2B referrals. 

After considering both the 

quantitative and qualitative impacts of 

this Final Rule, the Department has 

concluded that the societal benefits of 

the rule justify the societal costs. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act of 

1980, as amended (RFA), requires 

agencies to prepare regulatory flexibility 

analyses and make them available for 

public comment when proposing 

regulations that will have a significant 

economic impact on a substantial 

number of small entities. 5 U.S.C. 603. 

If the rule is not expected to have a 

significant economic impact on a 

substantial number of small entities, the 

RFA allows an agency to certify such, in 

lieu of preparing an analysis. See 5 

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

this section, the Department believes 

this rule is not likely to have a 

significant impact on a substantial 

number of small entities and, therefore, 

a Final Regulatory Flexibility Analysis 

(FRFA) is not required by the RFA. 

However, in the interest of transparency 

we have prepared the following FRFA to 

assess the impact of this regulation on 

small entities, as defined by the 

applicable Small Business 

Administration (SBA) size standards. 

The Chief Counsel for Advocacy of the 

Small Business Administration was 

notified of a draft of this rule upon 

submission of the rule to OMB under 

E.O. 12866, as amended, ‘‘Regulatory 

Planning and Review’’ (58 FR 51735, 

Oct. 4, 1993; 67 FR 9385, Feb. 28, 2002; 

72 FR 2763, Jan. 23, 2007). 

1. Statement of the Need for, and 

Objectives of, the Rule 

The Department seeks to help 

employers meet their legitimate 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 rule is the Department’s authority, 

as delegated from DHS under 8 U.S.C. 

1184(c) and its regulations at 8 CFR 

214.2(h)(6), to grant temporary labor 

certifications under the H–2B program. 

The Department has determined for a 

variety of reasons that a new rulemaking 

effort is necessary for the H–2B 

program. The Department believes that 

the practical ramifications of the 2008 

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

process to defer many determinations of 

program compliance until after an 

application has been adjudicated, 

inadequately protecting U.S. workers 

who may be paid less than H–2B 

workers performing the same jobs, 

failing to ensure the integrity of the 

program by not requiring employers to 

guarantee U.S. and H–2B employees 

work for any number of weeks during 

the period of the job order) have 

undermined the program’s intended 

protection of both U.S. and foreign 

workers. 

The protections in this rule are 

essential to meet the regulatory mandate 

to prevent adverse effect on wages and 

working conditions for U.S. workers, 

including measures to ensure greater 

access to jobs for U.S. workers through 

enhanced recruitment in order to satisfy 

the statutory requirement that 

certifications be granted only if no U.S. 

workers are available. 

Additionally, the rule seeks to help 

employers meet legitimate short-term 

temporary labor needs where and when 

there are no available U.S. workers. As 

the program has evolved, stakeholders 

in diverse industries throughout the 

country repeatedly have expressed 

concerns that some employers were 

inappropriately using H–2B workers for 

job opportunities that were permanent, 

thereby denying U.S. workers the 

opportunity for long-term employment. 

These employers’ actions are to the 

detriment of other employers with a 

legitimate temporary need that are 

ultimately denied access to the program 

due to the annual cap on available visas. 

By preventing employers with a 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. 

For these reasons the Department is 

promulgating the changes contained in 

the Final Rule. 

2. Comments Filed by the Chief Counsel 

for Advocacy of the Small Business 

Administration and Significant Issues 

Raised by the Public to the Proposed 

Rule, the Department’s Response, and 

Changes Made as a Result of the 

Comments 

The Department received and 

carefully considered written comments 


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to the proposed rule submitted by the 

Chief Counsel for Advocacy of the SBA 

(Advocacy), along with written 

comments and significant regulatory 

alternatives from small businesses and 

their representatives. We also 

considered feedback gathered during an 

April 26, 2011 roundtable discussion 

conducted by the SBA which included 

Department representatives, small 

businesses, and the SBA itself. A brief 

summary of significant comments and 

Department responses follows, but 

because the concerns of Advocacy and 

small businesses were largely similar to 

those expressed by the wider universe 

of all employers, the preceding 

preamble sections contain far more 

extensive responses and explanations. 

Advocacy stated that the economic 

impact calculated in the IRFA was 

underestimated because it failed to 

account for higher wages that employers 

may have to pay resulting from a 

separate rule published by the 

Department on January 13, 2011 

changing the way H–2B prevailing 

wages are determined. Further, 

Advocacy believed that the IRFA also 

underestimated the proportion of small 

businesses that would be impacted. An 

employer association commented that in 

order to accurately assess the proposed 

rule’s impact to small businesses, the 

Department could have conducted a 

survey to identify the number of small 

businesses affected and the number in 

each of the industry sectors that 

commonly uses the H–2B program. 

In response to Advocacy’s assertions, 

the Department notes that it accounted 

for the full cost impact of the January 

2011 prevailing wage Final Rule in that 

rule’s FRFA. Regarding this rule’s IRFA 

calculation of the proportion of small 

businesses affected, the Department 

evaluated the economic impact across 

1.1 million employers, which represents 

all small businesses (according to the 

SBA’s definition of a small entity) 

within the five most common industries 

using the H–2B program. In calculating 

the impact of this rule, the Department 

used this universe of small businesses to 

be consistent with SBA guidance (see A 

Guide for Government Agencies: How to 

Comply with the RFA, Small Business 

Administration, at 20: ‘‘the 

substantiality of the number of 

businesses affected should be 

determined on an industry-specific 

basis and/or the number of small 

businesses overall.’’) and because any of 

those small employers could request 

certification for H–2B workers. In the 

Application for Temporary Employment 

Certification, the Department only 

recently added a non-mandatory field 

asking for annual dollar revenue and 

therefore cannot determine how many 

H–2B employers typically are small 

businesses. The Department did not 

conduct its own small business surveys 

as an employer association suggested 

because doing so would have required 

an extended clearance process under the 

Paperwork Reduction Act, a process that 

would have been impossible to fulfill 

given the time constraints. Instead, we 

relied on other, more expeditious 

methods to estimate data. However, 

even if all 6,980 employers that receive 

H–2B certifications in an average year 

were, in fact, small businesses, this 

Final Rule would not impact a 

substantial number of small entities 

because it would only affect less than 

1 percent of all small businesses. 

An employer association also 

commented that proposed provisions 

would remove most temporary labor 

supply services from H–2B program 

eligibility, and that the IRFA failed to 

account for the lost revenue to these 

U.S. businesses. While the NPRM 

proposed to eliminate all job contractors 

from participating in the H–2B program, 

the Final Rule allows job contractors to 

continue to participate in the program 

only if they are able to demonstrate 

through documentation their own onetime occurrence or seasonal need, and 

not that of their employer-clients. The 

Department recognizes that while 

providing necessary protections to U.S. 

workers, this rulemaking may also result 

in some small businesses receiving 

fewer, or no, temporary labor 

certifications. However, in typical years, 

demand for H–2B visas exceeds the 

program’s annual statutory cap of 

66,000, meaning that other small 

businesses will benefit from the 

opportunity to have their H–2B 

petitions approved. The Department 

was unable to accurately project the 

monetary losses and benefits of scarce 

visas transitioning from some 

employers, and even industries, to 

others. 

Though this rulemaking will not 

impose a significant economic burden 

on a substantial number of small 

businesses, the Department did make a 

number of changes to the proposed rule 

that should alleviate many of the 

concerns Advocacy expressed and that 

were expressed in the comments 

received from other small business 

employers. For instance, Advocacy, 

other employers, and their 

representatives articulated the difficulty 

of fulfilling the three-fourths guarantee 

in 4-week increments given 

unpredictability of the weather, acts of 

God, and acts of man. As explained 

further in the preamble to 20 CFR 

655.20(f) and (g), the Department 

responded by extending the length of 

the three-fourths guarantee calculation 

period to 12 weeks (for job orders that 

last 120 days or longer, which is the vast 

majority of job orders) and to 6 weeks 

(for job orders lasting less than 120 

days). We also added catastrophic manmade events such as oil spills or 

controlled flooding to the proposed list 

of triggers that employers could use to 

request cancellation of job orders, send 

workers home, and relief from 

obligations such as the three-fourths 

guarantee. Though Advocacy describes 

as a burden the small business 

employer’s requirement to inform the 

CO in a timely manner after a 

catastrophic event, the Department 

maintains that it is a relatively low 

threshold to meet in order to seek 

termination of the job order. 

Small business owners who 

participated in Advocacy’s roundtable 

discussion were most concerned about 

the proposed requirement that 

employers continue to accept SWA 

referrals of U.S. applicants until 3 days 

before the date of need or the time of the 

last H–2B worker’s departure, 

whichever is later. The provision also 

required employers to inform the SWA 

if the last H–2B worker had not 

departed by 3 days before the start of the 

job order, and to notify the SWA of the 

new departure date when available so 

the SWA would know when to stop 

referring qualified U.S. workers. The 

concerns of the roundtable participants 

were consistent with comments 

submitted by many other businesses in 

response to these proposed changes. 

Some small businesses called the 

provision unworkable and claimed it 

would disrupt their hiring and training 

plans. As explained more in depth in 

the preamble to 20 CFR 655.20(t), the 

Department believes the current 

recruitment period—a 10-day window 

that occurs up to 4 months before the 

date of need—is far too short and takes 

place too far in advance of the job 

order’s start date for U.S. applicants to 

realistically be able to apply. As such, 

the existing 10-day recruitment period 

compromises the Department’s 

regulatory mandate to grant H–2B 

certifications only after ensuring that no 

qualified U.S. workers are available. 

However, based upon the comments 

from small businesses and Advocacy 

about the potential burdens of this 

provision, this Final Rule has been 

changed. The referral period has been 

reduced so that it ends 21 days before 

the date of need. Additionally, 

employers are no longer obligated to 

continue accepting U.S. applicants after 


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that point, a change that eliminates the 

related SWA notification requirements. 

Advocacy expressed its belief that the 

IRFA underestimated its members’ 

exposure to inbound travel expenses, 

asserting that the price premium on 

tickets purchased close to the date of 

need and the cost of transporting U.S. 

workers represent significant burdens to 

employers and were not accounted for 

in the original cost estimates. Because 

this Final Rule changed the last day an 

employer must hire U.S. applicants to 

21 days before the date of need, the 

Department does not calculate the extra 

cost of refundable fares. The FRFA 

responds to Advocacy’s request to 

account for the transportation of 

corresponding workers and estimates a 

per ticket cost to and from the 

workplace. Moreover, as discussed in 

the preamble to 20 CFR 655.20(j), this 

Final Rule also responds to small 

business concerns about U.S. worker 

travel by providing that employers may 

require workers to complete 50 percent 

of the period of employment before 

reimbursing the reasonable costs of 

inbound travel and subsistence if the 

employer has not already paid for or 

reimbursed such costs. Further, 

employers will be required to pay the 

costs of outbound transportation only 

for workers who complete the job order 

period of employment or are dismissed 

early. And to the extent that employers 

do hire qualified U.S. applicants 

responding to national job registry 

postings and requiring inbound travel, 

this FRFA estimates that the costs of 

their travel expenses would be a fraction 

of those for foreign workers. In addition, 

hiring these U.S. workers would not 

require employers to pay the visa or 

consular expenses related to bringing in 

workers from foreign countries. 

Advocacy cited comments from small 

businesses that use the H–2B program 

expressing concern that the new, 

potentially higher wage rates under the 

recently changed prevailing wage 

determination process will interact with 

the proposed rule’s corresponding 

employment provision, forcing 

employers to raise payroll across their 

entire workforce. For example, small 

landscape companies worried that 

temporarily assigning to a landscaping 

supervisor the duties of a landscape 

laborer who has called in sick would 

require all laborers to be paid the 

supervisor’s higher wage rate. As 

discussed in more depth in the 

preamble to 20 CFR 655.5, this 

landscape example and other similar 

examples in the employer comments 

represent a misunderstanding of what 

the definition of corresponding 

employment requires: Corresponding 

workers who perform substantially the 

same work specified in the job order or 

substantially the same work that H–2B 

workers actually perform are entitled to 

at least the same wage rate as the H–2B 

workers. Employers are not required to 

apply corresponding employment in the 

other direction and, in this example, 

pay laborers the same wage paid to the 

supervisors. Advocacy also articulated 

small businesses’ recommendation that 

the Department reconsider the 

corresponding worker provision because 

it may impose too great a cost on small 

H–2B employers. After carefully 

considering Advocacy’s comments and 

other comments submitted separately 

from small businesses, the definition of 

corresponding employment was 

retained with modifications (also fully 

discussed in the preamble to 20 CFR 

655.5) because it is a critical component 

in the Department’s mandate to protect 

similarly employed U.S. workers from 

adverse impacts of the H–2B program; 

however, the Department did modify 

the definition to clarify that occasional, 

insignificant instances of overlapping 

job duties would not transform a U.S. 

worker employed in one job into 

someone in corresponding employment 

with an H–2B worker employed in 

another job. 

Advocacy also challenged the IRFA’s 

lack of data which prevented the 

Department from calculating the effects 

of corresponding employment. 

Similarly, an employer association 

commented that the Department could 

have conducted its own corresponding 

employment survey to solve any gaps in 

data. Both organizations stated that the 

Department could have used an 

assumed value of 50 percent to estimate 

the ratio of corresponding workers to H– 

2B workers, purportedly similar to an 

estimate used elsewhere in the IRFA. 

The Department appreciates the 

proffered solutions and notes that the 

proposed rule requested that the public 

suggest data sources we could use to 

estimate corresponding employment. No 

such sources were ultimately provided. 

However, pursuing a statistically valid 

survey would not only have been 

prohibitively time-consuming given the 

Department’s time constraints, but also 

would have required a lengthy clearance 

process under the Paperwork Reduction 

Act. The 50 percent estimate found in 

the IRFA was used in a different context 

and would have been an inappropriate 

and misguided way to estimate the ratio 

of corresponding workers to H–2B 

workers. In reality, the prevalence of 

corresponding workers spans a very 

wide range among businesses: Most 

comments from employers indicated 

that employers use H–2B workers to fill 

most if not all of their needs; other 

businesses commented that they hire 

very few H–2B workers as a way to 

supplement a wider staff only during a 

seasonal peak. The Department 

attempted to use its own data from a 

random sample of 225 applications to 

estimate the number of corresponding 

employees, but as explained in the 

Executive Order 12866 section, there 

were too few files that contained 

employee data to be statistically 

reliable, and those few files that did 

contain a breakdown of the numbers of 

H–2B and U.S. workers were not from 

a representative pool of the industries 

that participate in the H–2B program. 

Further, the 34 of the 225 files that 

contained payroll data were not a 

random subset, because the data was 

provided in response to an RFI or an 

audit rather than as a routine part of the 

application process. Nevertheless, the 

Department attempted to quantify the 

impact associated with this provision by 

estimating that 50 percent of incumbent 

corresponding workers in a given 

industry earn less than the prevailing 

wage and would have their wages 

increased as a result of the Final Rule. 

Department believes the cost of 

providing H–2B prevailing wages to 

corresponding workers will likely not be 

the undue burden that small businesses 

fear, because the prevailing wage 

calculation is representative of a typical 

worker’s wage for a given type of work 

in a particular area. Since this 

calculation uses the current wages 

received by corresponding U.S. workers, 

many, if not most, of the non-H–2B 

workers will already be making at least 

the required prevailing wage rate, and 

therefore, small business employers will 

not be obligated to increase the wages of 

such workers. The Department’s 

estimate assumed that workers in 

corresponding employment would 

receive a range of wage increases. The 

Department’s estimate further assumed 

that all U.S. workers in corresponding 

employment would work 35 hours per 

week for 39 weeks (the maximum 

allowable certification period) in order 

to determine an upper-bound estimate. 

Therefore, the Department believes it 

has been responsive to commenter 

concerns with the cost of the 

corresponding employment provision. 

Finally, small business participants 

who attended the SBA roundtable 

discussion expressed concerns 

regarding the proposed bifurcation of 

the certification process into registration 

and application processes. As Advocacy 

summarized in its written comments to 

the proposed rule, small businesses 


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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 10135 

72According 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. 

73As explained above, the distribution of 

certified job opportunities might not perfectly 

reflect the distribution of H–2B workers; however, 

it serves as a valuable proxy for the purposes of this 

analysis. 

74U.S. Small Business Administration (SBA). 

2010. Table of Small Business Size Standards 

Matched to North American Industry Classification 

System Codes (effective November 5, 2010). 

Available at http://www.sba.gov/content/tablesmall-business-size-standards. 

75The 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. 

76U.S. Census Bureau. 2007. Statistics of U.S. 

Businesses. Available at http://www.census.gov/ 

econ/susb/data/susb2007.html. While 2008 data 

were available at the time of this analysis, 2007 is 

the most recent year with revenue data included. 

77U.S. Bureau of Labor Statistics (BLS). 2011. 

Employees on nonfarm payrolls by major industry 

sector, 1961 to date. Available at ftp://ftp.bls.gov/ 

pub/suppl/empsit.ceseeb1.txt. 

were concerned that the bifurcated 

process creates many complicated layers 

of review by federal and state officials, 

which may add delays, requests for 

information and overall administrative 

paperwork. A complete discussion of 

the new process can be found at the 

preamble to 20 CFR 655.11. In 

summary, the Department believes that 

OFLC and employers will recognize 

administrative efficiencies once 

registration is introduced and the 

assessment of temporary need is 

adjudicated separately from and in 

advance of the determination of U.S. 

worker availability. In many cases, the 

determination of temporary need will be 

required only once every 3 years, which 

will reduce RFIs that may happen 

annually under the existing application 

process, reducing the burden on 

employers and clearing the way for a 

more efficient adjudication of 

Applications for Temporary 

Employment Certification and more 

effective recruitment of U.S. workers 

closer to the date of need. On behalf of 

SBA’s small business members, 

Advocacy recommended that the 

Department reconsider the bifurcated 

registration and application processes 

and retain the current attestation-based 

system. As explained in both the NPRM 

and in RFA Section 1, above, the current 

application process does not provide 

adequate worker protections that are 

essential for the Department to meet its 

regulatory mandates of ensuring that 

foreign workers may be employed only 

if qualified U.S. workers are not 

available and that the hiring of H–2B 

workers will not adversely affect the 

wages and working conditions of 

similarly employed U.S. workers. 

3. Description and Estimate of the 

Number of Small Entities to Which the 

Rule Will Apply Definition of a Small 

Business 

A small entity is one that is 

independently owned and operated and 

that is not dominant in its field of 

operation. The definition of small 

business varies from industry to 

industry to properly reflect industry size 

differences. An agency must either use 

the SBA definition for a small entity or 

establish an alternative definition for 

the industry. The Department has 

conducted a small entity impact 

analysis on small businesses in the five 

industries with the largest number of H– 

2B workers and for which data were 

available, as mentioned in the Executive 

Order 12866 analysis: Landscaping 

Services; Janitorial Services (includes 

housekeeping services); Food Services 

and Drinking Places; Amusement, 

Gambling, and Recreation; and 

Construction. These top five industries 

accounted for almost 75 percent of the 

total number of H–2B job opportunities 

certified during FY 2007–2009.72 73 One 

industry, Forest Services, made the 

initial top five list but is not included 

in this analysis because the only data 

available for forestry also include 

various agriculture, fishing, and hunting 

activities. Relevant data for Forestry 

only were not available. 

We have adopted the Small Business 

Administration (SBA) small business 

size standard for each of the five 

industries, which is a firm with annual 

revenues equal to or less than the 

following: 

Landscaping Services, $7 million; 

Janitorial Services, $16.5 million; 

Construction, $20.7 million; 74 75

Food Services and Drinking Places, $7 

million; and 

Amusement, Gambling, and Recreation, $7 

million. 

In order to convert the SBA’s revenuebased definitions to employment sizeclass based definitions that can be used 

in conjunction with U.S. Census’s 

Statistics of U.S. Businesses data,76 the 

Department calculated average revenue 

per firm by employment size class for 

the top five industries, and found the 

largest employment size class for which 

average revenue per firm was below the 

SBA’s size standard. This method 

obtained the following employment 

size-class based definitions (see Table 

18): 

Landscaping Services, 499 employees; 

Janitorial Services, 499 employees; 

Construction, 99 employees; 

Food Services and Drinking Places, 99 

employees; and 

Amusement, Gambling, and Recreation, 499 

employees. 

Employers seeking to participate in 

the H–2B program come from virtually 

all segments of the economy; those 

participating businesses make up a 

small portion of the industries they 

represent as well as of the national 

economy overall. A Guide for 

Government Agencies: How to Comply 

with the RFA, Small Business 

Administration, at 20 (‘‘the 

substantiality of the number of 

businesses affected should be 

determined on an industry-specific 

basis and/or the number of small 

businesses overall’’). Accordingly, the 

Department believes that the rule will 

not impact a substantial number of 

small entities in a particular industry or 

segment of the economy. 

Employment in the H–2B program 

represents a very small fraction of the 

total employment in the U.S. economy, 

both overall and in the industries 

represented in the H–2B program. The 

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

issued per year, and the Department 

estimates that at any given time there 

are 115,500 H–2B workers in the 

country (66,000 plus 33,000 who return 

in the second year and 16,500 who 

return in the third year). This represents 

approximately 0.09 percent of total 

nonfarm employment in the U.S. 

economy (129.8 million).77 As described 

in the Executive Order 12866 analysis, 

the average annual number of H–2B 

workers in the top five industries is 

small in absolute terms and relative to 

total employment in that occupation. 

Landscaping Services: 38,073 H–2B workers; 

6.5 percent of occupation 

Janitorial Services: 15,079 H–2B workers; 1.6 

percent of occupation 

Construction: 14,756 H–2B workers; 0.2 

percent of occupation 

Food Services and Drinking Places: 11,197 

H–2B workers; 0.1 percent of occupation 

Amusement, Gambling, and Recreation: 

6,851 H–2B workers; 0.5 percent of 

occupation 

The Department receives an average 

of 8,717 applications from 6,425 unique 

employer applicants annually. An 

average of 6,980 of those applications 

results in petitions for H–2B workers 

that are approved by DHS, of which 

5,298 are from unique employer 

applicants. Even if all 6,980 

applications were filed by unique small 

entities, all of which were in the top five 


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10136 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

78The 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. 

79The Department published a revised final rule 

modifying the methodology by which prevailing 

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

FR 3452, Jan. 10, 2011, 76 FR 45667, August 1, 

2011. However, because that final rule is limited to 

the prevailing wage rate issue, the baseline for this 

rule remains the non-prevailing wage rate 

provisions of the 2008 Final Rule. 80U.S. Census Bureau. 2007. Statistics of U.S. 

Businesses. Available at http://www.census.gov/ 

econ/susb/data/susb2007.html. Compare to data 

obtained from H–2B program data for FY 2007– 

2009, which indicated that the average annual 

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

certified for these industries during FY 2007–2009 

were as follows: Landscaping Services, Firms— 

2,754, Workers—78,027, an average of 28 workers 

per firm; Janitorial Services, Firms—788, Workers— 

30,902, an average of 39 workers per firm; Food 

Services and Drinking Places, Firms—851, 

Workers—22,948, and average of 27 workers per 

firm; Amusement, Gambling, and Recreation, 

Firms—227, Workers—14,041, an average of 62 

workers per firm; and Construction, Firms—860, 

Workers—30,242, an average of 35 workers per 

firm. 

81U.S. Census Bureau. 2007. Statistics of U.S. 

Businesses. Available at http://www.census.gov/ 

econ/susb/data/susb2007.html. 

industries, the percentage of small 

entities authorized to employ temporary 

non-agricultural workers will be less 

than 1 percent of the total number of 

small entities in these industries.78

Based on this analysis, the Department 

estimates that the rule will impact less 

than 1 percent of the total number of 

small businesses. A detailed industryby-industry analysis is provided below. 

Regarding the Territory of Guam, this 

Final Rule applies to H–2B employers 

there only in that it requires them to 

obtain prevailing wage determinations 

in accordance with the process defined 

at 20 CFR 655.10. To the extent that this 

process incorporates the new 

methodology defined in the January 

2011 prevailing wage rule, it is possible 

that some H–2B employers in Guam will 

experience an increase in their H–2B 

prevailing wages. The Department 

expects that the H–2B employers in 

Guam working on Federally funded 

construction projects subject to the 

Davis-Bacon and Related Acts (DBRA) 

are already paying the Davis-Bacon Act 

prevailing wage for the classification of 

work performed and that such 

employers may not experience an 

increase in the wage levels they are 

required to pay. Employers performing 

work ancillary or unrelated to DBRA 

projects, and therefore paying a wage 

potentially lower than the Davis-Bacon 

Act prevailing wage, may receive 

increased prevailing wage 

determinations under this Final Rule. 

However, because the H–2B program in 

Guam is administered and enforced by 

the Governor of Guam, or the Governor’s 

designated representative, the 

Department is unable to quantify the 

effect of this provision on H–2B 

employers in Guam due to a lack of 

data. 

4. Projected Reporting, Recordkeeping, 

and Other Compliance Requirements of 

the Rule 

The Department estimated the 

incremental costs for small businesses 

from the baseline. For this rule, the 

baseline is the 2008 Final Rule.79 This 

analysis reflects the incremental cost of 

this rule as it adds to the requirements 

in the 2008 Final Rule. Using available 

data, we have estimated the costs of the 

payment of transportation and 

subsistence to workers, visa and 

consular fees, corresponding 

employment, the disclosure of job 

orders, additional recruiting directed by 

the CO, the time required to read and 

review the Final Rule, and other 

impacts. 

To examine the impact of this rule on 

small entities, the Department evaluates 

the impact of the incremental costs on 

a hypothetical small entity of average 

size, in terms of the total number of both 

U.S. and foreign workers, in each 

industry if it were to fill 50 percent of 

its workforce with H–2B workers. There 

are no available data to estimate the 

breakdown of the workforce into U.S. 

and foreign workers. Based on the U.S. 

Census’ Statistics of U.S. Businesses 

data, the total number of workers 

(including both U.S. and foreign 

workers) for this hypothetical small 

business is as follows 80: Landscaping 

Services, 5.3 employees; Janitorial 

Services, 10.9 employees; Construction, 

6.2 employees; Food Services and 

Drinking Places, 11.5 employees; and 

Amusement, Gambling, and Recreation, 

13.9 employees. 

These data do not distinguish 

between U.S. workers and foreign 

workers. For the purposes of producing 

a cost estimate, the Department assumes 

that 50 percent of these employees are 

H–2B workers, suggesting the total 

number of H–2B workers for the 

hypothetical small business is as 

follows: Landscaping Services, 2.7 H–2B 

employees; Janitorial Services, 5.5 H–2B 

employees; Construction, 3.1 H–2B 

employees; Food Services and Drinking 

Places, 5.7 H–2B employees; and 

Amusement, Gambling, and Recreation, 

7.0 H–2B employees. 

Also using U.S. Census 81 data, we 

derived the annual revenues per small 

firm for each of the top five industries 

by dividing total revenue by total 

employment. The Department estimates 

that small businesses in the top five 

industries have the following annual 

revenues: 

Landscaping Services, $0.5 million; 

Janitorial Services, $0.4 million; 

Construction, $1.3 million; 

Food Services and Drinking Places, $0.5 

million; and 

Amusement, Gambling, and Recreation, $0.8 

million. 

These key small business data are 

summarized in Table 21. 

TABLE 21—PROFILE OF SMALL FIRMS IN THE TOP FIVE H–2B INDUSTRIES

Industry 

Size 

standards in 

millions of 

dollars 

Size 

standards in 

number of 

employees 

Small firms 

Average 

employees 

per small 

firm 

Average 

H–2B 

employees 

per small 

firm 

Average 

revenue per 

small firm 

Landscaping Services ...................................................... $7.0 499 91,483 5.3 2.7 $517,105 

Janitorial Services ............................................................ 16.5 499 50,061 10.9 5.5 425,693 

Food Services and Drinking Places ................................ 7.0 99 415,225 11.5 5.7 516,055 

Amusement, Gambling, and Recreation .......................... 7.0 499 65,979 13.9 7.0 846,948 

Construction [a] ................................................................. 20.7 99 791,396 6.2 3.1 1,292,201 

[a]Average of Construction Size Standards. 

Sources: SBA, 2011; U.S. Census, 2007. 


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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 10137 

work performed by H–2B workers, with 

two exceptions for employees that meet 

certain criteria. These provisions 

include the application of H–2B wages 

to workers in corresponding 

employment, the three-fourths 

guarantee, transportation and 

subsistence payments for workers who 

cannot reasonably return to their 

residence each workday and who 

complete the required portion of the job 

order period, and the disclosure of the 

job order. As discussed in the Executive 

Order 12866 analysis, although there is 

no statistically valid data available, the 

Department has estimated the number of 

corresponding employees for purposes 

of estimating the cost of the increased 

wages due based upon this provision. 

The following sections present the 

impacts that this rule is estimated to 

have on a small business that chooses to 

hire H–2B workers, including impacts 

on the application of H–2B wages to 

workers in corresponding employment, 

transportation and subsistence costs, 

visa-related and consular fees, 

disclosure of job orders, additional 

recruiting that may be directed by the 

CO, reading and reviewing the new 

processes and requirements, and other 

impacts. Note that the costs estimated 

below are not costs to all small 

businesses or to the average small 

business in an industry, but rather are 

the expected value of the cost to any 

given H–2B employer that is a small 

business. Most small businesses in the 

relevant industry do not hire H–2B 

workers and, therefore, incur no cost 

burden from the rule. The costs 

estimated apply only to the relatively 

small number of firms that are expected 

to hire H–2B workers. In the estimates 

below, the hypothetical firm that 

chooses to hire H–2B workers is 

assumed to be of the average total 

employment and revenue size for small 

businesses in its industry. 

a. Three-fourths Guarantee 

Under the proposed rule, the 

Department specified that employers 

guarantee to offer hours of employment 

equal to at least three-fourths of the 

work days during the job order period, 

and that they use successive 4-week 

periods to measure the three-fourths 

guarantee. The use of 4-week periods 

was proposed (instead of measuring the 

three-fourths guarantee over the course 

of the entire time period of need as in 

the H–2A program) in order to ensure 

that work is offered during the entire 

certified period of employment. The 

Department received comments from 

Advocacy, an employer association, and 

small businesses expressing concern 

that they are unable to predict the exact 

timing and flows of tasks by H–2B 

workers, particularly at the beginning 

and end of the period of employment, 

and that they need more scheduling 

flexibility due to unexpected events 

such as extreme weather or catastrophic 

man-made events. Acknowledging these 

commenters’ concerns, the Department 

lengthened the calculation period from 

4 weeks to 12 weeks for job orders 

lasting at least 120 days and to 6 weeks 

for job orders lasting less than 120 days. 

In order to ensure that the capped H–2B 

visas are appropriately made available 

to employers based upon their actual 

need for workers, and to ensure that 

U.S. workers can realistically evaluate 

the job opportunity, the Department 

maintains that employers should 

accurately state their beginning and end 

dates of need and the number of H–2B 

workers needed. To the extent that 

employers, including small businesses, 

submit Applications for Temporary 

Employment Certification accurately 

reflecting their needs, the three-fourths 

guarantee should not represent a cost to 

employers, particularly given the 

extended 12-week and 6-week periods 

over which to calculate the guarantee. 

b. Application of H–2B Wages to 

Corresponding Workers 

The rule requires that workers in 

corresponding employment be paid at 

least the same wages paid to foreign 

workers under the H–2B program. 

However, while the Department has not 

identified a reliable source of data to 

estimate the number of workers in 

corresponding employment at work 

sites on which H–2B workers are 

requested or the hourly wages of those 

workers, the Department has attempted 

to quantify the impacts associated with 

this provision. The Department believes 

that H–2B workers will make up 75 to 

90 percent of the workers in a particular 

job and location covered by the job 

order, with the remaining 10 to 25 

percent of the workers being 

corresponding employees newly 

covered by the wage requirements. This 

10 to 25 percent figure is an 

overestimate of the Final Rule’s impact 

since some of the employees included 

in this proportion of corresponding 

workers are those hired in response to 

the required recruitment and are 

therefore already covered by the existing 

regulation, and some workers will be 

excluded by the two new exceptions. 

