```

[Federal Register Volume 80, Number 82 (Wednesday, April 29, 2015)]
[Rules and Regulations]
[Pages 24041-24144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-09694]

[[Page 24041]]

Vol. 80

Wednesday,

No. 82

April 29, 2015

Part IV

Department of Homeland Security

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8 CFR Part 214

Department of Labor

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Employment and Training Administration

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20 CFR Part 655

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Wage and Hour Division

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29 CFR Part 503

Temporary Non-Agricultural Employment of H-2B Aliens in the United 
States; Interim Final Rule

Federal Register / Vol. 80 , No. 82 / Wednesday, April 29, 2015 / 
Rules and Regulations

[[Page 24042]]

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 214

[CIS No. 2563-15]
RIN 1615-AC06

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

Wage and Hour Division

29 CFR Part 503

RIN 1205-AB76

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

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

ACTION: Interim final rule; request for comments.

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

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

ADDRESSES: You may submit comments, identified by Regulatory 
Information Number (RIN) 1205-AB76, by any one of the following 
methods:
     Federal e-Rulemaking Portal www.regulations.gov. Follow 
the Web site instructions for submitting comments.
     Mail or Hand Delivery/Courier: Please submit all written 
comments (including disk and CD-ROM submissions) to Adele Gagliardi, 
Administrator, Office of Policy Development and Research, Employment 
and Training Administration, U.S. Department of Labor, 200 Constitution 
Avenue NW., Room N-5641, Washington, DC 20210.
    Please submit your comments by only one method. Comments received 
by means other than those listed above or received after the comment 
period has closed will not be reviewed. The Departments will post all 
comments received on http://www.regulations.gov without making any 
change to the comments, including any personal information provided. 
The http://www.regulations.gov Web site is the Federal e-rulemaking 
portal and all comments posted there are available and accessible to 
the public. The Departments caution commenters not to include personal 
information such as Social Security Numbers, personal addresses, 
telephone numbers, and email addresses in their comments as such 
information will become viewable by the public on the http://www.regulations.gov Web site. It is the commenter's responsibility to 
safeguard his or her information. Comments submitted through http://www.regulations.gov will not include the commenter's email address 
unless the commenter chooses to include that information as part of his 
or her comment.
    Postal delivery in Washington, DC, may be delayed due to security 
concerns. Therefore, the Departments encourage the public to submit 
comments through the http://www.regulations.gov Web site.
    Docket: For access to the docket to read background documents or 
comments received, go to the Federal eRulemaking portal at http://www.regulations.gov. The Departments will also make all the comments 
received available for public inspection during normal business hours 
at the Employment and Training Administration (ETA) Office of Policy 
Development and Research at the above address. If you need assistance 
to review the comments, DOL will provide you with appropriate aids such 
as readers or print magnifiers. DOL will make copies of the rule 
available, upon request, in large print and as an electronic file on 
computer disk. DOL will consider providing the interim final rule in 
other formats upon request. To schedule an appointment to review the 
comments and/or obtain the rule in an alternate format, contact the ETA 
Office of Policy Development and Research at (202) 693-3700 (VOICE) 
(this is not a toll-free number) or 1-877-889-5627 (TTY/TDD).

FOR FURTHER INFORMATION CONTACT: For further information on 8 CFR part 
214, contact Steven W. Viger, Adjudications Officer (Policy), Office of 
Policy and Strategy, U.S. Citizenship and Immigration Services, 
Department of Homeland Security, 20 Massachusetts NW., Washington, DC 
20529-2060; Telephone (202) 272-1470 (this is not a toll-free number).
    For further information on 20 CFR part 655, subpart A, contact 
William W. Thompson, II, Acting Administrator, Office of Foreign Labor 
Certification, ETA, U.S. Department of Labor, 200 Constitution Avenue 
NW., Room C-4312, Washington, DC 20210; Telephone (202) 693-3010 (this 
is not a toll-free number). Individuals with hearing or speech 
impairments may access the telephone number above via TTY by calling 
the toll-free Federal Information Relay Service at 1-800-877-8339.
    For further information on 29 CFR part 503, contact Mary Ziegler, 
Director, Division of Regulations, Legislation, and Interpretation, 
Wage and Hour Division, U.S. Department of Labor, 200 Constitution 
Avenue NW., Room S-3510, Washington, DC 20210; Telephone (202) 693-0071 
(this is not a toll-free number). Individuals with hearing or speech 
impairments may access the telephone number above via TTY by calling 
the toll-free Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: 

I. Executive Summary

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

[[Page 24043]]

section 214(c)(1) (providing for DHS to consult with ``appropriate 
agencies of the government''). Under DHS regulations, an H-2B petition 
for temporary employment must be accompanied by an approved temporary 
labor certification from DOL, which serves as DOL's advice to DHS 
regarding whether a qualified U.S. worker is available to fill the 
petitioning H-2B employer's job opportunity and whether a foreign 
worker's employment in the job opportunity will adversely affect the 
wages or working conditions of similarly employed U.S. workers. See 8 
CFR 214.2(h)(6)(iii)(A) and (D).
    This interim final rule, which is virtually identical to the 2012 
final rule that DOL developed following public notice and comment, 
improves DOL's ability to determine whether it is appropriate to grant 
a temporary employment certification. For reasons described in further 
detail below, DOL never implemented the 2012 final rule; as a result, 
this rulemaking contains a number of improvements to the temporary 
employment certification process that was in place on March 4, 2015. 
This interim final rule expands the ability of U.S. workers to become 
aware of the job opportunities in question and to apply for 
opportunities in which they are interested. For example, this interim 
final rule includes new recruitment and other requirements to broaden 
the dissemination of job offer information (such as by introducing the 
electronic job registry and the possibility of additional required 
contact with community-based organizations). The interim final rule 
also requires the job offer to remain open to U.S. workers until 21 
days before the employer's start date of need, which provides a longer 
application period that ends closer to the date of need than was 
previously required. The interim final rule also reverts back to the 
compliance-based certification model that had been used prior to the 
2008 final rule, rather than continuing to use the attestation model. 
Finally, the interim final rule also adopts an employer registration 
process that requires employers to demonstrate their temporary need for 
labor or services before they apply for a temporary labor 
certification, which expedites the certification process; additionally, 
the resulting registration may remain valid for up to three years, 
thereby shortening the employer's certification process in future 
years.
    The interim final rule also provides a number of additional worker 
protections, such as increasing the number of hours per week required 
for full-time employment and requiring that U.S. workers in 
corresponding employment receive the same wages and benefits as the H-
2B workers. It also requires that employers must guarantee employment 
for a total number of work hours equal to at least three-fourths of the 
workdays in specific periods for both H-2B workers and workers in 
corresponding employment. The interim final rule requires employers to 
pay visa and related fees of H-2B workers, and it requires employers to 
pay the inbound transportation and subsistence costs of workers who 
complete 50 percent of the job order period and the outbound 
transportation and subsistence expenses of employees who complete the 
entire job order period. Finally, it prohibits employers from 
retaliating against employees for exercising rights under the H-2B 
program.
    The interim final rule also contains a number of provisions that 
will lead to increased transparency. It requires employers to disclose 
their use of foreign labor recruiters in the solicitation of workers; 
to provide workers with earnings statements, with hours worked and 
offered and deductions clearly specified; to provide workers with 
copies of the job order; and to display a poster describing employee 
rights and protections. The Departments believe that these procedures 
and additional worker protections will lead to an improved temporary 
employment certification process.
    Summing the present value of the costs associated with this 
rulemaking in Years 1-10 results in total discounted costs over 10 
years of $9.24 million to $10.58 million (with 7 percent and 3 percent 
discounting, respectively).

                          Table 1--Summary of Estimated Cost and Transfers by Provision
                                              [Millions of dollars]
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            Undiscounted                          Transfers and costs by year (in millions of dollars)
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            Cost component                  Year 1  costs           Year 2-10 costs          Year 1-10 costs
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                                                    Transfers
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Corresponding Workers' Wages--Low....  $18.21.................  $18.21.................  $182.1
Corresponding Workers' Wages--High...  $54.62.................  $54.62.................  $546.2
Transportation.......................  $55.19.................  $55.19.................  $551.9
Subsistence..........................  $3.13..................  $3.13..................  $31.3
Lodging..............................  $1.87..................  $1.87..................  $18.66
Visa and Border Crossing Fees........  $10.65.................  $10.65.................  $106.48
Total Transfers--Low.................  $87.24.................  $87.24.................  $890.43
Total Transfers--High................  $125.45................  $125.45................  $1,254.52
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                                               Costs to Employers
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Additional Recruiting................  $0.76..................  $0.76..................  $7.57
Disclosure of Job Order..............  $0.23..................  $0.23..................  $2.34
Read and Understand Rule.............  $0.98..................  $0.....................  $0.98
Document Retention...................  $0.27..................  $0.....................  $0.27
Other Provisions \a\.................  $0.014.................  $0.014.................  $0.14
                                      --------------------------------------------------------------------------
    Total Costs to Employers.........  $2.25..................  $1.01..................  $11.30
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                                               Costs to Government
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Electronic Job Registry..............  $0.14..................  $0.05..................  $0.56

[[Page 24044]]

 
Enhanced U.S. Worker Referral Period.  Not Estimated..........  Not Estimated..........  Not Estimated
                                      --------------------------------------------------------------------------
    Total Costs to Government........  $0.14..................  $0.05..................  $0.56
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                                             Total Costs & Transfers
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Total Costs and Transfers--Low.......  $91.43.................  $90.09.................  $902.28
Total Costs and Transfers--High......  $127.84................  $126.50................  $1,266.37
Total Transfers--Low.................  $89.04.................  $89.04.................  $890.43
Total Transfers--High................  $125.45................  $125.45................  $1,254.52
Total Costs..........................  $2.39..................  $1.05..................  $11.85
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Note: Totals may not sum due to rounding.
\a\ Includes the sum of: Elimination of Attestation-Based Model; Post Job Opportunity; Workers Rights Poster.

     Table 2--Summary of Costs and Transfers--Sum of Present Values
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                                                              Transfers
                                                              and costs
                                                              (millions
                       Cost component                        of dollars)
                                                            ------------
                                                              Year 1-10
                                                                costs
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                  Present Value--7% Real Interest Rate
------------------------------------------------------------------------
Total Costs & Transfers--Low...............................      $678.42
Total Costs & Transfers--High..............................       952.04
Total Transfers--Low.......................................       669.18
Total Transfers--High......................................       942.80
Total Costs................................................         9.24
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                  Present Value--3% Real Interest Rate
------------------------------------------------------------------------
Total Costs & Transfers--Low...............................      $792.92
Total Costs & Transfers--High..............................     1,112.81
Total Transfers--Low.......................................       782.34
Total Transfers--High......................................     1,102.23
Total Costs................................................        10.58
------------------------------------------------------------------------
Note: Totals may not sum due to rounding.

II. Background

A. The Statutory and Regulatory Framework

    The INA establishes the H-2B nonimmigrant classification for a non-
agricultural temporary worker ``having a residence in a foreign country 
which he has no intention of abandoning who is coming temporarily to 
the United States to perform . . . temporary [non-agricultural] service 
or labor if unemployed persons capable of performing such service or 
labor cannot be found in this country.'' 8 U.S.C. 
1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b). Section 
214(c)(1) of the INA, 8 U.S.C. 1184(c)(1), requires an importing 
employer (H-2B employer) to petition DHS for classification of the 
prospective temporary worker as an H-2B nonimmigrant.\1\ DHS must 
approve this petition before the beneficiary can be considered eligible 
for an H-2B visa or H-2B status. Finally, the INA requires that ``[t]he 
question of importing any alien as [an H-2B] nonimmigrant . . . in any 
specific case or specific cases shall be determined by [DHS], after 
consultation with appropriate agencies of the Government, upon petition 
of the importing employer.'' 8 U.S.C. 1184(c)(1), INA section 
214(c)(1).
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    \1\ Under section 1517 of title XV of the Homeland Security Act 
of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, any reference to 
the Attorney General in a provision of the INA describing functions 
that were transferred from the Attorney General or other Department 
of Justice official to DHS by the HSA ``shall be deemed to refer to 
the Secretary'' of Homeland Security. See 6 U.S.C. 557 (2003) 
(codifying HSA, tit. XV, sec. 1517); 6 U.S.C. 542 note; 8 U.S.C. 
1551 note.
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    Pursuant to the above-referenced authorities, DHS has promulgated 
regulations implementing the H-2B program. See, e.g., 73 FR 78104 (Dec. 
19, 2008). These regulations prescribe the conditions under which DHS 
may grant an employer's petition to classify an alien as an H-2B 
worker. See 8 CFR 214.2(h)(6). U.S. Citizenship and Immigration 
Services (USCIS) is the component agency within DHS that adjudicates H-
2B petitions. Id.
    USCIS examines H-2B petitions for compliance with a range of 
statutory and regulatory requirements. For instance, USCIS will examine 
each petition to ensure, inter alia, (1) that the job opportunity in 
the employer's petition is of a temporary nature, 8 CFR 
214.2(h)(1)(ii)(D), (6)(ii) and (6)(vi)(D); (2) that the beneficiary 
alien meets the educational, training, experience, or other 
requirements, if any, attendant to the job opportunity described in the 
petition, 8 CFR 214.2(h)(6)(vi)(C); (3) that there are sufficiently 
available H-2B visas in light of the applicable numerical limitation 
for H-2B visas, 8 CFR 214.2(h)(8)(ii)(A); and (4) that the application 
is submitted consistent with strict requirements ensuring the integrity 
of the H-2B system, 8 CFR 214.2(h)(6)(i)(B), (6)(i)(F).\2\
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    \2\ DHS also publishes annually a list of countries whose 
nationals are eligible to participate in the H-2B visa program in 
the coming year. See 8 CFR 214.2(h)(6)(i)(E); see also, e.g., 79 FR 
3214 (Jan. 17, 2014 notice of eligible country list). As part of its 
adjudication of H-2B petitions, USCIS must determine whether the 
alien beneficiary is a national of a country on the list; if not, 
USCIS must determine whether it is in the U.S. national interest for 
that alien to be a beneficiary of such petition. See 8 CFR 
214.2(h)(6)(i)(E).
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    DHS has implemented the statutory protections attendant to the H-2B 
program, by regulation. See 8 CFR 214.2(h)(6)(iii), (iv), and (v). In 
accordance with the statutory mandate at 8 U.S.C. 1184(c)(1), INA 
section 214(c)(1), that DHS consult with ``appropriate agencies of the 
government'' to determine eligibility for H-2B nonimmigrant status, DHS 
(and the former Immigration and Naturalization Service (``legacy 
INS'')) have long recognized that the most effective administration of 
the H-2B program requires consultation with DOL to advise whether U.S. 
workers capable of performing the temporary services or labor are 
available. See, e.g., Temporary Alien Workers Seeking Classification 
Under the Immigration and Nationality Act, 55 FR 2606, 2617 (Jan. 26, 
1990) (``The Service must seek advice from the Department of Labor 
under the H-2B classification because the statute requires a showing 
that unemployed U.S. workers are not available to perform the services 
before a petition can be approved. The Department of Labor is the 
appropriate agency of the Government to make such a labor

[[Page 24045]]

market finding. The Service supports the process which the Department 
of Labor uses for testing the labor market and assuring that wages and 
working conditions of U.S. workers will not be adversely affected by 
employment of alien workers.'').
    Accordingly, DHS regulations require that an H-2B petition for 
temporary employment in the United States must be accompanied by an 
approved temporary labor certification from DOL. 8 CFR 
214.2(h)(6)(iii)(A) and (iv)(A).\3\ The temporary labor certification 
serves as DOL's advice to DHS with respect to whether a qualified U.S. 
worker is available to fill the petitioning H-2B employer's job 
opportunity and whether a foreign worker's employment in the job 
opportunity will adversely affect the wages or working conditions of 
similarly employed U.S. workers. See 8 CFR 214.2(h)(6)(iii)(A) and (D). 
In addition, as part of DOL's certification, DHS regulations require 
DOL to ``determine the prevailing wage applicable to an application for 
temporary labor certification in accordance with the Secretary of 
Labor's regulation at 20 CFR 655.10.'' 8 CFR 214.2(h)(6)(iii)(D).
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    \3\ The regulation establishes a different procedure for the 
Territory of Guam, under which a petitioning employer must apply for 
a temporary labor certification with the Governor of Guam. 8 CFR 
214.2(h)(6)(iii)(A).
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    DHS relies on DOL's advice in this area, as DOL is the appropriate 
government agency with expertise in labor questions and historic and 
specific expertise in addressing labor protection questions related to 
the H-2B program. This advice helps DHS fulfill its statutory duty to 
determine, prior to approving an H-2B petition, that unemployed U.S. 
workers capable of performing the relevant service or labor cannot be 
found in the United States. 8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 
101(a)(15)(H)(ii)(b); 8 U.S.C. 1184(c)(1), INA section 214(c)(1). DHS 
has therefore made DOL's approval of a temporary labor certification a 
condition precedent to the acceptance of the H-2B petition. 8 CFR 
214.2(h)(6)(iii) and (vi). Following receipt of an approved DOL 
temporary labor certification and other required evidence, USCIS may 
adjudicate an employer's complete H-2B petition. Id.
    Consistent with the above-referenced authorities, since at least 
1968,\4\ DOL has established regulatory procedures to certify whether a 
qualified U.S. worker is available to fill the job opportunity 
described in the employer's petition for a temporary nonagricultural 
worker, and whether a foreign worker's employment in the job 
opportunity will adversely affect the wages or working conditions of 
similarly employed U.S. workers. See 20 CFR part 655, subpart A. This 
interim final rule establishes the process by which employers obtain a 
temporary labor certification and the protections that apply to H-2B 
workers and corresponding workers. As part of DOL's temporary labor 
certification process, which is a condition precedent for employers 
seeking to apply for H-2B workers under DHS regulations, 8 CFR 
214.2(h)(6)(iii)(D) and (iv), DOL sets the minimum wage that employers 
must offer and pay foreign workers admitted to the United States in H-
2B nonimmigrant status. See 20 CFR 655.10. The companion final wage 
rule issued simultaneously with this interim final rule establishes 
DOL's methodology for setting the wage, consistent with the INA and 
existing DHS regulations.
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    \4\ DHS has required a temporary labor certification as a 
condition precedent to adjudication of an H-2B petition for 
temporary employment in the United States since 2008. 73 FR 78103. 
DOL, however, has promulgated regulations governing its adjudication 
of employer applications for temporary labor certification since 
1968. See 33 FR 7570 (May 22, 1968) (DOL final rule on certification 
of temporary foreign labor for industries other than agriculture and 
logging). Until 1986, there was a single H-2 temporary worker 
classification applicable to both temporary agricultural and non-
agricultural workers. In 1986, Congress revised the INA to create 
two separate programs for agricultural (H-2A) and non-agricultural 
(H-2B) workers. See INA 101(a)(15)(H)(ii), 66 Stat. 163 (June 27, 
1952); Immigration Reform and Control Act of 1986, Pub. L. 99-603, 
sec. 301, 100 Stat. 3359. Under the 1968 final rule, DOL considered, 
``such matter[s] as the employer's attempts to recruit workers and 
the appropriateness of the wages and working conditions offered.'' 