Since the required H–2B wage is an 

average wage that generally prevails 

among existing workers in the 

occupation in the area of employment, 

we also estimate that half of the 

corresponding workers will already be 

earning a wage at least equal to the H– 

2B wage, and thus will not require wage 

increases. Finally, we estimate that the 

50 percent of remaining corresponding 

workers who are eligible for wage 

increases will be normally distributed at 

wage levels between the mean wage 

level and the previous H–2B prevailing 

wage. 

Table 22 shows the average estimated 

costs of increased wages for 

corresponding workers at a typical small 

business in each of the five most 

common H–2B industries. For each 

H–2B worker, the corresponding 

employment requirement will result in 

an estimated increase in corresponding 

worker wages of between $152 

(assuming H–2B workers comprise 90 

percent of a firm’s employees in the job 

order occupation) and $455 (assuming 

H–2B workers comprise 75 percent of 

those employees) per firm. 

TABLE 22—COSTS FOR CORRESPONDING WORKER WAGES AT SMALL FIRMS

Hourly wage increase Percent 

Firm with 

one H–2B 

worker 

Landscaping 

services 

Janitorial 

services 

Food 

services 

and drinking 

places 

Amusement, 

gambling, 

and 

recreation 

Construction 

H–2B Workers per Small Firm 

N/A ........................................................... N/A 1.0 2.7 5.5 5.7 7.0 3.1 

H–2B Workers 90 Percent of Occupation at Firm 

Number of Corresponding Workers per Small Firm in Each Category: 

$0.00 ................................................. 50 0.06 0.15 0.30 0.32 0.39 0.17 


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10138 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

82The H–2B program is capped at 66,000 new 

visas per year. We estimate the probability that the 

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

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

includes both new entrants and H–2B workers who 

entered in the previous 2 years. We assume that 

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

year and 16,500 workers stay two additional years, 

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

year. 

TABLE 22—COSTS FOR CORRESPONDING WORKER WAGES AT SMALL FIRMS—Continued 

Hourly wage increase Percent 

Firm with 

one H–2B 

worker 

Landscaping 

services 

Janitorial 

services 

Food 

services 

and drinking 

places 

Amusement, 

gambling, 

and 

recreation 

Construction 

$1.00 ................................................. 30 0.03 0.09 0.18 0.19 0.23 0.10 

$3.00 ................................................. 15 0.02 0.04 0.09 0.10 0.12 0.05 

$5.00 ................................................. 5 0.01 0.01 0.03 0.03 0.04 0.02 

Total ........................................... 100 0.11 0.30 0.61 0.64 0.77 0.35 

Cost per Firm: 

$0.00 ................................................. 50 $0 $0 $0 $0 $0 $0 

$1.00 ................................................. 30 46 121 249 261 317 142 

$3.00 ................................................. 15 68 182 373 391 475 213 

$5.00 ................................................. 5 38 101 207 217 264 118 

Total ........................................... 100 152 404 830 869 1,056 473 

H–2B Workers 75 Percent of Occupation at Firm 

Number of Corresponding Workers per Small Firm in Each Category: 

$0.00 ................................................. 50 0.17 0.44 0.91 0.96 1.16 0.52 

$1.00 ................................................. 30 0.10 0.27 0.55 0.57 0.70 0.31 

$3.00 ................................................. 15 0.05 0.13 0.27 0.29 0.35 0.16 

$5.00 ................................................. 5 0.02 0.04 0.09 0.10 0.12 0.05 

Total ........................................... 100 0.33 0.89 1.82 1.91 2.32 1.04 

Cost per Firm: 

$0.00 ................................................. 50 $0 $0 $0 $0 $0 $0 

$1.00 ................................................. 30 137 364 747 782 951 426 

$3.00 ................................................. 15 205 546 1,120 1,173 1,426 639 

$5.00 ................................................. 5 114 303 622 652 792 355 

Total ........................................... 100 455 1,212 1,489 2,607 3,169 1,419 

Source: DOL Estimate. 

c. Transportation To and From the Place 

of Employment for H–2B Workers 

The rule requires H–2B employers to 

provide H–2B workers with 

transportation to and from the place of 

employment. In general, transportation 

costs are calculated by first estimating 

the cost of a bus trip from a regional city 

to the consular city to obtain a visa. 

Then we estimate the cost of the trip 

from the consular city to St. Louis. In 

the case of the 77 percent of H–2B 

workers who come to the U.S. from 

Mexico and Canada, we assume this is 

a bus trip. For employees from other 

countries, we assume this trip is by air. 

We estimate the weighted average 

roundtrip travel cost per employee to be 

approximately $929 per H–2B worker, 

as detailed in the Executive Order 12866 

analysis section titled ‘‘Transportation 

to and from the Place of Employment for 

H–2B Workers.’’ This increase from the 

estimate included in the IRFA is due to 

two factors. First, a bus or ferry fare was 

added to account for an H–2B worker’s 

trip from their home to a consular city 

to obtain a visa. Second, since 

publication of the NPRM, air fares have 

increased substantially, attributable to a 

combination of market condition such 

as increased fuel costs, anticipated 

increases in demand for workers from 

improving economic conditions, and 

reduced passenger capacity. (Because 

this Final Rule changed the last day an 

employer must hire U.S. applicants to 

21 days before the date of need, the 

Department does not account for the 

extra cost of refundable fares.) We then 

multiplied the weighted average 

roundtrip travel cost per employee by 

the number of H–2B workers per 

average small entity and the probability 

that the worker is a new entrant to the 

country (57 percent).82 For a 

hypothetical small firm with one 

employee, the annual average roundtrip 

transportation cost is $531. The total 

annual average roundtrip transportation 

costs incurred by the average small 

employer in the top five industries are 

listed in Table 23. 

TABLE 23—TRAVEL COSTS FOR H–2B 

WORKERS AT SMALL FIRMS

Industry Transportation cost 

Firm with One H–2B Employee $531 

Landscaping Services .............. 1,415 

Janitorial Services .................... 2,905 

Food Services and Drinking 

Places ................................... 3,043 

Amusement, Gambling, and 

Recreation ............................. 3,698 

Construction .............................. 1,656 

Sources: Given in text. 

We do not know the extent to which 

employers are currently paying for this 

cost in order to secure these workers or 

to comply with their obligations under 

the FLSA. To the extent that some 

employers are already paying for 

inbound and outbound transportation, 

these calculations represent upperVerDate Mar<15>2010 17:59 Feb 17, 2012 Jkt 226001 PO 00000 Frm 00102 Fmt 4701 Sfmt 4700 E:\FR\FM\21FER2.SGM 21FER2

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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 10139 

83Lonely Planet. 2011b. Hotels & Hostels Search. 

Available at http://hotels.lonelyplanet.com/ 

(Accessed July 12, 2011). 

bound estimates. These are also upperbound estimates because workers are 

entitled to reimbursement of inbound 

transportation expenses only if they 

complete 50 percent of the job order 

period; moreover, they are entitled to 

outbound transportation expenses only 

if they complete the entire job order or 

are dismissed early. 

d. Transportation To and From the Place 

of Employment for Corresponding 

Workers 

The rule requires H–2B employers to 

provide workers in corresponding 

employment unable to return each day 

to their permanent residence with 

transportation to the place of 

employment if they complete at least 

half the period of the job order and from 

the place of employment if they 

complete the full period of the job order. 

However, there is no basis for estimating 

what percentage of the workers in 

corresponding employment will be new 

employees coming from outside the 

commuting area who will continue to 

work for at least half or all of the job 

order period. Therefore, while the 

Department is unable to estimate the 

number of corresponding workers at a 

given small firm who would receive 

reimbursement, the Department 

estimates an approximate unit cost for 

each traveling corresponding worker by 

taking the average of the cost of a bus 

ticket to St. Louis from Fort Wayne, IN 

($91); Pittsburgh, PA ($138); Omaha, NE 

($93); Nashville, TN ($86); and 

Palmdale, CA ($233). Averaging the cost 

of travel from these five cities results in 

an average one way cost of $128.20, and 

a round trip cost of $256.40 (see Table 

24) representing a transfer from 

employers to H–2B workers. The 

inbound transportation costs would be 

incurred only for those workers who 

fulfill the required portion of the 

certified period of employment; the 

outbound transportation costs would 

only be incurred for those who work 

until the end of the certified period of 

employment or who are dismissed early 

by the employer. 

TABLE 24—COST OF CORRESPONDING

WORKER TRAVEL FOR SMALL FIRMS

One way travel to St. Louis Cost 

Fort Wayne, IN ......................... $91 

Pittsburgh, PA ........................... 138 

Omaha, NE ............................... 93 

Nashville, TN ............................ 86 

Palmdale, CA ............................ 233 

One way travel—Average ........ 128 

Roundtrip travel ........................ 256 

Source: Greyhound, 2011. 

e. Subsistence Payments 

As discussed in the E.O. 12866 

analysis, we estimated the per-worker 

cost of subsistence by multiplying the 

subsistence per diem ($10.64) by the 

number of roundtrip travel days (4 days) 

by the probability that the worker is a 

new entrant to the country (57 percent). 

The length of time for an H–2B worker 

to complete round-trip travel reflects an 

increase from the proposed rule and was 

made in response to a comment from a 

worker advocacy organization. The 

estimate was increased to account for 2 

days to obtain the visa (travel time from 

the home town and time spent in the 

consular city), 1 day to travel from the 

consular city to the place of 

employment, and 1 day of outbound 

transportation back to the worker’s 

home country. We estimate the average 

annual cost of subsistence to be $24.32 

($10.64 × 4 × 0.57) per H–2B worker. 

The total annual average subsistence 

costs incurred by the average small 

employer in the top five industries are 

presented in Table 23. 

This provision applies not only to H– 

2B workers, but also to workers in 

corresponding employment on H–2B 

worksites who are recruited from a 

distance at which the workers cannot 

reasonably return to their residence 

within the same workday. While we 

were unable to identify adequate data to 

estimate the number of corresponding 

workers who would travel to the job 

from outside the reasonable commuting 

area and be eligible to receive 

compensation for subsistence, the 

Department assumes that it would take 

1 travel day to travel from one city in 

the U.S. to another, and 1 day to return. 

Thus each corresponding worker would 

receive $21.28 in subsistence payments 

(see Table 25). Both of these estimates 

are upper-bound estimates, as the 

inbound subsistence would be incurred 

only for workers who fulfill the required 

portion of the certification period, and 

outbound subsistence would only be 

incurred for those who work until the 

end of the job order or who are 

dismissed by the employer. 

TABLE 25—COST OF SUBSISTENCE

PAYMENTS FOR WORKERS AT SMALL

FIRMS

Cost component Value 

Subsistence Per Diem .............. $11 

Weighted Average Roundtrip 

Travel Days—H–2B Workers $4 

Firm with One H–2B Employee $24 

Landscaping Services .............. $65 

Janitorial Services .................... $133 

Food Services and Drinking 

Places ................................... $139 

TABLE 25—COST OF SUBSISTENCE

PAYMENTS FOR WORKERS AT SMALL

FIRMS—Continued 

Cost component Value 

Amusement, Gambling, and 

Recreation ............................. $169 

Construction .............................. $76 

Roundtrip Travel Days—Corresponding Workers .............. 2 

Roundtrip Subsistence per Corresponding Worker ................ $21 

f. Lodging for H–2B Workers En Route 

to the Place of Employment 

In response to a comment from a 

worker advocacy organization, the 

Department includes a cost in the FRFA 

not accounted for in the proposed rule: 

lodging costs while H–2B workers travel 

from their hometown to the consular 

city to obtain a visa and from there to 

the place of employment. This change 

does not reflect any additional 

obligation since the publication of the 

NPRM, but clarifies the Final Rule’s 

intent that lodging expenses incurred 

between a worker’s hometown and 

consular city are part of inbound 

transportation and subsistence costs. 

The Department estimates that H–2B 

workers will spend an average of two 

nights in an inexpensive hostel-style 

accommodation. The Department 

estimates the nightly cost of this stay in 

common consular cities of the top ten 

countries of origin as follows: 

Monterrey, $11; Kingston, $13; 

Guatemala City, $14; Manila, $7; 

Bucharest, $11; Pretoria, $19; London, 

$22; Ottawa, $30; Tel Aviv, $22; and 

Canberra, $26.83 Using the number of 

certified H–2B workers from the top ten 

countries of origin, we calculated a 

weighted average of $11.99 for one 

night’s stay, and $23.98 for two nights’ 

stay. We then multiplied the weighted 

average lodging cost per employee by 

the number of H–2B workers per 

average small entity and the probability 

that the worker is a new entrant to the 

country (57 percent). For a hypothetical 

small firm with one employee, the 

annual average lodging cost is $13.70 

(.57 × $23.98). The total annual average 

lodging costs incurred by the average 

small employer in the top five 

industries are presented in Table 26. 


sroberts on DSK5SPTVN1PROD with RULES
10140 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

84U.S. Department of State. 2010. Nonimmigrant 

Visa Application Fees to Increase June 4. Available 

at http://www.state.gov/r/pa/prs/ps/2010/05/ 

142155.htm. The visa fee of $150 went into effect 

on June 4, 2010. 85The Department is confident that 66,000 new 

workers enter the country under H–2B visas each 

year; it has less information concerning the number 

of H–2B workers that remain in the U.S. for more 

than one year. To the extent that more than 67 

percent of each year’s cohort remains in the U.S. for 

a second and third year, then the Department has 

overestimated the percent of H–2B workers that are 

new, and we have overestimated visa and consular 

fees. 86To obtain the average cost of a newspaper 

advertisement, we averaged the rates for a model H– 

2B advertisement in the following newspapers: 

Branson Tri-Lakes News, Aspen Times, Austin 

Chronicle, Gainesville Sun, the Plaquemines 

Gazette, and Virginia Pilot. These newspapers were 

chosen because they are located in areas in which 

a significant number of H–2B positions were 

certified in FY 2009. Other means of recruiting are 

possible under this rule (such as listings on 

Monster.com and Career Builder), but they may be 

more costly, while other recruiting means (such as 

contacting community-based organizations) may be 

less costly. 

TABLE 26—COST OF LODGING FOR H– 

2B WORKERS AT SMALL FIRMS

Cost component Value 

Firm with One H–2B Employee $14 

Landscaping Services .............. 37 

Janitorial Services .................... 75 

Food Services and Drinking 

Places ................................... 79 

Amusement, Gambling, and 

Recreation ............................. 95 

Construction .............................. 43 

Source: Lonely Planet, 2011b. 

g. Visa-Related and Consular Fees 

Under the 2008 Final Rule, visa fees 

are permitted to be paid by the 

temporary worker. This Final Rule, 

however, requires visa fees and related 

fees to be paid by the employer. 

Requiring employers to bear the full cost 

of hiring foreign workers is a necessary 

step toward preventing the exploitation 

of foreign workers with its concomitant 

adverse effect on domestic workers. 

The Department estimated the cost of 

visa fees by adding the weighted average 

visa cost per H–2B worker ($148),84

weighted average appointment fee 

($3.05), and the weighted average 

reciprocity fee ($2.48), then multiplying 

by the average number of H–2B 

employees in small entities in each of 

the top five industries and the 

probability that the worker is a new 

entrant to the country (57 percent, or 

66,000/115,500). The total annual 

average visa fee and related costs 

incurred by the average small employer 

in the top five industries are listed in 

Table 27. Again, to the extent that some 

employers may already be paying these 

fees in order to ensure their compliance 

with the FLSA, this represents an 

upper-bound estimate. Similarly, to the 

extent that our estimate that 57 percent 

of H–2B workers are new is 

conservative, our estimate of visa and 

consular fees is an upper-bound 

estimate.85

TABLE 27—COST OF VISA AND CONSULAR FEES FOR H–2B WORKERS

AT SMALL FIRMS

Cost component Value 

Firm with One H–2B Employee $88 

Landscaping Services .............. 234 

Janitorial Services .................... 480 

Food Services and Drinking 

Places ................................... 503 

Amusement, Gambling, and 

Recreation ............................. 611 

Construction .............................. 274 

Source: U.S. Department of State, 2010. 

h. Additional Recruiting Directed by the 

Certifying Officer 

Under the Final Rule, the CO may 

direct an employer to conduct 

additional recruitment if the CO has 

determined that there may be qualified 

U.S. workers available, particularly 

where the job opportunity is located in 

an area of substantial unemployment. 

There is no such provision in the 2008 

Final Rule. 

In response to an employer comment 

expressing concern that the NPRM 

understated the cost of running a 

newspaper advertisement that would 

capture all the requirements contained 

in 20 CFR 655.41, the Department 

updated the original calculation in the 

NPRM. The higher estimated cost does 

not reflect any additional advertising 

requirement beyond those in 20 CFR 

655.41, but is rather is a more accurate 

reflection of the cost of an 

advertisement that includes the required 

information. 

We estimate the cost of this 

requirement by multiplying the average 

cost of a newspaper advertisement 

($315) by 0.5 based on our estimate that 

50 percent of H–2B employer applicants 

can be expected to be directed by the 

CO to conduct additional recruitment 

for a total cost of $157 ($315 × 0.50) per 

employer.86 We also added the cost for 

10 percent of employer applicants to 

translate the advertisement into a 

language other than English at an 

average cost of $2.59 ($25.88 × 0.1), and 

labor cost to post the advertisement. The 

latter cost was calculated by multiplying 

the estimated time required to post the 

advertisement (0.08 hours, or 5 minutes) 

by the scaled hourly compensation rate 

of an administrative assistant/executive 

secretary ($28.77) and our estimate that 

50 percent of H–2B employers can be 

expected to be directed by the CO to 

conduct additional recruiting for a total 

labor cost of $1.20 (0.08 × $28.77 × 0.50) 

per employer applicant. Thus, the total 

annual cost of CO-directed recruiting is 

estimated to be $161.18 ($157 + $2.59 + 

$1.20) per employer (see Table 28). 

TABLE 28—COST OF ADDITIONAL RECRUITING FOR SMALL FIRMS

Cost component Value 

Percent directed to conduct additional recruiting .......................................................................................................................... 50% 

Newspaper Advertisement: 

Percent translating advertisement .......................................................................................................................................... 10% 

Newspaper advertisement—Unit cost .................................................................................................................................... $315 

Average cost of newspaper advertisement ............................................................................................................................ $157 

Translating Newspaper Advertisement: 

Translation—Weighted Average Cost .................................................................................................................................... $26 

Average cost of newspaper advertisement ............................................................................................................................ $3 

Labor to Post Newspaper Ad: 

Time to post advertisement .................................................................................................................................................... 0.05 

Administrative Assistant hourly wage w/fringe ....................................................................................................................... $29 

Administrative Assistant labor per ad ..................................................................................................................................... $2 

Average cost of labor to post ad ............................................................................................................................................ $1 

Total Cost: 


sroberts on DSK5SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 10141 

87The 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. 88U.S. Department of Homeland Security (DHS). 

2009. Yearbook of Immigration Statistics. Available 

at http://www.dhs.gov/files/statistics/publications/ 

yearbook.shtm (Accessed June 12, 2011). 

89LanguageScape. 2011. How it Works—Cost 

Calculator. Available at http:// 

www.languagescape.com/how_works_1.asp 

(Accessed June 7, 2011). 

TABLE 28—COST OF ADDITIONAL RECRUITING FOR SMALL FIRMS—Continued 

Cost component Value 

Total Cost of Additional Recruiting per Firm .......................................................................................................................... $161 

Sources: BLS, 2011a; BLS, 2011b. 

It is possible that there will be 

additional costs incurred by small 

employers due to interviewing 

additional applicants who are referred 

to H–2B employers by job 

advertisements. The Department does 

not have valid data on referrals resulting 

from job advertisements and therefore is 

unable to quantify this impact. 

i. Contacting Labor Organizations 

The analysis performed for the 

proposed rule included a cost for 

employers to contact the local union to 

locate qualified U.S. workers where the 

occupation is customarily unionized. 

Under this Final Rule, union 

notification is the responsibility of the 

SWA and employers incur no costs. 

j. Disclosure of Job Order 

The rule requires an employer to 

provide a copy of the job order to an 

H–2B worker no later than the time at 

which the worker outside of the U.S. 

applies for the H–2B visa or to a worker 

in corresponding employment no later 

than on the day that work starts. The job 

order must be translated to a language 

understood by the worker. For an H–2B 

worker changing employment from an 

H–2B employer to a subsequent H–2B 

employer, the copy must be provided no 

later than the time the subsequent H–2B 

employer makes an offer of 

employment. 

We estimate two cost components of 

the disclosure of job orders: The cost of 

reproducing the document containing 

the terms and conditions of 

employment, and the cost of translation. 

We obtained the cost of reproducing the 

terms and conditions by multiplying the 

number of pages to be photocopied 

(three) by the cost per photocopy ($0.12) 

and the percent of certified H–2B 

workers that are not involved in 

reforestation (88.3 percent).87 We 

estimate average annual reproduction 

costs for an employer with one H–2B 

employee of $0.32 per year (3 × $0.12 

× 0.883). We then multiplied this 

product by the average number of H–2B 

workers in the top five industries to 

obtain the average annual costs per 

small employer; these costs are 

summarized in Table B–9. 

For the cost of translation, the 

Department assumes that an employer 

hires all of its H–2B workers from a 

country or set of countries that speak 

the same foreign language; thus, only 

one translation is necessary per 

employer needing translation. Using 

DHS data, we determined that 

approximately 83.92 percent of H–2B 

workers from the top ten countries of 

origin do not speak English.88 We used 

this as a proxy for the probability that 

an H–2B employer will need to translate 

the job order. We obtained the cost of 

translation by multiplying the percent of 

H–2B workers who do not speak English 

(83.92) by the weighted average cost of 

translation ($68).89 We estimate average 

annual translation costs of $57.07 per 

employer (0.8392 × $68). 

Summing reproduction and 

translation costs results in the average 

annual job order disclosure costs per 

small employer (listed in Table 29). 

TABLE 29—COST OF DISCLOSURE OF JOB ORDER FOR SMALL FIRMS

Cost component Value 

Percent workers not in reforestation ............................................................................................................................................. 88.3% 

Reproducing Job Order: 

Pages to be photocopied ....................................................................................................................................................... 3 

Cost per page ......................................................................................................................................................................... $0.12 

Cost per job order .................................................................................................................................................................. $0.36 

Firm with One H–2B Employee .............................................................................................................................................. $0.32 

Landscaping Services—Cost to Reproduce .......................................................................................................................... $0.85 

Janitorial Services—Cost to Reproduce ................................................................................................................................ $2 

Food Services and Drinking Places—Cost to Reproduce ..................................................................................................... $2 

Amusement, Gambling, and Recreation—Cost to Reproduce .............................................................................................. $2 

Construction—Cost to Reproduce .......................................................................................................................................... $1 

Translating Job Order: 

Weighted average translation cost ......................................................................................................................................... $68 

Translation Cost per H–2B Employer .................................................................................................................................... $57 

Total Cost of Disclosure of Job Order: 

Firm with One H–2B Employee .............................................................................................................................................. $57 

Landscaping Services ............................................................................................................................................................ $58 

Janitorial Services .................................................................................................................................................................. $59 

Food Services and Drinking Places ....................................................................................................................................... $59 

Amusement, Gambling, and Recreation ................................................................................................................................ $59 

Construction ............................................................................................................................................................................ $58 

Sources: DHS, 2009; LanguageScape, 2011. 


sroberts on DSK5SPTVN1PROD with RULES
10142 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

90OfficeMax. 2011. Vertical File Cabinets. 

Available at http://www.officemax.com/officefurniture/file-cabinets-accessories/vertical-filecabinets?history=utozftma%7CcategoryId%

7E10001%5EcategoryName%7EOffice%2B

Furniture%5EparentCategoryID%7Ecategory_root%

5EprodPage%7E25%5Eregion%7E1%40

porkedzu%7CcategoryId%7E40%5Ecategory

Name%7EFile%2BCabinets%2B%2526%2B

Accessories%5EparentCategoryID%7Ecat_

10001%5EprodPage%7E25%5Eregion%7E1%5

Erefine%7E1%40wih8mfsy%7CprodPage%

7E15%5Erefine%7E1%5Eregion%7E1%5Ecategory

Name%7Evertical-file-cabinets%5Ecategory

Id%7E91%5EparentCategoryID%7Ecat_40&view=

list&position=1&prodPage=15&sort=Price+%28

Low-High%29 (Accessed July 11, 2011). 

k. Elimination of Attestation-Based 

Model 

The 2008 Final Rule implemented an 

attestation-based model: employers 

conduct the required recruitment in 

advance of application filing and, based 

on the results of that effort, apply for 

certification from the Department for the 

remaining openings. The Department 

has determined that there are 

insufficient worker protections in the 

current attestation-based model. In 

eliminating the attestation-based model, 

the rule shifts the recruitment process to 

after the filing of the Application for 

Temporary Employment Certification so 

that employers have to demonstrate— 

and not merely attest—that they have 

performed an adequate test of the labor 

market. Therefore, the primary effect of 

eliminating the attestation-based model 

is a change in the timing of recruitment 

rather than a substantive change in 

required activities. 

The elimination of the attestationbased model will impose minimal costs 

on employers because they will only 

need to include additional information 

in the recruitment report they are 

already required to submit, including 

information on additional recruitment 

conducted, means of posting, and 

contact with former U.S. workers. We 

estimated two costs for the elimination 

of the attestation-based model: the 

material cost to reproduce and mail the 

additional pages of the documents, and 

the labor cost to reproduce and mail the 

additional pages. To estimate the cost of 

reproducing and mailing the 

documents, we multiplied the 

additional number of pages that must be 

submitted (three) by the additional 

postage required to ship those pages 

($0.17). We estimate this cost to be 

approximately $0.51 per employer. To 

estimate the labor cost of reproducing 

and mailing the documents, we 

multiplied the time needed to reproduce 

and mail the documents (0.08 hours, or 

5 minutes) by the scaled hourly labor 

compensation of an administrative 

assistant/executive secretary ($28.77). 

We estimate this cost to be 

approximately $2.40 per employer. 

Summing material and labor costs 

results in total costs per small firm of 

$2.91 (see Table 30). 

TABLE 30—COST OF ELIMINATION OF ATTESTATION-BASED MODEL FOR SMALL FIRMS

Cost component Value 

Postage Costs: 

Additional pages to submit ..................................................................................................................................................... 3 

Additional postage .................................................................................................................................................................. $0.17 

Postage Cost per Small Firm ........................................................................................................................................................ $0.51 

Labor Costs to Photocopy and Mail Documents: 

Labor time to photocopy and mail documents ....................................................................................................................... 0.08 

Administrative Assistant hourly wage w/fringe ....................................................................................................................... $29 

Photocopying Cost per Small Firm ........................................................................................................................................ $2 

Total Cost of Elimination of Attestation-Based Model: 

Total Cost per Small Firm ...................................................................................................................................................... $3 

Sources: BLS, 2011a; BLS, 2011b. 

l. Document Retention 

Under the rule, H–2B employers must 

retain documentation beyond that 

required by the 2008 Final Rule. The 

Department assumes that each H–2B 

employer will purchase a filing cabinet 

($49.99) in which to store the additional 

documents starting in the first year of 

the rule.90 The cost for each employer 

is likely an overestimate, since the 2008 

Final Rule already contains document 

retention requirements, and many 

employers who already use the H–2B 

program will already have bought a file 

cabinet to store the documents they 

must retain under that rule. 

m. Departure Time Determination 

The Proposed Rule would have 

required employers to provide notice to 

the local SWA of the time at which the 

last H–2B worker departs for the place 

of employment, if the last worker has 

not departed at least 3 days before the 

date of need. Under the Final Rule, the 

obligation to hire U.S. workers will end 

21 days before the date of need and the 

employer is not required to provide any 

notice to the local SWA, thus 

eliminating the costs associated with 

this provision of the Proposed Rule. 

n. Read and Understand the Rule 

During the first year that this rule 

would be in effect, employers would 

need to learn about the new processes 

and requirements. We estimated this 

cost for a hypothetical small entity that 

is interested in applying for H–2B 

workers by multiplying the time 

required to read the new rule and any 

educational and outreach materials that 

explain the H–2B application process 

under the rule by the average 

compensation of a human resources 

manager. In the first year that the Final 

Rule is effective, the Department 

estimates that the average small 

business participating in the program 

will spend approximately three hours of 

staff time to read and review the new 

processes and requirements, which 

amounts to approximately $186.52 

($62.17 × 3) in labor costs in the first 

year. 

o. Job Posting Requirement 

The rule requires employer applicants 

to post the availability of the job 

opportunity in at least two conspicuous 

locations at the place of intended 

employment for at least 15 consecutive 

days. This provision entails additional 

reproduction costs. For the job posting 

requirement, the total cost to photocopy 

the additional job postings (two) is 

$0.24 per employer applicant. Those 

employer applicants who need to print 

the posting in languages other than 

English may face a small additional 

cost. 

p. Workers Rights Poster 

The Final Rule requires employers to 

post and maintain in a conspicuous 

location at the place of employment, a 

poster provided by the Secretary that 

sets out the rights and protections for 

workers. The poster must be in English 

and, to the extent necessary and as 


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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 10143 

91U.S. Census Bureau. 2007. Statistics of U.S. 

Businesses. Available at http://www.census.gov/ 

econ/susb/data/susb2007.html. c. 

provided by the Secretary, foreign 

language(s) common to a significant 

portion of the workers if they are not 

fluent in English. We estimate the cost 

of producing the workers’ rights poster 

to be $0.12. 

q. Total Cost Burden for Small Entities 

The Department’s calculations 

indicate that for a hypothetical small 

entity in the top five industries that 

applies for one worker (representing the 

smallest of the small entities that hire 

H–2B workers), the total annualized 

first-year costs and annual costs are 

between $1,058 (using the low estimate 

of corresponding worker wages and 

annualizing at 3 percent over 10 years) 

and $1,367 (using the high estimate and 

annualizing at 7 percent over 10 years). 

Using the low estimate of corresponding 

worker wages and annualizing at 

3 percent and using the high estimate of 

corresponding worker wages and 

annualizing at 7 percent, respectively, 

the total annualized first-year and 

annual costs for employers in the top 

five industries that hire the average 

number of employees for their 

respective industries are as follows: 

Landscaping Services, $2,404 to $3,218; 

Janitorial Services, $4,673 to $6,339; 

Food Services and Drinking Places, $4,884 to 

$6,628; 

Amusement, Gambling, and Recreation, 

$5,881 to $8,000; 

Construction, $2,772 to $3,724. 

A rule is considered to have a 

significant economic impact when the 

total annual cost associated with the 

rule is equal to or exceeds 1 percent of 

annual revenue. To evaluate this 

impact, the Department calculates the 

total cost burden as a percent of revenue 

for each of the top five industries. The 

estimated revenues for small entities in 

the top five industries are as follows: 

Landscaping Services, $517,105; 

Janitorial Services, $425,693; 

Food Services and Drinking Places, 

$516,055; 

Amusement, Gambling, and Recreation, 

$846,948; 

Construction, $1,292,201.91

The Department then divides the total 

cost burden for small entities by the 

total estimated revenue for small 

entities in each of the top five 

industries. The total costs as a percent 

of revenues for the top five industries 

are summarized in Table 31: 

Landscaping Services, 0.46 to 0.62 percent; 

Janitorial Services, 1.10 to 1.549 percent; 

Food Services and Drinking Places, 0.95 to 

1.28 percent; 

Amusement, Gambling, and Recreation, 

0.69 to 0.94 percent; 

Construction, 0.21 to 0.29 percent. 