33 FR at 7571.
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    As discussed above, DHS has determined that the most effective 
implementation of the statutory labor protections in the H-2B program 
requires that DHS consult with DOL for its advice about matters with 
which DOL has unique expertise, particularly questions about testing 
the U.S. labor market and the methodology for setting the prevailing 
wage in the H-2B program. The most effective method for DOL to provide 
this consultation is by the agencies setting forth in regulations the 
standards that DOL will use to provide that advice. These rules set the 
standards by which employers demonstrate to DOL that they have tested 
the labor market and found no or insufficient numbers of qualified, 
available U.S. workers, and set the standards by which employers 
demonstrate to DOL that the offered employment does not adversely 
affect U.S. workers. By setting forth this structure in regulations, 
DHS and DOL ensure the provision of this advice by DOL is consistent, 
transparent, and provided in the form that is most useful to DHS.
    In addition, effective January 18, 2009, pursuant to 8 U.S.C. 
1184(c)(14)(B), INA section 214(c)(14)(B), DHS transferred to DOL its 
enforcement authority for the H-2B program. See, e.g., 8 CFR 
214.2(h)(6)(ix) (stating that DOL may investigate employers to enforce 
compliance with the conditions of, among other things, an H-2B petition 
and a DOL-approved temporary labor certification). Under this 
authority, and after consultation with DHS, DOL established regulations 
governing enforcement of employer obligations and the terms and 
conditions of H-2B employment. Accordingly, this interim final rule 
sets forth enforcement provisions.
    As discussed in greater detail below, DOL's authority to issue its 
own legislative rules to carry out its duties under the INA has been 
challenged in litigation. On April 1, 2013, the U.S. Court of Appeals 
for the Eleventh Circuit upheld a district court decision that granted 
a preliminary injunction against enforcement of the 2012 H-2B rule, 77 
FR 10038, on the ground that the employers were likely to prevail on 
their allegation that DOL lacks H-2B rulemaking authority. Bayou Lawn & 
Landscape Servs. v. Sec'y of Labor, 713 F.3d 1080 (11th Cir. 2013). As 
a result of the preliminary injunction in Bayou, DOL continued to 
operate the H-2B program under the predecessor 2008 rule. On remand, 
the district court issued an order vacating the 2012 H-2B rule, and 
permanently enjoined DOL from enforcing the rule on the ground that DOL 
lacks rulemaking authority in the H-2B program. Bayou Lawn & Landscape 
Servs. v. Sec'y of Labor, No. 3:12-cv-183 (N.D. Fla. Dec. 18, 2014) 
(Bayou II). The Bayou II decision is currently on appeal to the 
Eleventh Circuit. On the other hand, on February 5, 2014, the U.S. 
Court of Appeals for the Third Circuit held that ``DOL has authority to 
promulgate rules concerning the temporary labor certification process 
in the context of the H-2B program, and that the 2011 Wage Rule was 
validly promulgated pursuant to that authority.'' La. Forestry Ass'n v. 
Perez, 745 F.3d 653, 669 (3d Cir. 2014) (emphasis added).
    To ensure that there can be no question about the authority for and 
validity of the regulations in this area, DHS and DOL (the 
Departments), together, are issuing this interim final rule. By 
proceeding together, the Departments affirm that this rule is fully 
consistent with the INA and implementing DHS regulations and is

[[Page 24046]]

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

B. The 2008 Rule and the CATA Litigation

    In 2008, DOL issued regulations governing DOL's role in the H-2B 
temporary worker program. Labor Certification Process and Enforcement 
for Temporary Employment in Occupations Other Than Agriculture or 
Registered Nursing in the United States (H-2B Workers), and Other 
Technical Changes, 73 FR 78020 (Dec. 19, 2008) (the 2008 rule). The 
2008 rule established, among other things, the framework for DOL to 
receive, review and issue H-2B labor certifications. The 2008 rule also 
established a methodology for determining the wage that a prospective 
H-2B employer must pay, the recruitment standards for testing the 
domestic labor market, and the mechanism for processing prevailing wage 
requests. Id. In addition, the 2008 rule governed the enforcement 
process to make certain U.S. and H-2B workers are employed in 
compliance with H-2B labor certification requirements.
    On August 30, 2010, the U.S. District Court for the Eastern 
District of Pennsylvania in Comit[eacute] de Apoyo a los Trabajadores 
Agricolas (CATA) v. Solis, No. 2:09-cv-240, 2010 WL 3431761 (E.D. Pa. 
Aug. 30, 2010) (CATA I), invalidated various provisions of the 2008 
rule and remanded it to DOL. In response to CATA I, DOL's 2012 H-2B 
rule, which was ultimately enjoined in Bayou, revised the particular 
provisions that were invalidated by the Court, including specifying 
when H-2B employers must contact unions as a potential source of labor, 
and providing a new definition of full-time and a modified definition 
of job contractor.\5\ See CATA I, 2010 WL 3431761 at *26-27.
---------------------------------------------------------------------------

    \5\ Also in response to CATA I, which held that part of the 
methodology to set the prevailing wage was invalid because it was 
not adequately explained, 2010 WL 3431761 at *19, DOL issued 
separately a rule governing the methodology to set the H-2B 
prevailing wage. See Wage Methodology for the Temporary Non-
agricultural Employment H-2B Program, on January 19, 2011, 76 FR 
3452 (the 2011 Wage Rule). Shortly before the 2011 Wage Rule came 
into effect, Congress issued an appropriations rider effectively 
barring implementation of the 2011 Wage Rule, and the same rider was 
issued in every appropriations enactment until January 2014. During 
the period DOL was unable to implement the 2011 Wage Rule, DOL 
extended the effective date of the 2011 Wage Rule so that it would 
not come into effect while the agency was without the appropriations 
necessary to implement it. DOL was never able to implement the 2011 
Wage Rule and continued to rely on the 2008 Rule. Therefore, the 
court in 2013 vacated the problematic provision (20 CFR 
655.10(b)(2)) and ordered the DOL to come into compliance in 30 
days. Comite de Apoyo a los Trabajadores Agricolas v. Solis, 933 F. 
Supp. 2d 700 (E.D. Pa. 2013) (CATA II).
    In response to the vacatur and 30-day compliance order in CATA 
II, and the Eleventh Circuit's decision in Bayou Lawn & Landscape 
Servs., discussed supra, DOL and DHS promulgated an interim final 
rule, Wage Methodology for the Temporary Non-Agricultural Employment 
H-2B Program, part 2, 78 FR 24047 (Apr. 24, 2013) (2013 IFR), which 
again revised the wage methodology. The Departments issued the 2013 
IFR jointly to dispel questions that arose as a result of Bayou 
about the respective roles of the two agencies and the validity of 
DOL's regulations as an appropriate way to implement the interagency 
consultation specified in section 214(c)(1) of the INA, 8 U.S.C. 
1184(c)(1). Finally, the U.S. Court of Appeals for the Third Circuit 
vacated on substantive and procedural APA grounds 20 CFR 655.10(f), 
which permitted employers to submit employer-conducted surveys. 
Comite de Apoyo a los Trabajadores Agricolas v. Perez, 774 F.3d 173, 
191 (3d Cir. 2014) (CATA III). For a complete history of the 
regulations governing the methodology to set the prevailing wage in 
the H-2B program, see the companion rule published in this issue of 
the Federal Register, Wage Methodology for the Temporary Non-
Agricultural Employment H-2B Program (2015), which finalizes the 
2013 IFR following public input on the proper H-2B wage methodology.
---------------------------------------------------------------------------

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

1. The Perez Vacatur and Its Impact on Program Operations
    On March 4, 2015, the U.S. District Court for the Northern District 
of Florida, which previously had vacated DOL's 2012 H-2B rule and 
enjoined its enforcement in Bayou II, vacated the 2008 rule and 
permanently enjoined DOL from enforcing it. Perez v. Perez, No. 14-cv-
682 (N.D. Fla. Mar. 4, 2015). As in its decision in Bayou II vacating 
the 2012 H-2B rule, the court in Perez found that DOL lacked authority 
under the INA to independently issue legislative rules governing the H-
2B program. Perez, slip op. at 6. Based on the vacatur order and the 
permanent injunction in Perez, DOL immediately ceased operating the H-
2B program because it no longer has any existing regulation 
establishing the processes necessary to issue temporary labor 
certifications. Shortly after the court issued its decision, DOL posted 
a notice on its Web site informing the public that ``effective 
immediately, DOL can no longer accept or process requests for 
prevailing wage determinations or applications for labor certification 
in the H-2B program.'' \6\ As a result of the Perez vacatur order, DOL 
was unable to process any H-2B temporary employment certification 
applications or issue any H-2B certifications as advice to DHS, which 
effectively shut down the H-2B program for all employers filing new H-
2B temporary employment certification applications with DOL. In 
addition, the Perez vacatur order eliminated the crucial regulatory 
provision that the ``employer must request a prevailing wage 
determination from the NPC in accordance with the procedures 
established by this regulation'' set out at 20 CFR 655.10(a), thus 
leaving DOL unable to process any prevailing wage requests or issue any 
prevailing wage determinations.\7\
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    \6\ Employment and Training Administration, Announcements, 
http://www.foreignlaborcert.doleta.gov (Mar. 4, 2015).
    \7\ The court order in Perez did not vacate the 2013 IFR, and 
the court's judgment on DOL's independent regulatory authority did 
not have a direct impact on the 2013 IFR, which was issued jointly 
by DOL and DHS. However, the 2013 IFR did only one thing: it made a 
single change to Sec.  655.10(b)(2) to eliminate the use of skill 
levels in setting wages based on the OES. The 2013 IFR left 
untouched all the other provisions in the 2008 wage methodology, and 
those provisions remained in full force and effect in the 2008 rule 
following the publication of the 2013 IFR. As a result, the Perez 
order vacated virtually all of Sec.  655.10, except for Sec.  
655.10(b)(2), which was promulgated in the 2013 IFR. Thus, the 
vacatur eliminated DOL's wage methodology (except for Sec.  
655.10(b)(2)) as well as the procedures for requesting and obtaining 
prevailing wages. Together with the vacatur of Sec.  655.10(f) in 
CATA III, this ruling left DOL without a complete methodology or any 
procedures to set prevailing wages in the H-2B program until the 
court's stay. As explained infra, the Perez court has stayed its 
vacatur order until May 15, 2015, and at the expiration of the stay, 
DOL will once again be without a complete methodology or any 
procedures to set and issue the prevailing wage in the H-2B program.
---------------------------------------------------------------------------

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

[[Page 24047]]

the areas in which those industries are located, on March 16, 2015, DOL 
filed an unopposed motion requesting a temporary stay of the Perez 
vacatur order. On March 18, 2015, the court entered an order 
temporarily staying the vacatur of the H-2B rule until and including 
April 15, 2015. On April 15, 2015, at the request of proposed 
intervenors, the court entered a second order extending the temporary 
stay up to and including May 15, 2015. The court in Perez has requested 
briefing on several issues, including whether the plaintiff had 
standing to challenge the 2008 rule. The court's extension of the stay 
on April 15 occurred late in the day, after DOL had already initiated 
processes necessary to provide for an orderly cessation of the H-2B 
program and after DOL had already posted a notice to the regulated 
community on its Web site that the H-2B program would be closed again 
the next day. On April 16, 2015, following the court's stay extension, 
DOL immediately posted a new notice on its Web site that it would 
continue to operate the H-2B program and resume normal operations.
    DHS is charged with adjudicating petitions for a nonimmigrant 
worker (commonly referred to as Form I-129 petitions or, in this rule, 
``H-2B petitions''), filed by employers seeking to employ H-2B workers, 
but, as discussed earlier, Congress directed the agency to issue its 
decisions relating to H-2B petitions ``after consultation with 
appropriate agencies of the Government.'' 8 U.S.C. 1184(c)(1), INA 
section 214(c)(1). Legacy INS and now DHS have historically consulted 
with DOL on U.S. labor market conditions to determine whether to 
approve an employer's petition to import H-2B workers. See 73 FR 78104, 
78110 (DHS) (Dec. 19, 2008); 55 FR 2606, 2617 (INS) (Jan. 26, 1990). 
DOL plays a significant role in the H-2B program because DHS ``does not 
have the expertise needed to make any labor market determinations, 
independent of those already made by DOL.'' 73 FR at 78110; see also 55 
FR at 2626. Without consulting with DOL, DHS lacks the expertise to 
adequately make the statutorily mandated determination about the 
availability of United States workers to fill the proposed job 
opportunities in the employers' Form I-129 petitions. See 8 U.S.C. 
1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b); 78 FR 24047, 
24050 (DHS-DOL) (Apr. 24, 2013). DHS regulations therefore require 
employers to obtain a temporary labor certification from DOL before 
filing a petition with DHS to import H-2B workers. See 8 CFR 
214.2(h)(6)(iii)(A), (C), (iv)(A). In addition, as part of DOL's 
certification, DHS regulations require DOL to ``determine the 
prevailing wage applicable to an application for temporary labor 
certification in accordance with the Secretary of Labor's regulation at 
20 CFR 655.10.'' 8 CFR 214.2(h)(6)(iii)(D).
    DOL has fulfilled its consultative role in the H-2B program through 
the use of legislative rules to structure its advice to legacy INS and 
now DHS for several decades. See 33 FR 7570-71 (DOL) (May 22, 1968); 73 
FR 78,020 (DOL) (Dec. 19, 2008). Before DOL issued the 2008 rule, it 
supplemented its regulations with guidance documents that set 
substantive standards for wages and recruitment and structured the 
manner in which the agency processed applications for H-2B labor 
certification. See 73 FR at 78021-22. One district court has held that 
DOL's pre-2008 H-2B guidance document was a legislative rule that 
determined the rights and obligations of employers and employees, and 
DOL's failure to issue the guidance through the notice and comment 
process was a procedural violation of the APA. As a result, the court 
invalidated the guidance. See CATA I, 2010 WL 3431761, at *19, 25. 
Similarly, the U.S. Court of Appeals for the D.C. Circuit has held that 
DOL violated the procedural requirements of the APA when it established 
requirements that ``set the bar for what employers must do to obtain 
approval'' of the H-2A labor certification application, including wage 
and housing requirements, in guidance documents. Mendoza v. Perez, 754 
F.3d 1002, 1024 (D.C. Cir. 2014) (setting substantive standards for 
labor certification in the H-2A program requires legislative rules 
subject to the APA's notice and comment procedural requirements). The 
APA therefore prohibits DOL from setting substantive standards for the 
H-2B program through the use of guidance documents that have not gone 
through notice-and-comment rulemaking. As a result, if and when the 
temporary stay concludes, without this interim final rule, DOL will not 
be able to provide employers with temporary labor certifications 
necessary to allow importation of foreign workers under the H-2B 
program because DOL may not rely on subregulatory guidance standards, 
and has no prior rule to reinstate. Accordingly, DOL would again be 
forced to cease H-2B program operations, thus prohibiting DOL from 
processing temporary employment certification applications and 
prevailing wage requests, unless a rule was in place.
    As with the two weeks in March 2015, the Departments are again 
facing the prospect of experiencing another program hiatus if and when 
the temporary stay expires on or before May 15, 2015. DOL's 2008 rule 
is the only comprehensive mechanism in place for DOL to provide advice 
to DHS because the 2008 rule sets the framework, procedures, and 
applicable standards for receiving, reviewing, and issuing H-2B 
prevailing wages and temporary labor certifications. The 2008 rule sets 
the recruitment standards for testing the domestic labor market and 
provides the rules for processing prevailing wage requests. DHS is 
precluded by its own regulations from accepting any H-2B petition 
without a temporary labor certification from DOL. See 8 CFR 
214.2(h)(6)(iii)(C). Moreover, without advice from DOL, DHS lacks the 
capability to test the domestic labor market or determine whether there 
are available U.S. workers to fill the employer's job opportunity. As a 
result, if and when the stay concludes as currently scheduled on or 
before May 15, 2015, the vacatur of DOL's 2008 rule will require DOL to 
once again cease operating the H-2B program, and DOL will again be 
unable to process employers' requests for temporary employment 
certification applications until the agencies can put in place a new 
mechanism for fulfilling the statutory directive to ensure that the 
importation of foreign workers will not harm the domestic labor market. 
See 8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b). 
Moreover, if the temporary stay is lifted, the vacatur of DOL's 2008 
rule will void the enforcement regime by which DOL has carried out its 
statutorily-delegated enforcement authority. See 8 U.S.C. 
1184(c)(14)(B), INA section 214(c)(14)(B).
2. Good Cause To Proceed Without Notice and Comment and With an 
Immediate Effective Date
    The APA authorizes agencies to issue a rule without notice and 
comment upon a showing of good cause. 5 U.S.C. 553(b)(B). The APA's 
good cause exception to public participation applies upon a finding 
that those procedures are ``impracticable, unnecessary, or contrary to 
the public interest.'' 5 U.S.C. 553(b)(B). Although the term is not 
defined in the APA, the accompanying Senate report described 
``impracticable'' as ``a situation in which the due and required 
execution of the agency functions would be unavoidably prevented by its 
undertaking public rule-making proceedings.'' S. Rep. No. 752, 79th 
Cong., 1st Sess. 200 (1945). The `` `[p]ublic interest' supplements . . 
. `impracticable' [and] requires that

[[Page 24048]]

public rule-making procedures shall not prevent an agency from 
operating.'' Id.
    Under the APA's ``good cause'' exception to notice and comment, an 
agency can take steps to minimize discontinuity in its program after 
the court has vacated a rule. Mid-Tex Elec. Coop. v. FERC, 822 F.2d 
1123, 1131-34 (D.C. Cir. 1987) (upholding good cause to issue a post-
remand interim rule); see also Shell Oil Co. v. EPA, 950 F.2d 741, 752 
(D.C. Cir. 1991) (observing that where the agency had a regulatory void 
as the result of a vacatur of its rule, it should consider issuing an 
interim rule under the good cause exception because of the disruptions 
posed by discontinuity in the regulations); Action on Smoking and 
Health v. Civil Aeronautics Bd., 713 F.2d 795, 800 (D.C. Cir. 1983) 
(same). Moreover, courts find ``good cause'' under the APA when an 
agency is moving expeditiously to eliminate uncertainty or confusion 
that, left to linger, could cause tangible harm or hardship to the 
agency, the program, program users, or other members of the public. 
See, e.g., Mid-Tex, 822 F.2d at 1133-34 (agency had good cause to 
promote continuity and prevent ``irremedial financial consequences'' 
and ``regulatory confusion''); Nat'l Fed'n of Fed. Employees v. Devine, 
671 F.2d 607, 609, 611 (D.C. Cir. 1982) (agency had good cause based on 
emergency circumstances, including uncertainty created by pending 
litigation about significant aspects of the program, and potential harm 
to agency, to program, and to regulated community); Am. Fed'n of Gov't 
Emp., AFL-CIO v. Block, 655 F.2d 1153, 1157 (D.C. Cir. 1981) (agency 
had good cause where absence of immediate guidance from agency would 
have forced reliance upon antiquated guidelines, causing confusion 
among field administrators and economic harm and disruption to industry 
and consumers); Woods Psychiatric Inst. v. United States, 20 Cl. Ct. 
324, 333 (1990), aff'd, 925 F.2d 1454 (Fed. Cir. 1991) (agency had good 
cause when program would continue to suffer administrative difficulties 
that had previously resulted in litigation and might continue to result 
in litigation due to uncertainty and confusion over scope of benefits, 
program standards, and eligibility requirements). Based on these legal 
standards and for the reasons set forth below, the Departments conclude 
that it is impracticable and contrary to the public interest to issue 
this rule under the APA's standard notice and comment procedures. DOL 
and those employers and employees who are involved in the H-2B program 
have already experienced one regulatory lapse and anticipate another, 
which provides a sound foundation for the Departments' good cause to 
proceed without notice and comment. Moreover, even in the absence of 
another regulatory lapse, confusion and disarray will persist in the H-
2B program as a result of uncertainty about the rules governing the 
program, which includes ambiguity about DOL's ability to enforce 
protections afforded to U.S. and foreign workers, and this provides 
further good cause to proceed with this interim final rule without 
notice and public comment.