TABLE 31—TOTAL COSTS FOR SMALL FIRMS

Industry 

Cost per 

firm with 

one H–2B 

worker 

Landscaping 

services 

Janitorial 

services 

Food 

services 

and drinking 

places 

Amusement, 

gambling, 

and 

recreation 

Construction 

H–2B Workers .................................................................. 1.0 2.7 5.5 5.7 7.0 3.1 

Annual Costs to Employers: 

Corresponding Workers’ Wages—Low .................... $152 $404 $830 $869 $1056 $473 

Corresponding Workers’ Wages—High .................... $455 $1,212 $2,489 $2,607 $3,169 $1,419 

Transportation ........................................................... $531 $1,415 $2,905 $3,043 $3,698 $1,656 

Subsistence .............................................................. $24 $65 $133 $139 $169 $76 

Lodging ..................................................................... $14 $37 $75 $79 $95 $43 

Visa and Consular Fees ........................................... $88 $234 $480 $503 $611 $274 

Additional Recruiting ................................................. $161 $161 $161 $161 $161 $161 

Disclosure of Job Order ............................................ $57 $58 $59 $59 $59 $58 

Elimination of Attestation .......................................... $3 $3 $3 $3 $3 $3 

Post Job Opportunity ................................................ $0.24 $0.24 $0.24 $0.24 $0.24 $0.24 

Workers Rights Poster .............................................. $0.12 $0.12 $0.12 $0.12 $0.12 $0.12 

Total Annual Costs—Low .................................. $1,030 $2,376 $4,646 $4,856 $5,854 $2,744 

Total Annual Costs—High ................................. $1,334 $3,185 $6,305 $6,594 $7,966 $3,690 

First Year Costs to Employers: 

Read and Understand Rule ...................................... $187 $187 $187 $187 $187 $187 

Document Retention ................................................. $50 $50 $50 $50 $50 $50 

Total First Year Costs ............................................... $237 $237 $237 $237 $237 $237 

Annualized First Year Costs (7%) ............................ $34 $34 $34 $34 $34 $34 

Annualized First Year Costs (3%) ............................ $28 $28 $28 $28 $28 $28 

Total Costs per Small Firm (Annualized First Year and 

Annual Costs, 7%) 

Total Costs—Low .............................................. $1,064 $2,410 $4,679 $4,890 $5,877 $2,778 

Total Costs—High ............................................. $1,367 $3,218 $6,339 $6,628 $8,000 $3,724 

Total Revenue ................................................... N/A $517,105 $425,693 $516,055 $846,948 $1,292,201 

Costs as a Percent of Revenue—Low ..................... N/A 0.47% 1.10% 0.95% 0.70% 0.21% 

Cost as a Percent of Revenue—High ...................... N/A 0.63% 1.50% 1.29% 0.95% 0.29% 

Total Costs per Small Firm (Annualized First Year and 

Annual Costs, 3%): 

Total Costs—Low .............................................. $1,058 $2,404 $4,673 $4,884 $5,881 $2,772 

Total Costs—High ............................................. $1,361 $3,212 $6,333 $6,622 $7,994 $3,718 

Total Revenue ................................................... N/A $517,105 $425,693 $516,055 $846,948 $1,292,201 


sroberts on DSK5SPTVN1PROD with RULES
10144 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

TABLE 31—TOTAL COSTS FOR SMALL FIRMS—Continued 

Industry 

Cost per 

firm with 

one H–2B 

worker 

Landscaping 

services 

Janitorial 

services 

Food 

services 

and drinking 

places 

Amusement, 

gambling, 

and 

recreation 

Construction 

Costs as a Percent of Revenue—Low ..................... N/A 0.46% 1.10% 0.95% 0.69% 0.21% 

Cost as a Percent of Revenue—High ...................... N/A 0.62% 1.549% 1.28% 0.94% 0.29% 

N/A: Not Applicable. 

Note: Totals may not sum due to rounding. 

This rule is expected to have a 

significant economic impact (at least 1 

percent of annual revenue) on the 

average participating small entity in two 

of the five most common industries: 

Janitorial Services, and Food Services 

and Drinking Places. Although applying 

to hire H–2B workers is voluntary, and 

any employer (small or otherwise) may 

choose not to apply, an employer, 

whether it continues to participate in 

the H–2B program or fills its workforce 

with U.S. workers, could face costs 

equal to or slightly greater than 1 

percent of annual revenue. However, in 

the Department’s view, increased 

employment opportunities for U.S. 

workers and higher wages for both U.S. 

and H–2B workers provide a broad 

societal benefit that outweighs these 

costs. 

The Department considers that a rule 

has an impact on a ‘‘substantial number 

of small entities’’ when the total number 

of small entities impacted by the rule is 

equal to or exceeds 10 percent of the 

relevant universe of small entities in a 

given industry. See, e.g., 76 FR 3476, 

Jan. 19, 2011. The Department has used 

the 10 percent threshold in previous 

regulations. As discussed earlier in the 

analysis, the percentage of small entities 

authorized to employ temporary nonagricultural workers would be less than 

1 percent of the total number of small 

entities in the top five industries with 

the greatest number of H–2B workers. 

Therefore, this rule is not expected to 

impact a substantial number of small 

entities. 

5. Alternatives Considered as Options 

for Small Businesses 

We have concluded that this Final 

Rule will not have a significant 

economic impact on a substantial 

number of small entities. This Final 

Rule sets minimum standards to ensure 

that foreign workers may be employed 

only if qualified domestic workers are 

not available and that the hiring of 

H–2B workers will not adversely affect 

the wages and working conditions of 

similarly employed domestic workers. 

While we recognize the concerns 

expressed by small businesses and have 

made every effort to minimize the 

burden on the relatively small number 

of businesses that use the program, 

creating different and likely lower 

standards for one class of employers 

(e.g., small businesses) would 

essentially sanction the very adverse 

effects that we are compelled to prevent. 

Under the existing H–2B program, an 

employer must first apply for a 

temporary labor certification from the 

Secretary of Labor. That certification 

informs USCIS that U.S. workers 

qualified to perform the services or 

labor are not available, and that the 

employment of the foreign worker(s) 

will not adversely affect the wages and 

working conditions of similarly 

employed U.S. workers. Our obligation 

to ensure that U.S. workers capable of 

performing the services or labor are not 

available, and that the employment of 

the foreign worker(s) will not adversely 

affect the wages and working conditions 

of similarly employed U.S. workers was 

reaffirmed in a recent court decision, 

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

2011 WL 2414555 (E.D. Pa. 20100), 

which made clear that our consideration 

of hardship to employers when setting 

the January 1, 2012 effective data was 

contrary to our responsibilities under 

the INA. 

While our responsibilities in the 

H–2B labor certification program first 

and foremost are to ensure that U.S. 

workers are given priority for temporary 

non-agricultural job opportunities and 

to protect U.S. workers’ wages and 

working conditions, we solicited and 

considered public comments on a 

number of alternatives that would 

balance the needs of small businesses 

while providing adequate protection to 

U.S. and H–2B workers. A discussion on 

each alternative considered and our 

final determination is below. 

First, we proposed to change the 

definition of full-time from 30 or more 

hours of work per workweek to 35 or 

more hours of work per week in 

response to the District Court’s decision 

in CATA v. Solis, 2010 WL 3431761, 

which invalidated the 2008 H–2B Final 

Rule’s 30-hour definition because our 

decision was not supported by 

empirical data. We stated in the NPRM 

that a 35-hour work week was 

supported by empirical data and was 

more representative of the actual needs 

of employers and expectations of 

workers. However in the NPRM, we 

requested comments on whether 

extending the definition of full-time to 

at least 40 hours is more protective of 

U.S workers and better conforms to 

employer standards and needs. 

As discussed in this preamble, several 

trade associations and private 

businesses supported retaining the 2008 

Final Rule’s standard of 30 hours per 

workweek, citing the difficulties of 

scheduling work around unpredictable 

and uncontrollable events, particularly 

the weather. Other employers suggested 

that full-time employment should be 

determined not in each individual 

workweek, but by averaging workweeks 

over the length of the certified 

employment period. In addition, several 

businesses stated that a 35-hour 

workweek would be burdensome in 

combination with other aspects of the 

proposed rule, particularly the threequarter guarantee. We concluded, after a 

thorough review of the comments, to 

retain the definition of full-time as 35 or 

more hours of work per week. This 

standard more accurately reflects fulltime employment expectations than the 

current 30-hour definition, would not 

compromise worker protections, and is 

consistent with other existing 

Department standards and practices in 

the industries that currently use the 

H–2B program to obtain workers. 

The NPRM also proposed to eliminate 

job contractors from participating in the 

H–2B program based on our view that 

a job contractor’s ongoing need is by its 

very nature permanent rather than 

temporary and therefore the job 

contractor does not qualify to 

participate in the program. We received 

a comment that questioned our 

underlying assumption that all job 

contractors have a permanent need and 

asserted that the bar on job contractors 

should not be complete because to the 


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extent that any one job contractor does 

not have a year-round need and 

routinely does not employ workers in a 

particular occupation for a specific 

segment of the year, its needs are 

seasonal. The commenter asserted that 

job contractors should be afforded the 

same opportunity as all other employers 

to prove they have a temporary need for 

services or labor. Upon further 

consideration, we recognize that there 

very well may be job contractors who 

only operate several months out of the 

year and thus have a genuine temporary 

need and that these job contractors 

should not be excluded from the 

program. Additionally, we recognize 

that job contractors with a one-time 

need may also have a genuine 

temporary need and should not be 

excluded from the program. Therefore, 

we revised § 655.6 to permit only those 

job contractors that demonstrate through 

documentation their own temporary 

need, not that of their employer-clients, 

to continue to participate in the H–2B 

program. Job contractors will only be 

permitted to file applications based on 

seasonal need and one-time 

occurrences. 

We also introduced in the NPRM a 

three-fourths guarantee provision that 

would require that H–2B employers 

guarantee to offer the worker 

employment for a total number of hours 

equal to at least three-fourths of the 

workdays in each 4-week period of the 

certified period of employment. We 

believed that this guarantee would 

motivate employers to carefully 

consider the extent of their workforce 

needs before applying for certification 

and discourage employers from 

applying for unnecessary workers or 

from promising work which may not 

exist. While we stated in the NPRM that 

an hours’ guarantee is necessary to 

protect the integrity of the H–2B 

program and to protect the interests of 

both workers and employers in the 

program, we invited the public to 

suggest alternative guarantee systems 

that may better serve the goals of the 

guarantee. In particular, the Department 

sought comments on whether a 4-week 

increment is the best period of time for 

measuring the three-fourths guarantee or 

whether a shorter or longer time period 

would be more appropriate. 

Many small businesses expressed 

concerns about the guarantee. They 

were particularly concerned about the 

impact of the weather on their ability to 

meet the guarantee and their ability to 

meet the guarantee in the event of 

unforeseen events like oil spills or 

health department or conservation 

closures that, for example, can make the 

harvesting and processing of crabs 

impossible. Numerous other employers 

similarly stated that if a guarantee 

remains in the Final Rule, it should be 

spread over the entire certification 

period, as it is in the H–2A regulations. 

They noted that this would provide 

flexibility and enhance their ability to 

meet the guarantee without cost, 

because often the loss of demand for 

work in one period is shifted to another 

point in the season, but such a 

guarantee would still deter egregious 

cases of employers misstating their need 

for H–2B employees. A number of 

commenters also suggested that the 

guarantee should be based upon pay for 

three-fourths of the hours, rather than 

three-fourths of the hours, so that 

employers could take credit for any 

overtime paid at time-and-a-half. After 

careful consideration of all comments 

received, we decided to retain the threefourths guarantee of the hours, but 

lengthen the increment over which the 

guarantee is measured from 4 weeks to 

12 weeks, if the period of employment 

covered by the job order is 120 days or 

more and to 6 weeks, if the period of 

employment covered by the job order is 

less than 120 days. 

The NPRM continued to reflect our 

commitment to ensuring that U.S. 

workers have priority for H–2B job 

opportunities by proposing that 

employers hire qualified U.S. workers 

referred by the SWA or who respond to 

recruitment until 3 days before the date 

of need or the last H–2B worker departs 

for the workplace for the certified job 

opportunity, whichever is later. We 

believed that this proposal would 

increase the opportunity for U.S. 

workers to fill the available positions 

without unnecessarily burdening the 

employer. The proposal would have 

required the employer to inform the 

appropriate SWA(s) in writing of the 

later departure so that the SWA would 

know when to stop referring potential 

U.S. workers to the employer. 

We received many comments from 

employers and their advocates arguing 

that accepting U.S. applicants until 3 

days before the date of need would be 

unworkable for employers. Some of 

these commenters suggested that we 

require the SWA to keep the job order 

posted for 30 days (instead of the 

current 10), while others recommended 

changing the closing date from 3 days to 

30 days or 60 days before the date of 

need. We carefully reviewed all 

comments and weighed these concerns 

against our mandate to ensure that U.S. 

workers rather than foreign workers be 

employed whenever possible. As a 

result, we changed the day through 

which employers must accept SWA 

referrals of qualified U.S. applicants 

from 3 days to 21 days before the date 

of need. The Department believes that 

increasing the number of days before the 

date of need that referrals are cut off as 

well as removing the clause or the date 

that the last H–2B worker departs for the 

job opportunity will alleviate a number 

of employer concerns without 

compromising our obligation to U.S. 

workers. In addition, this change takes 

into consideration the USCIS 

requirement that H–2B workers not 

enter the United States until 10 days 

before the date of need, providing 

employers the certainty that their H–2B 

workers will have sufficient time to 

obtain their visas and eliminating the 

employer concern that an H–2B worker 

could be displaced by a U.S. worker 

after beginning inbound travel. 

Employers and small businesses 

generally opposed our proposed 

provisions that would require an 

employer to provide, pay, or reimburse 

the worker in the first workweek the 

cost of transportation and subsistence 

from the place from which the worker 

has come to the place of employment, 

and for H–2B workers’ visa, visa 

processing, and other related consular 

fees including those fees mandated by 

the government (but not for passport 

expenses or other charges primarily for 

the benefit of the workers). Employers 

and small businesses asserted that 

paying such fees would be too costly 

and that transportation costs should be 

the responsibility of the employee or 

paid at the discretion of the employer. 

A number of commenters suggested that 

the Department adopt the H–2A 

provision requiring that workers must 

complete at least 50 percent of the work 

contract to be reimbursed for inbound 

transportation and subsistence 

expenses. After careful consideration of 

all comments, we have made two 

changes. While we will continue to 

require employers to provide inbound 

transportation and subsistence to H–2B 

workers and to U.S. workers who are 

not reasonably able to return to their 

residence within the same workday, the 

Final Rule now provides that employers 

may arrange and pay for the 

transportation and subsistence directly, 

advance at a minimum, the most 

economical and reasonable common 

carrier cost, or reimburse a worker’s 

reasonable costs, after the worker 

completes 50 percent of the period of 

employment covered by the job order if 

the employer has not previously 

reimbursed such costs. We also 

continue in the Final Rule to require 

employers to provide return 

transportation and subsistence from the 

place of employment; however, these 


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10146 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

obligations have been revised to 

stipulate that an employer is only 

required to provide return 

transportation and subsistence if the 

worker completes the period of 

employment covered by the job order or 

if the worker is dismissed from 

employment for any reason by the 

employer before the end of the period. 

In addition, the Final Rule continues to 

provide that if a worker has contracted 

with a subsequent employer that has 

agreed to provide or pay for the worker’s 

transportation to the subsequent 

employer’s worksite, the subsequent 

employer must provide or pay for such 

expenses; otherwise, if this agreement 

has not been made, the employer must 

provide or pay for that transportation 

and subsistence. The Final Rule also 

continues to require employers to 

reimburse all visa, visa processing, and 

other related consular fees in the first 

workweek. 

We received several comments from 

employers noting the need to have a 

stable workforce throughout their 

certified period of need. Employers 

were concerned that after expending 

significant resources to hire H–2B 

workers, these workers could be 

displaced to hire U.S. workers referred 

by the SWA who may not report for 

work, or might fail to complete the 

contract period. One employer 

requested that we consider new 

provisions that would allow an 

employer to hire H–2B workers if the 

hired U.S. workers become unavailable. 

We considered these comments and 

agreed to address the circumstances 

where an employer’s U.S. workers fail to 

report to work or quit before the end of 

the certified period of employment by 

providing the CO the authority to issue 

a redetermination based on the 

unavailability of U.S. workers. While we 

have provided a means by which 

employers may request a new 

determination, we strongly encourage 

employers to make an additional effort 

to voluntarily contact the SWA for 

additional referrals for qualified U.S. 

workers. 

Finally, the Small Business 

Administration’s Office of Advocacy 

and several industry groups requested 

an exemption from the job order 

obligations for man-made catastrophic 

events such as an oil-spill or controlled 

flooding that is wholly outside of the 

employer’s control. The Department 

proposed that a CO could only 

terminate the employer’s obligations 

under the guarantee in the event of fire, 

weather, or another Act of God. The 

Department agreed with commenters 

that this provision should be expanded 

to allow a CO to terminate an 

employer’s job order based upon these 

man-made catastrophes. 

C. Unfunded Mandates Reform Act of 

1995 

Title II of the Unfunded Mandates 

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

directs agencies to assess the effects of 

Federal regulatory actions on State, 

local, and tribal governments, and the 

private sector. The rule has no Federal 

mandate, which is defined in 2 U.S.C. 

658(6) to include either a Federal 

intergovernmental mandate or a Federal 

private sector mandate. A Federal 

mandate is any provision in a regulation 

that imposes an enforceable duty upon 

State, local, or tribal governments, or 

imposes a duty upon the private sector 

that is not voluntary. A decision by a 

private entity to obtain an H–2B worker 

is purely voluntary and is, therefore, 

excluded from any reporting 

requirement under the Act. 

SWAs are mandated to perform 

certain activities for the Federal 

Government under the H–2B program, 

and receive grants to support the 

performance of these activities. Under 

the 2008 Final Rule the SWA role was 

changed to accommodate the 

attestation-based process. The current 

regulation requires SWAs to accept and 

place job orders into intra- and 

interstate clearance, review referrals, 

and verify employment eligibility of the 

applicants who apply to the SWA to be 

referred to the job opportunity. Under 

the Final Rule the SWA will continue to 

play a significant and active role. The 

Department continues to require that 

employers submit their job orders to the 

SWA having jurisdiction over the area 

of intended employment as is the case 

in the current regulation, with the 

added requirement that the SWA review 

the job order prior to posting it. The 

Final Rule further requires that the 

employer provide a copy of the 

Application for Temporary Employment 

Certification to the SWA; however, this 

is simply a copy for disclosure purposes 

and would require no additional 

information collection or review 

activities by the SWA. The Department 

will also continue to require SWAs to 

place job orders into clearance, as well 

as provide employers with referrals 

received in connection with the job 

opportunity. Additionally, the Final 

Rule requires SWAs to contact labor 

organizations where union 

representation is customary in the 

occupation and area of intended 

employment. The Department 

recognizes that SWAs may experience a 

slight increase in their workload in 

terms of review, referrals, and employer 

guidance. However, the Department is 

eliminating the employment verification 

responsibilities the SWA has under the 

current regulations. The elimination of 

workload created by the employment 

verification requirement will allow the 

SWAs to apply those resources to the 

additional recruitment requirements 

under this rule. 

SWA activities under the H–2B 

program are currently funded by the 

Department through grants provided 

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

49 et seq, and directly through 

appropriated funds for administration of 

the Department’s foreign labor 

certification program. 

D. Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA) 

We have determined that this 

rulemaking does not impose a 

significant impact on a substantial 

number of small entities under the RFA. 

We have similarly concluded that this 

Final Rule is a major rule requiring 

review by the Congress under the 

SBREFA because it will likely result in 

an annual effect on the economy of $100 

million. 

E. Executive Order 13132—Federalism 

We have reviewed this Final Rule in 

accordance with E.O. 13132 on 

federalism and have determined that it 

does not have federalism implications. 

The Final Rule does not have 

substantial direct effects on States, on 

the relationship between the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government as described by 

E.O. 13132. Therefore, we have 

determined that this Final Rule will not 

have a sufficient federalism implication 

to warrant the preparation of a summary 

impact statement. 

F. Executive Order 13175—Indian 

Tribal Governments 

We reviewed this Final Rule under 

the terms of E.O. 13175 and determined 

it not to have tribal implications. The 

Final Rule does not have substantial 

direct effects on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. As a 

result, no tribal summary impact 

statement has been prepared. 

G. Assessment of Federal Regulations 

and Policies on Families 

Section 654 of the Treasury and 

General Government Appropriations 

Act, enacted as part of the Omnibus 

Consolidated and Emergency 


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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 10147 

Supplemental Appropriations Act of 

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

requires us to assess the impact of this 

Final Rule on family well-being. A rule 

that is determined to have a negative 

effect on families must be supported 

with an adequate rationale. We have 

assessed this Final Rule and determined 

that it will not have a negative effect on 

families. 

H. Executive Order 12630—Government 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

The Final Rule is not subject to E.O. 

12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights, because it 

does not involve implementation of a 

policy with takings implications. 

I. Executive Order 12988—Civil Justice 

The Final Rule has been drafted and 

reviewed in accordance with E.O. 

12988, Civil Justice Reform, and will not 

unduly burden the Federal court 

system. The Department has developed 

the Final Rule to minimize litigation 

and provide a clear legal standard for 

affected conduct, and has reviewed the 

Final Rule carefully to eliminate 

drafting errors and ambiguities. 

J. Plain Language 

We drafted this Final Rule in plain 

language. 

K. Paperwork Reduction Act 

As part of its continuing effort to 

reduce paperwork and respondent 

burden, the U.S. Department of Labor 

(the Department) conducts a 

preclearance consultation process to 

provide the general public and Federal 

agencies with an opportunity to 

comment on proposed and continuing 

collections of information in accordance 

with the Paperwork Reduction Act of 

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

This helps to ensure that the public 

understands the Department’s collection 

instructions; respondents can provide 

the requested data in the desired format, 

reporting burden (time and financial 

resources) is minimized, collection 

instruments are clearly understood, and 

the Department can properly assess the 

impact of collection requirements on 

respondents. Persons are not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number as required in 5 CFR 

1320.11(l). 

The information collected is 

mandated in this Final Rule at Title 20 

CFR 655.8, 655.9, 655.11, 655.12, 

655.13, 655.15, 655.16, 655.17, 655.20, 

655.32, 655.33, 655.35, 655.40, 655.42, 

655.43, 655.45, 655.46, 655.47, 655.48, 

655.56, 655.57, 655.60, 655, 61, 655.62, 

655.70, 655.71, 655.72, 655.73, and Title 

29 CFR 503.16, 503.17, 503.43, and 

503.51. In accordance with the PRA (44 

U.S.C. 3501) information collection 

requirements, which must be 

implemented as a result of this 

regulation, a clearance package 

containing proposed changes to the 

already approved collection was 

submitted to OMB on March 18, 2011, 

as part of the proposed rule to reform 

the H–2B program for hiring temporary 

non-agricultural aliens. The public was 

given 60 days to comment on this 

information collection. 

The Department did not receive any 

comments specifically related to this 

section. The Department did receive 

several comments suggesting that it 

collect information about how many 

U.S. workers and H–2B workers an 

employer hires as a result of its 

participation in this program and how 

many of the H–2B workers were hired 

from abroad as opposed to from within 

the United States. The Department 

agrees that this would be valuable 

information and has decided to amend 

ETA Form 9142 to collect from the 

employer the number of H–2B and U.S. 

workers it actually hired from within 

the U.S. or from abroad based on its last 

H–2B labor certification application, if 

applicable. 

The forms used to comply with this 

Final Rule include those that were 

required under the 2008 Final Rule, 

except that ETA Form 9142, Appendix 

B was modified to reflect the assurances 

and obligations of the H–2B employer as 

required under the compliance-based 

system proposed in the NPRM and 

retained in this Final Rule. Also, a new 

form was created for registering as an 

H–2B employer—the ETA Form 9155, 

H–2B Registration—was developed at 

the time of the NPRM in compliance 

with the new provisions first proposed 

in the NPRM and retained in the Final 

Rule, and was available for public 

comment. 

The Department has made changes to 

this Final Rule after receiving comments 

to the NPRM. In addition to the change 

discussed above, the Department has 

also made changes to the forms for 

consistency with other changes to the 

Final Rule and for clarity. However, 

these changes do not impact the overall 

annual burden hours for the H–2B 

program information collection. The 

total costs associated with the form, as 

defined by the PRA, are zero dollars per 

employer for ETA Forms 9141, 9142, 

and 9155. 

This Final Rule utilizes the 

information collection, which OMB first 

approved on November 21, 2008 under 

OMB control number 1205–0466. The 

Department has simultaneously 

submitted with this Final Rule an 

information collection containing the 

revised ETA Forms 9141 and ETA 9142, 

and the new ETA Form 9155. The ETA 

Form 9141 has a public reporting 

burden estimated to average 1 hour per 

response or application filed. The ETA 

Form 9142 with Appendix B.1 has a 

public reporting burden estimated to 

average 1 hour per response or 

application filed. Additionally, the ETA 

Form 9155 has a public reporting 

burden estimated to average 1 hour per 

response or application filed. 

For an additional explanation of how 

the Department calculated the burden 

hours and related costs, the PRA 

packages for these information 

collections may be obtained from the 

RegInfo.gov Web site at http:// 

www.reginfo.gov/public/do/PRAMain or 

by contacting the Department at: Office 

of Policy Development and Research, 

U.S. Department of Labor, 200 

Constitution Ave. NW., Washington, DC 

20210 or by phone request to 202–693– 

3700 (this is not a toll-free number) or 

by email at DOL_PRA_PUBLIC@dol.gov. 

List of Subjects 

20 CFR Part 655 

Administrative practice and 

procedure, Employment, Employment 

and training, Enforcement, Foreign 

workers, Forest and forest products, 

Fraud, Health professions, Immigration, 

Labor, Longshore and harbor work, 

Migrant workers, Nonimmigrant 

workers, Passports and visas, Penalties, 

Reporting and recordkeeping 

requirements, Unemployment, Wages, 

Working conditions. 

29 CFR Part 503 

Administrative practice and 

procedure, Employment, Foreign 

Workers, Housing, Housing standards, 

Immigration, Labor, Nonimmigrant 

workers, Penalties, Transportation, 

Wages. 

Accordingly, the Department of Labor 

amends 20 CFR part 655 and adds 29 

CFR part 503 as follows: 

Title 20—Employees’ Benefits 

PART 655—TEMPORARY 

EMPLOYMENT OF FOREIGN 

WORKERS IN THE UNITED STATES 

■ 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 


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10148 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

(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 Non-Agricultural Employment in 

the United States (H–2B Workers) 

Sec. 

655.1 Scope and purpose of subpart A. 

655.2 Authority of the agencies, offices, and 

divisions in the Department of Labor. 

655.3 Territory of Guam. 

655.4 Special procedures. 

655.5 Definition of terms. 

655.6 Temporary need. 

* * * * * 

§ 655.1 Scope and purpose of subpart A. 

The Immigration and Nationality Act 

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

Secretary of the Department of 

Homeland Security (DHS) to consult 

with appropriate agencies before 

authorizing the entry of H–2B workers. 

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

provide that an employer’s petition to 

employ nonimmigrant workers on H–2B 

visas for temporary non-agricultural 

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

except for Guam, must be accompanied 

by an approved temporary labor 

certification from the Secretary of Labor 

(Secretary). 

(a) Purpose. The temporary labor 

certification reflects a determination by 

the Secretary that: 

(1) There are not sufficient U.S. 

workers who are qualified and who will 

be available to perform the temporary 

services or labor for which an employer 

desires to hire foreign workers, and that 

(2) The employment of the H–2B 

worker(s) will not adversely affect the 

wages and working conditions of U.S. 

workers similarly employed. 

(b) Scope. This subpart sets forth the 

procedures governing the labor 

certification process for the temporary 

employment of nonimmigrant foreign 

workers in the H–2B visa category, as 

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

It also establishes obligations with 

respect to the terms and conditions of 

the temporary labor certification with 

which H–2B employers must comply, as 

well as their obligations to H–2B 

workers and workers in corresponding 

employment. Additionally, this subpart 

sets forth integrity measures for 

ensuring employers’ continued 

compliance with the terms and 

conditions of the temporary labor 

certification. 

§ 655.2 Authority of the agencies, offices, 

and divisions in the Department of Labor. 

(a) Authority and role of the Office of 

Foreign Labor Certification (OFLC). The 

Secretary has delegated her authority to 

make determinations under this subpart, 

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

Assistant Secretary for the Employment 

and Training Administration (ETA), 

who in turn has delegated that authority 

to OFLC. Determinations on an 

Application for Temporary Employment 

Certification in the H–2B program are 

made by the Administrator, OFLC who, 

in turn, may delegate this responsibility 

to designated staff members, e.g., a 

Certifying Officer (CO). 

(b) Authority of the Wage and Hour 

Division (WHD). Pursuant to its 

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

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

Secretary certain investigatory and law 

enforcement functions with respect to 

terms and conditions of employment in 

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

turn, delegated that authority to WHD. 

The regulations governing WHD 

investigation and enforcement 

functions, including those related to the 

enforcement of temporary labor 

certifications, issued under this subpart, 

may be found in 29 CFR part 503. 

(c) Concurrent authority. OFLC and 

WHD have concurrent authority to 

impose a debarment remedy under 

§ 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 

employer 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 U.S. Department of Labor 

(Department or DOL) does not certify to 

the United States Citizenship and 

Immigration Services (USCIS) of DHS 

the temporary employment of 

nonimmigrant foreign workers under 

H–2B visas, or enforce compliance with 

the provisions of the H–2B visa 

program, in the Territory of Guam. 

Under DHS regulations, administration 

of the H–2B temporary labor 

certification program is undertaken by 

the Governor of Guam, or the Governor’s 

designated representative. 

§ 655.4 Special procedures. 

To provide for a limited degree of 

flexibility in carrying out the Secretary’s 

responsibilities, the Administrator, 

OFLC has the authority to establish, 

continue, revise, or revoke special 

procedures in the form of variances for 

processing certain H–2B applications. 

Employers must request and 

demonstrate in writing to the 

Administrator, OFLC that special 

procedures are necessary. Before making 

determinations under this section, the 

Administrator, OFLC may consult with 

affected employers and worker 

representatives. Special procedures in 

place on the effective date of this 

regulation, including special procedures 

currently in effect for handling 

applications for tree planters and related 

reforestation workers, professional 

athletes, boilermakers coming to the 

U.S. on an emergency basis, and 

professional entertainers, will remain in 

force until modified or withdrawn by 

the Administrator, OFLC. 

§ 655.5 Definition of terms. 

For purposes of this subpart: 

Act means the Immigration and 

Nationality Act or INA, as amended, 8 

U.S.C. 1101 et seq. 

Administrative Law Judge (ALJ) means 

a person within the Department’s Office 

of Administrative Law Judges appointed 

under 5 U.S.C. 3105. 

Administrator, Office of Foreign Labor 

Certification (OFLC) means the primary 

official of the Office of Foreign Labor 

Certification, ETA, or the 

Administrator’s designee. 

Administrator, Wage and Hour 

Division (WHD) means the primary 

official of the WHD, or the 

Administrator’s designee. 

Agent. (1) Agent means a legal entity 

or person who: 

(i) Is authorized to act on behalf of an 

employer for temporary nonagricultural 

labor certification purposes; 


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

employer, as defined in this part with 

respect to a specific application; and 

(iii) Is not an association or other 

organization of employers. 

(2) No agent who is under suspension, 

debarment, expulsion, disbarment, or 

otherwise restricted from practice before 

any court, the Department, the 

Executive Office for Immigration 

Review under 8 CFR 1003.101, or DHS 

under 8 CFR 292.3 may represent an 

employer under this part. 

Agricultural labor or services means 

those duties and occupations defined in 

subpart B of this part. 

Applicant means a U.S. worker who 

is applying for a job opportunity for 

which an employer has filed an 

Application for Temporary Employment 

Certification (ETA Form 9142 and the 

appropriate appendices). 

Application for Temporary 

Employment Certification means the 

Office of Management and Budget 

(OMB)-approved ETA Form 9142 and 

the appropriate appendices, a valid 

wage determination, as required by 

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

worker recruitment report, submitted by 

an employer to secure a temporary labor 

certification determination from DOL. 

Area of intended employment means 

the geographic area within normal 

commuting distance of the place 

(worksite address) of the job 

opportunity for which the certification 

is sought. There is no rigid measure of 

distance that constitutes a normal 

commuting distance or normal 

commuting area, because there may be 

widely varying factual circumstances 

among different areas (e.g., average 

commuting times, barriers to reaching 

the worksite, or quality of the regional 

transportation network). If the place of 

intended employment is within a 

Metropolitan Statistical Area (MSA), 

including a multistate MSA, any place 

within the MSA is deemed to be within 

normal commuting distance of the place 

of intended employment. The borders of 

MSAs are not controlling in the 

identification of the normal commuting 

area; a location outside of an MSA may 

be within normal commuting distance 

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

border of) the MSA. 