    As an initial matter, DOL has already had to cease operating the H-
2B program for two weeks in March 2015, and faces this prospect again 
at the expiration of the stay on or before May 15, 2015. Given the 
expectation of another regulatory void, were the Departments to follow 
the standard APA procedures, resumption of the H-2B program would be 
substantially delayed by the Departments' issuance of a notice of 
proposed rulemaking and request for comment, the time-consuming process 
involved in analyzing and responding to comments, and the publication 
of a final rule. Despite the fact that the statutory cap on H-2B visas 
has been reached for FY 2015, employers would normally now start the 
process for applying for temporary employment certifications for FY 
2016 by: Filing requests for Prevailing Wage Determinations (PWDs); 
performing the required recruitment of U.S. workers; and submitting 
applications for temporary employment certification. In the absence of 
a rule, employers would not be able to take such actions.\8\ Therefore, 
DHS and DOL must act swiftly to enable the agencies to meet their 
statutory obligations under the INA and to prevent further economic 
dislocation to employers and employees in anticipation of another 
regulatory void that will occur upon resumption of the Perez vacatur 
order.
---------------------------------------------------------------------------

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

    Moreover, the on-again-off-again nature of H-2B program operations 
has created substantial confusion, uncertainty and disarray for the 
agencies and the regulated community. The original vacatur order in 
Perez effectively required the agency to immediately cease operation of 
the H-2B program, leaving unresolved hundreds of time-sensitive pending 
applications for prevailing wages and certifications. Two weeks later, 
following the court's stay of the vacatur and upon resumption of the H-
2B program, those cases pending on the date of the vacatur created a 
backlog of applications, while, at the same time, employers began 
filing new applications for prevailing wages and certifications. DOL 
worked diligently and quickly to address the backlog and simultaneously 
keep up with new applications. Then, facing the expiration of the stay 
on April 15, 2015, DOL once again prepared to cease H-2B operations, 
which included posting a notice to the regulated community on its Web 
site that day announcing another closure, which was then obviated at 
the last minute by the court's extension of the stay late in the day on 
April 15. The next day, DOL announced that despite its earlier 
announcement, it would continue to operate the H-2B program as a result 
of the stay extension. These circumstances, which are beyond the 
Departments' ability to control, have resulted in substantial disorder 
and upheaval for the Departments, as well as employers and employees 
involved in the H-2B program.
    This uncertainty and confusion is particularly applicable to DOL's 
ability to enforce rights and obligations under the H-2B program. Even 
if the temporary stay were to continue beyond May 15 or the court in 
Perez dismisses the case (for example, finding that the plaintiff 
lacked standing), it is necessary to dispense with notice and comment 
to ensure that DOL has the continued ability to take enforcement 
actions to protect H-2B and U.S. workers. As discussed above, employers 
have challenged DOL's independent regulatory authority in the H-2B 
program, and courts have issued decisions both affirming and 
repudiating that authority. Compare La. Forestry Ass'n v. Perez, 745 
F.3d at 669, Bayou, 713 F.3d at 1084, and Perez, at slip op. at 6. As a 
result, one circuit has already found that DOL lacked independent 
regulatory authority to issue DOL's 2012 H-2B rule, and a district 
court has ruled similarly with respect to the 2008 rule, which DOL 
relied on to fill the regulatory void created in 2012. Based on these 
adverse precedents, the 2008 rule--the only vehicle under which DOL can 
presently administer and enforce the H-2B program--will remain 
vulnerable to challenges by employers in current and future enforcement 
proceedings based on the ground that the regulations DOL is seeking to 
enforce are void because DOL exceeded its statutory authority in

[[Page 24049]]

unilaterally issuing the 2008 rule.\9\ In this regard, the statute of 
limitations under the APA would not likely be available to DOL in such 
challenges because, even where the statute of limitations for a facial 
challenge has run, a litigant may challenge statutory authority for a 
rule in an enforcement proceeding when the rule is applied to it.\10\ 
See Wong v. Doar, 571 F.3d 247, 263 n. 15 (2d Cir. 2009) (statute of 
limitations for a substantive challenge ``begins to run at the time of 
the adverse agency action on the particular claim''); Indep. Cmty. 
Bankers of Am. v. Bd. of Governors of Fed. Reserve Sys., 195 F.3d 28, 
34 (D.C. Cir. 1999) (``We have frequently said that a party against 
whom a rule is applied may, at the time of application, pursue 
substantive objections to the rule, including claims that an agency 
lacked the statutory authority to adopt the rule, even where the 
petitioner had notice and opportunity to bring a direct challenge 
within statutory time limits.''); see also Coal River Energy LLC v. 
Jewell, 751 F.3d 659, 664 (D.C. Cir. 2014) (``A substantive defense is 
one based on an argument that a regulation is not authorized by a 
statute or the Constitution, as opposed to a claim under the APA 
regarding the method used in promulgating the regulation, such as that 
it was issued without adequate notice, or that the government 
inadequately responded to comments.''). Therefore, employers subject to 
enforcement under the 2008 rule have an available defense that DOL is 
without regulatory authority to enforce rights and obligations in the 
H-2B program, leaving DOL in an untenable position with respect to its 
ability to require adherence to program standards. In the absence of 
this interim final rule, which immediately replaces the 2008 rule, 
uncertainty, confusion and attendant legal vulnerability arise each 
time DOL attempts to enforce the provisions of the 2008 rule, putting 
critical protections for U.S. and H-2B workers in jeopardy.
---------------------------------------------------------------------------

    \9\ Such challenges cannot be adjudicated before DOL 
Administrative Law Judges, but may be brought in federal district 
court. See 2008 rule, 20 CFR 655.75(d) (``The administrative law 
judge shall not render determinations as to the legality of a 
regulatory provision or the constitutionality of a statutory 
provision.''); see also Prince v. Westinghouse Savannah River Co., 
ARB No. 10-079, slip op. at 9 (ARB Nov. 17, 2010) (`` `The Board 
shall not have jurisdiction to pass on the validity of any portion 
of the Code of Federal Regulations that has been duly promulgated by 
the Department of Labor and shall observe the provisions thereof, 
where pertinent, in its decisions.' '') (quoting Secretary's Order 
No. 1-2010 (Delegation of Authority and Assignment of Responsibility 
to the Administrative Review Board), sec. 5(c)(48), 75 FR 3924 (Jan. 
15, 2010)).
    \10\ The default six-year statute of limitations for civil 
claims against the government applies to challenges under the APA, 
and so the statute of limitations for facial challenges to the 2008 
Rule, published December 19, 2008, has run. See 28 U.S.C. 2401(a); 
Harris v. FAA, 353 F.3d 1006, 1009 (D.C. Cir. 2004) (``Unless 
another statute prescribes otherwise, a suit challenging final 
agency action [under the APA] must be commenced within six years 
after the right of action first accrues.'')
---------------------------------------------------------------------------

    Accordingly, even if the Perez decision is ultimately dismissed on 
standing or other grounds or if the stay is subsequently extended, the 
court's earlier decision--finding on the merits that DOL lacked 
regulatory authority to issue the 2008 rule--has created significant 
confusion about the continued viability of the 2008 rule. To leave the 
2008 rule in place while the Departments pursue a new notice-and-
comment rulemaking would prolong for many months the regulatory 
confusion about the 2008 rule's status and DOL's authority to enforce 
worker protections and wages required under the 2008 rule and 2013 IFR. 
In the interim, in response to a challenge to any enforcement action 
under the 2008 rule, DOL may be required to defend the validity of the 
2008 rule. Such challenges could lead to inconsistent outcomes, 
producing further instability in the program. Given the potential for 
harm to U.S. and foreign workers if DOL is unable to effectively 
protect their rights, and uncertainty and confusion about the status of 
the 2008 rule in the regulated community, the Departments conclude that 
it is impracticable and contrary to the public interest to conduct a 
rulemaking proceeding under the APA's notice and comment requirements, 
and that they have good and substantial cause to issue this rule 
immediately.
    Finally, the Departments also have good cause to forego notice and 
comment because, as explained below, this rule has already been subject 
to one full round of notice and comment. On March 18, 2011, DOL 
proposed a regulation and sought public input on all issues addressed 
in this interim final rule during a 60-day comment period. 76 FR 15130. 
As noted below, DOL received over 800 comments from a wide variety of 
stakeholders, and adapted the final rule in 2012 based on those 
comments. 77 FR 10038 (Feb. 21, 2012). The public has by now had notice 
and an opportunity to comment on virtually every provision in this 
interim final rule. The only new provisions in this interim final rule 
involve transition filing procedures at Sec.  655.4, which are 
necessary to instruct those program users who have already begun the 
employment certification process on the procedures to follow under the 
new regulatory system; electronic filing procedures at Sec.  655.15(c) 
to permit easier submissions for H-2B program users; the rules that 
apply to Administrative Law Judge proceedings involving determinations 
under 8 U.S.C. 1184(c), section 214(c) of the INA, at 29 CFR 503.40(b); 
and implementation of the Congressional mandate in Sec.  655.15(f) to 
permit employers in the seafood industry flexibility with respect to 
the entry into the U.S. by their H-2B nonimmigrant workers. The first 
three provisions (Sec. Sec.  655.4, 655.15(c), 503.40(b)) are 
procedural in nature, and the last provision incorporates a statutory 
requirement that DOL and DHS have already implemented. The rulemaking 
record from the 2011-2012 proceeding remains fresh, and no new 
information relevant to policy decisions made during that proceeding 
has come to light. Therefore, the Departments have satisfied the APA's 
notice-and-comment requirements where, after one full period of notice 
and comment for a rule, we reinstate a virtually identical rule without 
an additional notice and comment period. See Am. Mining Cong. v. EPA, 
907 F.2d 1179, 1191-1192 (D.C. Cir. 1990); Am. Fed'n of Gov't Employees 
v. OPM, 821 F.2d 761, 764 (D.C. Cir. 1987). Accordingly, the 
Departments have good and sufficient reason to rely on the APA's good 
cause exception, 5 U.S.C. 553(b)(B), to issue without notice and 
comment this new interim final rule.
    The APA also authorizes agencies to make a rule effective 
immediately upon a showing of good cause instead of imposing a 30-day 
delay. 5 U.S.C. 553(d)(3). The good cause exception to the 30-day 
effective date requirement is easier to meet than the good cause 
exception for notice and comment. Riverbend Farms, Inc. v. Madigan, 958 
F.2d 1479, 1485 (9th Cir. 1992); Am. Fed'n of Gov't Employees, AFL-CIO 
v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981); U.S. Steel Corp. v. 
EPA, 605 F.2d 283, 289-90 (7th Cir. 1979). An agency can show good 
cause for eliminating the 30-day waiting period when it demonstrates 
urgent conditions the rule seeks to correct or unavoidable time 
limitations. U.S. Steel Corp., 605 F.2d at 290; United States v. 
Gavrilovic, 511 F.2d 1099, 1104 (8th Cir. 1977). For the same reasons 
set forth above, we also conclude that the Departments have good cause 
to dispense with the 30-day effective date requirement given the 
continuing disruption, uncertainty, and confusion that a 30-day delay 
would cause in the H-2B program. 5 U.S.C. 553(d)(3).
    The Departments underscore that although we are implementing this 
interim final rule in advance of a period

[[Page 24050]]

of public comment and without a 30-day delay in the effective date, we 
seek public input on every aspect of this interim final rule (even 
though virtually every provision herein has already gone through one 
round of notice and comment), and will assess that input and determine 
whether changes are appropriate. As a result, the public participation 
process will be preserved in this rulemaking proceeding, and we act 
only under the compulsion of the emergency conditions described above.
3. Request for Comments on All Aspects of This Interim Final Rule
    Although this rule is being issued as an interim final rule, the 
Departments request public input on all aspects of the rule. The 
regulated community should be familiar with the provisions adopted in 
this interim final rule because they are largely the same as the 
provisions adopted in the 2012 H-2B rule, Temporary Non-agricultural 
Employment of H-2B Aliens in the United States, 77 FR 10038 (Feb. 21, 
2012). As part of the rulemaking proceeding that culminated in the 2012 
H-2B rule, DOL received, reviewed, and considered 869 comments on its 
proposal. Commenters represented a broad range of constituents of the 
H-2B program, including small business employers, U.S. and H-2B 
workers, worker advocacy groups, State Workforce Agencies (SWAs), 
agents, law firms, employer and industry advocacy groups, union 
organizations, members of the U.S. Congress, and interested members of 
the public. Those comments resulted in DOL's adjustment to or further 
explanation of that rule, and are incorporated here as well. As a 
result, to the extent that any provision of part 655 of title 20 or 
part 503 of title 29 of the Code of Federal Regulations adopted in this 
rulemaking proceeding requires further interpretation or justification, 
we refer the public to the explanations of the regulations contained in 
the prior rulemaking docket. That prior notice and comment proceeding 
does not foreclose public input in this proceeding, during which the 
Departments will jointly consider the public comments and revise this 
interim final rule as appropriate. The Departments invite the public to 
submit comments on all of the issues, requirements, and procedures 
addressed in this interim final rule; we will accept and consider these 
comments prior to issuing a final rule.

III. Revisions to 8 CFR Part 214

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

    DHS currently requires all H-2B petitions to be accompanied by an 
approved temporary labor certification. See 8 CFR 214.2(h)(6)(iv)(A) 
(stating that an H-2B petition for temporary employment in the United 
States, except for temporary employment on Guam, must be accompanied by 
an approved temporary labor certification from the Secretary of Labor); 
8 CFR 214.2(h)(6)(v) (stating that an H-2B petition for temporary 
employment on Guam must be accompanied by an approved temporary labor 
certification issued by the Governor of Guam). These regulatory 
provisions were enacted as part of DHS's 2008 notice and comment 
rulemaking on this topic. See DHS Proposed Rule, 73 FR 49109, 48110 
(Aug. 20, 2008); DHS Final Rule, 73 FR 78104, 78104 (Dec. 19, 2008).
    Due to a drafting oversight, when enacting the requirements above, 
DHS inadvertently left untouched the provisions at 8 CFR 
214.2(h)(9)(iii)(B)(2), which should have been deleted. These 
provisions can only be read to apply to the time, before 2008, when DHS 
would accept petitions without a temporary labor certification. The 
2008 DHS Proposed Rule (73 FR 49109) and DHS Final Rule (73 FR 78104) 
make it clear that DHS intended to require a temporary labor 
certification to be submitted with an H-2B petition, and thus 8 CFR 
214.2(h)(9)(iii)(B)(2) cannot be read to have any effect. Finally, the 
provision requiring that all H-2B petitions must be accompanied by a 
temporary labor certification went through notice and comment 
rulemaking. Thus, the deletion of 8 CFR 214.2(h)(9)(iii)(B)(2) should 
be subject to the good cause exception under 5 U.S.C. 553(b)(B) as such 
deletion is a housekeeping matter and a minor technical amendment, 
which makes notice and comment unnecessary.
    For these reasons, DHS will rescind 8 CFR 214.2(h)(9)(iii)(B)(2) in 
this interim final rule, consistent with 5 U.S.C. 553(b)(B).

IV. Revisions to 20 CFR Part 655, Subpart A

A. Introductory Sections

1. Sec.  655.1 Scope and Purpose of Subpart A
    This provision informs program users of the statutory basis and 
regulatory authority for the H-2B temporary labor certification 
process. This provision describes the Department's role in receiving, 
reviewing, adjudicating, and upholding the integrity of an Application 
for Temporary Employment Certification. DHS regulations at 8 CFR 
214.2(h)(6)(iii)(D) recognize the Secretary of Labor as an appropriate 
authority with whom DHS consults regarding the H-2B program, and 
recognize the Secretary of Labor's authority, in carrying out that 
consultative function, to issue regulations regarding the issuance of 
temporary labor certifications. The purpose of these regulations is for 
the Secretary of Labor to determine that: (1) There are not sufficient 
U.S. workers who are qualified and who will be available to perform the 
temporary services or labor for which an employer desires to import 
foreign workers; and (2) the employment of the H-2B worker(s) will not 
adversely affect the wages and working conditions of U.S. workers 
similarly employed. See 8 CFR 214.2(h)(6)(iv)(A). It is through the 
regulatory provisions set forth below that DOL ensures that the 
criteria for its labor certification determinations are met.
2. Sec.  655.2 Authority of Agencies, Offices and Divisions in the 
Department of Labor
    This section describes the authority of and division of activities 
related to the H-2B program among DOL agencies. It discusses the 
authority of the Office of Foreign Labor Certification (OFLC), the 
office within ETA that exercises the Secretary of Labor's 
responsibility for determining the availability of qualified U.S. 
workers and whether the employment of H-2B nonimmigrant workers will 
adversely affect the wages and working conditions of similarly employed 
workers. It also discusses the authority of the Wage and Hour Division 
(WHD), the agency responsible for investigation and enforcement of the 
terms and conditions of H-2B labor certifications, as delegated by 
DHS.\11\
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    \11\ Applications for temporary labor certification are 
processed by OFLC in the ETA, the agency to which the Secretary of 
Labor has delegated his responsibilities as described in the DHS H-
2B regulations. Enforcement of the attestations made by employers in 
the course of submission of H-2B applications for labor 
certification is conducted by WHD within DOL, to which DHS on 
January 18, 2009 delegated enforcement authority granted to it by 
the INA. 8 U.S.C. 1184(c)(14)(B), INA section 214(c)(14)(B); 8 CFR 
214.2(h)(6)(ix).
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3. Sec.  655.3 Territory of Guam
    Under DHS regulations and pursuant to DHS's consultative 
relationship with the Governor of Guam related to the H-2B visa program 
on Guam, the granting of H-2B labor certifications and the enforcement 
of the H-2B visa program on Guam resides with the Governor of Guam. 8 
CFR 214.2(h)(6)(v). Subject to

[[Page 24051]]

DHS approval, the Governor of Guam is authorized to set the prevailing 
wage for H-2B job opportunities on Guam. 8 CFR 214.2(h)(6)(v)(E) and 
(F). To further uniformity of standards through the United States, the 
Departments have concluded that it would be more appropriate for OFLC 
to issue H-2B prevailing wages for all workers on Guam, because OFLC 
already provides prevailing wage determinations (PWDs) for all other 
U.S. jurisdictions. Therefore, the process for obtaining a prevailing 
wage in Sec.  655.10 would also apply to H-2B job opportunities on 
Guam, subject to the transfer of the authority to set the prevailing 
wage for a job opportunity on Guam to DOL in title 8 of the Code of 
Federal Regulations. Should such transfer occur, employment 
opportunities on Guam accordingly would be subject to the same process 
and methodology for calculating prevailing wages as any other 
jurisdiction within OFLC's purview. DHS will separately conduct 
rulemaking intended to make DOL responsible for issuing prevailing wage 
rates for all H-2B workers on Guam.
4. Special Procedures
    Special procedures in DOL's temporary labor certification programs 
were based upon a determination that variations from the normal labor 
certification processes were necessary to permit the temporary 
employment of foreign workers in specific industries or occupations 
when qualified U.S. workers were not available and the employment of 
foreign workers would not adversely affect the wages or working 
conditions of similarly employed U.S. workers. The 2008 rule provided 
authority for DOL to ``establish or to devise, continue, revise or 
revoke'' special procedures in the H-2B program. 20 CFR 655.3 (2009). 