Area of substantial unemployment 

means a contiguous area with a 

population of at least 10,000 in which 

there is an average unemployment rate 

equal to or exceeding 6.5 percent for the 

12 months preceding the determination 

of such areas made by the ETA. 

Attorney means any person who is a 

member in good standing of the bar of 

the highest court of any State, 

possession, territory, or commonwealth 

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

No attorney who is under suspension, 

debarment, expulsion, disbarment, or 

otherwise restricted from practice before 

any court, the Department, the 

Executive Office for Immigration 

Review under 8 CFR 1003.101, or DHS 

under 8 CFR 292.3 may represent an 

employer under this subpart. 

Board of Alien Labor Certification 

Appeals (BALCA or Board) means the 

permanent Board established by part 

656 of this chapter, chaired by the Chief 

Administrative Law Judge (Chief ALJ), 

and consisting of ALJs assigned to the 

Department and designated by the Chief 

ALJ to be members of BALCA. 

Certifying Officer (CO) means an 

OFLC official designated by the 

Administrator, OFLC to make 

determinations on applications under 

the H–2B program. The Administrator, 

OFLC is the National CO. Other COs 

may also be designated by the 

Administrator, OFLC to make the 

determinations required under this 

subpart. 

Chief Administrative Law Judge (Chief 

ALJ) means the chief official of the 

Department’s Office of Administrative 

Law Judges or the Chief Administrative 

Law Judge’s designee. 

Corresponding employment. (1) 

Corresponding employment means the 

employment of workers who are not 

H–2B workers by an employer that has 

a certified H–2B Application for 

Temporary Employment Certification 

when those workers are performing 

either substantially the same work 

included in the job order or 

substantially the same work performed 

by the H–2B workers, except that 

workers in the following two categories 

are not included in corresponding 

employment: 

(i) Incumbent employees 

continuously employed by the H–2B 

employer to perform substantially the 

same work included in the job order or 

substantially the same work performed 

by the H–2B workers during the 52 

weeks prior to the period of 

employment certified on the 

Application for Temporary Employment 

Certification and who have worked or 

been paid for at least 35 hours in at least 

48 of the prior 52 workweeks, and who 

have worked or been paid for an average 

of at least 35 hours per week over the 

prior 52 weeks, as demonstrated on the 

employer’s payroll records, provided 

that the terms and working conditions 

of their employment are not 

substantially reduced during the period 

of employment covered by the job order. 

In determining whether this standard 

was met, the employer may take credit 

for any hours that were reduced by the 

employee voluntarily choosing not to 

work due to personal reasons such as 

illness or vacation; or 

(ii) Incumbent employees covered by 

a collective bargaining agreement or an 

individual employment contract that 

guarantees both an offer of at least 35 

hours of work each workweek and 

continued employment with the H–2B 

employer at least through the period of 

employment covered by the job order, 

except that the employee may be 

dismissed for cause. 

(2) To qualify as corresponding 

employment, the work must be 

performed during the period of the job 

order, including any approved 

extension thereof. 

Date of need means the first date the 

employer requires services of the H–2B 

workers as listed on the Application for 

Temporary Employment Certification. 

Department of Homeland Security 

(DHS) means the Federal Department 

having jurisdiction over certain 

immigration-related functions, acting 

through its agencies, including USCIS. 

Employee means a person who is 

engaged to perform work for an 

employer, as defined under the general 

common law. Some of the factors 

relevant to the determination of 

employee status include: the hiring 

party’s right to control the manner and 

means by which the work is 

accomplished; the skill required to 

perform the work; the source of the 

instrumentalities and tools for 

accomplishing the work; the location of 

the work; the hiring party’s discretion 

over when and how long to work; and 

whether the work is part of the regular 

business of the hiring party. Other 

applicable factors may be considered 

and no one factor is dispositive. The 

terms employee and worker are used 

interchangeably in this subpart. 

Employer means a person (including 

any individual, partnership, association, 

corporation, cooperative, firm, joint 

stock company, trust, or other 

organization with legal rights and 

duties) that: 

(1) Has a place of business (physical 

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

which it may be contacted for 

employment; 

(2) Has an employer relationship 

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

supervise or otherwise control the work 

of employees) with respect to an H–2B 

worker or a worker in corresponding 

employment; and 

(3) Possesses, for purposes of filing an 

Application for Temporary Employment 

Certification, a valid Federal Employer 

Identification Number (FEIN). 

Employer-client means an employer 

that has entered into an agreement with 


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a job contractor and that is not an 

affiliate, branch or subsidiary of the job 

contractor, under which the job 

contractor provides services or labor to 

the employer on a temporary basis and 

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

performance of the services or labor to 

be performed other than hiring, paying 

and firing the workers. 

Employment and Training 

Administration (ETA) means the agency 

within the Department which includes 

OFLC and has been delegated authority 

by the Secretary to fulfill the Secretary’s 

mandate under the DHS regulations for 

the administration and adjudication of 

an Application for Temporary 

Employment Certification and related 

functions. 

Federal holiday means a legal public 

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

Full-time means 35 or more hours of 

work per week. 

H–2B Petition means the DHS Petition 

for a Nonimmigrant Worker form, or 

successor form, and accompanying 

documentation required by DHS for 

employers seeking to employ foreign 

persons as H–2B nonimmigrant workers. 

The H–2B Petition includes the 

approved Application for Temporary 

Employment Certification and the Final 

Determination letter. 

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

an employer to register its intent to hire 

H–2B workers and to file an Application 

for Temporary Employment 

Certification. 

H–2B worker means any temporary 

foreign worker who is lawfully present 

in the U.S. and authorized by DHS to 

perform nonagricultural labor or 

services of a temporary or seasonal 

nature under 8 U.S.C. 

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

Job contractor means a person, 

association, firm, or a corporation that 

meets the definition of an employer and 

that contracts services or labor on a 

temporary basis to one or more 

employers, which is not an affiliate, 

branch or subsidiary of the job 

contractor and where the job contractor 

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

performance of the services or labor to 

be performed other than hiring, paying 

and firing the workers. 

Job offer means the offer made by an 

employer or potential employer of H–2B 

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

describing all the material terms and 

conditions of employment, including 

those relating to wages, working 

conditions, and other benefits. 

Job opportunity means one or more 

openings for full-time employment with 

the petitioning employer within a 

specified area(s) of intended 

employment for which the petitioning 

employer is seeking workers. 

Job order means the document 

containing the material terms and 

conditions of employment relating to 

wages, hours, working conditions, 

worksite and other benefits, including 

obligations and assurances under 29 

CFR part 503 and this subpart that is 

posted between and among the State 

Workforce Agencies (SWAs) on their job 

clearance systems. 

Joint employment means that where 

two or more employers each have 

sufficient definitional indicia of being 

an employer to be considered the 

employer of a worker, those employers 

will be considered to jointly employ 

that worker. Each employer in a joint 

employment relationship to a worker is 

considered a joint employer of that 

worker. 

Layoff means any involuntary 

separation of one or more U.S. 

employees without cause. 

Metropolitan Statistical Area (MSA) 

means a geographic entity defined by 

OMB for use by Federal statistical 

agencies in collecting, tabulating, and 

publishing Federal statistics. A metro 

area contains a core urban area of 50,000 

or more population, and a micro area 

contains an urban core of at least 10,000 

(but fewer than 50,000) population. 

Each metro or micro area consists of one 

or more counties and includes the 

counties containing the core urban area, 

as well as any adjacent counties that 

have a high degree of social and 

economic integration (as measured by 

commuting to work) with the urban 

core. 

National Prevailing Wage Center 

(NPWC) means that office within OFLC 

from which employers, agents, or 

attorneys who wish to file an 

Application for Temporary Employment 

Certification receive a prevailing wage 

determination (PWD). 

NPWC Director means the OFLC 

official to whom the Administrator, 

OFLC has delegated authority to carry 

out certain NPWC operations and 

functions. 

National Processing Center (NPC) 

means the office within OFLC which is 

charged with the adjudication of an 

Application for Temporary Employment 

Certification or other applications. For 

purposes of this subpart, the NPC 

receiving a request for an H–2B 

Registration and an Application for 

Temporary Employment Certification is 

the Chicago NPC whose address is 

published in the Federal Register. 

NPC Director means the OFLC official 

to whom the Administrator, OFLC has 

delegated authority for purposes of 

certain Chicago NPC operations and 

functions. 

Non-agricultural labor and services 

means any labor or services not 

considered to be agricultural labor or 

services as defined in subpart B of this 

part. It does not include the provision 

of services as members of the medical 

profession by graduates of medical 

schools. 

Occupational employment statistics 

(OES) survey means the program under 

the jurisdiction of the Bureau of Labor 

Statistics (BLS) that provides annual 

wage estimates for occupations at the 

State and MSA levels. 

Offered wage means the wage offered 

by an employer in an H–2B job order. 

The offered wage must equal or exceed 

the highest of the prevailing wage or 

Federal, State or local minimum wage. 

Office of Foreign Labor Certification 

(OFLC) means the organizational 

component of the ETA that provides 

national leadership and policy guidance 

and develops regulations to carry out 

the Secretary’s responsibilities for the 

admission of foreign workers to the U.S. 

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

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

Prevailing wage determination (PWD) 

means the prevailing wage for the 

position, as described in § 655.10, that 

is the subject of the Application for 

Temporary Employment Certification. 

The PWD is made on ETA Form 9141, 

Application for Prevailing Wage 

Determination. 

Professional athlete is defined in 8 

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

an individual who is employed as an 

athlete by: 

(1) A team that is a member of an 

association of six or more professional 

sports teams whose total combined 

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

the association governs the conduct of 

its members and regulates the contests 

and exhibitions in which its member 

teams regularly engage; or 

(2) Any minor league team that is 

affiliated with such an association. 

Secretary means the Secretary of 

Labor, the chief official of the U.S. 

Department of Labor, or the Secretary’s 

designee. 

Secretary of the Department of 

Homeland Security means the chief 

official of the U.S. Department of 

Homeland Security (DHS) or the 

Secretary of DHS’s designee. 

Secretary of State means the chief 

official of the U.S. Department of State 

or the Secretary of State’s designee. 

State Workforce Agency (SWA) means 

a State government agency that receives 

funds under the Wagner-Peyser Act (29 


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

State’s public labor exchange activities. 

Strike means a concerted stoppage of 

work by employees as a result of a labor 

dispute, or any concerted slowdown or 

other concerted interruption of 

operation (including stoppage by reason 

of the expiration of a collective 

bargaining agreement). 

Successor in interest means: 

(1) Where an employer has violated 

29 CFR part 503, or this subpart, and 

has ceased doing business or cannot be 

located for purposes of enforcement, a 

successor in interest to that employer 

may be held liable for the duties and 

obligations of the violating employer in 

certain circumstances. The following 

factors, as used under Title VII of the 

Civil Rights Act and the Vietnam Era 

Veterans’ Readjustment Assistance Act, 

may be considered in determining 

whether an employer is a successor in 

interest; no one factor is dispositive, but 

all of the circumstances will be 

considered as a whole: 

(i) Substantial continuity of the same 

business operations; 

(ii) Use of the same facilities; 

(iii) Continuity of the work force; 

(iv) Similarity of jobs and working 

conditions; 

(v) Similarity of supervisory 

personnel; 

(vi) Whether the former management 

or owner retains a direct or indirect 

interest in the new enterprise; 

(vii) Similarity in machinery, 

equipment, and production methods; 

(viii) Similarity of products and 

services; and 

(ix) The ability of the predecessor to 

provide relief. 

(2) For purposes of debarment only, 

the primary consideration will be the 

personal involvement of the firm’s 

ownership, management, supervisors, 

and others associated with the firm in 

the violation(s) at issue. 

United States (U.S.) means the 

continental U.S., Alaska, Hawaii, the 

Commonwealth of Puerto Rico, and the 

territories of Guam, the U.S. Virgin 

Islands, and the Commonwealth of the 

Northern Mariana Islands (CNMI). 

United States Citizenship and 

Immigration Services (USCIS) means the 

Federal agency within DHS that makes 

the determination under the INA 

whether to grant petitions filed by 

employers seeking H–2B workers to 

perform temporary non-agricultural 

work in the U.S. 

United States worker (U.S. worker) 

means a worker who is: 

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

(2) An alien who is lawfully admitted 

for permanent residence in the U.S., is 

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

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

1158, or is an immigrant otherwise 

authorized (by the INA or by DHS) to be 

employed in the U.S.; or 

(3) An individual who is not an 

unauthorized alien (as defined in 8 

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

employment in which the worker is 

engaging. 

Wage and Hour Division (WHD) 

means the agency within the 

Department with investigatory and law 

enforcement authority, as delegated 

from DHS, to carry out the provisions 

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

Wages mean all forms of cash 

remuneration to a worker by an 

employer in payment for personal 

services. 

§ 655.6 Temporary need. 

(a) An employer seeking certification 

under this subpart must establish that 

its need for non-agricultural services or 

labor is temporary, regardless of 

whether the underlying job is 

permanent or temporary. 8 CFR 

214.2(h)(6)(ii)(A). 

(b) The employer’s need is considered 

temporary if justified to the CO as one 

of the following: A one-time occurrence; 

a seasonal need; a peakload need; or an 

intermittent need, as defined by DHS. 8 

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

employer’s need is based on a one-time 

occurrence, the CO will deny a request 

for an H–2B Registration or an 

Application for Temporary Employment 

Certification where the employer has a 

need lasting more than 9 months. 

(c) A job contractor will only be 

permitted to seek certification if it can 

demonstrate through documentation its 

own temporary need, not that of its 

employer-client(s). A job contractor will 

only be permitted to file applications 

based on a seasonal need or a one-time 

occurrence. 

■ 3. In subpart A, add §§ 655.7 through 

655.9 to read as follows: 

Subpart A—Labor Certification Process for 

Temporary Non-Agricultural Employment in 

the United States (H–2B Workers) 

* * * * * 

Sec. 

655.7 Persons and entities authorized to 

file. 

655.8 Requirements for agents. 

655.9 Disclosure of foreign worker 

recruitment. 

* * * * * 

§ 655.7 Persons and entities authorized to 

file. 

(a) Persons authorized to file. In 

addition to the employer applicant, a 

request for an H–2B Registration or an 

Application for Temporary Employment 

Certification may be filed by an attorney 

or agent, as defined in § 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. These agreements must 

contain the contractual prohibition 

against charging fees as set forth in 

§ 655.20(p). 

(b) The employer, and its attorney or 

agent, as applicable, must also provide 

the identity and location of all persons 

and entities hired by or working for the 

recruiter or agent referenced in 

paragraph (a) of this section, and any of 

the agents or employees of those 

persons and entities, to recruit 

prospective foreign workers for the 

H–2B job opportunities offered by the 

employer. 

(c) The Department will maintain a 

publicly available list of agents and 

recruiters who are party to the 

agreements referenced in paragraph (a) 

of this section, as well as the persons 

and entities referenced in paragraph (b) 

of this section and the locations in 

which they are operating. 

■ 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), 

(c) through (e), (h), and (i), and add 

paragraphs (j) and (k), to read as follows: 


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§ 655.10 Prevailing wage. 

(a) Offered wage. The employer must 

advertise the position to all potential 

workers at a wage at least equal to the 

prevailing wage obtained from the 

NPWC, or the Federal, State or local 

minimum wage, whichever is highest. 

The employer must offer and pay this 

wage (or higher) to both its H–2B 

workers and its workers in 

corresponding employment. The 

issuance of a PWD under this section 

does not permit an employer to pay a 

wage lower than the highest wage 

required by any applicable Federal, 

State or local law. 

* * * * * 

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

must request and receive a PWD from 

the NPWC before filing the job order 

with the SWA. 

(2) The PWD must be valid on the 

date the job order is posted. 

(d) Multiple worksites. If the job 

opportunity involves multiple worksites 

within an area of intended employment 

and different prevailing wage rates exist 

for the opportunity within the area of 

intended employment, the prevailing 

wage is the highest applicable wage 

among all the worksites. 

(e) NPWC action. The NPWC will 

provide the PWD, indicate the source, 

and return the Application for 

Prevailing Wage Determination (ETA 

Form 9141) with its endorsement to the 

employer. 

* * * * * 

(h) Validity period. The NPWC must 

specify the validity period of the 

prevailing wage, which in no event may 

be more than 365 days and no less than 

90 days from the date that the 

determination is issued. 

(i) Professional athletes. In computing 

the prevailing wage for a professional 

athlete when the job opportunity is 

covered by professional sports league 

rules or regulations, the wage set forth 

in those rules or regulations is 

considered the prevailing wage. 8 U.S.C. 

1182(p)(2). 

(j) Retention of documentation. The 

employer must retain the PWD for 3 

years from the date of issuance or the 

date of a final determination on the 

Application for Temporary Employment 

Certification, whichever is later, and 

submit it to a CO if requested by a 

Notice of Deficiency, described in 

§ 655.31, or audit, as described in 

§ 655.70, or to a WHD representative 

during a WHD investigation. 

(k) Guam. The requirements of this 

paragraph apply to any request filed for 

an H–2B job opportunity on Guam. 

■ 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 

Chicago NPC. 

(a) Registration filing. An employer 

must file an H–2B Registration. The 

H–2B Registration must be accompanied 

by documentation evidencing: 

(1) The number of positions that will 

be sought in the first year of registration; 

(2) The time period of need for the 

workers requested; 

(3) That the nature of the employer’s 

need for the services or labor to be 

performed is non-agricultural and 

temporary, and is justified as either a 

one-time occurrence, a seasonal need, a 

peakload need, or an intermittent need, 

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

and § 655.6 (or in the case of job 

contractors, a seasonal need or one-time 

occurrence); and 

(4) For job contractors, the job 

contractor’s own seasonal need or onetime occurrence, such as through the 

provision of payroll records. 

(b) Original signature. The H–2B 

Registration must bear the original 

signature of the employer (and that of 

the employer’s attorney or agent if 

applicable). If and when the H–2B 

Registration is permitted to be filed 

electronically, the employer will satisfy 

this requirement by signing the H–2B 

Registration as directed by the CO. 

(c) Timeliness of registration filing. A 

completed request for an H–2B 

Registration must be received by no less 

than 120 calendar days and no more 

than 150 calendar days before the 

employer’s date of need, except where 

the employer submits the H–2B 

Registration in support of an emergency 

filing under § 655.17. 

(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). A 

job contractor must also demonstrate 

through documentation its own seasonal 

need or one-time occurrence. 

(2) The employer’s need will be 

assessed in accordance with the 

definitions provided by the Secretary of 

DHS and as further defined in § 655.6. 

(e) NPC review. The CO will review 

the H–2B Registration and its 

accompanying documentation for 

completeness and make a determination 

based on the following factors: 

(1) The job classification and duties 

qualify as non-agricultural; 

(2) The employer’s need for the 

services or labor to be performed is 

temporary in nature, and for job 

contractors, demonstration of the job 

contractor’s own seasonal need or onetime occurrence; 

(3) The number of worker positions 

and period of need are justified; and 

(4) The request represents a bona fide 

job opportunity. 

(f) Mailing and postmark 

requirements. Any notice or request 

pertaining to an H–2B Registration sent 

by the CO to an employer requiring a 

response will be mailed to the address 

provided on the H–2B Registration using 

methods to assure next day delivery, 

including electronic mail. The 

employer’s response to the notice or 

request must be mailed using methods 

to assure next day delivery, including 

electronic mail, and be sent by the due 

date specified by the CO or by the next 

business day if the due date falls on a 

Saturday, Sunday or Federal holiday. 

(g) Request for information (RFI). If 

the CO determines the H–2B 

Registration cannot be approved, the CO 

will issue an RFI. The RFI will be issued 

within 7 business days of the CO’s 

receipt of the H–2B Registration. The 

RFI will: 

(1) State the reason(s) why the H–2B 

Registration cannot be approved and 

what supplemental information or 

documentation is needed to correct the 

deficiencies; 

(2) Specify a date, no later than 7 

business days from the date the RFI is 

issued, by which the supplemental 

information or documentation must be 

sent by the employer; 

(3) State that, upon receipt of a 

response to the RFI, the CO will review 

the H–2B Registration as well as any 

supplemental information and 

documentation and issue a Notice of 

Decision on the 

H–2B Registration. The CO may, at his 

or her discretion, issue one or more 

additional RFIs before issuing a Notice 

of Decision on the H–2B Registration; 

and 

(4) State that failure to comply with 

an RFI, including not responding in a 

timely manner or not providing all 

required documentation within the 

specified timeframe, will result in a 

denial of the H–2B Registration. 

(h) Notice of Decision. The CO will 

notify the employer in writing of the 

final decision on the H–2B Registration. 

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

H–2B Registration is approved, the CO 

will send a Notice of Decision to the 

employer, and a copy to the employer’s 

attorney or agent, if applicable. The 

Notice of Decision will notify the 

employer that it is eligible to seek H–2B 

workers in the occupational 

classification for the anticipated number 

of positions and period of need stated 


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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 within 10 business days from 

the date the Notice of Decision is issued 

and state that if the employer does not 

request administrative review within 

that period the denial is final. 

(i) Retention of documents. All 

employers filing an H–2B Registration 

are required to retain any documents 

and records not otherwise submitted 

proving compliance with this subpart. 

Such records and documents must be 

retained for a period of 3 years from the 

date of certification of the last 

Application for Temporary Employment 

Certification supported by the H–2B 

Registration, if approved, or 3 years 

from the date the decision is issued if 

the H–2B Registration is denied or 3 

years from the day the Department 

receives written notification from the 

employer withdrawing its pending H– 

2B Registration. 

(j) Transition period. In order to allow 

OFLC to make the necessary changes to 

its program operations to accommodate 

the new registration process, OFLC will 

announce in the Federal Register a 

separate transition period for the 

registration process, and until that time, 

will continue to adjudicate temporary 

need during the processing of 

applications. 

■ 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 dates of need for the job 

opportunity have changed by more than 

a total of 30 calendar days from the 

initial year for the entire period of need; 

(3) The nature of the job classification 

and/or duties has materially changed; or 

(4) The temporary nature of the 

employer’s need for services or labor to 

be performed has materially changed. 

(b) If any of the changes in paragraphs 

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

the employer must file a new H–2B 

Registration in accordance with 

§ 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 shall 

issue a Final Determination letter; that 

letter may: 

(1) Affirm the PWD issued by the 

NPWC; or 

(2) Modify the PWD. 

(c) Request for review by BALCA. Any 

employer desiring review of the NPWC 

Director’s decision on a PWD must 

make a written request for review of the 

determination by BALCA within 10 

business days from the date the Final 

Determination letter is issued. 

(1) The request for BALCA review 

must be in writing and addressed to the 

NPWC Director who made the final 

determinations. Upon receipt of a 

request for BALCA review, the NPWC 

will prepare an appeal file and submit 

it to BALCA. 

(2) The request for review, statements, 

briefs, and other submissions of the 

parties must contain only legal 

arguments and may refer to only the 

evidence that was within the record 

upon which the decision on the PWD 

was based. 

(3) BALCA will handle appeals in 

accordance with § 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 (ETA Form 

9142 and the appropriate appendices 

and valid PWD), a copy of the job order 

being submitted concurrently to the 

SWA serving the area of intended 

employment, as set forth in § 655.16, 

and copies of all contracts and 

agreements with any agent and/or 

recruiter, executed in connection with 

the job opportunities and all 

information required, as specified in 

§§ 655.8 and 655.9. 

(b) Timeliness. A completed 

Application for Temporary Employment 

Certification must be filed no more than 

90 calendar days and no less than 75 

calendar days before the employer’s 

date of need. 

(c) Location and method of filing. The 

employer must submit the Application 

for Temporary Employment 

Certification and all required supporting 

documentation to the NPC. At a future 

date the Department may also permit an 

Application for Temporary Employment 

Certification to be filed electronically in 

addition to or instead of by mail. Notice 

of such procedure will be published in 

the Federal Register. 

(d) Original signature. The 

Application for Temporary Employment 

Certification must bear the original 

signature of the employer (and that of 

the employer’s authorized attorney or 

agent if the employer is so represented). 

If and when an Application for 

Temporary Employment Certification is 

permitted to be filed electronically, the 

employer will satisfy this requirement 

by signing the Application for 

Temporary Employment Certification as 

directed by the CO. 

(e) Requests for multiple positions. 

Certification of more than one position 

may be requested on the Application for 

Temporary Employment Certification as 

long as all H–2B workers will perform 

the same services or labor under the 

same terms and conditions, in the same 

occupation, in the same area of intended 

employment, and during the same 

period of employment. 

(f) Separate applications. Only one 

Application for Temporary Employment 

Certification may be filed for worksite(s) 


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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 employer-members 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 recruitment requirements 

with respect to the continuing validity 

of the labor market test or offered wage 

obligation. 

(h) Information dissemination. 

Information received in the course of 

processing a request for an H–2B 

Registration, an Application for 

Temporary Employment Certification or 

program integrity measures such as 

audits may be forwarded from OFLC to 

WHD, or any other Federal agency as 

appropriate, for investigative and/or 

enforcement purposes. 

■ 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) In addition to complying with 

State-specific requirements governing 

job orders, the job order submitted to 

the SWA must satisfy the requirements 

set forth in § 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 6 business days of 

receipt of the job order. 

(c) Intrastate and interstate clearance. 

Upon receipt of the Notice of 

Acceptance, as described in § 655.33, 

the SWA must promptly place the job 

order in intrastate clearance and provide 

to other states as directed by the CO. 

(d) Duration of job order posting and 

SWA referral of U.S. workers. Upon 

receipt of the Notice of Acceptance, any 

SWA in receipt of the employer’s job 

order must keep the job order on its 

active file until the end of the 

recruitment period, as set forth in 

§ 655.40(c), and must refer to the 

employer in a manner consistent with 

§ 655.47 all qualified U.S. workers who 

apply for the job opportunity or on 

whose behalf a job application is made. 

(e) Amendments to a job order. The 

employer may amend the job order at 

any time before the CO makes a final 

determination, in accordance with 

procedures set forth in § 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 proposed 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, or a 

similar unforeseeable man-made 

catastrophic event (such as an oil spill 

or controlled flooding) that is wholly 

outside of the employer’s control, 

unforeseeable changes in market 

conditions, or pandemic health issues. 

A denial of a previously submitted 

H–2B Registration in accordance with 

the procedures set forth in § 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 and 655.19 to read 

as follows: 

§ 655.18 Job order assurances and 

contents. 

(a) General. Each job order placed in 

connection with an Application for 

Temporary Employment Certification 

must at a minimum include the 

information contained in paragraph (b) 

of this section. In addition, by 

submitting the Application for 

Temporary Employment Certification, 

an employer agrees to comply with the 

following assurances with respect to 

each job order: 

(1) Prohibition against preferential 

treatment. The employer’s job order 

must offer to U.S. workers no less than 

the same benefits, wages, and working 

conditions that the employer is offering, 

intends to offer, or will provide to 

H–2B workers. Job offers may not 

impose on U.S. workers any restrictions 

or obligations that will not be imposed 

on the employer’s H–2B workers. This 

does not relieve the employer from 

providing to H–2B workers at least the 

minimum benefits, wages, and working 

conditions which must be offered to 

U.S. workers consistent with this 

section. 

(2) Bona fide job requirements. Each 

job qualification and requirement must 

be listed in the job order and must be 

bona fide and consistent with the 

normal and accepted qualifications and 

requirements imposed by non-H–2B 

employers in the same occupation and 

area of intended employment. 


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(b) Contents. In addition to complying 

with the assurances in paragraph (a) of 

this section, the employer’s job order 

must meet the following requirements: 

(1) State the employer’s name and 

contact information; 

(2) Indicate that the job opportunity is 

a temporary, full-time position, 

including the total number of job 

openings the employer intends to fill; 

(3) Describe the job opportunity for 

which certification is sought with 

sufficient information to apprise U.S. 

workers of the services or labor to be 

performed, including the duties, the 

minimum education and experience 

requirements, the work hours and days, 

and the anticipated start and end dates 

of the job opportunity; 

(4) Indicate the geographic area of 

intended employment with enough 

specificity to apprise applicants of any 

travel requirements and where 

applicants will likely have to reside to 

perform the services or labor; 

(5) Specify the wage that the employer 

is offering, intends to offer, or will 

provide to H–2B workers, or, in the 

event that there are multiple wage offers 

(such as where an itinerary is 

authorized through special procedures 

for an employer), the range of wage 

offers, and ensure that the wage offer 

equals or exceeds the highest of the 

prevailing wage or the Federal, State, or 

local minimum wage; 

(6) If applicable, specify that overtime 

will be available to the worker and the 

wage offer(s) for working any overtime 

hours; 

(7) If applicable, state that on-the-job 

training will be provided to the worker; 

(8) State that the employer will use a 

single workweek as its standard for 

computing wages due; 

(9) Specify the frequency with which 

the worker will be paid, which must be 

at least every 2 weeks or according to 

the prevailing practice in the area of 

intended employment, whichever is 

more frequent; 

(10) If the employer provides the 

worker with the option of board, 

lodging, or other facilities, including 

fringe benefits, or intends to assist 

workers to secure such lodging, disclose 

the provision and cost of the board, 

lodging, or other facilities, including 

fringe benefits or assistance to be 

provided; 

(11) State that the employer will make 

all deductions from the worker’s 

paycheck required by law. Specify any 

deductions the employer intends to 

make from the worker’s paycheck which 

are not required by law, including, if 

applicable, any deductions for the 

reasonable cost of board, lodging, or 

other facilities; 

(12) Detail how the worker will be 

provided with or reimbursed for 

transportation and subsistence from the 

place from which the worker has come 

to work for the employer, whether in the 

U.S. or abroad, to the place of 

employment, if the worker completes 

50 percent of the period of employment 

covered by the job order, consistent 

with § 655.20(j)(1)(i); 

(13) State that the employer will 

provide or pay for the worker’s cost of 

return transportation and daily 

subsistence from the place of 

employment to the place from which 

the worker, disregarding intervening 

employment, departed to work for the 

employer, if the worker completes the 

certified period of employment or is 

dismissed from employment for any 

reason by the employer before the end 

of the period, consistent with 

§ 655.20(j)(1)(ii); 

(14) If applicable, state that the 

employer will provide daily 

transportation to and from the worksite; 

(15) State that the employer will 

reimburse the H–2B worker in the first 

workweek for all visa, visa processing, 

border crossing, and other related fees, 

including those mandated by the 

government, incurred by the H–2B 

worker (but need not include passport 

expenses or other charges primarily for 

the benefit of the worker); 

(16) State that the employer will 

provide to the worker, without charge or 

deposit charge, all tools, supplies, and 

equipment required to perform the 

duties assigned, in accordance with 

§ 655.20(k); 

(17) State the applicability of the 

three-fourths guarantee, offering the 

worker employment for a total number 

of work hours equal to at least threefourths of the workdays of each 12-week 

period, if the period of employment 

covered by the job order is 120 or more 

days, or each 6-week period, if the 

period of employment covered by the 

job order is less than 120 days, in 

accordance with § 655.20(f); and 

(18) Instruct applicants to inquire 

about the job opportunity or send 

applications, indications of availability, 

and/or resumes directly to the nearest 

office of the SWA in the State in which 

the advertisement appeared and include 

the SWA contact information. 

§ 655.19 Job contractor filing 

requirements. 

(a) Provided that a job contractor and 

any employer-client are joint employers, 

a job contractor may submit an 

Application for Temporary Employment 

Certification on behalf of itself and that 

employer-client. 

(b) A job contractor must have 

separate contracts with each different 

employer-client. Each contract or 

agreement may support only one 

Application for Temporary Employment 

Certification for each employer-client 

job opportunity within a single area of 

intended employment. 

(c) Either the job contractor or its 

employer-client may submit an ETA 

Form 9141, Application for Prevailing 

Wage Determination, describing the job 

opportunity to the NPWC. However, 

each of the joint employers is separately 

responsible for ensuring that the wage 

offer listed on the Application for 

Temporary Employment Certification, 

ETA Form 9142, and related recruitment 

at least equals the prevailing wage rate 

determined by the NPWC and that all 

other wage obligations are met. 

(d)(1) A job contractor that is filing as 

a joint employer with its employerclient must submit to the NPC a 

completed Application for Temporary 

Employment Certification, ETA Form 

9142, that clearly identifies the joint 

employers (the job contractor and its 

employer-client) and the employment 

relationship (including the actual 

worksite), in accordance with the 

instructions provided by the 

Department. The Application for 

Temporary Employment Certification 

must bear the original signature of the 

job contractor and the employer-client 

and be accompanied by a recruitment 

report bearing both joint employers’ 

signatures and the contract or agreement 

establishing the employers’ relationship 

related to the workers sought. 

(2) By signing the Application for 

Temporary Employment Certification, 

each employer independently attests to 

the conditions of employment required 

of an employer participating in the H– 

2B program and assumes full 

responsibility for the accuracy of the 

representations made in the application 

and for all of the responsibilities of an 

employer in the H–2B program. 

(e)(1) Either the job contractor or its 

employer-client may place the required 

job order and conduct recruitment as 

described in § 655.16 and §§ 655.42–46. 

Also, either one of the joint employers 

may assume responsibility for 

interviewing applicants. However, both 

of the joint employers must sign the 

recruitment report that is submitted to 

the NPC with the Application for 

Temporary Employment Certification, 

ETA Form 9142. 

(2) The job order and all recruitment 

conducted by joint employers must 

satisfy the content requirements 

identified in § 655.18 and § 655.41. 

Additionally, in order to fully apprise 

applicants of the job opportunity and 


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10156 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

avoid potential confusion inherent in a 

job opportunity involving two 

employers, joint employer recruitment 

must clearly identify both employers 

(the job contractor and its employerclient) by name and must clearly 

identify the worksite location(s) where 

workers will perform labor or services. 

(3)(i) Provided that all of the 

employer-clients’ job opportunities are 

in the same occupation and area of 

intended employment and have the 

same requirements and terms and 

conditions of employment, including 

dates of employment, a job contractor 

may combine more than one of its joint 

employer employer-clients’ job 

opportunities in a single advertisement. 

Each advertisement must fully apprise 

potential workers of the job opportunity 

available with each employer-client and 

otherwise satisfy the advertising content 

requirements required for all H–2Brelated advertisements, as identified in 

§ 655.41. Such a shared advertisement 

must clearly identify the job contractor 

by name, the joint employment 

relationship, and the number of workers 

sought for each job opportunity, 

identified by employer-client name and 

location (e.g. 5 openings with EmployerClient 1 (worksite location), 3 openings 

with Employer-Client 2 (worksite 

location)). 

(ii) In addition, the advertisement 

must contain the following statement: 

‘‘Applicants may apply for any or all of 

the jobs listed. When applying, please 

identify the job(s) (by company and 

work location) you are applying to for 

the entire period of employment 

specified.’’ If an applicant fails to 

identify one or more specific work 

location(s), that applicant is presumed 

to have applied to all work locations 

listed in the advertisement. 

(f) If an application for joint 

employers is approved, the NPC will 

issue one certification and send it to the 

job contractor. In order to ensure notice 

to both employers, a courtesy copy of 

the certification cover letter will be sent 

to the employer-client. 

(g) When submitting a certified 

Application for Temporary Employment 

Certification to USCIS, the job 

contractor should submit the complete 

ETA Form 9142 containing the original 

signatures of both the job contractor and 

employer-client. 

■ 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 with respect to its 

H–2B workers and any workers in 

corresponding employment: 

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

in the job order equals or exceeds the 

highest of the prevailing wage or 

Federal minimum wage, State minimum 

wage, or local minimum wage. The 

employer must pay at least the offered 

wage, free and clear, during the entire 

period of the Application for Temporary 

Employment Certification granted by 

OFLC. 

(2) The offered wage is not based on 

commissions, bonuses, or other 

incentives, including paying on a 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 the 

employer must demonstrate that they 

are normal and usual for non-H–2B 

employers for the same occupation in 

the area of intended employment. 

(4) An employer that pays on a piecerate basis must demonstrate that the 

piece rate is no less than the normal rate 

paid by non-H–2B employers to workers 

performing the same activity in the area 

of intended employment. The average 

hourly piece rate earnings must result in 

an amount at least equal to the offered 

wage. If the worker is paid on a piece 

rate basis and at the end of the 

workweek the piece rate does not result 

in average hourly piece rate earnings 

during the workweek at least equal to 

the amount the worker would have 

earned had the worker been paid at the 

offered hourly wage, then the employer 

must supplement the worker’s pay at 

that time so that the worker’s earnings 

are at least as much as the worker would 

have earned during the workweek if the 

worker had instead been paid at the 

offered hourly wage for each hour 

worked. 

(b) Wages free and clear. The payment 

requirements for wages in this section 

will be satisfied by the timely payment 

of such wages to the worker either in 

cash or negotiable instrument payable at 

par. The payment must be made finally 

and unconditionally and ‘‘free and 

clear.’’ The principles applied in 

determining whether deductions are 

reasonable and payments are received 

free and clear and the permissibility of 

deductions for payments to third 

persons are explained in more detail in 

29 CFR part 531. 

(c) Deductions. The employer must 

make all deductions from the worker’s 

paycheck required by law. The job order 

must specify all deductions not required 

by law which the employer will make 

from the worker’s pay; any such 

deductions not disclosed in the job 

order are prohibited. The wage payment 

requirements of paragraph (b) of this 

section are not met where unauthorized 

deductions, rebates, or refunds reduce 

the wage payment made to the worker 

below the minimum amounts required 

by the offered wage or where the worker 

fails to receive such amounts free and 

clear because the worker ‘‘kicks back’’ 

directly or indirectly to the employer or 

to another person for the employer’s 

benefit the whole or part of the wages 

delivered to the worker. Authorized 

deductions are limited to: Those 

required by law, such as taxes payable 

by workers that are required to be 

withheld by the employer and amounts 

due workers which the employer is 

required by court order to pay to 

another; deductions for the reasonable 

cost or fair value of board, lodging, and 

facilities furnished; and deductions of 

amounts which are authorized to be 

paid to third persons for the worker’s 

account and benefit through his or her 

voluntary assignment or order or which 

are authorized by a collective bargaining 

agreement with bona fide 

representatives of workers which covers 

the employer. Deductions for amounts 

paid to third persons for the worker’s 

account and benefit which are not so 

authorized or are contrary to law or 

from which the employer, agent or 

recruiter including any agents or 

employees of these entities, or any 

affiliated person derives any payment, 

rebate, commission, profit, or benefit 

directly or indirectly, may not be made 

if they reduce the actual wage paid to 

the worker below the offered wage 

indicated on the Application for 

Temporary Employment Certification. 

(d) Job opportunity is full-time. The 

job opportunity is a full-time temporary 

position, consistent with § 655.5, and 

the employer must use a single 

workweek as its standard for computing 

wages due. An employee’s workweek 

must be a fixed and regularly recurring 

period of 168 hours—seven consecutive 

24-hour periods. It need not coincide 

with the calendar week but may begin 

on any day and at any hour of the day. 

(e) Job qualifications and 

requirements. Each job qualification and 


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requirement must be listed in the job 

order and must be bona fide and 

consistent with the normal and accepted 

qualifications and requirements 

imposed by non-H–2B employers in the 

same occupation and area of intended 

employment. The employer’s job 

qualifications and requirements 

imposed on U.S. workers must be no 

less favorable than the qualifications 

and requirements that the employer is 

imposing or will impose on H–2B 

workers. A qualification means a 

characteristic that is necessary to the 

individual’s ability to perform the job in 

question. A requirement means a term 

or condition of employment which a 

worker is required to accept in order to 

obtain the job opportunity. The CO may 

require the employer to submit 

documentation to substantiate the 

appropriateness of any job qualification 

and/or requirement specified in the job 

order. 

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

employer must guarantee to offer the 

worker employment for a total number 

of work hours equal to at least threefourths of the workdays in each 12-week 

period (each 6-week period if the period 

of employment covered by the job order 

is less than 120 days) beginning with 

the first workday after the arrival of the 

worker at the place of employment or 

the advertised first date of need, 

whichever is later, and ending on the 

expiration date specified in the job 

order or in its extensions, if any. See the 

exception in paragraph (y) of this 

section. 

(2) For purposes of this paragraph a 

workday means the number of hours in 

a workday as stated in the job order. The 

employer must offer a total number of 

hours of work to ensure the provision of 

sufficient work to reach the threefourths guarantee in each 12-week 

period (each 6-week period if the period 

of employment covered by the job order 

is less than 120 days) during the work 

period specified in the job order, or 

during any modified job order period to 

which the worker and employer have 

mutually agreed and that has been 

approved by the CO. 

(3) In the event the worker begins 

working later than the specified 

beginning date the guarantee period 

begins with the first workday after the 

arrival of the worker at the place of 

employment, and continues until the 

last day during which the job order and 

all extensions thereof are in effect. 

(4) The 12-week periods (6-week 

periods if the period of employment 

covered by the job order is less than 120 

days) to which the guarantee applies are 

based upon the workweek used by the 

employer for pay purposes. The first 

12-week period (or 6-week period, as 

appropriate) also includes any partial 

workweek, if the first workday after the 

worker’s arrival at the place of 

employment is not the beginning of the 

employer’s workweek, with the 

guaranteed number of hours increased 

on a pro rata basis (thus, the first period 

may include up to 12 weeks and 6 days 

(or 6 weeks and 6 days, as appropriate)). 

The final 12-week period (or 6-week 

period, as appropriate) includes any 

time remaining after the last full 

12-week period (or 6-week period) ends, 

and thus may be as short as 1 day, with 

the guaranteed number of hours 

decreased on a pro rata basis. 

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

order is for a 32-week period (a period 

greater than 120 days), during which the 

normal workdays and work hours for 

the workweek are specified as 5 days a 

week, 7 hours per day, the worker 

would have to be guaranteed 

employment for at least 315 hours (12 

weeks × 35 hours/week = 420 hours × 

75 percent = 315) in the first 12-week 

period, at least 315 hours in the second 

12-week period, and at least 210 hours 

(8 weeks × 35 hours/week = 280 hours 

× 75 percent = 210) in the final partial 

period. If the job order is for a 16-week 

period (less than 120 days), during 

which the normal workdays and work 

hours for the workweek are specified as 

5 days a week, 7 hours per day, the 

worker would have to be guaranteed 

employment for at least 157.5 hours (6 

weeks × 35 hours/week = 210 hours × 

75 percent = 157.5) in the first 6-week 

period, at least 157.5 hours in the 

second 6-week period, and at least 105 

hours (4 weeks × 35 hours/week = 140 

hours × 75 percent = 105) in the final 

partial period. 

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

basis, the employer must use the 

worker’s average hourly piece rate 

earnings or the offered wage, whichever 

is higher, to calculate the amount due 

under the guarantee. 

(7) A worker may be offered more 

than the specified hours of work on a 

single workday. For purposes of meeting 

the guarantee, however, the worker will 

not be required to work for more than 

the number of hours specified in the job 

order for a workday. The employer, 

however, may count all hours actually 

worked in calculating whether the 

guarantee has been met. If during any 

12-week period (6-week period if the 

period of employment covered by the 

job order is less than 120 days) during 

the period of the job order the employer 

affords the U.S. or H–2B worker less 

employment than that required under 

paragraph (f)(1) of this section, the 

employer must pay such worker the 

amount the worker would have earned 

had the worker, in fact, worked for the 

guaranteed number of days. An 

employer has not met the work 

guarantee if the employer has merely 

offered work on three-fourths of the 

workdays in an 12-week period (or 6- 

week period, as appropriate) if each 

workday did not consist of a full 

number of hours of work time as 

specified in the job order. 

(8) Any hours the worker fails to 

work, up to a maximum of the number 

of hours specified in the job order for a 

workday, when the worker has been 

offered an opportunity to work in 

accordance with paragraph (f)(1) of this 

section, and all hours of work actually 

performed (including voluntary work 

over 8 hours in a workday), may be 

counted by the employer in calculating 

whether each 12-week period (or 6-week 

period, as appropriate) of guaranteed 

employment has been met. An employer 

seeking to calculate whether the 

guaranteed number of hours has been 

met must maintain the payroll records 

in accordance with this part. 

(g) Impossibility of fulfillment. If, 

before the expiration date specified in 

the job order, the services of the worker 

are no longer required for reasons 

beyond the control of the employer due 

to fire, weather, or other Act of God, or 

similar unforeseeable man-made 

catastrophic event (such as an oil spill 

or controlled flooding) that is wholly 

outside the employer’s control that 

makes the fulfillment of the job order 

impossible, the employer may terminate 

the job order with the approval of the 

CO. In the event of such termination of 

a job order, the employer must fulfill a 

three-fourths guarantee, as described in 

paragraph (f) of this section, for the time 

that has elapsed from the start date 

listed in the job order or the first 

workday after the arrival of the worker 

at the place of employment, whichever 

is later, to the time of its termination. 

The employer must make efforts to 

transfer the H–2B worker or worker in 

corresponding employment to other 

comparable employment acceptable to 

the worker and consistent with the INA, 

as applicable. If a transfer is not 

effected, the employer must return the 

worker, at the employer’s expense, to 

the place from which the worker 

(disregarding intervening employment) 

came to work for the employer, or 

transport the worker to the worker’s 

next certified H–2B employer, 

whichever the worker prefers. 

(h) Frequency of pay. The employer 

must state in the job order the frequency 

with which the worker will be paid, 

which must be at least every 2 weeks or 

according to the prevailing practice in 


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10158 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

the area of intended employment, 

whichever is more frequent. Employers 

must pay wages when due. 

(i) Earnings statements. (1) The 

employer must keep accurate and 

adequate records with respect to the 

workers’ earnings, including but not 

limited to: Records showing the nature, 

amount and location(s) of the work 

performed; the number of hours of work 

offered each day by the employer 

(broken out by hours offered both in 

accordance with and over and above the 

three-fourths guarantee in paragraph (f) 

of this section); the hours actually 

worked each day by the worker; if the 

number of hours worked by the worker 

is less than the number of hours offered, 

the reason(s) the worker did not work; 

the time the worker began and ended 

each workday; the rate of pay (both 

piece rate and hourly, if applicable); the 

worker’s earnings per pay period; the 

worker’s home address; and the amount 

of and reasons for any and all 

deductions taken from or additions 

made to the worker’s wages. 

(2) The employer must furnish to the 

worker on or before each payday in one 

or more written statements the 

following information: 

(i) The worker’s total earnings for 

each workweek in the pay period; 

(ii) The worker’s hourly rate and/or 

piece rate of pay; 

(iii) For each workweek in the pay 

period the hours of employment offered 

to the worker (showing offers in 

accordance with the three-fourths 

guarantee as determined in paragraph (f) 

of this section, separate from any hours 

offered over and above the guarantee); 

(iv) For each workweek in the pay 

period the hours actually worked by the 

worker; 

(v) An itemization of all deductions 

made from or additions made to the 

worker’s wages; 

(vi) If piece rates are used, the units 

produced daily; 

(vii) The beginning and ending dates 

of the pay period; and 

(viii) The employer’s name, address 

and FEIN. 

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

Transportation to the place of 

employment. The employer must 

provide or reimburse the worker for 

transportation and subsistence from the 

place from which the worker has come 

to work for the employer, whether in the 

U.S. or abroad, to the place of 

employment if the worker completes 50 

percent of the period of employment 

covered by the job order (not counting 

any extensions). The employer may 

arrange and pay for the transportation 

and subsistence directly, advance at a 

minimum the most economical and 

reasonable common carrier cost of the 

transportation and subsistence to the 

worker before the worker’s departure, or 

pay the worker for the reasonable costs 

incurred by the worker. When it is the 

prevailing practice of non-H–2B 

employers in the occupation in the area 

to do so or when the employer extends 

such benefits to similarly situated H–2B 

workers, the employer must advance the 

required transportation and subsistence 

costs (or otherwise provide them) to 

workers in corresponding employment 

who are traveling to the employer’s 

worksite. The amount of the 

transportation payment must be no less 

(and is not required to be more) than the 

most economical and reasonable 

common carrier transportation charges 

for the distances involved. The amount 

of the daily subsistence must be at least 

the amount permitted in § 655.173 of 

subpart B of this part. Where the 

employer will reimburse the reasonable 

costs incurred by the worker, it must 

keep accurate and adequate records of: 

The cost of transportation and 

subsistence incurred by the worker; the 

amount reimbursed; and the dates of 

reimbursement. Note that the FLSA 

applies independently of the H–2B 

requirements and imposes obligations 

on employers regarding payment of 

wages. 

(ii) Transportation from the place of 

employment. If the worker completes 

the period of employment covered by 

the job order (not counting any 

extensions), or if the worker is 

dismissed from employment for any 

reason by the employer before the end 

of the period, and the worker has no 

immediate subsequent H–2B 

employment, the employer must 

provide or pay at the time of departure 

for the worker’s cost of return 

transportation and daily subsistence 

from the place of employment to the 

place from which the worker, 

disregarding intervening employment, 

departed to work for the employer. If the 

worker has contracted with a 

subsequent employer that has not 

agreed in the job order to provide or pay 

for the worker’s transportation from the 

employer’s worksite to such subsequent 

employer’s worksite, the employer must 

provide or pay for that transportation 

and subsistence. If the worker has 

contracted with a subsequent employer 

that has agreed in the job order to 

provide or pay for the worker’s 

transportation from the employer’s 

worksite to such subsequent employer’s 

worksite, the subsequent employer must 

provide or pay for such expenses. 

(iii) Employer-provided 

transportation. All employer-provided 

transportation must comply with all 

applicable Federal, State, and local laws 

and regulations and must provide, at a 

minimum, the same vehicle safety 

standards, driver licensure 

requirements, and vehicle insurance as 

required under 49 CFR parts 390, 393, 

and 396. 

(iv) Disclosure. All transportation and 

subsistence costs that the employer will 

pay must be disclosed in the job order. 

(2) The employer must pay or 

reimburse the worker in the first 

workweek for all visa, visa processing, 

border crossing, and other related fees 

(including those mandated by the 

government) incurred by the H–2B 

worker, but not for passport expenses or 

other charges primarily for the benefit of 

the worker. 

(k) Employer-provided items. The 

employer must provide to the worker, 

without charge or deposit charge, all 

tools, supplies, and equipment required 

to perform the duties assigned. 

(l) Disclosure of job order. The 

employer must provide to an H–2B 

worker if outside of the U.S. no later 

than the time at which the worker 

applies for the visa, or to a worker in 

corresponding employment no later 

than on the day work commences, a 

copy of the job order including any 

subsequent approved modifications. For 

an H–2B worker changing employment 

from an H–2B employer to a subsequent 

H–2B employer, the copy must be 

provided no later than the time an offer 

of employment is made by the 

subsequent H–2B employer. The 

disclosure of all documents required by 

this paragraph must be provided in a 

language understood by the worker, as 

necessary or reasonable. 

(m) Notice of worker rights. The 

employer must post and maintain in a 

conspicuous location at the place of 

employment a poster provided by the 

Department which sets out the rights 

and protections for H–2B workers and 

workers in corresponding employment. 

The employer must post the poster in 

English. To the extent necessary, the 

employer must request and post 

additional posters, as made available by 

the Department, in any language 

common to a significant portion of the 

workers if they are not fluent in English. 

(n) No unfair treatment. The employer 

has not and will not intimidate, 

threaten, restrain, coerce, blacklist, 

discharge or in any manner discriminate 

against, and has not and will not cause 

any person to intimidate, threaten, 

restrain, coerce, blacklist, discharge, or 

in any manner discriminate against, any 

person who has: 

(1) Filed a complaint under or related 

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


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this subpart, or any other Department 

regulation promulgated thereunder; 

(2) Instituted or caused to be 

instituted any proceeding under or 

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

503, or this subpart or any other 

Department regulation promulgated 

thereunder; 

(3) Testified or is about to testify in 

any proceeding under or related to 8 

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

subpart or any other Department 

regulation promulgated thereunder; 

(4) Consulted with a workers’ center, 

community organization, labor union, 

legal assistance program, or an attorney 

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

29 CFR part 503, or this subpart or any 

other Department regulation 

promulgated thereunder; or 

(5) Exercised or asserted on behalf of 

himself/herself or others any right or 

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

29 CFR part 503, or this subpart or any 

other Department regulation 

promulgated thereunder. 

(o) Comply with the prohibitions 

against employees paying fees. The 

employer and its attorney, agents, or 

employees have not sought or received 

payment of any kind from the worker 

for any activity related to obtaining H– 

2B labor certification or employment, 

including payment of the employer’s 

attorney or agent fees, application and 

H–2B Petition fees, recruitment costs, or 

any fees attributed to obtaining the 

approved Application for Temporary 

Employment Certification. For purposes 

of this paragraph, payment includes, but 

is not limited to, monetary payments, 

wage concessions (including deductions 

from wages, salary, or benefits), 

kickbacks, bribes, tributes, in kind 

payments, and free labor. All wages 

must be paid free and clear. This 

provision does not prohibit employers 

or their agents from receiving 

reimbursement for costs that are the 

responsibility and primarily for the 

benefit of the worker, such as 

government-required passport fees. 

(p) Contracts with third parties to 

comply with prohibitions. The employer 

must contractually prohibit in writing 

any agent or recruiter (or any agent or 

employee of such agent or recruiter) 

whom the employer engages, either 

directly or indirectly, in international 

recruitment of H–2B workers to seek or 

receive payments or other compensation 

from prospective workers. The contract 

must include the following statement: 

‘‘Under this agreement, [name of agent, 

recruiter] and any agent of or employee 

of [name of agent or recruiter] are 

prohibited from seeking or receiving 

payments from any prospective 

employee of [employer name] at any 

time, including before or after the 

worker obtains employment. Payments 

include but are not limited to, any direct 

or indirect fees paid by such employees 

for recruitment, job placement, 

processing, maintenance, attorneys’ 

fees, agent fees, application fees, or 

petition fees.’’ 

(q) Prohibition against preferential 

treatment of foreign workers. The 

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

workers no less than the same benefits, 

wages, and working conditions that the 

employer is offering, intends to offer, or 

will provide to H–2B workers. Job offers 

may not impose on U.S. workers any 

restrictions or obligations that will not 

be imposed on the employer’s H–2B 

workers. This does not relieve the 

employer from providing to H–2B 

workers at least the minimum benefits, 

wages, and working conditions which 

must be offered to U.S. workers 

consistent with this section. 

(r) Non-discriminatory hiring 

practices. The job opportunity is, and 

through the period set forth in 

paragraph (t) of this section must 

continue to be, open to any qualified 

U.S. worker regardless of race, color, 

national origin, age, sex, religion, 

disability, or citizenship. Rejections of 

any U.S. workers who applied or apply 

for the job must only be for lawful, 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 directed by the 

CO, and as specified in §§ 655.40– 

655.46. 

(t) Continuing requirement to hire 

U.S. workers. The employer has and 

will continue to cooperate with the 

SWA by accepting referrals of all 

qualified U.S. workers who apply (or on 

whose behalf a job application is made) 

for the job opportunity, and must 

provide employment to any qualified 

U.S. worker who applies to the 

employer for the job opportunity, until 

21 days before the date of need. 

(u) No strike or lockout. There is no 

strike or lockout at any of the 

employer’s worksites within the area of 

intended employment for which the 

employer is requesting H–2B 

certification at the time the Application 

for Temporary Employment 

Certification is filed. 

(v) No recent or future layoffs. The 

employer has not laid off and will not 

lay off any similarly employed U.S. 

worker in the occupation that is the 

subject of the Application for 

Temporary Employment Certification in 

the area of intended employment within 

the period beginning 120 calendar days 

before the date of need through the end 

of the period of certification. A layoff for 

lawful, job-related reasons such as lack 

of work or the end of a season is 

permissible if all H–2B workers are laid 

off before any U.S. worker in 

corresponding employment. 

(w) Contact with former U.S. 

employees. The employer will contact 

(by mail or other effective means) its 

former U.S. workers, including those 

who have been laid off within 120 

calendar days before the date of need 

(except those who were dismissed for 

cause or who abandoned the worksite), 

employed by the employer in the 

occupation at the place of employment 

during the previous year, disclose the 

terms of the job order, and solicit their 

return to the job. 

(x) Area of intended employment and 

job opportunity. The employer must not 

place any H–2B workers employed 

under the approved Application for 

Temporary Employment Certification 

outside the area of intended 

employment or in a job opportunity not 

listed on the approved Application for 

Temporary Employment Certification 

unless the employer has obtained a new 

approved Application for Temporary 

Employment Certification. 

(y) Abandonment/termination of 

employment. Upon the separation from 

employment of worker(s) employed 

under the Application for Temporary 

Employment Certification or workers in 

corresponding employment, if such 

separation occurs before the end date of 

the employment specified in the 

Application for Temporary Employment 

Certification, the employer must notify 

OFLC in writing of the separation from 

employment not later than 2 work days 

after such separation is discovered by 

the employer. In addition, the employer 

must notify DHS in writing (or any other 

method specified by the Department or 

DHS in the Federal Register or the Code 

of Federal Regulations) of such 

separation of an H–2B worker. An 

abandonment or abscondment is 

deemed to begin after a worker fails to 

report for work at the regularly 

scheduled time for 5 consecutive 

working days without the consent of the 

employer. If the separation is due to the 

voluntary abandonment of employment 

by the H–2B worker or worker in 

corresponding employment, and the 

employer provides appropriate 

notification specified under this 

paragraph, the employer will not be 

responsible for providing or paying for 


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10160 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

the subsequent transportation and 

subsistence expenses of that worker 

under this section, and that worker is 

not entitled to the three-fourths 

guarantee described in paragraph (f) of 

this section. The employer’s obligation 

to guarantee three-fourths of the work 

described in paragraph (f) ends with the 

last full 12-week period (or 6-week 

period, as appropriate) preceding the 

worker’s voluntary abandonment or 

termination for cause. 

(z) Compliance with applicable laws. 

During the period of employment 

specified on the Application for 

Temporary Employment Certification, 

the employer must comply with all 

applicable Federal, State and local 

employment-related laws and 

regulations, including health and safety 

laws. In compliance with such laws, 

including the William Wilberforce 

Trafficking Victims Protection 

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

1592(a), neither the employer nor the 

employer’s agents or attorneys may hold 

or confiscate workers’ passports, visas, 

or other immigration documents. 

(aa) Disclosure of foreign worker 

recruitment. The employer, and its 

attorney or agent, as applicable, must 

comply with § 655.9 by providing a 

copy of all agreements with any agent or 

recruiter whom it engages or plans to 

engage in the international recruitment 

of H–2B workers, and the identity and 

location of the persons or entities hired 

by or working for the agent or recruiter 

and any of the agents or employees of 

those persons and entities, to recruit 

foreign workers. Pursuant to § 655.15(a), 

the agreements and information must be 

filed with the Application for 

Temporary Employment Certification. 

§§ 655.21–655.24 [Removed and Reserved] 

■ 13. Remove and reserve §§ 655.21 

through 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: 

Subpart A—Labor Certification Process for 

Temporary Non-Agricultural Employment in 

the United States (H–2B Workers) 

* * * * * 

Sec. 

655.30 Processing of an application and job 

order. 

655.31 Notice of deficiency. 

655.32 Submission of a modified 

application or job order. 

655.33 Notice of acceptance. 

655.34 Electronic job registry. 

655.35 Amendments to an application or 

job order. 

* * * * * 

§ 655.30 Processing of an application and 

job order. 

(a) NPC review. The CO will review 

the Application for Temporary 

Employment Certification and job order 

for compliance with all applicable 

program requirements. 

(b) Mailing and postmark 

requirements. Any notice or request sent 

by the CO to an employer requiring a 

response will be mailed to the address 

provided in the Application for 

Temporary Employment Certification 

using methods to assure next day 

delivery, including electronic mail. The 

employer’s response to such a notice or 

request must be mailed using methods 

to assure next day delivery, including 

electronic mail, and be sent by the due 

date or the next business day if the due 

date falls on a Saturday, Sunday or 

Federal holiday. 

(c) Information dissemination. OFLC 

may forward information received in the 

course of processing an Application for 

Temporary Employment Certification 

and program integrity measures to 

WHD, or any other Federal agency, as 

appropriate, for investigation and/or 

enforcement purposes. 

§ 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 of 

Deficiency will: 

(1) State the reason(s) why the 

Application for Temporary Employment 

Certification or job order fails to meet 

the criteria for acceptance and state the 

modification needed for the CO to issue 

a Notice of Acceptance; 

(2) Offer the employer an opportunity 

to submit a modified Application for 

Temporary Employment Certification or 

job order within 10 business days from 

the date of the Notice of Deficiency. The 

Notice will state the modification 

needed for the CO to issue a Notice of 

Acceptance; 

(3) Offer the employer an opportunity 

to request administrative review of the 

Notice of Deficiency before an ALJ 

under provisions set forth in § 655.61. 

The notice will inform the employer 

that it must submit a written request for 

review to the Chief ALJ of DOL within 

10 business days from the date the 

Notice of Deficiency is issued by 

facsimile or other means normally 

assuring next day delivery, and that the 

employer must simultaneously serve a 

copy on the CO. The notice will also 

state that the employer may submit any 

legal arguments that the employer 

believes will rebut the basis of the CO’s 

action; and 

(4) State that if the employer does not 

comply with the requirements of this 

section by either submitting a modified 

application within 10 business days or 

requesting administrative review before 

an ALJ under § 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 

issue one or more additional Notices of 

Deficiency before issuing a Notice of 

Decision. The employer’s failure to 

comply with a Notice of Deficiency, 

including not responding in a timely 

manner or not providing all required 

documentation, will result in a denial of 

the Application for Temporary 

Employment Certification. 

(b) Acceptance of a modified 

Application for Temporary Employment 

Certification or job order. If the CO 

accepts the modification(s) to the 

Application for Temporary Employment 

Certification and/or job order, the CO 

will issue a Notice of Acceptance to the 

employer. The CO will send a copy of 

the Notice of Acceptance to the SWA 

instructing it to make any necessary 

modifications to the not yet posted job 

order and, if applicable, to the 

employer’s attorney or agent, and follow 

the procedure set forth in § 655.33. 

(c) Denial of a modified Application 

for Temporary Employment 

Certification or job order. If the CO finds 


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the response to Notice of Deficiency 

unacceptable, the CO will deny the 

Application for Temporary Employment 

Certification in accordance with the 

labor certification determination 

provisions in § 655.51. 

(d) Appeal from denial of a modified 

Application for Temporary Employment 

Certification or job order. The 

procedures for appealing a denial of a 

modified Application for Temporary 

Employment Certification and/or job 

order are the same as for appealing the 

denial of a non-modified Application 

for Temporary Employment 

Certification outlined in § 655.61. 

(e) Post acceptance modifications. 

Irrespective of the decision to accept the 

Application for Temporary Employment 

Certification, the CO may require 

modifications to the job order at any 

time before the final determination to 

grant or deny the Application for 

Temporary Employment Certification if 

the CO determines that the offer of 

employment does not contain all the 

minimum benefits, wages, and working 

condition provisions as set forth in 

§ 655.18. The employer must make such 

modification, 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 no later than the 

date work commences, 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 §§ 655.40–655.46, including any 

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) 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; 

(4) 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; 

(5) Where the occupation or industry 

is traditionally or customarily 

unionized, direct the SWA to circulate 

a copy of the job order to the following 

labor organizations: 

(i) The central office of the State 

Federation of Labor in the State(s) in 

which work will be performed; and 

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

representing employees in the same or 

substantially equivalent job 

classification in the area(s) in which 

work will be performed; 

(6) Advise the employer, as 

appropriate, that it must contact the 

appropriate designated communitybased organization(s) with notice of the 

job opportunity; and 

(7) 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 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 job order will be placed in inactive 

status on the electronic job registry. 

§ 655.35 Amendments to an application or 

job order. 

(a) Increases in number of workers. 

The employer may request to increase 

the number of workers noted in the 

H–2B Registration by no more than 20 

percent (50 percent for employers 

requesting fewer than 10 workers). All 

requests for increasing the number of 

workers must be made in writing and 

will not be effective until approved by 

the CO. In considering whether to 

approve the request, the CO will 

determine whether the proposed 

amendment(s) are sufficiently justified 

and must take into account the effect of 

the changes on the underlying labor 

market test for the job opportunity. 