The regulation concerning the H-2A temporary agricultural worker 
program at 20 CFR 655.102 establishes in a virtually identical fashion, 
as did the 2008 H-2B rule, DOL's authority in the H-2A program to 
``establish, continue, revise, or revoke special procedures'' for 
certain H-2A occupations. In Mendoza v. Perez, 754 F.3d 1002, 1022 
(D.C. Cir. 2014), the D.C. Circuit concluded that 20 CFR 655.102 was 
``a grant of unconstrained and undefined authority [, and the] purpose 
of the APA would be disserved if an agency with a broad statutory 
command . . . could avoid notice-and-comment rulemaking simply by 
promulgating a comparably broad regulation . . . and then invoking its 
power to interpret that statute and regulation in binding the public to 
a strict and specific set of obligations.'' Accordingly, the court in 
Mendoza held that for herding occupations the special procedures issued 
under 20 CFR 655.102 were rules subject to the APA's notice and comment 
requirements because they possess all the hallmarks of a legislative 
rule and could not be issued through subregulatory guidance. 754 F.3d 
at 1024 (``The [special procedures] are necessarily legislative rules 
because they `effect[ ] a [substantive] change in existing law or 
policy,' and `effectively amend[ ] a prior legislative rule.'') 
(citations omitted).
    In light of Mendoza, the Departments are not including in this 
interim final rule a provision to allow for the creation of special 
procedures that establish variations for processing certain H-2B 
Applications for Temporary Employment Certification, similar to a 
provision included in the 2008 H-2B rule. Special procedures currently 
in place on the effective date of this interim final rule will remain 
in force until we otherwise modify or withdraw them, and DOL will 
review such procedures expeditiously.
5. Sec.  655.4 Transition Filing Procedures
    Generally, DOL will process all applications in accordance with the 
rules in effect on the date the application was submitted. Accordingly, 
DOL will continue to process all applications for PWDs and for 
certification submitted prior to the effective date of this rule in 
accordance with the 2008 rule and the 2013 IFR. Further, DOL will 
process all applications for PWDs and for certification submitted on or 
after the effective date of this rule in accordance with this interim 
final rule and the companion wage final rule issued simultaneously.
    This rule will permit employers submitting an Application for 
Temporary Employment Certification on or after the effective date of 
this rule and who have a start date of need prior to October 1, 2015, 
to rely on the emergency processing provisions in Sec.  655.17. Such an 
Application for Temporary Employment Certification must include a 
signed and dated copy of the new Appendix B associated with the ETA 
Form 9142B containing the requisite program assurances and obligations 
under this rule. In the case of a job contractor filing as a joint 
employer with its employer-client, the NPC must receive a separate 
attachment containing the employer-client's business and contact 
information (i.e., sections C and D of the ETA Form 9142B) as well as a 
separate signed and dated copy of the Appendix B for its employer-
client, as required by Sec.  655.19.
    For these employers with a start date of need before October 1, 
2015, the NPC will also waive the regulatory filing timeframe under 
Sec.  655.15 and process the Application for Temporary Employment 
Certification and job order in a manner consistent with the handling of 
applications under Sec.  655.17 for emergency situations, including the 
recruitment of U.S. workers on an expedited basis, and make a 
determination on certification as required by Sec.  655.50. The 
recruitment of U.S. workers on an expedited basis will consist of 
placing a new job order with the SWA serving the area of intended 
employment that contains the job assurances and contents set forth in 
Sec.  655.18 for a period of not less than 10 calendar days. In 
addition, employers who have not placed any newspaper advertisements 
under the 2008 rule must place one newspaper advertisement, which may 
be published on any day of the week, meeting the advertising 
requirements of Sec.  655.41, during the period of time the SWA is 
actively circulating the job order for intrastate clearance. If the 
Chicago NPC grants a temporary labor certification, the employer will 
receive an original certified ETA Form 9142B and a Final Determination 
letter. Upon receipt of the original certified ETA Form 9142B, the 
employer or its agent or attorney, if applicable, must complete the 
footer on the original Appendix B, retain the original Appendix B, and 
submit a signed copy of Appendix B, together with the original 
certified ETA Form 9142B directly to USCIS. Under the document 
retention requirements in Sec.  655.56, the employer must retain a copy 
of the certified ETA 9142B and the original signed Appendix B.
    For the convenience of the employer submitting a new Application 
for Temporary Employment Certification with a start date of need prior 
to October 1, 2015 and who did not submit an Application for a 
Prevailing Wage Determination prior to the effective date of this rule, 
such an employer may submit a completed Application for a Prevailing 
Wage Determination to the NPC with its emergency Application for 
Temporary Employment Certification requesting a prevailing wage 
determination for the job opportunity. Upon receipt, the NPC will 
transmit, on behalf of the employer, a copy of the Application for a 
Prevailing Wage Determination to the NPWC for processing and issuance 
of a prevailing wage determination using the wage methodology 
established in Sec.  655.10 of the companion wage rule.
    For employers submitting new applications with a start date of need

[[Page 24052]]

before October 1, 2015, DOL will also waive the requirements in 
Sec. Sec.  655.8 and 655.9 of this interim final rule, requiring the 
employer, and its attorney or agent, as applicable, to provide copies 
of all agreements with any agent and/or foreign labor recruiter(s), 
executed in connection with the H-2B temporary employer certification 
application.\12\ In addition, due to the expedited timeframes for 
recruiting U.S. workers associated with H-2B temporary employment 
certification applications processed under these transition procedures, 
DOL will not place for public examination a copy of the job order 
posted by the state workforce agency (SWA) on DOL's electronic job 
registry, as specified under Sec.  655.34. However, DOL will implement 
the new electronic job registry requirement under Sec.  655.34 for all 
temporary employment certification applications filed with the Chicago 
NPC where the employer has a start date of need on or after October 1, 
2015.
---------------------------------------------------------------------------

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

    For all employers submitting new applications for employment 
certification, regardless of the start date of need, DOL will require a 
period of time to operationalize the registration process for H-2B 
employers required in Sec.  655.11. As a result, DOL will announce 
separately in the Federal Register the initiation and implementation of 
the registration requirements in Sec.  655.11(j). In the meantime, on 
the effective date of this interim final rule and until such 
announcement is made in the Federal Register, H-2B temporary employment 
certification applications filed with the NPC will be exempt from the 
registration requirements of Sec.  655.11, and adjudication of the 
employer's temporary need will occur during the processing of the 
application. The exemption will terminate after a separate announcement 
in the Federal Register, which will provide the public with notice of 
when DOL will initiate the registration process.
    Finally, employers with a prevailing wage determination issued by 
the NPWC, or who have a pending or granted Application for Temporary 
Employment Certification on the effective date of this rule may seek a 
supplemental prevailing wage determination (SPWD) in order to obtain a 
prevailing wage based on an alternate wage source under the new rule. 
The SPWD will apply during the validity period of the certification, 
except that such SPWD will be applicable only to those H-2B workers who 
are not yet employed in the certified position on the date of the 
issuance of the SPWD. The SPWD will not be applicable to H-2B workers 
who are already employed in the certified position at the time of the 
issuance of the SPWD, and it will not apply to United States workers 
recruited and hired under the original job order. For seafood employers 
whose workers' entry into the United States may be staggered under 
Sec.  655.15(f), an SPWD issued under this provision will apply only to 
those H-2B workers who have not yet entered the United States and are 
therefore not yet employed in the certified position at the time of the 
issuance of the SPWD. In order to receive an SPWD under this provision, 
the employer must submit a new ETA Form 9141 to the NPWC that contains 
in Section E.a.5 Job Duties the original PWD tracking number (starting 
with P-400), the H-2B temporary employment certification application 
number (starting with H-400), and the words ``Request for a 
Supplemental Prevailing Wage Determination.'' Electronic submission 
through the iCERT Visa Portal System is preferred. Upon receipt of the 
request, the NPWC will issue to the employer, or if applicable, the 
employer's attorney or agent, an SPWD in an expedited manner and 
provide a copy to the Chicago NPC.
6. Sec.  655.5 Definition of Terms
    The Departments have made a number of changes to the definitions 
contained in the 2008 rule. Many of the changes clarify definitions in 
minor ways that do not substantively change the meaning of the term. 
However, we have also made some substantive changes to definitions, and 
we discuss below those definitions.
a. ``Area of Substantial Unemployment''
    This new term reflects the established definition of area of 
substantial unemployment in use within ETA as it relates to Workforce 
Investment Act (WIA) fund allocations, and is the existing definition 
of area of substantial unemployment within ETA. ETA uses this 
definition to identify areas with concentrated unemployment and to 
focus WIA funding for services to facilitate employment in those areas. 
ETA employs this term both as a way to improve labor market test 
quality and for the sake of operational simplicity. This existing 
definition provides the appropriate standard for identifying areas of 
concentrated unemployment where additional recruitment could result in 
U.S. worker employment. Also, the process of collecting data and 
designating an area of substantial unemployment using the existing 
definition is already established, as discussed in ETA's Training and 
Employment Guidance Letter No. 5-11, Aug. 12, 2011,\13\ providing OFLC 
with a ready resource for identifying areas to focus additional 
recruitment. Finally, using this definition of area of substantial 
unemployment in the interim final rule enables an employer to check the 
list of areas of substantial unemployment ETA publishes to determine 
whether its job opportunity may fall within an area of substantial 
unemployment and, as appropriate, be subject to enhanced recruitment.
---------------------------------------------------------------------------

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

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

    1. Who have been continuously employed by the H-2B employer to 
perform substantially the same work included in the job order or 
substantially the same work performed by the H-2B workers during the 
52 weeks prior to the period of employment certified on the 
Application for Temporary Employment Certification;
    2. who have worked or been paid for at least 35 hours per week 
in at least 48 of the prior 52 workweeks; and
    3. who have worked or been paid for an average of at least 35 
hours per week over the prior 52 weeks.

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

[[Page 24053]]

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

    In determining whether this standard was met, the employer may take 
credit for any hours that were reduced by the employee voluntarily 
choosing not to work due to personal reasons such as illness or 
vacation. Second, not included in the definition are incumbent 
employees covered by a collective bargaining agreement or an individual 
employment contract that guarantees both an offer of at least 35 hours 
of work each workweek and continued employment with the H-2B employer 
at least through the period of employment covered by the job order, 
except that the employee may be dismissed for cause.
    To qualify as corresponding employment, the work must be performed 
during the period of the job order, including any approved extension 
thereof. Any work performed by U.S. workers outside the specific period 
of the job order does not qualify as corresponding employment. 
Accordingly, the interim final rule does not require employers to offer 
their U.S. workers (part-time or full-time workers) corresponding 
employment protections outside of the period of the job order. If, for 
example, a U.S. worker is in corresponding employment with H-2B 
workers, the employer must provide corresponding employment protections 
during the time period of the job order but may choose not to do so 
during the time period outside of the job order.
    The interim final rule includes these workers within the definition 
of corresponding employment in order to fulfill the DHS regulatory 
requirement that an H-2B Petition will not be approved unless the 
Secretary of Labor certifies that the employment of the alien will not 
adversely affect the wages and working conditions of similarly employed 
U.S. workers. 8 CFR 214.2(h)(6)(iv). Congress has long intended that 
similarly employed U.S. workers should not be treated less favorably 
than temporary foreign workers. For example, a 1980 report on temporary 
worker programs stated that U.S. employers were required to offer 
domestic workers wages equal to foreign workers as a prerequisite for 
labor certification. See Congressional Research Service: ``Report to 
the Senate Committee on the Judiciary: Temporary Worker Programs: 
Background and Issues'' 53 (1980); see also H.R. Rep. No. 99-682, pt. 1 
at 80 (1986) (``The essential feature of the H-2 program has been and 
would continue to be the requirement that efforts be made to find 
domestic workers before admitting workers from abroad. A corollary 
rule, again preserved in the bill, is that the importation of foreign 
workers will not be allowed if it would adversely affect the wages and 
working conditions of domestic workers similarly employed''). The 2008 
rule reflected this principle, in part, by requiring that the terms and 
conditions of offered employment cannot be less favorable than those 
offered to H-2B workers. 20 CFR 655.22(a) (2009). Thus, the 2008 rule 
provided for equal treatment of workers newly hired during the 10-day 
H-2B recruitment process.
    The 2008 rule, however, did not protect U.S. workers who engage in 
similar work performed by H-2B workers during the validity period of 
the job order, because it did not protect any incumbent employees. 
Therefore, for example, a U.S. employee hired three months previously 
performing the same work as the work requested in the job order, but 
earning less than the advertised wage, would have been required to quit 
the current employment and re-apply for the same job with the same 
employer to obtain the higher wage rate offered to H-2B workers. This 
was disruptive for the employer and created an additional 
administrative burden for the SWAs with respect to any workers being 
referred through them. It also overestimated employees' understanding 
of their rights under the regulations, and placed workers in insecure 
situations by requiring them to quit their jobs with the hope of being 
immediately rehired in order to avail themselves of the regulation's 
protections. Therefore, the interim final rule does not require 
incumbent employees to jump through this unnecessary hoop; U.S. workers 
generally will be entitled to the wage rates paid to H-2B employees 
without having to quit their jobs and be rehired.
    As set out above, there are only two categories of incumbent U.S. 
employees who will be excluded from the definition of corresponding 
employment. The first category covers those incumbents who have been 
continuously employed by the H-2B employer for at least the 52 weeks 
prior to the date of need, who have averaged at least 35 hours of work 
or pay over those 52 weeks, and who have worked or been paid for at 
least 35 hours in at least 48 of the 52 weeks, and whose terms and 
conditions of employment are not substantially reduced during the 
period of the job order. The employer may take credit for any hours 
that were reduced because the employee voluntarily chose for personal 
reasons not to work hours that the employer offered, such as due to 
illness or vacation. Thus, for example, assume an employee took six 
weeks of unpaid leave due to illness, and the employer offered the 
employee 40 hours of work each of those weeks. In that situation, the 
employer could take credit for all those hours in determining the 
employee's average number of hours worked in the prior year and could 
take credit for each of those six weeks in determining whether it 
provided at least 35 hours of work or pay in 48 of the prior 52 weeks. 
Similarly, if the employer provided a paid day off for Thanksgiving and 
an employee worked the other 32 hours in that workweek, the employer 
would be able to take credit for all 40 hours when computing the 
average number of hours worked and count that week toward the required 
48 weeks. In contrast, assume another situation where the employer 
offered the employee only 15 hours of work during each of three weeks, 
and the employee did not work any of those hours. The employer could 
only take credit for the hours actually offered when computing the 
average number of hours worked or paid during the prior 52 weeks, and 
it would not be able to count those three weeks when determining 
whether it provided at least 35 hours of work or pay for the required 
48 weeks.
    The second category of incumbent workers excluded from the 
definition of corresponding employment includes those covered by a 
collective bargaining agreement or individual employment contract that 
guarantees both an offer of at least 35 hours of work each week and 
continued employment with the H-2B employer at least through the period 
of the job order (except that the employee may be dismissed for cause). 
As noted above, incumbent employees in the first category are year-
round employees who began working for the employer before the employer 
filed an Application for Temporary Employment Certification. They work 
35 hours per week for the employer, even during its slow season. The 
Departments recognize that there may be some weeks when, due to 
personal factors such as illness or vacation, the employee does not 
work 35 hours. The employer may still treat such a week as a week when 
the employee worked 35 hours for purposes of the corresponding 
employment definition, so long as the employer offered at least 35 
hours of work and the employee voluntarily declined to work, as 
demonstrated by the employer's payroll records. Thus, these workers 
have valuable job security that is lacked by H-2B workers and those 
hired during

[[Page 24054]]

the recruitment period or the period of the job order. Such full-time, 
year-round employees may have other valuable benefits as well, such as 
health insurance or paid time off. Similarly, employees covered by a 
collective bargaining agreement or an individual employment contract 
with a guaranteed weekly number of hours and just-cause provisions also 
have valuable job security; they may also have benefits beyond those 
guarantees provided by the H-2B program. These valuable terms and 
conditions of employment may account for any difference in wages 
between what they receive and what H-2B workers receive. Therefore, 
these U.S. workers are excluded from corresponding employment if they 
continue to be employed full-time at substantially the same terms and 
conditions throughout the period covered by the job order, except that 
they may be dismissed for cause.
    The interim final rule's inclusion of other workers within the 
definition of corresponding employment is important because the 2008 
rule did not protect U.S. workers in the situation where an H-2B 
employer places H-2B workers in occupations and/or at job sites outside 
the scope of the labor certification, in violation of the regulations. 
For example, if an employer submits an application for workers to serve 
as landscape laborers, but then assigns the H-2B workers to serve as 
bricklayers constructing decorative landscaping walls, the employer has 
bypassed many of the H-2B program's protections for U.S. workers. The 
employer has deprived such U.S. workers of their right to protections 
such as domestic recruitment requirements, the right to be employed if 
available and qualified, and the prevailing wage requirement. The 
interim final rule guards against this abuse of the system and protects 
the integrity of the H-2B process by ensuring that the corresponding 
U.S. workers employed as bricklayers receive the prevailing wage for 
that work.
    The 2008 rule also did not protect U.S. workers in cases where 
employers placed H-2B workers at job sites outside the scope of the 
labor certification. For example, an employer may submit an application 
for workers to serve as landscape laborers in a rural county in 
southern Illinois, but instead violate its obligations by assigning its 
H-2B workers to work as landscape laborers in the Chicago area. Because 
the employer did not fulfill its recruitment obligations in the Chicago 
area, U.S. workers were not aware of the job opportunity, they could 
not apply and take advantage of their priority hiring right, and the 
prevailing wage assigned was not the correct rate for the Chicago area. 
Such a violation of the employer's attestations would result both in 
the absence of a meaningful test of the labor market for available U.S. 
workers and U.S. workers being adversely affected by the presence of 
underpaid H-2B workers. The interim final rule's definition of 
corresponding employment ensures that the employer's incumbent 
landscape laborers who work where the H-2B workers actually are 
assigned to work will receive the appropriate prevailing wage rate. 
Paying the proper wage to such workers is necessary to protect against 
possible adverse effects on U.S. workers due to wage depression from 
the introduction of foreign workers. Therefore, the definition of 
corresponding employment in the interim final rule is necessary to 
fulfill the responsibility to provide temporary labor certifications 
only in appropriate circumstances.
c. ``Full-Time''
    The definition of ``full-time'' means 35 or more hours of work per 
week. In accord with the decision in CATA I, which invalidated the 2008 
rule's definition of full-time employment because DOL did not consider 
and articulate relevant factors supporting the 30-hour definition, 2010 
WL 3431761 at *14, we have continued to carefully consider all 
pertinent information in determining the threshold number of hours for 
full-time employment, including national labor market statistics, 
empirical evidence from a random sample of approved applications, and 
other employment laws. All available evidence suggests that the 2008 
rule's definition of 30 hours or more per workweek was not an accurate 
reflection of full-time employment. DOL's enforcement experience 
confirms that the vast majority of H-2B temporary employment 
certification applications that are the subject of investigations are 
certified for 35 or more hours per week. Under the H-2A nonimmigrant 
visa program applicable to agricultural workers, DOL defines full-time 
as 35 hours per week. The 35-hour floor allows employers access to the 
H-2B program for a relatively small number of full-time jobs that would 
not have been eligible under a higher criterion (for example, a 40-hour 
standard). H-2B employers are and will remain required to accurately 
represent the actual number of hours per week associated with the job, 
recruit U.S. workers on the basis of those hours, and pay for all hours 
of work. Therefore, the employer is obligated to disclose and offer 
those hours of employment--whether 35, 40, 45, or more--that accurately 
reflect the job being certified. Failure to do so could result in a 
finding of violation of these regulations.
d. ``Job Contractor''
    This term means a person, association, firm, or a corporation that 
meets the definition of an employer and that contracts services or 
labor on a temporary basis to one or more employers, which is not an 
affiliate, branch or subsidiary of the job contractor and where the job 
contractor will not exercise substantial, direct day-to-day supervision 
and control in the performance of the services or labor to be performed 
other than hiring, paying and firing the workers. The following 
examples illustrate the differences between an employer that is a job 
contractor and an employer that is not. Employer A is a temporary 
clerical staffing company. It sends several of its employees to Acme 
Corporation to answer phones and make copies for a week. Although 
Employer A has hired these employees and will be issuing paychecks to 
these employees for the time worked at Acme Corporation, Employer A 
will not exercise substantial, direct day-to-day supervision and 
control over its employees during their performance of services at Acme 
Corporation. Rather, Acme Corporation will direct and supervise the 
Employer A employees during that week. Under this particular set of 
facts, Employer A would be considered a job contractor. By contrast, 
Employer B is a landscaping company. It sends several of its employees 
to Acme Corporation once a week to do mowing, weeding, and trimming 
around the Acme campus. Among the employees that Employer B sends to 
Acme Corporation are several landscape laborers and one supervisor. 