Upon acceptance of an amendment, the 

CO will submit to the SWA any 

necessary changes to the job order and 

update the electronic job registry. The 

employer must promptly provide copies 

of any approved amendments to all U.S. 

workers hired under the original job 

order. 

(b) Minor changes to the period of 

employment. The employer may request 

minor changes to the total period of 

employment listed on its Application 

for Temporary Employment 

Certification and job order, for a period 

of up to 14 days, but the period of 

employment may not exceed a total of 

9 months, except in the event of a 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. In considering whether to 

approve the request, the CO will 

determine whether the proposed 

amendment(s) are sufficiently justified 

and must take into account the effect of 

the changes on the underlying labor 

market test for the job opportunity. 

Upon acceptance of an amendment, the 

CO will submit to the SWA any 

necessary changes to the job order and 

update the electronic job registry. The 

employer must promptly provide copies 

of any approved amendments to all U.S. 

workers hired under the original job 

order. 

(c) Other amendments to the 

Application for Temporary Employment 

Certification and job order. The 

employer may request other 

amendments to the Application for 

Temporary Employment Certification 

and job order. All such requests must be 

made in writing and will not be 

effective until approved by the CO. In 

considering whether to approve the 

request, the CO will determine whether 

the proposed amendment(s) are 

sufficiently justified and must take into 

account the effect of the changes on the 

underlying labor market test for the job 

opportunity. Upon acceptance of an 

amendment, the CO will submit to the 

SWA any necessary changes to the job 


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order and update the electronic job 

registry. 

(d) Amendments after certification are 

not permitted. The employer must 

promptly provide copies of any 

approved amendments to all U.S. 

workers hired under the original job 

order. 

§§ 655.36–655.39 [Added and Reserved] 

■ 16. Add and reserve §§ 655.36 through 

655.39. 

■ 17–18. Add an undesignated center 

heading and §§ 655.40 through 655.48 to 

read as follows: 

Subpart A—Labor Certification Process for 

Temporary Non-Agricultural Employment in 

the United States (H–2B Workers) 

* * * * * 

Post-Acceptance Requirements 

Sec. 

655.40 Employer-conducted recruitment. 

655.41 Advertising requirements. 

655.42 Newspaper advertisements. 

655.43 Contact with former U.S. employees. 

655.44 [Reserved] 

655.45 Contact with bargaining 

representative, posting and other contact 

requirements. 

655.46 Additional employer-conducted 

recruitment. 

655.47 Referrals of U.S. workers. 

655.48 Recruitment report. 

* * * * * 

Post-Acceptance Requirements 

§ 655.40 Employer-conducted recruitment. 

(a) Employer obligations. Employers 

must conduct recruitment of U.S. 

workers to ensure that there are not 

qualified U.S. workers who will be 

available for the positions listed in the 

Application for Temporary Employment 

Certification. U.S. Applicants can be 

rejected only for lawful job-related 

reasons. 

(b) Employer-conducted recruitment 

period. Unless otherwise instructed by 

the CO, the employer must conduct the 

recruitment described in §§ 655.42– 

655.46 within 14 calendar days from the 

date the Notice of Acceptance is issued. 

All employer-conducted recruitment 

must be completed before the employer 

submits the recruitment report as 

required in § 655.48. 

(c) U.S. worker referrals. Employers 

must continue to accept referrals of all 

U.S. applicants interested in the 

position until 21 days before the date of 

need. 

(d) Interviewing U.S. workers. 

Employers that wish to require 

interviews must conduct those 

interviews by phone or provide a 

procedure for the interviews to be 

conducted in the location where the 

worker is being recruited so that the 

worker incurs little or no cost. 

Employers cannot provide potential 

H–2B workers with more favorable 

treatment with respect to the 

requirement for, and conduct of, 

interviews. 

(e) Qualified and available U.S. 

workers. The employer must consider 

all U.S. applicants for the job 

opportunity. The employer must accept 

and hire any applicants who are 

qualified and who will be available. 

(f) Recruitment report. The employer 

must prepare a recruitment report 

meeting the requirements of § 655.48. 

§ 655.41 Advertising requirements. 

(a) All recruitment conducted under 

§§ 655.42–655.46 must contain terms 

and conditions of employment that are 

not less favorable than those offered to 

the H–2B workers and, at a minimum, 

must comply with the assurances 

applicable to job orders as set forth in 

§ 655.18(a). 

(b) All advertising must contain the 

following information: 

(1) The employer’s name and contact 

information; 

(2) The geographic area of intended 

employment with enough specificity to 

apprise applicants of any travel 

requirements and where applicants will 

likely have to reside to perform the 

services or labor; 

(3) A description of the job 

opportunity for which certification is 

sought with sufficient information to 

apprise U.S. workers of the services or 

labor to be performed, including the 

duties, the minimum education and 

experience requirements, the work 

hours and days, and the anticipated 

start and end dates of the job 

opportunity; 

(4) A statement that the job 

opportunity is a temporary, full-time 

position including the total number of 

job openings the employer intends to 

fill; 

(5) If applicable, a statement that 

overtime will be available to the worker 

and the wage offer(s) for working any 

overtime hours; 

(6) If applicable, a statement 

indicating that on-the-job training will 

be provided to the worker; 

(7) The wage that the employer is 

offering, intends to offer or will provide 

to the H–2B workers, or in the event that 

there are multiple wage offers (such as 

where an itinerary is authorized through 

special procedures for an employer), the 

range of applicable wage offers, each of 

which must equal or exceed the highest 

of the prevailing wage or the Federal, 

State, or local minimum wage; 

(8) If applicable, any board, lodging, 

or other facilities the employer will offer 

to workers or intends to assist workers 

in securing; 

(9) All deductions not required by law 

that the employer will make from the 

worker’s paycheck, including, if 

applicable, reasonable deduction for 

board, lodging, and other facilities 

offered to the workers; 

(10) A statement that transportation 

and subsistence from the place where 

the worker has come to work for the 

employer to the place of employment 

and return transportation and 

subsistence will be provided, as 

required by § 655.20(j)(1); 

(11) If applicable, a statement that 

work tools, supplies, and equipment 

will be provided to the worker without 

charge; 

(12) If applicable, a statement that 

daily transportation to and from the 

worksite will be provided by the 

employer; 

(13) A statement summarizing the 

three-fourths guarantee as required by 

§ 655.20(f); and 

(14) A statement directing applicants 

to apply for the job opportunity at the 

nearest office of the SWA in the State in 

which the advertisement appeared, the 

SWA contact information, and, if 

applicable, the job order number. 

§ 655.42 Newspaper advertisements. 

(a) The employer must place an 

advertisement (which may be in a 

language other than English, where the 

CO determines appropriate) on 2 

separate days, which may be 

consecutive, one of which must be a 

Sunday (except as provided in 

paragraph (b) of this section), in a 

newspaper of general circulation serving 

the area of intended employment and 

appropriate to the occupation and the 

workers likely to apply for the job 

opportunity. 

(b) If the job opportunity is located in 

a rural area that does not have a 

newspaper with a Sunday edition, the 

CO may direct the employer, in place of 

a Sunday edition, to advertise in the 

regularly published daily edition with 

the widest circulation in the area of 

intended employment. 

(c) The newspaper advertisements 

must satisfy the requirements in 

§ 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 


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§ 655.56. If the advertisement was 

required to be placed in a language 

other than English, the employer must 

maintain a translation and retain it in 

accordance with § 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 [Reserved] 

§ 655.45 Contact with bargaining 

representative, posting and other contact 

requirements. 

(a) If there is a bargaining 

representative for any of the employer’s 

employees in the occupation and area of 

intended employment, the employer 

must provide written notice of the job 

opportunity, by providing a copy of the 

Application for Temporary Employment 

Certification and the job order, and 

maintain documentation that it was sent 

to the bargaining representative(s). An 

employer governed by this paragraph 

must include information in its 

recruitment report that confirms that the 

bargaining representative(s) was 

contacted and notified of the position 

openings and whether the organization 

referred qualified U.S. worker(s), 

including the number of referrals, or 

was non-responsive to the employer’s 

requests. 

(b) If there is no bargaining 

representative, the employer must post 

the availability of the job opportunity in 

at least 2 conspicuous locations at the 

place(s) of anticipated employment or in 

some other manner that provides 

reasonable notification to all employees 

in the job classification and area in 

which the work will be performed by 

the H–2B workers. Electronic posting, 

such as displaying the notice 

prominently on any internal or external 

Web site that is maintained by the 

employer and customarily used for 

notices to employees about terms and 

conditions of employment, is sufficient 

to meet this posting requirement as long 

as it otherwise meets the requirements 

of this section. The notice must meet the 

requirements under § 655.41 and be 

posted for at least 15 consecutive 

business days. The employer must 

maintain a copy of the posted notice 

and identify where and when it was 

posted in accordance with § 655.56. 

(c) If appropriate to the occupation 

and area of intended employment, as 

indicated by the CO in the Notice of 

Acceptance, the employer must provide 

written notice of the job opportunity to 

a community-based organization, and 

maintain documentation that it was sent 

to any designated community-based 

organization. An employer governed by 

this paragraph must include information 

in its recruitment report that confirms 

that the community-based organization 

was contacted and notified of the 

position openings and whether the 

organization referred qualified U.S. 

worker(s), including the number of 

referrals, or was non-responsive to the 

employer’s requests. 

§ 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 is not limited to, posting on the 

employer’s Web site or another Web 

site, contact with additional 

community-based organizations, 

additional contact with State One-Stop 

Career Centers, and other print 

advertising, such as using a 

professional, trade or ethnic publication 

where such a publication is appropriate 

for the occupation and the workers 

likely to apply for the job opportunity. 

(c) Proof of the additional 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 who 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 recruitment report. The 

recruitment report must be submitted by 

a date specified by the CO in the Notice 

of Acceptance and contain the following 

information: 

(1) The name of each recruitment 

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

name of the newspaper); 

(2) The name and contact information 

of each U.S. worker who applied or was 

referred to the job opportunity up to the 

date of the preparation of the 

recruitment report, and the disposition 

of each worker’s application. The 

employer must clearly indicate whether 

the job opportunity was offered to the 

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

worker accepted or declined; 

(3) Confirmation that former U.S. 

employees were contacted, if applicable, 

and by what means; 

(4) Confirmation that the bargaining 

representative was contacted, if 

applicable, and by what means, or that 

the employer posted the availability of 

the job opportunity to all employees in 

the job classification and area in which 

the work will be performed by the 

H–2B workers; 

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

was contacted, if applicable; 

(6) If applicable, confirmation that 

additional recruitment was conducted 

as directed by the CO; and 

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

who applied for the position but was 

not hired, the lawful job-related 

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

(b) Duty to update recruitment report. 

The employer must continue to update 

the recruitment report throughout the 

recruitment period. The updated report 

need not be submitted to the 

Department, but must be made available 

in the event of a post-certification audit 

or upon request by DOL. 

§ 655.49 [Added and Reserved] 

■ 19. Add and reserve § 655.49. 

■ 20. Add an undesignated center 

heading before § 655.50 to read as 

follows: 

Labor Certification Determinations 

■ 21. 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 


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Temporary Employment Certification 

under the H–2B nonimmigrant 

classification. If the Administrator, 

OFLC directs that certain types of 

temporary labor certification 

applications or a specific Application 

for Temporary Employment 

Certification under the H–2B 

nonimmigrant classification be handled 

by the OFLC’s National Office, the 

Director of the NPC will refer such 

applications to the Administrator, 

OFLC. 

(b) Determination. Except as 

otherwise provided in this paragraph, 

the CO will make a determination either 

to certify or deny the Application for 

Temporary Employment Certification. 

The CO will certify the application only 

if the employer has met all the 

requirements of this subpart, including 

the criteria for certification in § 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. 

■ 22–23. In subpart A, add §§ 655.51 

through 655.57 to read as follows: 

Subpart A—Labor Certification Process for 

Temporary Non-Agricultural Employment in 

the United States (H–2B Workers) 

* * * * * 

Sec. 

655.51 Criteria for certification. 

655.52 Approved certification. 

655.53 Denied certification. 

655.54 Partial certification. 

655.55 Validity of temporary labor 

certification. 

655.56 Document retention requirements of 

H–2B employers. 

655.57 Request for determination based on 

nonavailability of U.S. workers. 

* * * * * 

§ 655.51 Criteria for certification. 

(a) The criteria for certification 

include whether the employer has a 

valid H–2B Registration to participate in 

the H–2B program and has complied 

with all of the requirements necessary to 

grant the labor certification. 

(b) In making a determination 

whether there are insufficient U.S. 

workers to fill the employer’s job 

opportunity, the CO will count as 

available any U.S. worker referred by 

the SWA or any U.S. worker who 

applied (or on whose behalf an 

application is made) directly to the 

employer, but who was rejected by the 

employer for other than a lawful jobrelated reason. 

(c) A certification will not be granted 

to an employer that has failed to comply 

with one or more sanctions or remedies 

imposed by final agency actions under 

the H–2B program. 

§ 655.52 Approved certification. 

If a temporary labor certification is 

granted, the CO will send the approved 

Application for Temporary Employment 

Certification and a Final Determination 

letter to the employer by means 

normally assuring next day delivery, 

including electronic mail, and a copy, if 

applicable, to the employer’s attorney or 

agent. If and when the Application for 

Temporary Employment Certification 

will be permitted to be electronically 

filed, the employer must sign the 

certified Application for Temporary 

Employment Certification as directed by 

the CO. The employer must retain a 

signed copy of the Application for 

Temporary Employment Certification, 

as required by § 655.56. 

§ 655.53 Denied certification. 

If a temporary labor certification is 

denied, the CO will send the Final 

Determination letter to the employer by 

means normally assuring next day 

delivery, including electronic mail, and 

a copy, if applicable, to the employer’s 

attorney or agent. The Final 

Determination letter will: 

(a) State the reason(s) certification is 

denied, citing the relevant regulatory 

standards and/or special procedures; 

(b) Offer the employer an opportunity 

to request administrative review of the 

denial under § 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 accept 

any appeal on 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 

to perform the services or labor and who 

has not been rejected for lawful jobrelated reasons. If a partial labor 

certification is issued, the CO will 

amend the Application for Temporary 

Employment Certification and then 

return it to the employer with a Final 

Determination letter, with a copy to the 

employer’s attorney or agent, if 

applicable. The Final Determination 

letter will: 

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

period of need and/or the number of 

H–2B workers requested has been 

reduced, citing the relevant regulatory 

standards and/or special procedures; 

(b) If applicable, address the 

availability of U.S. workers in the 

occupation; 

(c) Offer the employer an opportunity 

to request administrative review of the 

partial certification under § 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 accept any appeal on that 

Application for Temporary Employment 

Certification. 

§ 655.55 Validity of temporary labor 

certification. 

(a) Validity period. A temporary labor 

certification is valid only for the period 

as approved on the Application for 

Temporary Employment Certification. 

The certification expires on the last day 

of authorized employment. 

(b) Scope of validity. A temporary 

labor certification is valid only for the 

number of H–2B positions, the area of 

intended employment, the job 

classification and specific services or 

labor to be performed, and the employer 

specified on the approved Application 

for Temporary Employment 

Certification, including any approved 

modifications. The temporary labor 

certification may not be transferred from 

one employer to another unless the 

employer to which it is transferred is a 

successor in interest to the employer to 

which it was issued. 

§ 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. For the 

purposes of this section, records and 


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documents required to be retained in 

connection with an H–2B Registration 

must be retained in connection with all 

of the Applications for Temporary 

Employment Certification that are 

supported by it. 

(c) Documents and records to be 

retained by all employer applicants. All 

employers filing an H–2B Registration 

and an Application for Temporary 

Employment Certification must retain 

the following documents and records 

and must provide the documents and 

records to the Department and other 

Federal agencies in the event of an audit 

or investigation: 

(1) Documents and records not 

previously submitted during the 

registration process that substantiate 

temporary need; 

(2) Proof of recruitment efforts, as 

applicable, including: 

(i) Job order placement as specified in 

§ 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 bargaining 

representative(s), or a copy of the 

posting of the job opportunity, if 

applicable, as specified in § 655.45(a) or 

(b); and 

(v) 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, location(s) of 

work performed, and other information 

as specified in § 655.20(i); 

(6) If appropriate, records of 

reimbursement of transportation and 

subsistence costs incurred by the 

workers, as specified in § 655.20(j). 

(7) Evidence of contact with U.S. 

workers who applied for the job 

opportunity in the Application for 

Temporary Employment Certification, 

including documents demonstrating 

that any rejections of U.S. workers were 

for lawful, job-related reasons, as 

specified in § 655.20(r); 

(8) Evidence of contact with any 

former U.S. worker in the occupation at 

the place of employment in the 

Application for Temporary Employment 

Certification, including documents 

demonstrating that the U.S. worker had 

been offered the job opportunity in the 

Application for Temporary Employment 

Certification, as specified in 

§ 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); 

(9) The written contracts with agents 

or recruiters as specified in §§ 655.8 and 

655.9, and the list of the identities and 

locations of persons hired by or working 

for the agent or recruiter and these 

entities’ agents or employees, as 

specified in § 655.9; 

(10) Written notice provided to and 

informing OFLC that an H–2B worker or 

worker in corresponding employment 

has separated from employment before 

the end date of employment specified in 

the Application for Temporary 

Employment Certification, as specified 

in § 655.20(y); 

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

and a copy of the Application for 

Temporary Employment Certification. If 

and when the Application for 

Temporary Employment Certification 

and H–2B Registration is permitted to be 

electronically filed, a printed copy of 

each adjudicated Application for 

Temporary Employment Certification, 

including any modifications, 

amendments or extensions will be 

signed by the employer as directed by 

the CO and retained; 

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

accompanying documents; and 

(13) Any collective bargaining 

agreement(s), individual employment 

contract(s), or payroll records from the 

previous year necessary to substantiate 

any claim that certain incumbent 

workers are not included in 

corresponding employment, as specified 

in § 655.5. 

(d) Availability of documents for 

enforcement purposes. An employer 

must make available to the 

Administrator, WHD within 72 hours 

following a request by the WHD the 

documents and records required under 

29 CFR part 503 and this section so that 

the Administrator, WHD may copy, 

transcribe, or inspect them. 

§ 655.57 Request for determination based 

on nonavailability of U.S. workers. 

(a) Standards for requests. If a 

temporary labor certification has been 

partially granted or denied, based on the 

CO’s determination that qualified U.S. 

workers are available, and, on or after 21 

calendar days before the date of need, 

some or all of those qualified U.S. 

workers are, in fact no longer available, 

the employer may request a new 

temporary labor certification 

determination from the CO. Prior to 

making a new determination the CO 

will promptly ascertain (which may be 

through the SWA or other sources of 

information on U.S. worker availability) 

whether specific qualified replacement 

U.S. workers are available or can be 

reasonably expected to be present at the 

employer’s establishment with 72 hours 

from the date the employer’s request 

was received. The CO will 

expeditiously, but in no case later than 

72 hours after the time a complete 

request (including the signed statement 

included in paragraph (b) of this 

section) is received, make a 

determination on the request. An 

employer may appeal a denial of such 

a determination in accordance with 

procedures contained in § 655.61. 

(b) Unavailability of U.S. workers. The 

employer’s request for a new 

determination must be made directly to 

the CO by electronic mail or other 

appropriate means and must be 

accompanied by a signed statement 

confirming the employer’s assertion. In 

addition, unless the employer has 

provided to the CO notification of 

abandonment or termination of 

employment as required by § 655.20(y), 

the employer’s signed statement must 

include the name and contact 

information of each U.S. worker who 

became unavailable and must supply 

the reason why the worker has become 

unavailable. 

(c) Notification of determination. If 

the CO determines that U.S. workers 

have become unavailable and cannot 

identify sufficient available U.S. 

workers who are qualified or who are 

likely to become available, the CO will 

grant the employer’s request for a new 

determination. However, this does not 

preclude an employer from submitting 

subsequent requests for new 

determinations, if warranted, based on 

subsequent facts concerning purported 

nonavailability of U.S. workers or 

referred workers not being qualified 

because of lawful job-related reasons. 

§§ 655.58–655.59 [Added and Reserved] 

■ 24. Add and reserve §§ 655.58 through 

655.59. 

■ 25. Add an undesignated center 

heading before § 655.60 to read as 

follows: 

Post Certification Activities 

■ 26. 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. A 

request for extension must be related to 

weather conditions or other factors 

beyond the control of the employer 

(which may include unforeseeable 

changes in market conditions), and must 

be supported in writing, with 


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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 labor certification 

will continue to apply during the 

extended period of employment. The 

employer must immediately provide to 

its workers a copy of any approved 

extension. 

■ 27. In subpart A, add §§ 655.61 

through 655.63 to read as follows: 

Subpart A—Labor Certification Process for 

Temporary Non-Agricultural Employment in 

the United States (H–2B Workers) 

* * * * * 

Sec. 

655.61 Administrative review. 

655.62 Withdrawal of an Application for 

Temporary Employment Certification. 

655.63 Public disclosure. 

* * * * * 

§ 655.61 Administrative review. 

(a) Request for review. Where 

authorized in this subpart, employers 

may request an administrative review 

before the BALCA of a determination by 

the CO. In such cases, the request for 

review: 

(1) Must be sent to the BALCA, with 

a copy simultaneously sent to the CO 

who denied the application, within 10 

business days from the date of 

determination; 

(2) Must clearly identify the particular 

determination for which review is 

sought; 

(3) Must set forth the particular 

grounds for the request; 

(4) Must include a copy of the CO’s 

determination; and 

(5) May contain only legal argument 

and such evidence as was actually 

submitted to the CO before the date the 

CO’s determination was issued. 

(b) Appeal file. Upon the receipt of a 

request for review, the CO will, within 

7 business days, assemble and submit 

the Appeal File using means to ensure 

same day or next day delivery, to the 

BALCA, the employer, and the 

Associate Solicitor for Employment and 

Training Legal Services, Office of the 

Solicitor, U.S. Department of Labor. 

(c) Briefing schedule. Within 7 

business days of receipt of the Appeal 

File, the counsel for the CO may submit, 

using means to ensure same day or next 

day delivery, a brief in support of the 

CO’s decision. 

(d) Assignment. The Chief ALJ may 

designate a single member or a three 

member panel of the BALCA to consider 

a particular case. 

(e) Review. The BALCA must review 

the CO’s determination only on the 

basis of the Appeal File, the request for 

review, and any legal briefs submitted 

and must: 

(1) Affirm the CO’s determination; or 

(2) Reverse or modify the CO’s 

determination; or 

(3) Remand to the CO for further 

action. 

(f) Decision. The BALCA should 

notify the employer, the CO, and 

counsel for the CO of its decision within 

7 business days of the submission of the 

CO’s brief or 10 business days after 

receipt of the Appeal File, whichever is 

later, using means to ensure same day 

or next day delivery. 

§ 655.62 Withdrawal of an Application for 

Temporary Employment Certification. 

Employers may withdraw an 

Application for Temporary Employment 

Certification after it has been accepted 

and before it is adjudicated. The 

employer must request such withdrawal 

in writing. 

§ 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 [Added and Reserved] 

■ 28. Add and reserve § 655.64. 

§ 655.65 [Removed and Reserved] 

■ 29. Remove and reserve § 655.65. 

§§ 655.66–655.69 [Added and Reserved] 

■ 30. Add and reserve §§ 655.66 through 

655.69. 

■ 31. Add an undesignated center 

heading before § 655.70 to read as 

follows: 

Integrity Measures 

■ 32. In subpart A, revise §§ 655.70 

through 655.73 to read as follows: 

Subpart A—Labor Certification Process for 

Temporary Non-Agricultural Employment in 

the United States (H–2B Workers) 

* * * * * 

Sec. 

655.70 Audits. 

655.71 CO-ordered assisted recruitment. 

655.72 Revocation. 

655.73 Debarment. 

* * * * * 

§ 655.70 Audits. 

The CO may conduct audits of 

adjudicated temporary labor 

certification applications. 

(a) Discretion. The CO has the sole 

discretion to choose the applications 

selected for audit. 

(b) Audit letter. Where an application 

is selected for audit, the CO will send 

an audit letter to the employer and a 

copy, if appropriate, to the employer’s 

attorney or agent. The audit letter will: 

(1) Specify the documentation that 

must be submitted by the employer; 

(2) Specify a date, no more than 30 

calendar days from the date the audit 

letter is issued, by which the required 

documentation must be sent to the CO; 

and 

(3) Advise that failure to fully comply 

with the audit process may result: 

(i) In the requirement that the 

employer undergo the assisted 

recruitment procedures in § 655.71 in 

future filings of H–2B temporary labor 

certification applications for a period of 

up to 2 years, or 

(ii) In a revocation of the certification 

and/or debarment from the H–2B 

program and any other foreign labor 

certification program administered by 

the Department. 

(c) Supplemental information request. 

During the course of the audit 

examination, the CO may request 

supplemental information and/or 

documentation from the employer in 

order to complete the audit. If 

circumstances warrant, the CO can issue 

one or more requests for supplemental 

information. 

(d) Potential referrals. In addition to 

measures in this subpart, the CO may 

decide to provide the audit findings and 

underlying documentation to DHS, 

WHD, or other appropriate enforcement 

agencies. The CO may refer any findings 

that an employer discouraged a 

qualified U.S. worker from applying, or 

failed to hire, discharged, or otherwise 

discriminated against a qualified U.S. 

worker, to the Department of Justice, 

Civil Rights Division, Office of Special 

Counsel for Unfair Immigration Related 

Employment Practices. 

§ 655.71 CO-ordered assisted recruitment. 

(a) Requirement of assisted 

recruitment. If, as a result of audit or 


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otherwise, the CO determines that a 

violation has occurred that does not 

warrant debarment, the CO may require 

the employer to engage in assisted 

recruitment for a defined period of time 

for any future Application for 

Temporary Employment Certification. 

(b) Notification of assisted 

recruitment. The CO will notify the 

employer (and its attorney or agent, if 

applicable) in writing of the assisted 

recruitment that will be required of the 

employer for a period of up to 2 years 

from the date the notice is issued. The 

notification will state the reasons for the 

imposition of the additional 

requirements, state that the employer’s 

agreement to accept the conditions will 

constitute their inclusion as bona fide 

conditions and terms of a temporary 

labor certification, and offer the 

employer an opportunity to request an 

administrative review. If administrative 

review is requested, the procedures in 

§ 655.61 apply. 

(c) Assisted recruitment. The assisted 

recruitment process will be in addition 

to any recruitment required of the 

employer by §§ 655.41 through 655.47 

and may consist of, but is not limited to, 

one or more of the following: 

(1) Requiring the employer to submit 

a draft advertisement to the CO for 

review and approval at the time of filing 

the Application for Temporary 

Employment Certification; 

(2) Designating the sources where the 

employer must recruit for U.S. workers, 

including newspapers and other 

publications, and directing the 

employer to place the advertisement(s) 

in such sources; 

(3) Extending the length of the 

placement of the advertisement and/or 

job order; 

(4) Requiring the employer to notify 

the CO and the SWA in writing when 

the advertisement(s) are placed; 

(5) Requiring an employer to perform 

any additional assisted recruitment 

directed by the CO; 

(6) Requiring the employer to provide 

proof of the publication of all 

advertisements as directed by the CO, in 

addition to providing a copy of the job 

order; 

(7) Requiring the employer to provide 

proof of all SWA referrals made in 

response to the job order; 

(8) Requiring the employer to submit 

any proof of contact with all referrals 

and past U.S. workers; and/or 

(9) Requiring the employer to provide 

any additional documentation verifying 

it conducted the assisted recruitment as 

directed by the CO. 

(d) Failure to comply. If an employer 

materially fails to comply with 

requirements ordered by the CO under 

this section, the certification will be 

denied and the employer and/or its 

attorney or agent may be debarred under 

§ 655.73. 

§ 655.72 Revocation. 

(a) Basis for DOL revocation. The 

Administrator, OFLC may revoke a 

temporary labor certification approved 

under this subpart, if the Administrator, 

OFLC finds: 

(1) The issuance of the temporary 

labor certification was not justified due 

to fraud or willful misrepresentation of 

a material fact in the application 

process, as defined in § 655.73(d); 

(2) The employer substantially failed 

to comply with any of the terms or 

conditions of the approved temporary 

labor certification. A substantial failure 

is a willful failure to comply that 

constitutes a significant deviation from 

the terms and conditions of the 

approved certification and is further 

defined in § 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 labor certification, the 

Administrator, OFLC will send to the 

employer (and its attorney or agent, if 

applicable) a Notice of Revocation. The 

notice will contain a detailed statement 

of the grounds for the revocation and 

inform the employer of its right to 

submit rebuttal evidence or to appeal. If 

the employer does not file rebuttal 

evidence or an appeal within 10 

business days from the date the Notice 

of Revocation is issued, the notice is the 

final agency action and will take effect 

immediately at the end of the 10-day 

period. 

(2) Rebuttal. If the employer timely 

submits rebuttal evidence, the 

Administrator, OFLC will inform the 

employer of the final determination on 

the revocation within 10 business days 

of receiving the rebuttal evidence. If the 

Administrator, OFLC determines that 

the certification should be revoked, the 

Administrator, OFLC will inform the 

employer of its right to appeal according 

to the procedures of § 655.61. If the 

employer does not appeal the final 

determination, it will become the final 

agency action. 

(3) Appeal. An employer may appeal 

a Notice of Revocation, or a final 

determination of the Administrator, 

OFLC after the review of rebuttal 

evidence, according to the appeal 

procedures of § 655.61. The ALJ’s 

decision is the final agency action. 

(4) Stay. The timely filing of rebuttal 

evidence or an administrative appeal 

will stay the revocation pending the 

outcome of those proceedings. 

(5) Decision. If the temporary labor 

certification is revoked, the 

Administrator, OFLC will send a copy 

of the final agency action to DHS and 

the Department of State. 

(c) Employer’s obligations in the event 

of revocation. If an employer’s 

temporary labor certification is revoked, 

the employer is responsible for: 

(1) Reimbursement of actual inbound 

transportation and other expenses; 

(2) The workers’ outbound 

transportation expenses; 

(3) Payment to the workers of the 

amount due under the three-fourths 

guarantee; and 

(4) Any other wages, benefits, and 

working conditions due or owing to the 

workers under this subpart. 

§ 655.73 Debarment. 

(a) Debarment of an employer. The 

Administrator, OFLC may not issue 

future labor certifications under this 

subpart to an employer or any successor 

in interest to that employer, subject to 

the time limits set forth in paragraph (c) 

of this section, if the Administrator, 

OFLC finds that the employer 

committed the following violations: 

(1) Willful misrepresentation of a 

material fact in its H–2B Registration, 

Application for Temporary Employment 

Certification, or H–2B Petition; 

(2) Substantial failure to meet any of 

the terms and conditions of its H–2B 

Registration, Application for Temporary 

Employment Certification, or H–2B 

Petition. A substantial failure is a willful 

failure to comply that constitutes a 

significant deviation from the terms and 

conditions of such documents; or 

(3) Willful misrepresentation of a 

material fact to the DOS during the visa 

application process. 

(b) Debarment of an agent or attorney. 

If the Administrator, OFLC finds, under 

this section, that an attorney or agent 

committed a violation as described in 

paragraphs (a)(1) through (3) of this 

section or participated in an employer’s 

violation, the Administrator, OFLC may 

not issue future labor certifications to an 

employer represented by such agent or 

attorney, subject to the time limits set 

forth in paragraph (c) of this section. 

(c) Period of debarment. Debarment 

under this subpart may not be for less 


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than 1 year or more than 5 years from 

the date of the final agency decision. 

(d) Determining whether a violation is 

willful. A willful misrepresentation of a 

material fact or a willful failure to meet 

the required terms and conditions 

occurs when the employer, attorney, or 

agent knows a statement is false or that 

the conduct is in violation, or shows 

reckless disregard for the truthfulness of 

its representation or for whether its 

conduct satisfies the required 

conditions. 