Employer B's supervisor instructs and supervises the laborers as to the 
tasks to be performed on the Acme campus. Under this particular set of 
facts, Employer B would not be considered a job contractor.
    Similarly, in the reforestation industry, employers may perform 
contract work using crews of workers subject to the employer's on-site, 
day-to-day supervision and control. Such an employer, whose 
relationship with its employees involves substantial, direct, on-site, 
day-to-day supervision and control would not be considered a job 
contractor under this interim final rule. However, if a reforestation 
employer were to send its workers to another company to work on that 
company's crew and did not provide substantial, direct, on-site, day-
to-day supervision

[[Page 24055]]

and control of the workers, that employer would be considered a job 
contractor under this interim final rule. Note that the provision of 
services to another company, under a contract alone, does not render an 
employer a job contractor; rather, each employment situation must be 
evaluated individually to determine the nature of the employer-employee 
relationship and, accordingly, whether the petitioning employer is in 
fact a job contractor.
e. Other Definitions
    As discussed under Sec.  655.6, we have decided to permit job 
contractors to participate in the H-2B program where they can 
demonstrate their own temporary need, not that of their clients. The 
particular procedures and requirements that govern their participation 
are set forth in Sec.  655.19 and provide in greater detail the 
responsibilities of the job contractors and their clients. Accordingly, 
we are adding a definition of ``employer-client'' to this interim final 
rule to define the characteristics of the employer that is served by 
the job contractor and the nature of their relationship.
    We have included definitions of job offer and job order to make 
certain that employers understand the difference between the offer that 
is made to workers, which must contain all the material terms and 
conditions of the job, and the order that is the published document 
used by SWAs in the dissemination of the job opportunity. The 
definition of job order reflects that it must include some, but not 
all, of the material terms and conditions of employment as reflected in 
Sec.  655.18, which identifies the minimum content required for job 
orders. The definition of job offer requires an employer's job offer to 
contain all material terms and conditions of employment.
    We have included the definition of strike so that the term is 
defined more consistently with DOL's 2010 H-2A regulations. The 
definition recognizes a range of protected concerted activity and 
clearly notifies employers and workers of their obligations when 
workers engage in these protected activities.
7. Sec.  655.6 Temporary Need
    We will interpret temporary need in accordance with the DHS 
definition of that term and our experience in the H-2B program. The DHS 
regulations define temporary need as a need for a limited period of 
time, where the employer must ``establish that the need for the 
employee will end in the near, definable future.'' 8 CFR 
214.2(h)(6)(ii)(B). The interim final rule, as discussed in further 
detail below, is consistent with this approach.
    a. Job Contractors: We generally conclude that a person or entity 
that is a job contractor, as defined under Sec.  655.5, has no 
individual need for workers. Rather, its need is based on the 
underlying need of its employer-clients. Job contractors generally have 
an ongoing business of supplying workers to other entities, even if the 
receiving entity's need for the services is temporary. However, we 
recognize that we should exclude from the program only those job 
contractors who have a definitively permanent need for workers, and 
that job contractors who only have a need for the services or labor to 
be performed several months out of the year have a genuine temporary 
need and should not be excluded. Therefore, Sec.  655.6 permits only 
those contractors that demonstrate their own temporary need, not that 
of their employer-clients, to continue to participate in the H-2B 
program.
    Job contractors will only be permitted to file applications based 
on seasonal need or a one-time occurrence. In other words, in order to 
participate in the H-2B program, a job contractor would have to 
demonstrate, just as all employers seeking H-2B workers based on 
seasonal need have always been required to demonstrate: 1) If based on 
a seasonal need that the services or labor that it provides are 
traditionally tied to a season of the year, by an event or pattern and 
is of a recurring nature; or 2) if based on a one-time occurrence, that 
the employer has not employed workers to perform the services or labor 
in the past and will not need workers to perform the services in the 
future or that it has an employment situation that is otherwise 
permanent, but a temporary event of short duration has created the need 
for a temporary worker. For a job contractor with a seasonal need, the 
job contractor must specify the period(s) or time during each year in 
which it does not employ the services or labor. The employment is not 
seasonal if the period during which the services or labor is not 
provided is unpredictable or subject to change or is considered a 
vacation period for the contractor's permanent employees. For instance, 
a job contractor that regularly supplies workers for ski resorts from 
October to March but does not supply any workers performing the same 
services or labor needed by the ski resorts outside of those months 
would qualify as having a temporary need that is seasonal for such 
workers.
    We are allowing job contractors to be certified based only on 
seasonal or one-time need because it is extremely difficult, if not 
impossible, to identify appropriate peakload or intermittent needs for 
job contractors with clients who have variable needs. The seminal 
Immigration and Naturalization Service (INS) decision, Matter of Artee, 
18 I. & N. Dec 366 (Comm'r 1982), established that a determination of 
temporary need rests on the nature of the underlying need for the 
duties of the position. To the extent that a job contractor is applying 
for a temporary labor certification, the job contractor whose need 
rests on that of its clients has itself no independent need for the 
services or labor to be performed. The Board of Alien Labor 
Certification Appeals (BALCA) has further clarified the definition of 
temporary need in Matter of Caballero Contracting & Consulting LLC, 
2009-TLN-00015 (Apr. 9, 2009), finding that ``the main point of Artee . 
. . is that a job contractor cannot use [solely] its client's needs to 
define the temporary nature of the job where focusing solely on the 
client's needs would misrepresent the reality of the application.'' The 
BALCA, in Matter of Cajun Constructors, Inc. 2009-TLN-00096 (Oct. 9, 
2009), also decided that an employer by the nature of its business 
works on a project until completion and then moves on to another has a 
permanent rather than a temporary need. The limited circumstances under 
which job contractors may continue to participate in the H-2B program 
will be subject to the requirements in Sec.  655.19, which sets forth 
the procedures and requirements governing the filing of applications by 
job contractors. Contractors have no temporary need apart from the 
underlying need of the employer on whose behalf they are filing the 
Application for Temporary Employment Certification. When considering 
any employer's H-2B Registration, DOL will require that employer to 
substantiate its temporary need by providing evidence required to 
support such a need.
    b. Duration of Temporary Need. For the reasons described below, DOL 
is defining temporary need, except in the event of a one-time 
occurrence, as 9 months in duration, a decrease from the 10-month 
limitation under DOL's 2008 rule. This definition is consistent with 
the definition of temporary need in DHS regulations, which provides 
that ``[g]enerally, that period of time will be limited to one year or 
less, but in the case of a one-time event could last up to 3 years.'' 8 
CFR 214.2(h)(6)(ii)(B) (emphasis provided). This interim final rule 
further provides, consistent with 8 CFR 214.2(h)(6)(ii)(B), that in the 
case of ``extraordinary circumstances,'' DOL

[[Page 24056]]

may extend a temporary labor certification for a period beyond nine 
months, but not to exceed a total period of twelve months.
    DHS categorizes and defines temporary need into four 
classifications: seasonal need; peakload need; intermittent need; and 
one-time occurrence. A one-time occurrence may be for a period of up to 
3 years. The other categories are generally limited to 1 year or less 
in duration. See 8 CFR 214.2(h)(6)(ii)(B). DOL's temporary need period 
falls comfortably within the parameters of the general ``one year or 
less'' limitation contained in the DHS regulations. Routinely allowing 
employers to file seasonal, peakload or intermittent need applications 
for periods approaching a year would be inconsistent with the statutory 
requirement that H-2B job opportunities need to be temporary. In our 
experience, the closer the period of employment is to one year in the 
H-2B program, the more the opportunity resembles a permanent position. 
We conclude that a maximum employment period of 9 months establishes 
the temporariness of the position. Where there are only a few days or 
even a month or two for which no work is required, the job becomes less 
distinguishable from a permanent position, particularly one that offers 
time off due to a slow-down in work activity. Recurring temporary needs 
of more than 9 months are, as a practical matter, permanent positions 
for which H-2B labor certification is not appropriate. The approach in 
the 2008 rule that permitted temporary certifications for periods up to 
10 months encompasses job opportunities that we conclude are permanent 
in nature and inconsistent with congressional intent to limit H-2B 
visas to employers with temporary or seasonal needs. We conclude that 
the 9-month limitation that fairly describes the maximum scope of a 
seasonal need should also be applied to peakload need since there is no 
compelling rationale for creating a different standard for peakload.
    The impact of the change from 10 months, which was the standard in 
the 2008 rule, to 9 months, may have an adverse impact on some 
employers. But that impact, standing alone, is not dispositive 
regarding our legal obligation to protect the wages and working 
conditions of U.S. workers. DOL previously relied on the standard 
articulated in Matter of Vito Volpe Landscaping, Nos. 91-INA-300, 91-
INA-301, 92-INA-170, 91-INA-339, 91-INA-323, 92-INA-11 (Sept. 29, 
1994), which stated that a period of 10 months was not permanent. The 
Departments may adopt through rulemaking a new standard that is within 
their respective responsibilities in administering the program. See 
United States v. Storer Broad., 351 U.S. 192, 203 (1956); Heckler v. 
Campbell, 461 U.S. 458, 467 (1983); see also FDA v. Brown & Williamson 
Tobacco Corp., 529 U.S. 120, 156-57 (2000) (recognizing that ``agencies 
must be given ample latitude to adapt their rules and policies to the 
demands of changing circumstances''). DOL has determined that 9 months 
better reflects a recurring seasonal or temporary need and have 
accordingly adopted a new standard in this interim final rule. The 
majority of H-2B employer applicants will not be affected by this 
change. According to DOL H-2B program data for FY 2010-2014, 65.2 
percent of certified and partially certified employer applicants had a 
duration of temporary need less than or equal to 9 months.
    Similarly, we have determined that limiting to 9 months the 
duration of temporary need on a peakload basis would ensure that the 
employer is not mischaracterizing a permanent need as one that is 
temporary. For example, since temporary need on a peakload basis is not 
tied to a season, under the current 10-month standard, an employer may 
be able to characterize a permanent need for the services or labor by 
filing consecutive applications for workers on a peakload basis. To the 
extent that each application does not exceed 10 months, the 2-month 
inactive period may correspond to a temporary reduction in workforce 
due to annual vacations or administrative periods. Increasing the 
duration of time during which an employer must discontinue operations 
from 2 months to 3 will ensure that the use of the program is reserved 
for employers with a genuine temporary need. Similarly, a 9-month 
limitation is appropriate for ensuring that the employer's intermittent 
need is, in fact, temporary. In addition, under the interim final rule, 
each employer with an intermittent need will be required to file a 
separate H-2B Registration and Application for Temporary Employment 
Certification to make certain that any disconnected periods of need are 
accurately portrayed and comply with the 9-month limitation.
    c. Peakload need: The Departments will employ the definition of 
peakload need established in DHS regulations at 8 CFR 
214.2(h)(6)(ii)(B)(3).
    d. One-Time Occurrence. The Departments will employ the definition 
of one-time occurrence established in DHS regulations at 8 CFR 
214.2(h)(6)(ii)(B)(1). The Departments do not intend for the 3-year 
accommodation of special projects to provide a specific exemption for 
industries like construction in which many of an employer's projects or 
contracts may prove a permanent rather than a temporary need. 
Therefore, we will closely review all assertions of temporary need on 
the basis of a one-time occurrence to ensure that the use of this 
category is limited to those circumstances where the employer has a 
non-recurring need which exceeds the 9-month limitation. For example, 
an employer who has a construction contract that exceeds 9 months may 
not use the program under a one-time occurrence if it has previously 
filed an Application for Temporary Employment Certification identifying 
a one-time occurrence and the prior Application for Temporary 
Employment Certification requested H-2B workers to perform the same 
services or labor in the same occupation.
8. Sec.  655.7 Persons and Entities Authorized To File
    The employer, or its attorney or agent, are persons authorized to 
file an H-2B Registration or an Application for Temporary Employment 
Certification. The employer must sign the H-2B Registration or 
Application for Temporary Employment Certification and any other 
required documents, whether or not it is represented by an attorney or 
agent.
 9. Sec.  655.8 Requirements for Agents
    Employer's agents are required to provide copies of current 
agreements defining the scope of their relationships with employers, or 
other document demonstrating the agent's authority to represent the 
employer. DOL will review the documents to make certain that there is 
evidence that a bona fide relationship exists between the agent and the 
employer and, where the agent is also engaged in recruitment, to ensure 
that the agreements include the language required at Sec.  655.20(p) 
prohibiting the payment of fees by the worker. DOL also reserves the 
right to further review the agreements in the course of an 
investigation or other integrity measure. A certification of an 
employer's application that includes such a submitted agreement in no 
way indicates a general approval of the agreement or the terms therein. 
The requirement does not obligate either the agent or the employer to 
disclose any trade secrets or other proprietary business information. 
The interim final rule only requires the agent to provide sufficient 
documentation to clearly demonstrate the scope of the agency 
relationship. In addition, under this

[[Page 24057]]

interim final rule, DOL does not plan at present to post these 
agreements for public viewing. If, however, DOL does so in the future, 
DOL will continue to follow all applicable legal and internal 
procedures including those relating to Freedom of Information Act 
(FOIA) requests to ensure the protection of private data in such 
circumstances.
    We remind both agents and employers that each is responsible for 
the accuracy and veracity of the information and documentation 
submitted, as indicated in the ETA Form 9142B and Appendix B, both of 
which must be signed by the employer and its agent. As discussed under 
Sec.  655.73(b), agents who are signatories to ETA Form 9142B may now 
be held liable for their own independent violations of the H-2B 
program.
    Finally, under this provision, where an agent is required under the 
Migrant and Seasonal Agricultural Worker Protection Act (MSPA) to have 
a Certificate of Registration, the agent must also provide a current 
copy of the certificate which identifies the specific farm labor 
contracting activities that the agent is authorized to perform.
10. Sec.  655.9 Disclosure of Foreign Worker Recruitment
    Paragraph (a) requires an employer and its attorney and/or agent to 
provide DOL a copy of all agreements with any agent or recruiter that 
it engages or plans to engage in the recruitment of prospective H-2B 
workers, regardless whether the agent or recruiter is located in the 
U.S. or abroad. The written contract must contain the contractual 
prohibition on charging fees, as set forth in Sec.  655.20(p). At the 
time of collection, DOL will review the agreements to obtain the names 
of the foreign labor recruiters (for purposes of maintaining a public 
list, as described below), and to verify that these agreements include 
the required contractual prohibition against charging fees. DOL may 
also further review the agreements in the course of an investigation or 
other integrity measure. Certification of an employer's application 
that includes such a submitted agreement, however, does not indicate 
general approval of the agreement or the terms therein. Where the 
contract is not in English and the required contractual prohibition is 
not readily discernible, DOL reserves the right to request further 
information to ensure that the contractual prohibition is included in 
the agreement. Agreements between the employer and the foreign labor 
recruiter will not be made public unless required by law. This interim 
final rule provides for DOL to obtain the agreements, but only share 
with the public the identity of the recruiters as discussed further 
below, but not the full agreements.
    Paragraph (b) requires an employer and its attorney or agent, as 
applicable, to disclose to DOL the identity (name) and geographic 
location of persons and entities hired by or working for the foreign 
labor recruiter and any of the agents or employees of those persons and 
entities who will recruit or solicit prospective H-2B workers for the 
job opportunities offered by the employer. We interpret the term 
``working for'' to encompass any persons or entities engaged in 
recruiting prospective foreign workers for the H-2B job opportunities 
offered by the employer, whether they are hired directly by the primary 
recruiter or are working indirectly for that recruiter downstream in 
the recruitment chain. This requirement encompasses all agreements, 
whether written or verbal, involving the whole recruitment chain that 
brings an H-2B worker to the employer's certified H-2B job opportunity 
in the United States. Employers, and their attorneys or agents, as 
applicable, are expected to provide these names and geographic 
locations to the best of their knowledge at the time the application is 
filed. DOL expects that, as a normal business practice, when completing 
the written agreement with the primary recruiting agent or recruiter, 
the employer/attorney/agent will ask whom the recruiter plans to use to 
recruit workers in foreign countries, and whether those persons or 
entities plan to hire other persons or entities to conduct such 
recruitment, throughout the recruitment chain.
    Paragraph (c) provides for DOL's public disclosure of the names of 
the agents and foreign labor recruiters used by employers, as well as 
the identities and locations of all the persons or entities hired by or 
working for the primary recruiter in the recruitment of prospective H-
2B workers, and the agents or employees of these entities. Determining 
the identity and location of persons hired by or working for the 
recruiter or its agent to recruit or solicit prospective H-2B workers--
effectively acting as sub-recruiters, sub-agents, or sub-contractors--
serves several purposes. It bolsters program integrity by aiding in the 
enforcement of certain regulatory provisions. This provision will also 
bring a greater level of transparency to the H-2B worker recruitment 
process. By maintaining and making public a list of agents and 
recruiters, DOL will be in a better position to enforce recruitment 
violations, and workers will be better protected against fraudulent 
recruiting schemes because they will be able to verify whether a 
recruiter is in fact recruiting for legitimate H-2B job opportunities 
in the United States. As the Government Accountability Office (GAO) 
explained in a recent report, ``[w]ithout accurate, accessible 
information about employers, recruiters, and jobs during the 
recruitment process, potential foreign workers are unable to 
effectively evaluate the existence and nature of specific jobs or the 
legitimate parties contracted to recruit for employers, potentially 
making them more vulnerable to abuse.'' H-2A and H-2B Visa Programs: 
Increased Protections Needed for Foreign Workers, GAO-15-154 (Mar. 
2015). A list of foreign labor recruiters will facilitate information 
sharing between the Departments and the public, and assist us, other 
agencies, workers, and community and worker advocates to better 
understand the roles of recruiters and their agents in the recruitment 
chain and permit a closer examination of applications or certifications 
involving recruiters who may be engaged in improper behavior. 
Information about the identity of the international and domestic 
recruiters of foreign labor will also assist DOL in more appropriately 
directing its audits and investigations. Strengthening enforcement of 
recruitment abuses also ensures that employers who comply with the H-2B 
program requirements are not undercut by unscrupulous employers, such 
as those who pass recruitment fees on to workers.

B. Prefiling Procedures

1. Sec.  655.10 Prevailing Wage
    The interim final rule requires employers to request PWDs from the 
NPWC before posting their job orders with the SWA. The PWD must be 
valid on the day the job orders are posted. We encourage employers to 
continue to request a PWD in the H-2B program at least 60 days before 
the date the determination is needed. Under the companion H-2B final 
wage rule, issued simultaneously with this interim final rule, 
employer-provided surveys may not be used to set the prevailing wage 
except in limited circumstances. Paragraph (g) provides that if OFLC 
determines that an employer-provided survey is not acceptable, it will 
inform the employer in writing of the reasons the survey is being 
rejected. Employers may request review of this determination through 
the appeal process in Sec.  655.13 of this interim final rule. Unlike 
the 2008 rule, this interim final rule does not allow an employer to

[[Page 24058]]

request a redetermination of the rejection of an employer-provided 
survey from the certifying officer (CO), but may request review by the 
NPWC Director as specified in Sec.  655.13. DOL has determined that the 
2008 procedures, which allowed an employer to request redetermination 
from the CO before appeal to the NPWC Director, were unnecessarily 
burdensome and that streamlining this process will allow for more 
expeditious resolution of prevailing wage requests.