(e) Determining whether a violation is 

significant. In determining whether a 

violation is a significant deviation from 

the terms and conditions of the H–2B 

Registration, Application for Temporary 

Employment Certification, or H–2B 

Petition, the factors that the 

Administrator, OFLC may consider 

include, but are not limited to, the 

following: 

(1) Previous history of violation(s) 

under the H–2B program; 

(2) The number of H–2B workers, 

workers in corresponding employment, 

or improperly rejected U.S. applicants 

who were and/or are affected by the 

violation(s); 

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

(4) The extent to which the violator 

achieved a financial gain due to the 

violation(s), or the potential financial 

loss or potential injury to the worker(s); 

and 

(5) Whether U.S. workers have been 

harmed by the violation. 

(f) Violations. Where the standards set 

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

section are met, debarrable violations 

would include but would not be limited 

to one or more acts of commission or 

omission which involve: 

(1) Failure to pay or provide the 

required wages, benefits or working 

conditions to the employer’s H–2B 

workers and/or workers in 

corresponding employment; 

(2) Failure, except for lawful, 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 § 655.20(r); 

(12) Any other act showing such 

flagrant disregard for the law that future 

compliance with program requirements 

cannot reasonably be expected; 

(13) Fraud involving the H–2B 

Registration, Application for Temporary 

Employment Certification or the H–2B 

Petition; or 

(14) A material misrepresentation of 

fact during the registration or 

application process. 

(g) Debarment procedure. (1) Notice of 

Debarment. If the Administrator, OFLC 

makes a determination to debar an 

employer, attorney, or agent, the 

Administrator, OFLC will send the party 

a Notice of Debarment. The Notice will 

state the reason for the debarment 

finding, including a detailed 

explanation of the grounds for and the 

duration of the debarment and inform 

the party subject to the notice of its right 

to submit rebuttal evidence or to request 

a debarment hearing. If the party does 

not file rebuttal evidence or request a 

hearing within 30 calendar days of the 

date of the Notice of Debarment, the 

notice is the final agency action and the 

debarment will take effect at the end of 

the 30-day period. The timely filing of 

an rebuttal evidence or a request for a 

hearing stays the debarment pending the 

outcome of the appeal as provided in 

paragraphs (g)(2)–(6) of this section. 

(2) Rebuttal. The party who received 

the Notice of Debarment may choose to 

submit evidence to rebut the grounds 

stated in the notice within 30 calendar 

days of the date the notice is issued. If 

rebuttal evidence is timely filed, the 

Administrator, OFLC will issue a final 

determination on the debarment within 

30 calendar days of receiving the 

rebuttal evidence. If the Administrator, 

OFLC determines that the party should 

be debarred, the Administrator, OFLC 

will inform the party of its right to 

request a debarment hearing according 

to the procedures in this section. The 

party must request a hearing within 30 

calendar days after the date of the 

Administrator, OFLC’s final 

determination, or the Administrator 

OFLC’s determination will be the final 

agency order and the debarment will 

take effect at the end of the 30-day 

period. 

(3) Hearing. The recipient of a Notice 

of Debarment seeking to challenge the 

debarment must request a debarment 

hearing within 30 calendar days of the 

date of a Notice of Debarment or the 

date of a final determination of the 

Administrator, OFLC after review of 

rebuttal evidence submitted under 

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

obtain a debarment hearing, the 

recipient must, within 30 days of the 

date of the Notice or the final 

determination, file a written request 

with the Chief ALJ, United States 

Department of Labor, 800 K Street, NW., 

Suite 400–N, Washington, DC 20001– 

8002, and simultaneously serve a copy 

on the Administrator, OFLC. The 

debarment will take effect 30 calendar 

days from the date the Notice of 

Debarment or final determination is 

issued, unless a request for review is 

timely filed. Within 10 business days of 

receipt of the request for a hearing, the 

Administrator, OFLC will send a 

certified copy of the ETA case file to the 

Chief ALJ by means normally assuring 

next day delivery. The Chief ALJ will 

immediately assign an ALJ to conduct 

the hearing. The procedures in 29 CFR 

part 18 apply to such hearings, except 

that the request for a hearing will not be 

considered to be a complaint to which 

an answer is required. 

(4) Decision. After the hearing, the 

ALJ must affirm, reverse, or modify the 

Administrator, OFLC’s determination. 

The ALJ will prepare the decision 

within 60 calendar days after 

completion of the hearing and closing of 

the record. The ALJ’s decision will be 

provided to the parties to the debarment 

hearing by means normally assuring 

next day delivery. The ALJ’s decision is 

the final agency action, unless either 

party, within 30 calendar days of the 

ALJ’s decision, seeks review of the 

decision with the Administrative 

Review Board (ARB). 

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

wishing review of the decision of an ALJ 

must, within 30 calendar days of the 

decision of the ALJ, petition the ARB to 

review the decision. Copies of the 

petition must be served on all parties 

and on the ALJ. The ARB will decide 

whether to accept the petition within 30 

calendar days of receipt. If the ARB 

declines to accept the petition, or if the 

ARB does not issue a notice accepting 

a petition within 30 calendar days after 

the receipt of a timely filing of the 


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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. 

§§ 655.74–655.76, 655.80, and 655.81 

[Removed and Reserved] 

■ 33. In subpart A, remove and reserve 

§§ 655.74 through 655.76, 655.80, and 

655.81. 

§§ 655.82–655.99 [Added and Reserved] 

■ 34. In subpart A, add and reserve 

§§ 655.82 through 655.99. 

Title 29—Labor 

■ 35. 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 labor 

certification. 

503.19 Violations. 

503.20 Sanctions and remedies—general. 

503.21 Concurrent actions. 

503.22 Representation of the Secretary. 

503.23 Civil money penalty assessment. 

503.24 Debarment. 

503.25 Failure to cooperate with 

investigators. 

503.26 Civil money penalties—payment 

and collection. 

Subpart C—Administrative Proceedings 

503.40 Applicability of procedures and 

rules. 

Procedures Related to Hearing 

503.41 Administrator, WHD’s 

determination. 

503.42 Contents of notice of determination. 

503.43 Request for hearing. 

Rules of Practice 

503.44 General. 

503.45 Service of pleadings. 

503.46 Commencement of proceeding. 

503.47 Caption of proceeding. 

503.48 Conduct of proceeding. 

Procedures Before Administrative Law Judge 

503.49 Consent findings and order. 

Post-Hearing Procedures 

503.50 Decision and order of 

Administrative Law Judge. 

Review of Administrative Law Judge’s 

Decision 

503.51 Procedures for initiating and 

undertaking review. 

503.52 Responsibility of the Office of 

Administrative Law Judges (OALJ). 

503.53 Additional information, if required. 

503.54 Submission of documents to the 

Administrative Review Board. 

503.55 Final decision of the Administrative 

Review Board. 

Record 

503.56 Retention of official record. 

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

1184(c) and 8 CFR 214.2(h). 

Subpart A—General Provisions 

§ 503.0 Introduction. 

The regulations in this part cover the 

enforcement of all statutory and 

regulatory obligations, including 

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

and 20 CFR part 655, Subpart A, 

applicable to the employment of H–2B 

workers admitted under the 

Immigration and Nationality Act (INA), 

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

workers in corresponding employment, 

including obligations to offer 

employment to eligible United States 

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

displace U.S. workers in a manner 

prohibited by the regulations in this part 

or 20 CFR part 655, Subpart A. 

§ 503.1 Scope and purpose. 

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

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

Department of Homeland Security 

(DHS) to consult with appropriate 

agencies before authorizing the entry of 

H–2B workers. DHS regulations 8 CFR 

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

bring nonimmigrant workers on H–2B 

visas into the U.S. for temporary 

nonagricultural employment may not be 

approved by the Secretary of DHS 

unless the petitioner has applied for and 

received a temporary labor certification 

from the U.S. Secretary of Labor 

(Secretary). The temporary labor 

certification reflects a determination by 

the Secretary that: 

(1) There are not sufficient U.S. 

workers who are qualified and will be 

available at the time and place needed 

to perform the labor or services involved 

in the petition; and 

(2) The employment of the foreign 

worker will not adversely affect the 

wages and working conditions of U.S. 

workers similarly employed. 

(b) Role of the Employment and 

Training Administration (ETA). The 

issuance and denial of labor 

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

been delegated by the Secretary to ETA, 

an agency within the U.S. Department of 

Labor (the Department or DOL), which 

in turn has delegated that authority to 

the Office of Foreign Labor Certification 

(OFLC). In general, matters concerning 

the obligations of an H–2B employer 

related to the temporary labor 

certification process are administered by 

OFLC, including obligations and 

assurances made by employers, 

overseeing employer recruitment, and 

assuring program integrity. The 


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regulations pertaining to the issuance, 

denial, and revocation of labor 

certification for temporary foreign 

workers by the OFLC are found in 20 

CFR part 655, Subpart A. 

(c) Role of the Wage and Hour 

Division (WHD). DHS, effective January 

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

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

delegated to the Secretary certain 

investigatory and law enforcement 

functions to carry out the provisions 

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

has delegated these functions to the 

WHD. In general, matters concerning the 

rights of H–2B workers and workers in 

corresponding employment under this 

part and the employer’s obligations are 

enforced by the WHD, including 

whether employment was offered to 

U.S. workers as required under 20 CFR 

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

workers were laid off or displaced in 

violation of program requirements. The 

WHD has the responsibility to carry out 

investigations, inspections, and law 

enforcement functions and in 

appropriate instances to impose 

penalties, to debar from future 

certifications, to recommend revocation 

of existing certifications, and to seek 

remedies for violations, including 

recovery of unpaid wages and 

reinstatement of improperly laid off or 

displaced U.S. workers. 

(d) Effect of regulations. The 

enforcement functions carried out by 

the WHD under 8 U.S.C. 1184(c), 20 

CFR part 655, Subpart A, and the 

regulations in this part apply to the 

employment of any H–2B worker and 

any worker in corresponding 

employment as the result of an 

Application for Temporary Employment 

Certification filed with the Department 

on or after April 23, 2012. 

§ 503.2 Territory of Guam. 

This part does not apply to temporary 

employment in the Territory of Guam. 

The Department does not certify to the 

United States Citizenship and 

Immigration Services (USCIS) of DHS 

the temporary employment of 

nonimmigrant foreign workers under 

H–2B visas, or enforce compliance with 

the provisions of the H–2B visa program 

in the Territory of Guam. Under DHS 

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

administration of the H–2B temporary 

labor certification program is 

undertaken by the Governor of Guam, or 

the Governor’s designated 

representative. 

§ 503.3 Coordination among Governmental 

agencies. 

(a) Complaints received by ETA or 

any State Workforce Agency (SWA) 

regarding noncompliance with H–2B 

statutory or regulatory labor standards 

will be immediately forwarded to the 

appropriate WHD office for suitable 

action under the regulations in this part. 

(b) Information received in the course 

of processing registrations and 

applications, program integrity 

measures, or enforcement actions may 

be shared between OFLC and WHD or, 

where applicable to employer 

enforcement under the H–2B program, 

may be forwarded to other agencies as 

appropriate, including the Department 

of State (DOS) and DHS. 

(c) A specific violation for which 

debarment is sought will be cited in a 

single debarment proceeding. OFLC and 

the WHD will coordinate their activities 

to achieve this result. Copies of final 

debarment decisions will be forwarded 

to DHS promptly. 

§ 503.4 Definition of terms. 

For purposes of this part: 

Act means the Immigration and 

Nationality Act or INA, as amended, 8 

U.S.C. 1101 et seq. 

Administrative Law Judge (ALJ) means 

a person within the Department’s Office 

of Administrative Law Judges appointed 

under 5 U.S.C. 3105. 

Administrator, Office of Foreign Labor 

Certification (OFLC) means the primary 

official of the Office of Foreign Labor 

Certification, ETA, or the 

Administrator’s designee. 

Administrator, Wage and Hour 

Division (WHD) means the primary 

official of the WHD, or the 

Administrator’s designee. 

Agent. (1) Agent means a legal entity 

or person who: 

(i) Is authorized to act on behalf of an 

employer for temporary nonagricultural 

labor certification purposes; 

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

employer, as defined in this part with 

respect to a specific application; and 

(iii) Is not an association or other 

organization of employers. 

(2) No agent who is under suspension, 

debarment, expulsion, disbarment, or 

otherwise restricted from practice before 

any court, the Department, the 

Executive Office for Immigration 

Review under 8 CFR 1003.101, or DHS 

under 8 CFR 292.3 may represent an 

employer under this part. 

Agricultural labor or services means 

those duties and occupations defined in 

20 CFR 655.100. 

Applicant means a U.S. worker who 

is applying for a job opportunity for 

which an employer has filed an 

Application for Temporary Employment 

Certification (ETA Form 9142 and the 

appropriate appendices). 

Application for Temporary 

Employment Certification means the 

Office of Management and Budget 

(OMB)-approved ETA Form 9142 and 

the appropriate appendices, a valid 

wage determination, as required by 20 

CFR 655.10, and a subsequently-filed 

U.S. worker recruitment report, 

submitted by an employer to secure a 

temporary labor certification 

determination from DOL. 

Area of intended employment means 

the geographic area within normal 

commuting distance of the place 

(worksite address) of the job 

opportunity for which the certification 

is sought. There is no rigid measure of 

distance that constitutes a normal 

commuting distance or normal 

commuting area, because there may be 

widely varying factual circumstances 

among different areas (e.g., average 

commuting times, barriers to reaching 

the worksite, or quality of the regional 

transportation network). If the place of 

intended employment is within a 

Metropolitan Statistical Area (MSA), 

including a multistate MSA, any place 

within the MSA is deemed to be within 

normal commuting distance of the place 

of intended employment. The borders of 

MSAs are not controlling in the 

identification of the normal commuting 

area; a location outside of an MSA may 

be within normal commuting distance 

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

border of) the MSA. 

Attorney means any person who is a 

member in good standing of the bar of 

the highest court of any State, 

possession, territory, or commonwealth 

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

No attorney who is under suspension, 

debarment, expulsion, disbarment, or 

otherwise restricted from practice before 

any court, the Department, the 

Executive Office for Immigration 

Review under 8 CFR 1003.101, or DHS 

under 8 CFR 292.3 may represent an 

employer under this part. 

Certifying Officer (CO) means an 

OFLC official designated by the 

Administrator, OFLC to make 

determinations on applications under 

the H–2B program. The Administrator, 

OFLC is the National CO. Other COs 

may also be designated by the 

Administrator, OFLC to make the 

determinations required under 20 CFR 

part 655, Subpart A. 

Chief Administrative Law Judge (Chief 

ALJ) means the chief official of the 

Department’s Office of Administrative 

Law Judges or the Chief Administrative 

Law Judge’s designee. 

Corresponding employment. (1) 

Corresponding employment means the 

employment of workers who are not 

H–2B workers by an employer that has 

a certified H–2B Application for 

Temporary Employment Certification 


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when those workers are performing 

either substantially the same work 

included in the job order or 

substantially the same work performed 

by the H–2B workers, except that 

workers in the following two categories 

are not included in corresponding 

employment: 

(i) Incumbent employees 

continuously employed by the H–2B 

employer to perform substantially the 

same work included in the job order or 

substantially the same work performed 

by the H–2B workers during the 52 

weeks prior to the period of 

employment certified on the 

Application for Temporary Employment 

Certification and who have worked or 

been paid for at least 35 hours in at least 

48 of the prior 52 workweeks, and who 

have worked or been paid for an average 

of at least 35 hours per week over the 

prior 52 weeks, as demonstrated on the 

employer’s payroll records, provided 

that the terms and working conditions 

of their employment are not 

substantially reduced during the period 

of employment covered by the job order. 

In determining whether this standard 

was met, the employer may take credit 

for any hours that were reduced by the 

employee voluntarily choosing not to 

work due to personal reasons such as 

illness or vacation; or 

(ii) Incumbent employees covered by 

a collective bargaining agreement or an 

individual employment contract that 

guarantees both an offer of at least 

35 hours of work each workweek and 

continued employment with the H–2B 

employer at least through the period of 

employment covered by the job order, 

except that the employee may be 

dismissed for cause. 

(2) To qualify as corresponding 

employment, the work must be 

performed during the period of the job 

order, including any approved 

extension thereof. 

Date of need means the first date the 

employer requires services of the H–2B 

workers as listed on the application. 

Department of Homeland Security 

(DHS) means the Federal Department 

having jurisdiction over certain 

immigration-related functions, acting 

through its agencies, including USCIS. 

Employee means a person who is 

engaged to perform work for an 

employer, as defined under the general 

common law. Some of the factors 

relevant to the determination of 

employee status include: The hiring 

party’s right to control the manner and 

means by which the work is 

accomplished; the skill required to 

perform the work; the source of the 

instrumentalities and tools for 

accomplishing the work; the location of 

the work; the hiring party’s discretion 

over when and how long to work; and 

whether the work is part of the regular 

business of the hiring party. Other 

applicable factors may be considered 

and no one factor is dispositive. The 

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

used interchangeably in this part. 

Employer means a person (including 

any individual, partnership, association, 

corporation, cooperative, firm, joint 

stock company, trust, or other 

organization with legal rights and 

duties) that: 

(1) Has a place of business (physical 

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

which it may be contacted for 

employment; 

(2) Has an employer relationship 

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

supervise or otherwise control the work 

of employees) with respect to an H–2B 

worker or a worker in corresponding 

employment; and 

(3) Possesses, for purposes of filing an 

Application for Temporary Employment 

Certification, a valid Federal Employer 

Identification Number (FEIN). 

Employment and Training 

Administration (ETA) means the agency 

within the Department which includes 

OFLC and has been delegated authority 

by the Secretary to fulfill the Secretary’s 

mandate under the DHS regulations for 

the administration and adjudication of 

an Application for Temporary 

Employment Certification and related 

functions. 

Federal holiday means a legal public 

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

Full-time means 35 or more hours of 

work per week. 

H–2B Petition means the DHS Petition 

for a Nonimmigrant Worker form, or 

successor form, and accompanying 

documentation required by DHS for 

employers seeking to employ foreign 

persons as H–2B nonimmigrant workers. 

The H–2B Petition includes the 

approved Application for Temporary 

Employment Certification and the Final 

Determination letter. 

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

an employer to register its intent to hire 

H–2B workers and to file an Application 

for Temporary Employment 

Certification. 

H–2B worker means any temporary 

foreign worker who is lawfully present 

in the U.S. and authorized by DHS to 

perform nonagricultural labor or 

services of a temporary or seasonal 

nature under 8 U.S.C. 

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

Job contractor means a person, 

association, firm, or a corporation that 

meets the definition of an employer and 

that contracts services or labor on a 

temporary basis to one or more 

employers, which is not an affiliate, 

branch or subsidiary of the job 

contractor and where the job contractor 

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

performance of the services or labor to 

be performed other than hiring, paying 

and firing the workers. 

Job offer means the offer made by an 

employer or potential employer of H–2B 

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

describing all the material terms and 

conditions of employment, including 

those relating to wages, working 

conditions, and other benefits. 

Job opportunity means one or more 

openings for full-time employment with 

the petitioning employer within a 

specified area(s) of intended 

employment for which the petitioning 

employer is seeking workers. 

Job order means the document 

containing the material terms and 

conditions of employment relating to 

wages, hours, working conditions, 

worksite and other benefits, including 

obligations and assurances under 

29 CFR part 655, Subpart A and this 

subpart that is posted between and 

among the SWAs on their job clearance 

systems. 

Joint employment means that where 

two or more employers each have 

sufficient definitional indicia of being 

an employer to be considered the 

employer of a worker, those employers 

will be considered to jointly employ 

that worker. Each employer in a joint 

employment relationship to a worker is 

considered a joint employer of that 

worker. 

Layoff means any involuntary 

separation of one or more U.S. 

employees without cause. 

Metropolitan Statistical Area (MSA) 

means a geographic entity defined by 

OMB for use by Federal statistical 

agencies in collecting, tabulating, and 

publishing Federal statistics. A metro 

area contains a core urban area of 50,000 

or more population, and a micro area 

contains an urban core of at least 10,000 

(but fewer than 50,000) population. 

Each metro or micro area consists of one 

or more counties and includes the 

counties containing the core urban area, 

as well as any adjacent counties that 

have a high degree of social and 

economic integration (as measured by 

commuting to work) with the urban 

core. 

National Processing Center (NPC) 

means the office within OFLC which is 

charged with the adjudication of an 

Application for Temporary Employment 

Certification or other applications. 

Non-agricultural labor and services 

means any labor or services not 


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considered to be agricultural labor or 

services as defined in 20 CFR part 655, 

Subpart B. It does not include the 

provision of services as members of the 

medical profession by graduates of 

medical schools. 

Offered wage means the wage offered 

by an employer in an H–2B job order. 

The offered wage must equal or exceed 

the highest of the prevailing wage or 

Federal, State or local minimum wage. 

Office of Foreign Labor Certification 

(OFLC) means the organizational 

component of the ETA that provides 

national leadership and policy guidance 

and develops regulations to carry out 

the Secretary’s responsibilities for the 

admission of foreign workers to the U.S. 

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

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

Prevailing wage determination (PWD) 

means the prevailing wage for the 

position, as described in 20 CFR 655.12, 

which is the subject of the Application 

for Temporary Employment 

Certification. 

Secretary means the Secretary of 

Labor, the chief official of the U.S. 

Department of Labor, or the Secretary’s 

designee. 

Secretary of Homeland Security 

means the chief official of the U.S. DHS 

or the Secretary of DHS’s designee. 

State Workforce Agency (SWA) means 

a State government agency that receives 

funds under the Wagner-Peyser Act (29 

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

State’s public labor exchange activities. 

Strike means a concerted stoppage of 

work by employees as a result of a labor 

dispute, or any concerted slowdown or 

other concerted interruption of 

operation (including stoppage by reason 

of the expiration of a collective 

bargaining agreement). 

Successor in interest. (1) Successor in 

interest means where an employer has 

violated 20 CFR part 655, Subpart A or 

this part, and has ceased doing business 

or cannot be located for purposes of 

enforcement, a successor in interest to 

that employer may be held liable for the 

duties and obligations of the violating 

employer in certain circumstances. The 

following factors, as used under Title 

VII of the Civil Rights Act and the 

Vietnam Era Veterans’ Readjustment 

Assistance Act, may be considered in 

determining whether an employer is a 

successor in interest; no one factor is 

dispositive, but all of the circumstances 

will be considered as a whole: 

(i) Substantial continuity of the same 

business operations; 

(ii) Use of the same facilities; 

(iii) Continuity of the work force; 

(iv) Similarity of jobs and working 

conditions; 

(v) Similarity of supervisory 

personnel; 

(vi) Whether the former management 

or owner retains a direct or indirect 

interest in the new enterprise; 

(vii) Similarity in machinery, 

equipment, and production methods; 

(viii) Similarity of products and 

services; and 

(ix) The ability of the predecessor to 

provide relief. 

(2) For purposes of debarment only, 

the primary consideration will be the 

personal involvement of the firm’s 

ownership, management, supervisors, 

and others associated with the firm in 

the violation(s) at issue. 

United States (U.S.) means the 

continental U.S., Alaska, Hawaii, the 

Commonwealth of Puerto Rico, and the 

territories of Guam, the U.S. Virgin 

Islands, and the Commonwealth of the 

Northern Mariana Islands (CNMI). 

United States Citizenship and 

Immigration Services (USCIS) means the 

Federal agency within DHS that makes 

the determination under the INA 

whether to grant petitions filed by 

employers seeking H–2B workers to 

perform temporary nonagricultural work 

in the U.S. 

United States worker (U.S. worker) 

means a worker who is: 

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

(2) An alien who is lawfully admitted 

for permanent residence in the U.S., is 

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

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

1158, or is an immigrant otherwise 

authorized (by the INA or by DHS) to be 

employed in the U.S.; or 

(3) An individual who is not an 

unauthorized alien (as defined in 8 

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

employment in which the worker is 

engaging. 

Wage and Hour Division (WHD) 

means the agency within the 

Department with investigatory and law 

enforcement authority, as delegated 

from DHS, to carry out the provisions 

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

Wages mean all forms of cash 

remuneration to a worker by an 

employer in payment for personal 

services. 

§ 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). 

(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). 

§ 503.6 Waiver of rights prohibited. 

A person may not seek to have an 

H–2B worker, a worker in 

corresponding employment, or any 

other person, including but not limited 

to a U.S. worker improperly rejected for 

employment or improperly laid off or 

displaced, waive or modify any rights 

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

20 CFR part 655, Subpart A, or the 

regulations in this part. Any agreement 

by an employee purporting to waive or 

modify any rights given to said person 

under these provisions will be void as 

contrary to public policy except as 

follows: 

(a) Waivers or modifications of rights 

or obligations hereunder in favor of the 

Secretary will be valid for purposes of 

enforcement; and 

(b) Agreements in settlement of 

private litigation are permitted. 

§ 503.7 Investigation authority of 

Secretary. 

(a) Authority of the Administrator, 

WHD. The Secretary of Homeland 

Security has delegated to the Secretary, 

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

to perform investigative and 

enforcement functions. The 

Administrator, WHD will perform all 

such functions. 

(b) Conduct of investigations. The 

Secretary, through the WHD, may 

investigate to determine compliance 

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

20 CFR part 655, Subpart A, or the 

regulations in this part, either under a 

complaint or otherwise, as may be 

appropriate. In connection with such an 

investigation, WHD may enter and 

inspect any premises, land, property, 

worksite, vehicles, structure, facility, 

place and records (and make 

transcriptions, photographs, scans, 

videos, photocopies, or use any other 

means to record the content of the 

records or preserve images of places or 

objects), question any person, or gather 

any information, in whatever form, as 

may be appropriate. 

(c) Confidential investigation. The 

WHD will conduct investigations in a 

manner that protects the confidentiality 

of any complainant or other person who 

provides information to the Secretary in 

good faith. 

(d) Report of violations. Any person 

may report a violation of the obligations 

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

part 655, Subpart A, or the regulations 

in this part to the Secretary by advising 

any local office of the SWA, ETA, WHD 

or any other authorized representative 

of the Secretary. The office or person 


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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 the regulations in this part 

are subject to 18 U.S.C. 1001, which 

provides, with regard to statements or 

entries generally, that whoever, in any 

matter within the jurisdiction of any 

department or agency of the U.S., 

knowingly and willfully falsifies, 

conceals, or covers up a material fact by 

any trick, scheme, or device, or makes 

any false, fictitious, or fraudulent 

statements or representations, or makes 

or uses any false writing or document 

knowing the same to contain any false, 

fictitious, or fraudulent statement or 

entry, will be fined not more than 

$250,000 or imprisoned not more than 

5 years, or both. 

Subpart B—Enforcement 

§ 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 with respect to its 

H–2B workers and any workers in 

corresponding employment: 

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

in the job order equals or exceeds the 

highest of the prevailing wage or 

Federal minimum wage, State minimum 

wage, or local minimum wage. The 

employer must pay at least the offered 

wage, free and clear, during the entire 

period of the Application for Temporary 

Employment Certification granted by 

OFLC. 

(2) The offered wage is not based on 

commissions, bonuses, or other 

incentives, including paying on a 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 the 

employer must demonstrate that they 

are normal and usual for non-H–2B 

employers for the same occupation in 

the area of intended employment. 

(4) An employer that pays on a piecerate basis must demonstrate that the 

piece rate is no less than the normal rate 

paid by non-H–2B employers to workers 

performing the same activity in the area 

of intended employment. The average 

hourly piece rate earnings must result in 

an amount at least equal to the offered 

wage. If the worker is paid on a piece 

rate basis and at the end of the 

workweek the piece rate does not result 

in average hourly piece rate earnings 

during the workweek at least equal to 

the amount the worker would have 

earned had the worker been paid at the 

offered hourly wage, then the employer 

must supplement the worker’s pay at 

that time so that the worker’s earnings 

are at least as much as the worker would 

have earned during the workweek if the 

worker had instead been paid at the 

offered hourly wage for each hour 

worked. 

(b) Wages free and clear. The payment 

requirements for wages in this section 

will be satisfied by the timely payment 

of such wages to the worker either in 

cash or negotiable instrument payable at 

par. The payment must be made finally 

and unconditionally and ‘‘free and 

clear.’’ The principles applied in 

determining whether deductions are 

reasonable and payments are received 

free and clear and the permissibility of 

deductions for payments to third 

persons are explained in more detail in 

29 CFR part 531. 

(c) Deductions. The employer must 

make all deductions from the worker’s 

paycheck required by law. The job order 

must specify all deductions not required 

by law which the employer will make 

from the worker’s pay; any such 

deductions not disclosed in the job 

order are prohibited. The wage payment 

requirements of paragraph (b) of this 

section are not met where unauthorized 

deductions, rebates, or refunds reduce 

the wage payment made to the worker 

below the minimum amounts required 

by the offered wage or where the worker 

fails to receive such amounts free and 

clear because the worker ‘‘kicks back’’ 

directly or indirectly to the employer or 

to another person for the employer’s 

benefit the whole or part of the wages 

delivered to the worker. Authorized 

deductions are limited to: Those 

required by law, such as taxes payable 

by workers that are required to be 

withheld by the employer and amounts 

due workers which the employer is 

required by court order to pay to 

another; deductions for the reasonable 

cost or fair value of board, lodging, and 

facilities furnished; and deductions of 

amounts which are authorized to be 

paid to third persons for the worker’s 

account and benefit through his or her 

voluntary assignment or order or which 

are authorized by a collective bargaining 

agreement with bona fide 

representatives of workers which covers 

the employer. Deductions for amounts 

paid to third persons for the worker’s 

account and benefit which are not so 

authorized or are contrary to law or 

from which the employer, agent or 

recruiter, including any agents or 

workers, or any affiliated person derives 

any payment, rebate, commission, 

profit, or benefit directly or indirectly, 

may not be made if they reduce the 

actual wage paid to the worker below 

the offered wage indicated on the 

Application for Temporary Employment 

Certification. 

(d) Job opportunity is full-time. The 

job opportunity is a full-time temporary 

position, consistent with § 503.4, and 

the employer must use a single 

workweek as its standard for computing 

wages due. An employee’s workweek 

must be a fixed and regularly recurring 

period of 168 hours—seven consecutive 

24-hour periods. It need not coincide 

with the calendar week but may begin 

on any day and at any hour of the day. 

(e) Job qualifications and 

requirements. Each job qualification and 

requirement must be listed in the job 

order and must be bona fide and 

consistent with the normal and accepted 

qualifications and requirements 

imposed by non-H–2B employers in the 

same occupation and area of intended 

employment. The employer’s job 

qualifications and requirements 

imposed on U.S. workers must be no 

less favorable than the qualifications 

and requirements that the employer is 

imposing or will impose on H–2B 

workers. A qualification means a 

characteristic that is necessary to the 

individual’s ability to perform the job in 

question. A requirement means a term 

or condition of employment which a 

worker is required to accept in order to 

obtain the job opportunity. The CO may 

require the employer to submit 

documentation to substantiate the 

appropriateness of any job qualification 

and/or requirement specified in the job 

order. 

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

employer must guarantee to offer the 

worker employment for a total number 

of work hours equal to at least threefourths of the workdays in each 12-week 


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period (each 6-week period if the period 

of employment covered by the job order 

is less than 120 days) beginning with 

the first workday after the arrival of the 

worker at the place of employment or 

the advertised first date of need, 

whichever is later, and ending on the 

expiration date specified in the job 

order or in its extensions, if any. See the 

exception in paragraph (y) of this 

section. 

(2) For purposes of this paragraph (f) 

a workday means the number of hours 

in a workday as stated in the job order. 

The employer must offer a total number 

of hours of work to ensure the provision 

of sufficient work to reach the threefourths guarantee in each 12-week 

period (each 6-week period if the period 

of employment covered by the job order 

is less than 120 days) during the work 

period specified in the job order, or 

during any modified job order period to 

which the worker and employer have 

mutually agreed and that has been 

approved by the CO. 

(3) In the event the worker begins 

working later than the specified 

beginning date the guarantee period 

begins with the first workday after the 

arrival of the worker at the place of 

employment, and continues until the 

last day during which the job order and 

all extensions thereof are in effect. 