2. Sec.  655.11 Registration of H-2B Employers
    The interim final rule bifurcates the current application process 
into a registration phase, which addresses the employer's temporary 
need, and an application phase, which addresses the labor market test. 
This provision requires employers to submit an H-2B Registration and 
receive an approval before submitting an Application for Temporary 
Employment Certification and conducting the U.S. labor market test.
    Paragraph (a) requires employers to file an H-2B Registration, 
which must be accompanied by documentation showing: The number of 
positions the employer desires to fill in the first year of 
registration; the period of time for which the employer needs the 
workers; and that the employer's need for the services or labor is non-
agricultural, temporary and is justified as either a one-time 
occurrence, a seasonal need, a peakload need, or an intermittent need, 
as described in 8 CFR 214.2(h)(6)(ii)(B) and Sec.  655.6 of this 
interim final rule. The Departments have found that evaluating 
temporary need is a fact-intensive process which, in many cases, can 
take a considerable amount of time to resolve. DOL has a longstanding 
practice of evaluating temporary need as an integral part of the 
adjudication of the Application for Temporary Employment Certification; 
the bifurcation of the application process into a registration phase 
and a labor market test phase shifts the timing of, but does not change 
the nature of, DOL's review. See Matter of Golden Dragon Chinese Rest., 
19 I. & N. Dec. 238, 239 (Comm'r 1984). Separating the two processes 
will give OFLC the time to make a considered decision about temporary 
need without negatively impacting an employer's ability to have the 
workers it needs in place in a timely manner. In addition, we 
anticipate that many employers, with 3 years of registration validity, 
will benefit from a one-step process involving only the labor market 
test in their second and third years after registration, which will 
allow DOL to process these applications more efficiently. We conclude 
that enforcement alone cannot ensure program integrity; in the move 
from an attestation-based model to a compliance-based model, the 
bifurcation of application processing into registration and labor 
market test phases contributes to program integrity. Job contractors 
also must register, and provide documentation that establishes their 
temporary seasonal need or one-time occurrence during the registration 
process. Although a job contractor must file an Application for 
Temporary Employment Certification jointly with its employer-client, in 
accordance with Sec.  655.19, a job contractor and its employer-client 
must each file a separate H-2B Registration. Paragraph (b) requires the 
employer and, as applicable, its agent and/or attorney, to sign the H-
2B Registration.
    Paragraph (c) requires employers to file an H-2B Registration no 
less than 120 and no more than 150 calendar days before the date of 
initial need for H-2B workers, except where the employer submits the H-
2B Registration in support of an emergency filing, discussed further 
below with reference to paragraph (j). The 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 Temporary Employment 
Certification will not be delayed. In addition, many employers will not 
have to repeat the registration process with respect to the following 2 
years. The registration timeframe also reflects the 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.
    Paragraph (d) states that the assertion of temporary need will be 
evaluated based on standards established by DHS in 8 CFR 
214.2(h)(6)(ii).\14\ The NPC will review the registration under the 
standards set in paragraph (e) of Sec.  655.11. Paragraph (f) of this 
provision establishes mailing and postmark requirements.
---------------------------------------------------------------------------

    \14\ DHS is the final arbiter in terms of determining temporary 
need. See 8 CFR 214.2(h)(6)(iii)(A) (stating that a temporary labor 
certification constitutes advice to DHS as to the availability of 
qualified U.S. workers and as to any adverse effect hiring an alien 
worker may have on the wages and working conditions of similarly 
employed U.S. workers).
---------------------------------------------------------------------------

    Paragraph (g) authorizes the CO to issue one or more Requests for 
Further Information (RFIs) before issuing a Notice of Decision on the 
H-2B Registration if the CO determines that he or she could not approve 
the H-2B Registration for various reasons, including, but not limited 
to: An incomplete or inaccurate ETA Form 9155; a job classification and 
duties that do not qualify as non-agricultural; the failure to 
demonstrate temporary need; and/or positions that do not constitute 
bona fide job opportunities. In addition, DOL will perform the initial 
business existence verification and, if questions arise, will request 
additional documentation of bona fide existence through the RFI 
process.
    Paragraph (h) provides that, if approved, 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. This provision grants the CO 
the necessary discretion to 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. If the H-2B Registration is 
denied, the CO will send a Notice of Decision stating the reason(s) for 
the denial and providing an opportunity for administrative review 
within 10 days of the denial.
    Paragraph (i) requires 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 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 withdrawn. We have included corresponding Sec.  655.56 that 
sets out all document retention obligations for H-2B employers.
    Paragraph (j) adds a provision to allow for the transition to the 
registration process through a future announcement in the Federal 
Register, until which time the CO will adjudicate temporary need 
through the application process.

[[Page 24059]]

3. Sec.  655.12 Use of Registration by H-2B Employers
    Under this provision, an employer may 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 has not 
changed. The employer will be required to file a new H-2B Registration 
if the employer's need for workers increases by more than 20 percent 
(or 50 percent for employers requesting fewer than 10 workers); if the 
dates of need of the job opportunity have changed by more than a total 
of 30 calendar days from the initial year for the entire period of 
need; 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. We conclude 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 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 rule, the current H-2A regulation, and Sec.  655.35 of this 
interim final rule, which pertains to amendments to an Application for 
Temporary Employment Certification before certification. Under the 
interim final rule, an H-2B Registration is non-transferrable.
4. Sec.  655.13 Review of Prevailing Wage Determinations
    The interim final rule alters the process from the 2008 rule for 
the review of PWDs to improve clarity and consistency. Specifically, 
the provision reduces the number of days within which the employer must 
request review of a PWD by the NPWC Director from 10 calendar days in 
the 2008 rule to 7 business days from the date of the PWD in this 
interim final rule. In addition, the NPWC Director will review 
determinations, and the employer has 10 business days from the date of 
the NPWC Director's final determination within which to request review 
by the BALCA.

C. Application for Temporary Employment Certification Filing Procedures

1. Sec.  655.15 Application Filing Requirements
    Under the interim final rule, we have 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. DOL's experience in administering the H-2B 
program since the implementation of the 2008 rule suggests that the 
lack of agency oversight during the pre-filing recruitment process has 
resulted in failures to comply with program requirements. We conclude 
that the recruitment model adopted in this interim 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 workers that they require in a 
timelier manner. This provision requires all employers to first obtain 
a prevailing wage determination under Sec.  655.10 and register under 
the procedures set out in Sec.  655.11, unless requirements under 
Sec. Sec.  655.4 or 655.17 are met.
    Paragraph (a) requires a registered employer to file the 
Application for Temporary Employment Certification, together with 
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. DOL understands that there are circumstances in which the 
job order has yet to be created and posted by the SWA, so DOL will 
require a document that outlines the details of the employer's job 
opportunity where a copy of the official job order from the SWA's job 
order system is not yet available; DOL expects 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. The process relies on 
the SWAs' significant knowledge of the local labor market and job 
requirements. 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. The employer is required to also submit to the 
NPC any information required under Sec. Sec.  655.8 and 655.9 
(including the identity and location of persons and entities hired by 
or working with the recruiter or agent or employee of the recruiter to 
recruit prospective foreign workers for the H-2B job opportunities). 
Under Paragraph (b), the employer must submit this filing no more than 
90 days and no fewer than 75 days before its date of need.
    Paragraph (c) permits the employer or its authorized attorney or 
agent to file electronically H-2B temporary employment certification 
applications under the H-2B visa category through the iCERT System 
(http://icert.doleta.gov). An employer or its authorized attorney or 
agent electing not to use the electronic filing capability must file 
their H-2B temporary employment certification applications directly 
with the Chicago NPC using the traditional paper-based filing method. 
Data from mailed-in H-2B temporary employment certification 
applications will be entered into the iCERT System's internal case 
management system by the Chicago NPC and processed in a similar manner 
as those filed electronically.
    Paragraph (d) requires the employer and, as applicable, its 
attorney and/or agent, to sign the Application for Temporary Employment 
Certification. When filing an H-2B temporary employment certification 
application electronically, the iCERT System account holder must upload 
a signed and dated copy of the Appendix B associated with the H-2B 
temporary employment certification application containing the requisite 
program assurances and obligations under this interim final rule. In 
the case of a job contractor filing as a joint employer with its 
employer-client, a separate attachment containing the employer-client's 
business and contact information (i.e., Sections C and D of the ETA 
Form 9142B) and a separate signed and dated copy of the Appendix B and 
H-2B Registration for the employer-client must be uploaded prior to 
electronically submitting the H-2B temporary employment certification 
application, as required by 20 CFR 655.19. For electronic filing only, 
an H-2B temporary employment certification application bearing original 
signatures will no longer be required by the Chicago NPC at the time of 
filing, because a copy of the signed and dated Appendix B will be 
uploaded directly into the iCERT System and the original Appendix B 
will be retained by the employer, as required by 20 CFR 655.56.
    In addition to the H-2B temporary employment certification 
application, the regulations require an employer to

[[Page 24060]]

submit all supporting documentation at the time of filing. When filing 
an H-2B temporary employment certification application electronically, 
the iCERT System account holder must upload, prior to submission of the 
application and in an electronic format acceptable to the iCERT System, 
all required supporting documentation that would normally be sent to 
the Chicago NPC by U.S. mail, because the system will not permit 
documents to be uploaded once the H-2B temporary employment 
certification application has been submitted for processing. An 
employer who elects to file H-2B temporary employment certification 
applications by U.S. mail must submit all required documentation in 
hard copy to the Chicago NPC. To avoid any processing delays, the iCERT 
account holder is strongly encouraged to preview and check the H-2B 
temporary employment certification application and all uploaded 
documents for completeness and accuracy before submitting the 
application electronically. Any supporting documentation required after 
the H-2B temporary employment certification application is filed will 
be requested by the Chicago NPC and must be filed by U.S. mail, 
electronic mail or facsimile, even if the application itself was 
submitted electronically.
    Where a temporary labor certification is granted, the Chicago NPC 
will send the approved H-2B temporary employment certification 
application 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. For all H-2B 
temporary employment certification applications granted under this 
interim final rule, whether filed electronically or mailed, the 
employer will receive from the Chicago NPC an original certified ETA 
Form 9142B, but not an Appendix B, issued on security certification 
paper. A certified ETA Form 9142B is valid when it contains a completed 
Section K bearing the electronic signature of the OFLC Administrator, 
and a completed ``For Department of Labor Use Only'' footer on each 
page identifying the case number, case status, and validity period. 
Upon receipt of the original certified ETA Form 9142B, the employer or 
its agent or attorney, if applicable, must complete the footer on the 
original Appendix B, retain the original Appendix B, and submit a 
signed copy of Appendix B, together with the original certified ETA 
Form 9142B directly to USCIS. Under the document retention requirements 
in Sec.  655.56, the employer must retain a copy of the temporary labor 
certification and the original signed Appendix B.
    Paragraph (f) requires that, with one exception discussed below 
applicable to employers in the seafood industry, employers file 
separate applications when there are different dates of need for the 
same job opportunity or different worksites within an area of intended 
employment. Employers must accurately identify their personnel needs 
and, for each period within their season for which they have more than 
one date of need, file a separate application for each separate date 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 require that employers provide U.S. 
workers the maximum opportunity to consider the job opportunity and is 
consistent with USCIS policies. It is intended to provide 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.
    The interim final rule, at Sec.  655.15(f), permits only employers 
in the seafood industry to stagger the entry of their otherwise 
admissible H-2B nonimmigrants into the United States under certain 
circumstances. Under section 108 of the Consolidated and Further 
Continuing Appropriations Act, 2015 (the ``2015 Appropriations Act''), 
Public Law 113-235, 128 Stat. 2130, 2464, permits staggered entry of H-
2B nonimmigrants employed by employers in the seafood industry under 
certain conditions. The Departments have determined that this 
legislation constitutes a permanent enactment, and so we have 
incorporated the requirements into this interim final rule.
    Under the 2015 Appropriations Act and Sec.  655.15(f), employers in 
the seafood industry may bring into the United States, in accordance 
with an approved H-2B petition, nonimmigrant workers at any time during 
the 120-day period on or after the employer's certified start date of 
need if certain conditions are met. No additional information or 
documentation related to this provision should be submitted with an H-
2B temporary employment certification application to the Chicago NPC. 
However, as discussed below, in order for employers to use this 
provision, H-2B nonimmigrant workers must show to the Department of 
State's consular officers and to the DHS's U.S. Customs and Border 
Protection officers, as necessary, the employer's attestation that the 
conditions set forth in the statute and regulation have been met.
    The statute and regulation contain two primary conditions that 
employers must meet in order to benefit from this exception. First, 
this rule applies only to employers engaged in a business in the 
seafood industry. We have added to Sec.  655.5 a definition of 
``seafood,'' which is defined as fresh or saltwater finfish, 
crustaceans, other forms of aquatic animal life, including, but not 
limited to, alligator, frog, aquatic turtle, jellyfish, sea cucumber, 
and sea urchin and the roe of such animals, and all mollusks. Second, 
any seafood industry employer that permits or requires its H-2B 
nonimmigrant workers to enter the United States between 90 and 120 days 
after the certified start date of need must complete a new assessment 
of the local labor market during the period that begins at least 45 
days after the certified start date of need and ends before the 90th 
day after the certified start date of need, which must include: (A) 
Listing the job in local newspapers on two separate Sundays; (B) 
placing new job orders for the job opportunity with the SWA serving the 
area of intended employment and posting the job opportunity at the 
place of employment for at least 10 days; and (C) offering the job to 
any equally or better qualified U.S. worker who applies for the job and 
who will be available at the time and place of need. Seafood industry 
employers who conduct the required additional recruitment should not 
submit proof of the additional recruitment to OFLC. However, seafood 
industry employers must retain the additional recruitment 
documentation, together with their pre-filing recruitment 
documentation, for a period of 3 years from the date of certification, 
consistent with the document retention requirements under Sec.  655.56.
    In order to comply with this provision, a seafood industry employer 
must prepare a written, signed attestation indicating its compliance 
with the conditions outlined above.\15\ Employers must download the 
official attestation, review the conditions contained in the 
attestation, and indicate compliance by signing and

[[Page 24061]]

dating the attestation. An employer seeking to use this statutory and 
regulatory provision must provide each H-2B nonimmigrant worker seeking 
entry into the United States a copy of the signed and dated 
attestation, with instructions that the worker must present the 
documentation upon request to the Department of State's consular 
officers when they apply for an H-2B visa, and/or DHS's U.S. Customs 
and Border Protection officers when seeking entry into the United 
States. Without this attestation, an H-2B nonimmigrant may be denied 
admission to the United States if seeking to enter at any time other 
than the designated 20-day period (10 days before and after the start 
date) surrounding the start date stated in the petition. (The 
attestation is not necessary when filing an amended petition based on a 
worker that is being substituted under 8 CFR 214.2(h)(6)(viii)). The 
attestation presented by an H-2B nonimmigrant worker in order to be 
admitted to the United States in H-2B status must be the official 
attestation downloaded from OFLC's Web site and may not be altered or 
revised in any manner.
---------------------------------------------------------------------------

    \15\ The official attestation is available in PDF-format on 
OFLC's Web site at http://www.foreignlaborcert.doleta.gov/form.cfm. 
The attestation was developed as a result of Congress's original and 
temporary enactment of legislation permitting seafood industry 
employers to stagger the entry of their H-2B workers into the U.S. 
under section 113 of the Consolidated Appropriations Act, 2014, 
Public Law 113-76, 128 Stat. 5 (Jan. 17, 2014).
---------------------------------------------------------------------------

2. Sec.  655.16 Filing of the Job Order at the SWA
    The interim final rule requires the employer to submit its job 
order directly to the SWA at the same time 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 are continuing to rely on the SWAs' experience with the local labor 
market, job requirements, and prevailing practices by requiring the SWA 
to review the contents of the job order for compliance with Sec.  
655.18 and to notify the CO of any deficiencies within 6 business days 
of the SWA's receipt of the job order. 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. SWAs can continue to rely on foreign labor 
certification grant funding to support those functions. We conclude 
that this continued cooperative relationship between the CO and the SWA 
will ensure greater program integrity and efficiency.
    Under paragraph (c), the SWAs must circulate the job order in 
intrastate clearance, and in interstate clearance by providing a copy 
of the job order to other states as directed by the CO. 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, and 
interstate clearance refers to circulation of the job order to SWAs in 
other States, including those with jurisdiction over listed worksites 
and those the CO designates, for placement in their labor exchange 
services systems. We note that, under Sec.  655.33(b)(4), the CO 
directs the SWA in the Notice of Acceptance to circulate the job order 
in the course of interstate clearance, ensuring that the employer is 
also aware of the job order's exposure in the SWAs' labor exchange 
services systems.
    Posting the job order in the SWA labor exchange system is but one 
of the recruitment requirements contained in the interim 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 at least 54 days, since the interim 
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 receipt of the Notice of 
Acceptance and to keep the job order posted until 21 days before the 
date of need, as discussed in the preamble to Sec.  655.20(t).
 3. Sec.  655.17 Emergency Situations
    The interim final rule permits 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 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 emergency 
provision permits an employer to file fewer than 75 days before the 
start date of need, but does not expand the earliest date an employer 
is eligible to submit an H-2B Registration or Application for Temporary 
Employment Certification. This provision represents a change from the 
2008 rule, which did not allow for emergency filings, and affords 
employers flexibility while maintaining the integrity of the 
application and recruitment processes.
    To rely on this provision, the employer must provide the CO with 
detailed information describing the ``good and substantial cause'' 
necessitating the waiver. Such cause may include the substantial loss 
of U.S. workers due to Acts of God, or a similar unforeseeable human-
made catastrophic event that is wholly outside the employer's control, 
unforeseeable changes in market conditions, or pandemic health issues. 
The CO's denial of an H-2B Registration in accordance with the 
procedures under Sec.  655.11 does not, standing alone, constitute good 
and substantial cause for a waiver request.
    In processing an emergency H-2B Registration or Application for 
Temporary Employment Certification and job order, the CO will review 
the submissions in a manner consistent with this subpart and make a 
determination in accordance with Sec.  655.50. If the CO grants the 
waiver request, the CO will forward a Notice of Acceptance and the 
approved job order to the SWA serving the area of intended employment 
identified by the employer in the job order. If the CO determines that 
the certification cannot be granted because, under paragraph (a) of 
this section, the request for emergency filing is not justified and/or 
there is not sufficient time to make a determination of temporary need 
or ensure compliance with the criteria for certification contained in 
Sec.  655.51, the CO will send a Final Determination letter to the 
employer in accordance with Sec.  655.53. As discussed earlier, for 
purposes of simultaneous filing, we use the term ``job order'' in this 
provision, when the job order has yet to be created and posted by the 
SWA. As a result, the employer must submit a draft document outlining 
the details of the employer's job opportunity simultaneously with the 
Application for Temporary Employment Certification, not the official 
job order.
    Under the interim 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, audit processes, and enforcement mechanisms as a non-
emergency H-2B Registration and/or Application for Temporary Employment 
Certification. However, DOL intends to subject emergency applications 
to a higher level of scrutiny than non-emergency applications in order 
to make certain that the provision is not subject to abuse. The 
regulation gives the CO the discretion not to accept the emergency 
filing if the CO concludes there is insufficient time to thoroughly 
test the U.S. labor market and make a final determination. Moreover, 
under Sec.  655.46, the CO has the discretion to instruct an employer 
to conduct additional recruitment. The CO will adjudicate the 
foreseeability of the emergency based on the precise circumstances of 
each situation presented. The burden of proof is on the

[[Page 24062]]

employer to demonstrate the unforeseeability leading to a request for a 
filing on an emergency basis.
4. Sec.  655.18 Job Order Assurances and Contents
    The job order is essential for U.S. workers to make informed 
employment decisions. It must include not only standard information 
about the job opportunity, 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, as required in Sec.  655.20(l) of this interim 
final rule.
Assurances
    There are two overarching assurances in Sec.  655.18(a) with which 
the employer agrees to comply by filing an Application for Temporary 
Employment Certification. These assurances, which pertain to the 
prohibition against preferential treatment and bona fide job 
requirements, 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.
    a. Prohibition against preferential treatment, Sec.  655.18(a)(1). 
Similar to the requirements under Sec.  655.22(a) of the 2008 rule, and 
as described under Sec.  655.20(q) of this interim final rule, the 
employer must provide to U.S. workers at least the same benefits, 
wages, and working conditions that are being or will be offered or 
provided to H-2B workers. The purpose of Sec.  655.18(a)(1) is to 
protect U.S. workers by ensuring that 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, 
wages, and working conditions 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.
    b. Bona fide job requirements, Sec.  655.18(a)(2). The job 
qualifications and requirements listed in the job order must 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.
    Under DOL's longstanding policy, job qualifications and 
requirements 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 is 
that there are no U.S. workers capable and available to perform such 
services or labor. For purposes of complying with this requirement, the 
Departments have clarified in Sec.  655.20(e) the meaning of 
qualifications and requirements. A qualification means a characteristic 
that is necessary to the individual's ability to perform the job in 
question. Such characteristics include but are not limited to, the 
ability to use specific equipment or any education or experience 
required for performing a certain job task. A requirement, on the other 
hand, means a term or condition of employment which a worker is 
required to accept to obtain or retain the job opportunity, e.g., the 
willingness to complete the full period of employment or commute to and 
from the worksite.
    This interpretation is consistent with program history, primarily 
under the General Administration Letter 1-95,\16\ 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, DOL will examine those in consultation with the SWAs to 
determine whether they are normal and accepted. For example, the 
Departments recognize that background checks are used in private 
industry and it is not our intent to preclude the employer from 
conducting such checks to the extent that the requirement is a bona 
fide, normal and accepted requirement applied by non-H-2B employers for 
the occupation in the area of employment, and 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, DOL reserves 
the right to inquire further as to whether such requirements are normal 
and accepted by non-H-2B employers and by what methods the employer 
will administer and evaluate such requirements.
---------------------------------------------------------------------------

    \16\ General Administration Letter 1-95, Procedures for H-2B 
Temporary Labor Certification in Nonagricultural Occupations (Dec. 
31, 1995).
---------------------------------------------------------------------------

Contents
    In addition to complying with the assurances in paragraph (a) of 
this section, Sec.  655.18(b) requires that the employer include at a 
minimum the following contents in the job order.
    a. Benefits, wages and working conditions, Sec.  655.18(b)(2), (5), 
(6), (9). Employers must list the following benefits, wages, and 
working conditions in the job order: The rate of pay, frequency of pay, 
the availability of overtime, and that the job opportunity concerns a 
full-time position. These disclosures are critical to any applicant's 
decision to apply for and accept the job opportunity.
    b. Board, lodging, or facilities, Sec.  655.18(b)(10). If an 
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, this must be listed in the job order 
along with any wage deductions related to such provision of board, 
lodging or other facilities. Assisting workers to secure lodging 
consists of more than 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. Assistance could be reserving a block of rooms for employees 
and negotiating a discounted rate on the workers' behalf, or arranging 
to have housing provided at a subsidized cost for employees. 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.
    The Departments note that the concept of ``facilities'' is defined 
in 29 CFR 531.32, which has been construed and enforced by DOL for 
several decades. The Departments have concluded that it is beneficial 
for workers, employers, agents, and the WHD to ground enforcement of H-
2B program obligations in DOL's decades of experience enforcing the 
Fair Labor Standards Act (FLSA), and the decades of court decisions 
interpreting the regulatory language we are adopting in these 
regulations. Therefore, the Departments note throughout this preamble 
where they rely on FLSA principles to explain the meaning of the 
requirements of the H-2B program that use similar language.

[[Page 24063]]

    DOL's longstanding position is that deductions or costs incurred 
for facilities that are primarily for the benefit or convenience of the 
employer will not be recognized as reasonable and therefore may not be 
charged to the worker. See 29 CFR 531.3(d)(1). Thus, housing that is 
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 and cannot be charged to the 
workers.
    c. Deductions, Sec.  655.18(b)(11). The job order must 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 intends to make from the worker's paycheck. This 
includes, if applicable, any wage deductions for the reasonable cost of 
board, lodging, or other facilities. Any deductions not disclosed in 
the job order are prohibited under Sec.  655.20(c) of this interim 
final rule.
    Under the 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 U.S. Court of Appeals for the Eleventh Circuit 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 deductions 
drive wages below the minimum wage. See 29 CFR 531.36(b). This rule 
cannot be avoided by simply requiring employees to make such 
purchases on their own, either in advance of or during employment. 
See id. Sec.  531.35; Ayres v. 127 Rest. Corp., 12 F.Supp.2d 305, 
310 (S.D.N.Y. 1998).

Consistent with the FLSA and the Departments' obligation to prevent 
adverse effects on U.S. workers by protecting the integrity of the H-2B 
offered wage, the offered wage will be considered the effective minimum 
wage for H-2B and corresponding U.S. workers.
    d. Three-fourths guarantee, Sec.  655.18(b)(17). The employer must 
list in the job order that the employer will guarantee to offer 
employment for a total number of work hours equal to at least three-
fourths of the workdays of each 12-week period (or 6-week period if the 
employment covered by the job order is less than 120 days) and, if the 
guarantee is not met, the employer will pay the worker what the worker 
would have earned if the employer had offered the guaranteed number of 
days, as required by Sec.  655.20(f) of this interim final rule.
    e. Transportation and visa fees, Sec.  655.18(b)(12)-(15). The 
employer must detail in the job order how the worker will be provided 
with or reimbursed for inbound transportation and subsistence costs if 
the worker completes 50 percent of the period of employment covered by 
the job order, consistent with Sec.  655.20(j)(1)(i) of this interim 
final rule. The employer must also state that it will provide or pay 
for the worker's outbound transportation and subsistence if the worker 
completes the job order period or is dismissed early, consistent with 
Sec.  655.20(j)(1)(ii) of this interim final rule. The employer must 
also disclose that it will provide or reimburse inbound and outbound 
transportation and daily subsistence costs for corresponding U.S. 
workers who are not reasonably able to return to their residence within 
the same workday. Finally, employers are required to disclose in the 
job order that they will provide daily transportation to the worksite, 
if they intend to do so, and that the employer will reimburse H-2B 
workers for visa and related fees in the first workweek.
    f. Employer-provided items, Sec.  655.18(b)(16). The job order must 
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 gives 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.
    The Departments note that section 3(m) of the FLSA and DOL 
regulations at 20 CFR part 531 prohibit 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, Sec.  655.22(g)(1) in the 2008 rule (which 
required all deductions to be reasonable), and the Departments' 
obligation to prevent adverse effects on U.S. workers, this interim 
final rule similarly protects the integrity of the H-2B offered wage by 
treating it as the effective minimum wage. Therefore, deductions for 
items such as damaged and lost equipment, which are encompassed within 
deductions for equipment needed to perform a job, would not be 
permissible where such deductions bring a worker's wage below the 
offered wage.
    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. This requirement 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.
    In addition to the provisions discussed above, this interim final 
rule requires employers to list in the job order the following 
information that is essential for providing U.S. workers sufficient 
information about the job opportunity: The employer's name and contact 
information (Sec.  655.18(b)(1)); a full description of the job 
opportunity (Sec.  655.18(b)(3)); the specific geographic area of 
intended employment (Sec.  655.18(b)(4)); if applicable, a statement 
that on-the-job training will be provided to the worker (Sec.  
655.18(b)(7)); a statement that the employer will use a single workweek 
as its standard for computing wages due (Sec.  655.18(b)(8)); and 
instructions for inquiring about the job opportunity or submitting 
applications, indications of availability, and/or resumes to the 
appropriate SWA (Sec.  655.18(b)(18)). This last requirement is 
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.
    The Departments believe that the information employers are required 
to include in the job order under Sec.  655.18 of this interim 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 nonimmigrants with 
a detailed worker rights card at the visa application stage.\17\
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    \17\ The workers rights card is available at http://travel.state.gov/content/dam/visas/LegalRightsandProtections/WilberforcePamphletEnglishDoubleSidedPrinting12-22-2014.pdf.
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    Finally, the Departments view the terms and conditions of the job 
order as binding. In the event that an employer does not provide a copy 
of the job order to workers as required under Sec.  655.20(l) of this 
interim final rule, the terms and conditions of the job order 
nevertheless apply.
5. Sec.  655.19 Job Contractor Filing Requirements
    This interim final rule establishes in Sec.  655.6 the limited 
circumstances under which job contractors may continue to

[[Page 24064]]

participate in the H-2B program. DOL will no longer accept H-2B 
temporary employment certification applications from job contractors if 
the job contractor's employer-clients are not also included on the 
temporary employment certification applications. However, both the 2008 
rule and this interim final rule only permit one H-2B temporary 
employment certification application to be filed for worksite(s) within 
one area of intended employment for each job opportunity with an 
employer. Accordingly, a job contractor and employer-client cannot 
separately file an individual application for a single job opportunity.
    Job contractors and their employer-clients must file a single 
application when acting as joint employers. Joint employment is defined 
as circumstances in which two or more employers each have sufficient 
definitional indicia of employment to be considered the employer of an 
employee, in which case the employers may be considered to jointly 
employ that employee. An employer may be considered a joint employer if 
it has an employment relationship with an individual, even if the 
individual may be considered the employee of another employer. See 
Sec.  655.4. DOL has issued guidance on its Web site which addresses 
the requirements 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.\18\
---------------------------------------------------------------------------

    \18\ See http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#h2b.
---------------------------------------------------------------------------

    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 Sec.  655.4, 
some factors relevant to the determination of employment status 
include, but are not limited to, the following: The right to control 
the manner and means by which work is accomplished; the skill required 
to perform the work; the source of the instrumentalities and tools for 
accomplishing the work; the location of the work; discretion over when 
and how long to work; and whether the work is part of the regular 
business of the employer or employers. Whenever a job contractor and 
its employer client file applications, each employer is responsible for 
compliance with H-2B program assurances and obligations. In the event a 
violation is determined to have occurred, either or both employers can 
be found to be responsible for remedying the violation and attendant 
penalties.

D. Assurances and Obligations

1. Sec.  655.20 Assurances and Obligations of H-2B Employers
    Section 655.20 of the interim final rule, which is similar to Sec.  
655.22 of the 2008 rule, contains the employer obligations that WHD 
will enforce to ensure that the employment of H-2B workers will not 
adversely affect the wages and working conditions of U.S. workers 
similarly employed. These assurances and obligations are consistent 
with, and are intended to complement, DHS's regulations where they 
address similar issues, such as transportation and recruitment fees. 
Requiring compliance with the following conditions of employment is the 
most effective way to meet this goal. As discussed in the preamble to 
Sec.  655.5, workers engaged in corresponding employment are entitled 
to the same protections and benefits, set forth below, that are 
provided to H-2B workers.
    a. Rate of pay (Sec.  655.20(a)). Section 655.20(a)(1), like Sec.  
655.22(e) in the 2008 rule, requires 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. It also requires that such wages be paid free and clear. See 29 
CFR 531.35. 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. Section 655.20(a)(2), similarly to 
Sec.  655.22(g)(1) in the 2008 rule, provides that the wage may not be 
based on commissions, bonuses, or other incentives unless the employer 
guarantees the offered wage each workweek.
    With respect to productivity standards, Sec.  655.20(a)(3) requires 
the employer to demonstrate that any productivity standards are normal 
and usual for non-H-2B employers for the same occupation in the area of 
intended employment. Unlike in the H-2A program, DOL 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 
in order to ensure there is no adverse effect on similarly employed 
U.S. workers.
    Finally, pursuant to Sec.  655.20(a)(4), if an employer pays on a 
piece-rate basis, it 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, and that each 
workweek the average hourly piece rate earnings result in an amount at 
least equal to the offered wage (or the employer must make up the 
difference).
    b. Wages free and clear (Sec.  655.20(b)). Section 655.20(b) 
requires 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 29 CFR part 
531. This assurance clarifies the pre-existing obligation for both 
employers and employees to ensure that wages are not reduced below the 
required rate.
    c. Deductions (Sec.  655.20(c)). Section 655.20(c) ensures payment 
of the offered wage by limiting deductions which reduce wages to below 
the required rate. The section limits 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. Similar to Sec.  655.22(g)(1) of the 2008 rule, this section 
specifically provides that deductions not disclosed in the job order 
are prohibited. The section also specifies 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; 
kickbacks 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 that such deductions reduce 
the actual wage to below the required wage.
    This section refers to the FLSA and 29 CFR part 531 for further 
guidance. Consistent with these and other authorities administered by 
DOL, for purposes of Sec.  655.20(c) deductions must, among other 
requirements, be truly voluntary, and may not be a

[[Page 24065]]

condition of employment under the totality of the circumstances in 
order to be permissible.\19\ In evaluating whether an employee 
voluntarily authorized an otherwise permissible deduction for purposes 
of Sec.  655.20(c), it is important to evaluate whether the employee 
had a meaningful choice in light of all the facts presented.
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    \19\ The scope and substance of DOL regulations in this interim 
final rule relating to permissible deductions, prohibited payment of 
fees by workers, and employer transportation obligations, see, e.g., 
new 20 CFR 655.20(c), (j), and (o) (and identical provisions in new 
29 CFR part 503) reflect DOL statutory and regulatory authorities 
relating to worker protections, including under the FLSA; DOL H-2B 
enforcement responsibilities, including pursuant to the DHS 
delegation to DOL under 8 U.S.C. 1184(c)(14)(B), see also 8 CFR 
214.2(h)(6)(ix); and DOL investigative capabilities. Similarly, the 
scope and substance of DHS's separate and independent regulations 
concerning prohibited fees and other compensation and transportation 
obligations, see 8 CFR 214.2(h)(6)(i) and (vi)(E), reflect USCIS 
operational realities inherent to the H-2B petition adjudication 
process.
---------------------------------------------------------------------------

    Moreover, for purposes of Sec.  655.20(c), a deduction for any cost 
that is primarily for the benefit of the employer is never reasonable 
and therefore never permitted under this interim final rule. Some 
examples of costs that DOL 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. Further, the concept of de facto deductions 
initially developed under the FLSA, where employees are required to 
purchase items like uniforms or tools that are employer business 
expenses, is equally applicable to purchases that bring H-2B workers' 
wages below the required wage, as the payment of the prevailing wage is 
necessary to ensure that the employment of foreign workers does not 
adversely affect the wages and working conditions of similarly employed 
U.S. workers. To allow deductions for business expenses, such as tools 
of the trade, would undercut the prevailing wage concept and, as a 
result, harm U.S. workers.
    d. Job opportunity is full-time (Sec.  655.20(d)). Section 
655.20(d) requires that all job opportunities be full-time temporary 
positions, consistent with language in Sec.  655.22(h) of the vacated 
2008 rule, and that employers use a single workweek as the standard for 
computing wages due. Additionally, consistent with the FLSA, this 
section provides that the workweek is 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. This establishment of a clear 
period for determining whether the employer has paid the required wage 
will aid in enforcement.
    e. Job qualifications and requirements (Sec.  655.20(e)). Section 
655.20(e), which clarifies Sec.  655.22(h) of the 2008 rule, states 
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 the same occupation in the area of intended 
employment. Further, 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. 
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. Finally, the CO has the authority to require the employer 
to substantiate any job qualifications or requirements specified in the 
job order.
    This provision enables DOL to continue to review 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 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. DOL 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.
    f. Three-fourths guarantee (Sec.  655.20(f)). Section 655.20(f) 
requires employers to guarantee to offer employment for a total number 
of work hours equal to at least three-fourths of the workdays of each 
12-week period if the period of employment covered by the job order is 
120 days or more and each 6-week period, if the period of employment 
covered by the job order is less than 120 days. If the guarantee is not 
met, the employer is required to pay the worker what the worker would 
have earned if the employer had offered the guaranteed number of days. 
These 12-week periods (6 weeks if the job order is less than 120 days) 
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 end on the expiration date specified in the job order or 
in any extensions. A workday is based on the workday hours stated in 
the employer's job order, and the 12-week periods (6 weeks if the job 
order is less than 120 days) are based on the employer's workweek for 
pay purposes, with partial week 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.
    If a worker fails or refuses to work hours offered by the employer, 
the employer may count any hours offered consistent with the job order 
that a worker freely and without coercion chooses not to work, up to 
the maximum number of daily hours on the job order, in the calculation 
of guaranteed hours. The employer may offer the worker more than the 
specified daily work hours, but the employer may not require the 
employee to work such hours or count them as offered if the employee 
chooses not to work the extra hours. However, the employer may include 
all hours actually worked when determining whether the guarantee has 
been met. Finally, as detailed in 20 CFR 655.20(g), 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, or for a similar man-made catastrophic event such 
as an oil spill or controlled flooding.
    The Departments believe that the interim final rule's approach 
provides the benefits of having a wage 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

[[Page 24066]]

guarantee. 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. 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. Likewise, H-
2B workers will not be induced to try to seek employment not permitted 
under the terms of their H-2B nonimmigrant status. 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 Departments believe the guarantee is an 
important element to ensure the integrity of the temporary 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 seek work not permitted under the terms of their H-2B nonimmigrant 
status because the job 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.
    DOL's recent experience in enforcing the H-2B regulations 
demonstrates that its concerns about employers overstating their need 
for workers are not unfounded. DOL's investigations have revealed that 
some employers have stated on their H-2B temporary employment 
certification 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, 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.'' \20\ 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.'' \21\ 
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).
---------------------------------------------------------------------------

    \20\ Testimony of Daniel Angel Castellanos Contreras before the 
House Committee on Oversight and Government Reform Domestic Policy 
Subcommittee 2 (Apr. 23, 2009), available at http://oversight.house.gov/wp-content/uploads/2012/01/20090423Contreras.pdf.
    \21\ Testimony of Miguel Angel Jovel Lopez before the House 
Committee on Oversight and Government Reform Domestic Policy 
Subcommittee 2 (Apr. 23, 2009), available at http://oversight.house.gov/wp-content/uploads/2012/01/20090423Lopez.pdf.
---------------------------------------------------------------------------

    Therefore, spreading the three-fourths guarantee over the entire 
period covered by 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, or 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 
Departments are establishing the increment of time for measuring the 
guarantee at 12 weeks (if the period of employment covered by the job 
order is at least 120 days) and 6 weeks (if the employment is less than 
120 days). The Departments believe 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 (at the beginning and end of the season) 
than during 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.
    The Departments remind 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

[[Page 24067]]

employee actually works, even if they are in excess of the daily hours 
specified in the job order.