(4) The 12-week periods to which the 

guarantee applies (6-week periods if the 

period of employment covered by the 

job order is less than 120 days) to which 

the guarantee applies are based upon 

the workweek used by the employer for 

pay purposes. The first 12-week period 

(or 6-week period, as appropriate) also 

includes any partial workweek, if the 

first workday after the worker’s arrival 

at the place of employment is not the 

beginning of the employer’s workweek, 

with the guaranteed number of hours 

increased on a pro rata basis (thus, the 

first period may include up to 12 weeks 

and 6 days (or 6 weeks and 6 days, as 

appropriate)). The final 12-week period 

(or 6-week period, as appropriate) 

includes any time remaining after the 

last full 12-week period (or 6-week 

period) ends, and thus may be as short 

as 1 day, with the guaranteed number of 

hours decreased on a pro rata basis. 

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

order is for a 32-week period (a period 

greater than 120 days), during which the 

normal workdays and work hours for 

the workweek are specified as 5 days a 

week, 7 hours per day, the worker 

would have to be guaranteed 

employment for at least 315 hours (12 

weeks × 35 hours/week = 420 hours × 

75 percent = 315) in the first 12-week 

period, at least 315 hours in the second 

12-week period, and at least 210 hours 

(8 weeks × 35 hours/week = 280 hours 

× 75 percent = 210) in the final partial 

period. If the job order is for a 16-week 

period (less than 120 days), during 

which the normal workdays and work 

hours for the workweek are specified as 

5 days a week, 7 hours per day, the 

worker would have to be guaranteed 

employment for at least 157.5 hours (6 

weeks × 35 hours/week = 210 hours × 

75 percent = 157.5) in the first 6-week 

period, at least 157.5 hours in the 

second 6-week period, and at least 105 

hours (4 weeks × 35 hours/week = 140 

hours × 75 percent = 105) in the final 

partial period. 

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

basis, the employer must use the 

worker’s average hourly piece rate 

earnings or the offered wage, whichever 

is higher, to calculate the amount due 

under the guarantee. 

(7) A worker may be offered more 

than the specified hours of work on a 

single workday. For purposes of meeting 

the guarantee, however, the worker will 

not be required to work for more than 

the number of hours specified in the job 

order for a workday. The employer, 

however, may count all hours actually 

worked in calculating whether the 

guarantee has been met. If during any 

12-week period (6-week period if the 

period of employment covered by the 

job order is less than 120 days) during 

the period of the job order the employer 

affords the U.S. or H–2B worker less 

employment than that required under 

paragraph (f)(1) of this section, the 

employer must pay such worker the 

amount the worker would have earned 

had the worker, in fact, worked for the 

guaranteed number of days. An 

employer has not met the work 

guarantee if the employer has merely 

offered work on three-fourths of the 

workdays in an 12-week period (or 6- 

week period, as appropriate) if each 

workday did not consist of a full 

number of hours of work time as 

specified in the job order. 

(8) Any hours the worker fails to 

work, up to a maximum of the number 

of hours specified in the job order for a 

workday, when the worker has been 

offered an opportunity to work in 

accordance with paragraph (f)(1) of this 

section, and all hours of work actually 

performed (including voluntary work 

over 8 hours in a workday), may be 

counted by the employer in calculating 

whether each 12-week period (or 6-week 

period, as appropriate) of guaranteed 

employment has been met. An employer 

seeking to calculate whether the 

guaranteed number of hours has been 

met must maintain the payroll records 

in accordance with this part. 

(g) Impossibility of fulfillment. If, 

before the expiration date specified in 

the job order, the services of the worker 

are no longer required for reasons 

beyond the control of the employer due 

to fire, weather, or other Act of God or 

similar unforeseeable man-made 

catastrophic event (such as an oil spill 

or controlled flooding) that is wholly 

outside the employer’s control that 

makes the fulfillment of the job order 

impossible, the employer may terminate 

the job order with the approval of the 

CO. In the event of such termination of 

a job order, the employer must fulfill a 

three-fourths guarantee, as described in 

paragraph (f) of this section, for the time 

that has elapsed from the start date 

listed in the job order or the first 

workday after the arrival of the worker 

at the place of employment, whichever 

is later, to the time of its termination. 

The employer must make efforts to 

transfer the H–2B worker or worker in 

corresponding employment to other 

comparable employment acceptable to 

the worker and consistent with the INA, 

as applicable. If a transfer is not 

effected, the employer must return the 

worker, at the employer’s expense, to 

the place from which the worker 

(disregarding intervening employment) 

came to work for the employer, or 

transport the worker to the worker’s 

next certified H–2B employer, 

whichever the worker prefers. 

(h) Frequency of pay. The employer 

must state in the job order the frequency 

with which the worker will be paid, 

which must be at least every 2 weeks or 

according to the prevailing practice in 

the area of intended employment, 

whichever is more frequent. Employers 

must pay wages when due. 

(i) Earnings statements. (1) The 

employer must keep accurate and 

adequate records with respect to the 

workers’ earnings, including but not 

limited to: records showing the nature, 

amount, and location(s) of the work 

performed; the number of hours of work 

offered each day by the employer 

(broken out by hours offered both in 

accordance with and over and above the 

three-fourths guarantee in paragraph (f) 

of this section); the hours actually 

worked each day by the worker; if the 

number of hours worked by the worker 

is less than the number of hours offered, 

the reason(s) the worker did not work; 

the time the worker began and ended 

each workday; the rate of pay (both 

piece rate and hourly, if applicable); the 

worker’s earnings per pay period; the 

worker’s home address; and the amount 

of and reasons for any and all 

deductions taken from or additions 

made to the worker’s wages. 


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(2) The employer must furnish to the 

worker on or before each payday in one 

or more written statements the 

following information: 

(i) The worker’s total earnings for 

each workweek in the pay period; 

(ii) The worker’s hourly rate and/or 

piece rate of pay; 

(iii) For each workweek in the pay 

period the hours of employment offered 

to the worker (showing offers in 

accordance with the three-fourths 

guarantee as determined in paragraph (f) 

of this section, separate from any hours 

offered over and above the guarantee); 

(iv) For each workweek in the pay 

period the hours actually worked by the 

worker; 

(v) An itemization of all deductions 

made from or additions made to the 

worker’s wages; 

(vi) If piece rates are used, the units 

produced daily; 

(vii) The beginning and ending dates 

of the pay period; and 

(viii) The employer’s name, address 

and FEIN. 

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

Transportation to the place of 

employment. The employer must 

provide or reimburse the worker for 

transportation and subsistence from the 

place from which the worker has come 

to work for the employer, whether in the 

U.S. or abroad, to the place of 

employment if the worker completes 50 

percent of the period of employment 

covered by the job order (not counting 

any extensions). The employer may 

arrange and pay for the transportation 

and subsistence directly, advance at a 

minimum the most economical and 

reasonable common carrier cost of the 

transportation and subsistence to the 

worker before the worker’s departure, or 

pay the worker for the reasonable costs 

incurred by the worker. When it is the 

prevailing practice of non-H–2B 

employers in the occupation in the area 

to do so or when the employer extends 

such benefits to similarly situated H–2B 

workers, the employer must advance the 

required transportation and subsistence 

costs (or otherwise provide them) to 

workers in corresponding employment 

who are traveling to the employer’s 

worksite. The amount of the 

transportation payment must be no less 

(and is not required to be more) than the 

most economical and reasonable 

common carrier transportation charges 

for the distances involved. The amount 

of the daily subsistence must be at least 

the amount permitted in 20 CFR 

655.173. Where the employer will 

reimburse the reasonable costs incurred 

by the worker, it must keep accurate and 

adequate records of: the costs of 

transportation and subsistence incurred 

by the worker; the amount reimbursed; 

and the date(s) of reimbursement. Note 

that the Fair Labor Standards Act 

(FLSA) applies independently of the 

H–2B requirements and imposes 

obligations on employers regarding 

payment of wages. 

(ii) Transportation from the place of 

employment. If the worker completes 

the period of employment covered by 

the job order (not counting any 

extensions), or if the worker is 

dismissed from employment for any 

reason by the employer before the end 

of the period, and the worker has no 

immediate subsequent H–2B 

employment, the employer must 

provide or pay at the time of departure 

for the worker’s cost of return 

transportation and daily subsistence 

from the place of employment to the 

place from which the worker, 

disregarding intervening employment, 

departed to work for the employer. If the 

worker has contracted with a 

subsequent employer that has not 

agreed in the job order to provide or pay 

for the worker’s transportation from the 

employer’s worksite to such subsequent 

employer’s worksite, the employer must 

provide or pay for that transportation 

and subsistence. If the worker has 

contracted with a subsequent employer 

that has agreed in the job order to 

provide or pay for the worker’s 

transportation from the employer’s 

worksite to such subsequent employer’s 

worksite, the subsequent employer must 

provide or pay for such expenses. 

(iii) Employer-provided 

transportation. All employer-provided 

transportation must comply with all 

applicable Federal, State, and local laws 

and regulations and must provide, at a 

minimum, the same vehicle safety 

standards, driver licensure 

requirements, and vehicle insurance as 

required under 49 CFR parts 390, 393, 

and 396. 

(iv) Disclosure. All transportation and 

subsistence costs that the employer will 

pay must be disclosed in the job order. 

(2) The employer must pay or 

reimburse the worker in the first 

workweek for all visa, visa processing, 

border crossing, and other related fees 

(including those mandated by the 

government) incurred by the H–2B 

worker, but not for passport expenses or 

other charges primarily for the benefit of 

the worker. 

(k) Employer-provided items. The 

employer must provide to the worker, 

without charge or deposit charge, all 

tools, supplies, and equipment required 

to perform the duties assigned. 

(l) Disclosure of job order. The 

employer must provide to an H–2B 

worker outside of the U.S. no later than 

the time at which the worker applies for 

the visa, or to a worker in corresponding 

employment no later than on the day 

work commences, a copy of the job 

order including any subsequent 

approved modifications. For an H–2B 

worker changing employment from an 

H–2B employer to a subsequent H–2B 

employer, the copy must be provided no 

later than the time an offer of 

employment is made by the subsequent 

H–2B employer. The disclosure of all 

documents required by this paragraph 

must be provided in a language 

understood by the worker, as necessary 

or reasonable. 

(m) Notice of worker rights. The 

employer must post and maintain in a 

conspicuous location at the place of 

employment a poster provided by the 

Department which sets out the rights 

and protections for H–2B workers and 

workers in corresponding employment. 

The employer must post the poster in 

English. To the extent necessary, the 

employer must request and post 

additional posters, as made available by 

the Department, in any language 

common to a significant portion of the 

workers if they are not fluent in English. 

(n) No unfair treatment. The employer 

has not and will not intimidate, 

threaten, restrain, coerce, blacklist, 

discharge or in any manner discriminate 

against, and has not and will not cause 

any person to intimidate, threaten, 

restrain, coerce, blacklist, discharge, or 

in any manner discriminate against, any 

person who has: 

(1) Filed a complaint under or related 

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

Subpart A, or this part or any other 

Department regulation promulgated 

thereunder; 

(2) Instituted or caused to be 

instituted any proceeding under or 

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

655, Subpart A, or this part or any other 

Department regulation promulgated 

thereunder; 

(3) Testified or is about to testify in 

any proceeding under or related to 8 

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

A, or this part or any other Department 

regulation promulgated thereunder; 

(4) Consulted with a workers’ center, 

community organization, labor union, 

legal assistance program, or an attorney 

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

20 CFR part 655, Subpart A, or this part 

or any other Department regulation 

promulgated thereunder; or 

(5) Exercised or asserted on behalf of 

himself/herself or others any right or 

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

20 CFR part 655, Subpart A, or this part 

or any other Department regulation 

promulgated thereunder. 


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(o) Comply with the prohibitions 

against employees paying fees. The 

employer and its attorney, agents, or 

employees have not sought or received 

payment of any kind from the worker 

for any activity related to obtaining H– 

2B labor certification or employment, 

including payment of the employer’s 

attorney or agent fees, application and 

H–2B Petition fees, recruitment costs, or 

any fees attributed to obtaining the 

approved Application for Temporary 

Employment Certification. For purposes 

of this paragraph, payment includes, but 

is not limited to, monetary payments, 

wage concessions (including deductions 

from wages, salary, or benefits), 

kickbacks, bribes, tributes, in-kind 

payments, and free labor. All wages 

must be paid free and clear. This 

provision does not prohibit employers 

or their agents from receiving 

reimbursement for costs that are the 

responsibility and primarily for the 

benefit of the worker, such as 

government-required passport fees. 

(p) Contracts with third parties to 

comply with prohibitions. The employer 

must contractually prohibit in writing 

any agent or recruiter (or any agent or 

employee of such agent or recruiter) 

whom the employer engages, either 

directly or indirectly, in international 

recruitment of H–2B workers to seek or 

receive payments or other compensation 

from prospective workers. The contract 

must include the following statement: 

‘‘Under this agreement, [name of agent, 

recruiter] and any agent of or employee 

of [name of agent or recruiter] are 

prohibited from seeking or receiving 

payments from any prospective 

employee of [employer name] at any 

time, including before or after the 

worker obtains employment. Payments 

include but are not limited to, any direct 

or indirect fees paid by such employees 

for recruitment, job placement, 

processing, maintenance, attorneys’ 

fees, agent fees, application fees, or 

petition fees.’’ 

(q) Prohibition against preferential 

treatment of foreign workers. The 

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

workers no less than the same benefits, 

wages, and working conditions that the 

employer is offering, intends to offer, or 

will provide to H–2B workers. Job offers 

may not impose on U.S. workers any 

restrictions or obligations that will not 

be imposed on the employer’s H–2B 

workers. This does not relieve the 

employer from providing to H–2B 

workers at least the minimum benefits, 

wages, and working conditions which 

must be offered to U.S. workers 

consistent with this section. 

(r) Non-discriminatory hiring 

practices. The job opportunity is, and 

through the period set forth in 

paragraph (t) of this section must 

continue to be, open to any qualified 

U.S. worker regardless of race, color, 

national origin, age, sex, religion, 

disability, or citizenship. Rejections of 

any U.S. workers who applied or apply 

for the job must only be for lawful, 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 required 

recruitment activities, including any 

additional employer-conducted 

recruitment activities as directed by the 

CO, and as specified in 20 CFR 655.40 

through 655.46. 

(t) Continuing requirement to hire 

U.S. workers. The employer has and 

will continue to cooperate with the 

SWA by accepting referrals of all 

qualified U.S. workers who apply (or on 

whose behalf a job application is made) 

for the job opportunity, and must 

provide employment to any qualified 

U.S. worker who applies to the 

employer for the job opportunity, until 

21 days before the date of need. 

(u) No strike or lockout. There is no 

strike or lockout at any of the 

employer’s worksites within the area of 

intended employment for which the 

employer is requesting H–2B 

certification at the time the Application 

for Temporary Employment 

Certification is filed. 

(v) No recent or future layoffs. The 

employer has not laid off and will not 

lay off any similarly employed U.S. 

worker in the occupation that is the 

subject of the Application for 

Temporary Employment Certification in 

the area of intended employment within 

the period beginning 120 calendar days 

before the date of need through the end 

of the period of certification. A layoff for 

lawful, job-related reasons such as lack 

of work or the end of a season is 

permissible if all H–2B workers are laid 

off before any U.S. worker in 

corresponding employment. 

(w) Contact with former U.S. 

employees. The employer will contact 

(by mail or other effective means) its 

former U.S. workers, including those 

who have been laid off within 120 

calendar days before the date of need 

(except those who were dismissed for 

cause or who abandoned the worksite), 

employed by the employer in the 

occupation at the place of employment 

during the previous year, disclose the 

terms of the job order, and solicit their 

return to the job. 

(x) Area of intended employment and 

job opportunity. The employer must not 

place any H–2B workers employed 

under the approved Application for 

Temporary Employment Certification 

outside the area of intended 

employment or in a job opportunity not 

listed on the approved Application for 

Temporary Employment Certification 

unless the employer has obtained a new 

approved Application for Temporary 

Employment Certification. 

(y) Abandonment/termination of 

employment. Upon the separation from 

employment of worker(s) employed 

under the Application for Temporary 

Employment Certification or workers in 

corresponding employment, if such 

separation occurs before the end date of 

the employment specified in the 

Application for Temporary Employment 

Certification, the employer must notify 

OFLC in writing of the separation from 

employment not later than 2 work days 

after such separation is discovered by 

the employer. In addition, the employer 

must notify DHS in writing (or any other 

method specified by the Department or 

DHS in the Federal Register or the Code 

of Federal Regulations) of such 

separation of an H–2B worker. An 

abandonment or abscondment is 

deemed to begin after a worker fails to 

report for work at the regularly 

scheduled time for 5 consecutive 

working days without the consent of the 

employer. If the separation is due to the 

voluntary abandonment of employment 

by the H–2B worker or worker in 

corresponding employment, and the 

employer provides appropriate 

notification specified under this 

paragraph, the employer will not be 

responsible for providing or paying for 

the subsequent transportation and 

subsistence expenses of that worker 

under this section, and that worker is 

not entitled to the three-fourths 

guarantee described in paragraph (f) of 

this section. The employer’s obligation 

to guarantee three-fourths of the work 

described in paragraph (f) ends with the 

last full 12-week period (or 6-week 

period, as appropriate) preceding the 

worker’s voluntary abandonment or 

termination for cause. 

(z) Compliance with applicable laws. 

During the period of employment 

specified on the Application for 

Temporary Employment Certification, 

the employer must comply with all 

applicable Federal, State and local 

employment-related laws and 

regulations, including health and safety 

laws. In compliance with such laws, 

including the William Wilberforce 

Trafficking Victims Protection 

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

1592(a), neither the employer nor the 


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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 10177 

employer’s agents or attorneys may hold 

or confiscate workers’ passports, visas, 

or other immigration documents. 

(aa) Disclosure of foreign worker 

recruitment. The employer, and its 

attorney or agent, as applicable, must 

comply with 20 CFR 655.9 by providing 

a copy of all agreements with any agent 

or recruiter whom it engages or plans to 

engage in the international recruitment 

of H–2B workers, and the identity and 

location of the persons or entities hired 

by or working for the agent or recruiter, 

and any of the agents or employees of 

those persons and entities, to recruit 

foreign workers. Pursuant to 20 CFR 

655.15(a), the agreements and 

information must be filed with the 

Application for Temporary Employment 

Certification. 

(bb) Cooperation with investigators. 

The employer must cooperate with any 

employee of the Secretary who is 

exercising or attempting to exercise the 

Department’s authority pursuant to 8 

U.S.C. 1184(c). 

§ 503.17 Document retention requirements 

of H–2B employers. 

(a) Entities required to retain 

documents. All employers filing an 

Application for Temporary Employment 

Certification requesting H–2B workers 

are required to retain the documents 

and records proving compliance with 

20 CFR part 655, Subpart A and this 

part, including but not limited to those 

specified in paragraph (c) of this 

section. 

(b) Period of required retention. The 

employer must retain records and 

documents for 3 years from the date of 

certification of the Application for 

Temporary Employment Certification or 

from the date of adjudication if the 

Application for Temporary Employment 

Certification is denied or 3 years from 

the day the Department receives the 

letter of withdrawal provided in 

accordance with 20 CFR 655.62. 

(c) Documents and records to be 

retained by all employer applicants. All 

employers filing an H–2B Registration 

and an Application for Temporary 

Employment Certification must retain 

the following documents and records 

and must provide the documents and 

records in the event of an audit or 

investigation: 

(1) Documents and records not 

previously submitted during the 

registration process that substantiate 

temporary need; 

(2) Proof of recruitment efforts, as 

applicable, including: 

(i) Job order placement as specified in 

20 CFR 655.16; 

(ii) Advertising as specified in 20 CFR 

655.41 and 655.42; 

(iii) Contact with former U.S. workers 

as specified in 20 CFR 655.43; 

(iv) Contact with bargaining 

representative(s), copy of the posting of 

the job opportunity, and contact with 

community-based organizations, if 

applicable, as specified in 20 CFR 

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

(v) Additional employer-conducted 

recruitment efforts as specified in 

20 CFR 655.46; 

(3) Substantiation of the information 

submitted in the recruitment report 

prepared in accordance with 20 CFR 

655.48, such as evidence of 

nonapplicability of contact with former 

workers as specified in 20 CFR 655.43; 

(4) The final recruitment report and 

any supporting resumes and contact 

information as specified in 20 CFR 

655.48; 

(5) Records of each worker’s earnings, 

hours offered and worked, and other 

information as specified in § 503.16(i); 

(6) If appropriate, records of 

reimbursement of transportation and 

subsistence costs incurred by the 

workers, as specified in § 503.16(j). 

(7) Evidence of contact with U.S. 

workers who applied for the job 

opportunity in the Application for 

Temporary Employment Certification, 

including documents demonstrating 

that any rejections of U.S. workers were 

for lawful, job-related reasons, as 

specified in § 503.16(r); 

(8) Evidence of contact with any 

former U.S. worker in the occupation 

and the area of intended employment in 

the Application for Temporary 

Employment Certification, including 

documents demonstrating that the U.S. 

worker had been offered the job 

opportunity in the Application for 

Temporary Employment Certification, 

as specified in § 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); 

(9) The written contracts with agents 

or recruiters, as specified in 20 CFR 

655.8 and 655.9, and the list of the 

identities and locations of persons hired 

by or working for the agent or recruiter 

and these entities’ agents or employees, 

as specified in 20 CFR 655.9; 

(10) Written notice provided to and 

informing OFLC that an H–2B worker or 

worker in corresponding employment 

has separated from employment before 

the end date of employment specified in 

the Application for Temporary 

Employment Certification, as specified 

in § 503.16(y); 

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

and the Application for Temporary 

Employment Certification; 

(12) The approved H–2B Petition, 

including all accompanying documents; 

and 

(13) Any collective bargaining 

agreement(s), individual employment 

contract(s), or payroll records from the 

previous year necessary to substantiate 

any claim that certain incumbent 

workers are not included in 

corresponding employment, as specified 

in § 503.4. 

(d) Availability of documents for 

enforcement purposes. An employer 

must make available to the 

Administrator, WHD within 72 hours 

following a request by the WHD the 

documents and records required under 

20 CFR part 655, Subpart A and this 

section so that the Administrator, WHD 

may copy, transcribe, or inspect them. 

§ 503.18 Validity of temporary labor 

certification. 

(a) Validity period. A temporary labor 

certification is valid only for the period 

of time between the beginning and 

ending dates of employment, as 

approved on the Application for 

Temporary Employment Certification. 

The certification expires on the last day 

of authorized employment. 

(b) Scope of validity. A temporary 

labor certification is valid only for the 

number of H–2B positions, the area of 

intended employment, the job 

classification and specific services or 

labor to be performed, and the employer 

specified on the approved Application 

for Temporary Employment 

Certification. The temporary labor 

certification may not be transferred from 

one employer to another unless the 

employer to which it is transferred is a 

successor in interest to the employer to 

which it was issued. 

§ 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 


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(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 

or in occupations other than those 

identified on the Application for 

Temporary Employment Certification 

and for which a prevailing wage was not 

obtained); the enforcement of provisions 

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

20 CFR part 655, Subpart A, or the 

regulations in this part; the assessment 

of a civil money penalty; make whole 

relief for any person who has been 

discriminated against; reinstatement 

and make whole relief for any U.S. 

worker who has been improperly 

rejected for employment, laid off or 

displaced; or debarment for no less than 

1 or no more than 5 years. 

(b) The remedies referenced in 

paragraph (a) of this section will be 

sought either directly from the 

employer, or from its successor in 

interest, or from the employer’s agent or 

attorney, as appropriate. 

§ 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 the 

regulations in this part. 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 

the regulations in this part. 

§ 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) to (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), (t), or 

(v), within the periods described in 

those sections, the Administrator, WHD 

may assess civil money penalties that 

are equal to the wages that would have 

been earned but for the layoff or failure 

to hire, not to exceed $10,000 per 

violation. No civil money penalty will 

be assessed, however, if the employee 

refused the job opportunity, or was 

terminated for lawful, job-related 

reasons. 

(d) The Administrator, WHD may 

assess civil money penalties in an 

amount not to exceed $10,000 per 

violation for any other violation that 

meets the standards described in 

§ 503.19. 

(e) In determining the amount of the 

civil money penalty to be assessed 

under paragraph (d) of this section, the 

Administrator, WHD will consider the 

type of violation committed and other 

relevant factors. In determining the level 

of penalties to be assessed, the highest 

penalties will be reserved for willful 

failures to meet any of the conditions of 

the Application for Temporary 

Employment Certification and H–2B 

Petition that involve harm to U.S. 

workers. Other factors which may be 

considered include, but are not limited 

to, the following: 

(1) Previous history of violation(s) of 

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

Subpart A, or the regulations in this 

part; 

(2) The number of H–2B workers, 

workers in corresponding employment, 

or improperly rejected U.S. applicants 

who were and/or are affected by the 

violation(s); 

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

(4) Efforts made in good faith to 

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

part 655, Subpart A, and the regulations 

in this part; 

(5) Explanation from the person 

charged with the violation(s); 

(6) Commitment to future compliance, 

taking into account the public health, 

interest or safety; and 

(7) The extent to which the violator 

achieved a financial gain due to the 

violation, or the potential financial loss 

or potential injury to the workers. 


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§ 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 one or more acts of 

commission or omission which involve: 

(1) Failure to pay or provide the 

required wages, benefits, or working 

conditions to the employer’s H–2B 

workers and/or workers in 

corresponding employment; 

(2) Failure, except for lawful, 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) Any other act showing such 

flagrant disregard for the law that future 

compliance with program requirements 

cannot reasonably be expected; 

(11) Fraud involving the H–2B 

Registration, Application for Temporary 

Employment Certification, or H–2B 

Petition; or 

(12) A material misrepresentation of 

fact during the registration or 

application process. 

(b) Debarment of an agent or attorney. 

If the Administrator, WHD finds, under 

this section, that an agent or attorney 

committed a violation as described in 

paragraph (a) of this section or 

participated in an employer’s violation, 

the Administrator, OFLC may not issue 

future labor certifications to an 

employer represented by such agent or 

attorney, subject to the time limits set 

forth in paragraph (c) of this section. 

(c) Period of debarment. Debarment 

under this subpart may not be for less 

than 1 year or more than 5 years from 

the date of the final agency decision. 

(d) Debarment procedure. If the 

Administrator, WHD makes a 

determination to debar an employer, 

attorney, or agent, the Administrator, 

WHD will send the party a Notice of 

Debarment. The notice will state the 

reason for the debarment finding, 

including a detailed explanation of the 

grounds for and the duration of the 

debarment and inform the party subject 

to the notice of its right to request a 

debarment hearing and the timeframe 

under which such rights must be 

exercised under § 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). 

(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 

in this subpart prescribe the 

administrative appeal process that will 

be applied with respect to a 

determination to assess civil money 

penalties, to debar, to enforce provisions 

of the job order or obligations under 

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

Subpart A, or the regulations in this 

part, or to the collection of monetary 

relief due as a result of any violation. 

Procedures Related to Hearing 

§ 503.41 Administrator, WHD’s 

determination. 

(a) Whenever the Administrator, WHD 

decides to assess a civil money penalty, 

to debar, or to impose other appropriate 

administrative remedies, including for 

the recovery of monetary relief, the 

party against which such action is taken 


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will be notified in writing of such 

determination. 

(b) The Administrator, WHD’s 

determination will be served on the 

party by personal service or by certified 

mail at the party’s last known address. 

Where service by certified mail is not 

accepted by the party, the Administrator 

may exercise discretion to serve the 

determination by regular mail. 

§ 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 recipient(s) of the 

notice that in the absence of a timely 

request for a hearing, received by the 

Chief ALJ within 30 calendar days of the 

date of the determination, the 

determination of the Administrator, 

WHD will become final and not 

appealable; 

(d) Set forth the time and method for 

requesting a hearing, and the related 

procedures for doing so, as set forth in 

§ 503.43, and give the addresses of the 

Chief ALJ (with whom the request must 

be filed) and the representative(s) of the 

Solicitor of Labor (upon whom copies of 

the request must be served); and 

(e) Where appropriate, inform the 

recipient(s) of the notice that the 

Administrator, WHD will notify OFLC 

and DHS of the occurrence of a violation 

by the employer. 

§ 503.43 Request for hearing. 

(a) Any party 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 party will be the respondent. If such 

a request for an administrative hearing 

is timely filed, the Administrator, 

WHD’s determination will be 

inoperative unless and until the case is 

dismissed or the ALJ issues an order 

affirming the decision. 

(b) No particular form is prescribed 

for any request for hearing permitted by 

this section. However, any such request 

will: 

(1) Be dated; 

(2) Be typewritten or legibly written; 

(3) Specify the issue or issues stated 

in the notice of determination giving 

rise to such request; 

(4) State the specific reason or reasons 

why the party believes such 

determination is in error; 

(5) Be signed by the party making the 

request or by the agent or attorney of 

such party; and 

(6) Include the address at which such 

party or agent or attorney desires to 

receive further communications relating 

thereto. 

(c) The request for such hearing must 

be received by the Chief ALJ, at the 

address stated in the Administrator, 

WHD’s notice of determination, no later 

than 30 calendar days after the date of 

the determination. A party which fails 

to meet this 30-day deadline for 

requesting a hearing may thereafter 

participate in the proceedings only by 

consent of the ALJ. 

(d) The request may be filed in 

person, by facsimile transmission, by 

certified or regular mail, or by courier 

service within the time set forth in 

paragraph (c) of this section. For the 

requesting party’s protection, if the 

request is by mail, it should be by 

certified mail. If the request is by 

facsimile transmission, the original of 

the request, signed by the party or its 

attorney or agent, must be filed within 

25 days. 

(e) The determination will take effect 

on the start date identified in the 

written notice of determination, unless 

an administrative appeal is properly 

filed. The timely filing of an 

administrative appeal stays the 

determination pending the outcome of 

the appeal proceedings. 

(f) Copies of the request for a hearing 

will be sent by the party or attorney or 

agent to the WHD official who issued 

the notice of determination on behalf of 

the Administrator, WHD, and to the 

representative(s) of the Solicitor of 

Labor identified in the notice of 

determination. 

Rules of Practice 

§ 503.44 General. 

(a) Except as specifically provided in 

the regulations in this part and to the 

extent they do not conflict with the 

provisions of this part, the Rules of 

Practice and Procedure for 

Administrative Hearings Before the 

Office of Administrative Law Judges 

established by the Secretary at 29 CFR 

part 18 will apply to administrative 

proceedings described in this part. 

(b) As provided in the Administrative 

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

documentary evidence may be received 

in proceedings under this part. The 

Federal Rules of Evidence and subpart 

B of the Rules of Practice and Procedure 

for Administrative Hearings Before the 

Office of Administrative Law Judges (29 

CFR part 18, Subpart B) will not apply, 

but principles designed to ensure 

production of relevant and probative 

evidence will guide the admission of 

evidence. The ALJ may exclude 

evidence which is immaterial, 

irrelevant, or unduly repetitive. 

§ 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 the regulations in this part 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 the regulations in this part will be 

captioned in the name of the person 

requesting such hearing, and will be 

styled as follows: 

In the Matter of 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. 


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§ 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. 

(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 party filed a 

timely appeal under 20 CFR 655.13 the 

final wage determination resulting from 

that process. Under no circumstances 

will the ALJ determine the validity of 

the wage determination or require 

submission into evidence or disclosure 

of source data or the names of 

establishments contacted in developing 

the survey which is the basis for the 

PWD. 

(d) The decision will be served on all 

parties. 

(e) The decision concerning civil 

money penalties, debarment, monetary 

relief, and/or other administrative 

remedies, when served by the ALJ will 

constitute the final agency order unless 

the ARB, as provided for in § 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); 

and 

(c) The time within which such 

presentation will be submitted. 


sroberts on DSK5SPTVN1PROD with RULES
10182 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations 

§ 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 the 

regulations in this part will be 

maintained and filed under the custody 

and control of the Chief ALJ, or, where 

the case has been the subject of 

administrative review, the ARB. 

Signed in Washington, this 6th day of 

February 2012. 

Jane Oates, 

Assistant Secretary, Employment and 

Training Administration. 

Nancy Leppink, 

Deputy Administrator, Wage and Hour 

Division. 

[FR Doc. 2012–3058 Filed 2–10–12; 8:45 am] 

BILLING CODE 4510–FP–P 


sroberts on DSK5SPTVN1PROD with RULES