    Finally, the Departments do not believe it would be appropriate to 
impose a more protective guarantee, such as a 100 percent, 90 percent, 
or weekly guarantee. The three-fourths guarantee is a reasonable 
deterrent to potential carelessness and an important protection for 
workers, while still providing employers with some 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 they are likely to be able to make 
up for them in other weeks of the season. Moreover, the Departments 
understand 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.
    g. Impossibility of fulfillment (Sec.  655.20(g)). Section 
655.20(g) allows employers to terminate a job order in certain 
narrowly-prescribed circumstances when approved by the CO, such as due 
to fire, weather, other Acts of God, or a similar unforeseeable human-
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. In such an event, the employer 
is required to meet the three-fourths guarantee discussed in paragraph 
(f) of this section based on the starting date listed in the job order 
or first workday after the arrival of the worker, whichever is later, 
and ending on the date on which the job order is terminated due to the 
event. The employer also is 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 will be required to comply with the 
transportation requirements in paragraph (j) of this section. We remind 
employers that CO approval is required to terminate the job order; 
simply submitting a request to the CO is insufficient to terminate the 
three-fourths guarantee.
    h. Frequency of pay (Sec.  655.20(h)). Section 655.20(h) requires 
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 requires that wages be paid when due.
    The requirement that workers be paid at least every 2 weeks is 
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 are often paid low wages and may lack the 
means to make their income stretch through a month until they get paid.
    i. Earnings statements (Sec.  655.20(i)). Section 655.20(i) 
requires the employer to maintain accurate records of worker earnings 
and provide the worker an appropriate earnings statement on or before 
each payday, specifying the information that the employer must include 
in such a statement (including, e.g., the worker's total earnings each 
workweek, the hourly rate and/or piece rate, the hours offered and 
worked, and an itemization of all deductions from pay).
    The Departments believe that any 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. Similar to Sec.  655.122(j)(3) in the H-2A program, 
the interim final rule requires an employer to record the reasons why a 
worker declined any offered hours of work, which will support DOL's 
enforcement activities related to the three-fourths guarantee in Sec.  
655.20(f). Additionally, this section, Sec.  655.16(i)(2)(iv), and 29 
CFR 503.16(i)(l) 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 reimbursements for costs 
incurred by the worker. This requirement is consistent with the 
recordkeeping requirements under the FLSA in 29 CFR part 516. See 29 
CFR part 785 for guidance regarding what constitutes hours worked.
    j. Transportation and visa fees (Sec.  655.20(j)). Section 
655.20(j)(1)(i) requires an employer 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, if the workers 
complete 50 percent of the period of employment covered by the job 
order (not counting any extensions). The interim final rule 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 and subsistence; or reimburse the 
worker's reasonable costs. If the employer advances or provides 
transportation and subsistence costs to foreign workers, or it is the 
prevailing practice of non-H-2B employers to do so, the employer must 
advance such costs or provide the services to workers in corresponding 
employment traveling to the worksite. The interim final rule also 
reminds employers that the FLSA imposes independent wage payment 
obligations, where it applies.
    Section 655.20(j)(1)(ii) requires 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; 
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. 
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. An 
employer is not required to provide return transportation if separation 
is due to a worker's voluntary abandonment. If the worker has been 
contracted to work for a subsequent and certified employer, the last H-
2B employer to employ the worker is required to provide or pay the U.S. 
or foreign worker's return transportation. Therefore, prior employers 
are not obligated to pay for such return transportation costs.
    Section 655.20(j)(1)(iii) requires that all employer-provided 
transportation--including transportation to and from the worksite, if 
provided--must meet

[[Page 24068]]

applicable safety, licensure, and insurance standards. Furthermore, all 
transportation and subsistence costs covered by the employer must be 
disclosed in the job order (Sec.  655.20(j)(1)(iv)). Finally, Sec.  
655.20(j)(2) requires employers 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 (the employer need not, but may, reimburse workers for 
expenses that are primarily for the benefit of the employee, such as 
passport expenses).
    Under the FLSA the transportation, subsistence, and visa and 
related expenses for H-2B workers are for the primary benefit of 
employers, as DOL 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 
permits the visa holder to apply for admission in H-2B nonimmigrant 
status, which restricts the worker to the employer with an approved 
temporary labor certification and to the particular approved work 
described in the employer's application.
    Therefore, the interim final rule includes a reminder to employers 
that the FLSA applies independently of the H-2B requirements. 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, which covers Louisiana, Mississippi, 
and Texas). See, e.g., Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892 
(9th Cir. 2013); 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). But see Castellanos-Contreras v. 
Decatur Hotels, LLC, 622 F.3d 393 (5th Cir. 2010). Payment sufficient 
to satisfy the FLSA in the first workweek is also required because 
Sec.  655.20(z) of the interim final rule, like Sec.  655.22(d) in the 
2008 H-2B rule, 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 interim 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 DOL's electronic job 
registry.
    The interim 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 Departments believe this 
approach is appropriate and adequately protects the interests of both 
U.S. and H-2B workers and employers, because it does not require 
employers 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.
    Additionally, the interim 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 reasonable return transportation costs if the 
employer dismisses the worker for any reason before the end of the 
period of authorized admission. See 8 U.S.C. 1184(c)(5)(A), INA section 
214(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 applies. However, if separation from employment is due 
to voluntary abandonment by an H-2B worker or a corresponding worker, 
and the employer provides appropriate notification specified under 
Sec.  655.20(y), the employer is not 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 
interim final rule fulfills the Departments' obligation to protect U.S. 
workers from adverse effect due to the presence of temporary foreign 
workers. As discussed above, under the FLSA, numerous courts have held 
in the context of both H-2B and H-2A workers that the inbound and 
outbound transportation costs associated with using such workers are an 
inevitable and inescapable consequence of employers choosing to 
participate in these visa programs. Moreover, the courts have held that 
such transportation expenses are not ordinary living expenses, because 
they have no substantial value to the employee independent of the job 
and do not ordinarily arise in an employment relationship, unlike 
normal daily home-to-work commuting costs. Therefore, the courts view 
employers as the primary beneficiaries of such expenses under the FLSA; 
in essence the courts have held that inbound and outbound 
transportation are employer business expenses just like any other tool 
of the trade. A similar analysis applies to the H-2B required wage. If 
employers were permitted to shift their business expenses onto H-2B 
workers, they would effectively be making a de facto deduction and 
bringing the worker below the H-2B required wage, thereby risking 
depression of the wages of U.S. workers in corresponding employment. 
This regulatory requirement, therefore, ensures the integrity of the 
full H-2B required wage, rather than just the FLSA minimum wage, over 
the full term of employment; both H-2B workers and U.S. workers in 
corresponding

[[Page 24069]]

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 interim 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.
    Finally, to comply with this section, 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 place of recruitment to the consular 
city and then on to the worksite. Similarly, the employer must pay for 
subsistence during that period, so if an overnight stay at a hotel in 
the consular city is required while the employee is interviewing for 
and obtaining a visa, that subsistence must be reimbursed. See Morales-
Arcadio v. Shannon Produce Farms, Inc., 2007 WL 2106188 (S.D. Ga. 
2007). Finally, if an employer provides daily transportation to the 
worksite, the regulation requires both that the transportation must 
comply with all applicable safety laws and that the employer must 
disclose the fact that free transportation will be provided in the job 
order.
    k. Employer-provided items (Sec.  655.20(k)). Section 655.20(k) 
requires, 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 
provision gives workers additional protections against improper 
deductions for the employer's business expenses from required wages.
    As discussed above with respect to the disclosure requirement in 
Sec.  655.18(b), 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. This 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 Sec.  
655.18(b), this requirement does not prohibit employees from 
voluntarily choosing to use their own specialized equipment; it simply 
requires employers to make available to employees adequate and 
appropriate equipment.
    l. Disclosure of the job order (Sec.  655.20(l)). Section 655.20(l) 
requires that the employer provide a copy of the job order to 
prospective 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. For H-2B workers changing to a subsequent H-2B employer, 
the job order must be provided no later than the time the subsequent 
offer of employment is made. The job order must contain information 
about the terms and conditions of employment and employer obligations 
as provided in Sec.  655.18 and must be in a language understandable to 
the workers, as necessary and reasonable. 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.
    This section does not require written disclosure of the job order 
at the time of recruitment, as required under the Migrant and Seasonal 
Agricultural Worker Protection Act (MSPA). DOL 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 conditions 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. Worker 
notification is a vital component of worker protection and program 
compliance, and the Departments believe that the requirement provides 
workers with sufficient notice of the terms and conditions of the job 
so that they can make an informed decision.
    In addition, providing the terms and conditions of employment to 
each worker in a language that the individual understands is a key 
element of much-needed worker protection. Therefore, DOL 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 both place an undue burden 
on an employer and not significantly disadvantage an H-2B or 
corresponding worker.
    m. Notice of worker rights (Sec.  655.20(m)). Section 655.20(m) 
requires that the employer post a notice in English of worker rights 
and protections in a conspicuous location and if necessary post the 
notice in other appropriate languages if such translations are provided 
by DOL.
    The poster, which will be printed and provided by DOL, will state 
that workers who believe their rights under the program have been 
violated may file confidential complaints and will display the number 
for WHD's toll-free help line. While the purpose of this section would 
be undermined if workers cannot read the notice, DOL 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 DOL about the language needs of the H-2B worker population. 
If revised versions of the poster are created, DOL expects employers to 
post the most recent version published by DOL.
    n. No unfair treatment (Sec.  655.20(n)). Section 655.20(n) 
provides nondiscrimination and nonretaliation protections that are 
fundamental to the statutes that DOL 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. Therefore, workers are 
protected from retaliation, including retaliation based on contact or 
consultation with an attorney or an employee of a legal assistance 
organization, or contact with labor

[[Page 24070]]

unions, worker centers, and community organizations, which frequently 
have the first contact with temporary foreign workers when they seek 
help to correct and/or report perceived violations of the H-2B 
provisions. This provision applies to oral complaints and complaints 
made internally to employers, and it applies to current, former and 
prospective workers. As provided in 29 CFR 503.20, make-whole relief 
would be available to victims of discrimination and retaliation under 
this paragraph.
    This provision protects against discrimination and retaliation for 
asserting rights specific to the H-2B program. For example, if workers 
sought legal assistance in relation to their terms and conditions of 
employment, such as legal assistance relating to employer-provided 
housing because 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. This section provides protection to U.S. workers and H-2B 
workers alike. While H-2B workers are particularly vulnerable to 
retaliation and need protection against employer retaliatory acts, it 
is important to encourage all workers to come forward when there is a 
potential workplace violation. Therefore, the Departments clarify that 
Sec.  655.20(n) applies equally to H-2B workers and U.S. workers.
    o. Comply with the prohibitions against employees paying fees 
(Sec.  655.20(o)). Section 655.20(o), similarly to Sec.  655.22(j) in 
the 2008 rule, prohibits 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 temporary labor 
certification or employment, including recruitment costs. However, this 
provision does allow employers and their agents to receive 
reimbursement for fees that are primarily for the benefit of the 
worker, such as passport fees, which can be used for personal travel or 
for travel to another job.
    p. Contracts with third parties to comply with prohibitions (Sec.  
655.20(p)). Section 655.20(p), similarly to Sec.  655.22(g)(2) in the 
2008 rule, requires 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. DOL 
notes that the new requirements at Sec.  655.9 of this interim final 
rule require disclosure of the employer's agreements with any agent or 
recruiter whom it engages or plans to engage in the recruitment of 
prospective H-2B workers, whether in the U.S. or abroad, 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 Departments believe that public disclosure of the 
identity of recruiters and the entities for which they work is 
necessary to prevent abuse, and this issue is addressed under Sec.  
655.9. DOL 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 prospective H-2B workers for 
the H-2B job opportunities offered by the employer.
    The difference between Sec.  655.9, which requires the employer to 
provide copies of such agreements to DOL 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 interim final rule contains the exact 
language of the required contractual prohibition that must appear in 
such agreements. Further guidance on how DOL interprets the employer 
obligations in Sec.  655.20(o) and (p) regarding prohibited fees can be 
found in Field Assistance Bulletin No. 2011-2 (May 2011), available at 
http://www.dol.gov/whd/FieldBulletins/fab2011_2.htm.
    The Departments recognize the complexities of recruiters using 
subcontractor recruiters and have accounted for this in Sec.  655.20(p) 
by including language requiring the employer to 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, from seeking or receiving payments from any prospective 
employees. 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.
    q. Prohibition against preferential treatment of H-2B workers 
(Sec.  655.20(q)). Section 655.20(q), similarly to Sec.  655.22(a) in 
the 2008 rule, prohibits employers from providing better terms and 
conditions of employment to H-2B workers than to U.S. workers. The 
substance of this provision is identical to the assurance found at 
Sec.  655.18(a)(1) of this interim final rule, relating to the job 
order, and a discussion of it is set forth in the preamble to that 
section.
    r. Non-discriminatory hiring practices Sec.  655.20(r). Section 
655.20(r), like Sec.  655.22(c) of the 2008 rule, sets forth a non-
discriminatory hiring provision; it clarifies that the employer's 
obligation to hire U.S. workers continues throughout the period 
described in Sec.  655.20(t). Under this provision, rejections of U.S. 
workers continue to be permitted only for lawful, job-related reasons. 
This section works together with Sec.  655.20(q), which specifies that 
job qualifications and requirements imposed on U.S. workers must be no 
less favorable than the qualifications and requirements that the 
employer is imposing or will impose on H-2B workers. Thus, for example, 
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 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 (EEOC) on employer consideration of arrest and conviction 
history under Title VII of the Civil Rights Act of 1964. See EEOC 
Policy Statement on the Issue of Conviction Records under Title VII of 
the Civil Rights Act of 1964, available at http://www.eeoc.gov/policy/docs/convict1.html; EEOC, Pre-Employment Inquiries and Arrest & 
Conviction, available at 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 Sec.  
655.20(z).
    s. Recruitment requirements (Sec.  655.20(s)). Section 655.20(s) 
requires employers to conduct required recruitment as described in 
Sec. Sec.  655.40-.46, including any activities directed by the CO. 
Such required recruitment activities are discussed in the preamble to 
those sections.
    t. Continuing obligation to hire U.S. workers Sec.  655.20(t). 
Section 655.20(t) requires employers to hire qualified U.S. workers 
referred by the SWA or who respond to recruitment until 21 days

[[Page 24071]]

before the date of need. The provision corrects the inadequacy in the 
2008 rule, under which an employer is under no obligation to hire U.S. 
workers after submitting the recruitment report, which could occur 
almost four months 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 potential 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 
2008 rule's 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 2008 rule's recruitment and 
hiring structure simply cannot be reconciled with the Departments' 
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.
    Requiring a priority hiring period until 21 days before the date of 
need is consistent with the DHS requirement that H-2B nonimmigrants not 
be admitted to the United States until 10 days before the date of need, 
see 8 CFR 214.2(h)(13)(i)(A), since it minimizes the possibility that a 
U.S. applicant could displace an H-2B nonimmigrant who has been 
recruited, traveled to the consulate, obtained a visa, or even begun 
inbound transportation to the worksite. At the same time, the 21-day 
provision still gives employers certainty regarding the timing of and 
need for their efforts to recruit prospective H-2B workers. With regard 
to travel expenses, the 21-day cutoff will be sufficient to allow for 
the arrangement of inbound transportation without employers having to 
bear any risk of last-minute cancellations, pay premiums for refundable 
fares, or pay visa expenses that are ultimately not needed. Housing 
arrangements should not present an issue, as Sec.  655.20(q) requires 
an employer to offer U.S. workers the same benefits that it is 
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.
    The 21-day provision also will prevent H-2B workers from being 
dismissed after beginning travel from their home to the consulate or 
even to the United States as the obligation to hire U.S. workers now 
ends 11 days before the earliest date an H-2B worker may be admitted to 
the United States. 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.
    The Departments believe this 21-day requirement, which extends the 
duration of the U.S. worker referral period by as much as 3 months 
compared to the 2008 rule, is sufficient to protect the interests of 
U.S. workers. Further, the Departments note that the extended 
recruitment period is not the only provision of this interim 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 notice at worksites, among 
others) have also expanded. The worker protections contained in this 
interim final rule are intended to encourage U.S. applicants hired to 
remain on the job. However, provisions such as those found at Sec.  
655.20(y) (Abandonment/termination of employment) offer protection to 
employers from workers who might accept the offer of employment but who 
subsequently abandon the job, and Sec.  655.20(y) similarly relieves 
the employer, under certain circumstances, of the responsibilities to 
provide transportation and to fulfill the three-quarter work guarantee 
obligation.
    The Departments note that regardless of the time when the 
obligation to hire terminates, 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 interim final rule's 21-day 
obligation-to-hire cutoff should provide employers with time to 
identify foreign workers if they are, in fact, needed and to initiate 
their travel without substantial uncertainty. However, the primary 
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.
    State laws that require 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 may affect the requirement that such 
employers continue to hire U.S. workers until 21 days before the date 
of need. A background check or drug test required for employment in a 
State, if listed in the job order, would be considered a bona fide job 
requirement, as long as it was clearly disclosed in the job order and 
recruitment materials. An applicant who submitted an application for 
employment after a State-established deadline and was therefore unable 
to undergo such an evaluation would be considered not qualified for 
employment in that State. However, consistent with Sec. Sec.  
655.18(a)(2) and 655.20(e), such a requirement must be disclosed in the 
job order, and the employer would bear the responsibility of 
demonstrating that it is bona fide and consistent with the normal and 
accepted requirements imposed by non-H-2B employers in the same 
occupation and area of intended employment. Furthermore, employers 
cannot treat U.S. workers less favorably than foreign workers with 
regard to start date; employers may not conduct such screening for 
prospective H-2B workers at a later date if the employer does not 
provide the same late screening for U.S. workers who submit an 
application after a State-established deadline.
    Finally, given 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 Departments wish to remind 
employers about the requirements of the three-fourths guarantee. 
Specifically, the guarantee begins on the first workday after the 
arrival of the worker at the place of employment or the advertised 
first date of need, whichever is later. An employer cannot delay the 
three-fourths guarantee, such as by telling workers to come to work 
three weeks after the advertised first date of need, because the 
employer does not have a need for them at that time (but see the 
provisions applicable to employers in the seafood industry discussed in 
the preamble to Sec.  655.15). This means that when workers present 
themselves at the place of employment on the advertised first date of 
need, the three-fourths guarantee is triggered, whether or not the 
employer has sufficient full-time work for all of them to perform.
    u. No strike or lockout (Sec.  655.20(u)). Section 655.20(u) 
modifies the no strike or lockout language in the 2008 rule to

[[Page 24072]]

require employers to assure DOL that there is no strike or lockout at 
any of the employer's worksites in the area of intended employment for 
which the employer is requesting H-2B certification, rather than solely 
no strike or lockout in the positions being filled by H-2B workers, 
which is the requirement under Sec.  655.22(b) of the 2008 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.
    This provision is intended to 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 Departments believe 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.
    With respect to annual layoffs that occur due to the end of the 
peak season, Sec.  655.20(u) is not intended to include employer 
layoffs; Sec.  655.20(v) addresses employer layoffs. Further, with 
respect to the ability of a CO to deny an application due to a strike 
or a lockout and whether that might complicate the application process 
and increase delays, unsuccessful applications, and last-minute 
refusals of H-2B workers, DOL does not anticipate that this will be a 
problem as long as employers do not seek approval of an Application for 
Temporary Employment Certification while there is a strike or lockout 
at the worksite.
    v. No recent or future layoffs (Sec.  655.20(v)). Section 655.20(v) 
modifies the dates of impermissible layoffs of U.S. workers in Sec.  
655.22(i) of the 2008 rule, 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. 
Further, this section provides that H-2B workers must be laid off 
before any U.S. worker in corresponding employment. However, 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 its H-2B 
workers first.
    w. Contact with former U.S. employees (Sec.  655.20(w)). Section 
655.20(w) requires 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 expands the 
2008 rule's requirement at Sec.  655.15(h) 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). DOL also reminds employers that if qualified former employees 
apply during the recruitment period they, like all qualified U.S. 
applicants, must be offered employment.
    x. Area of intended employment and job opportunity (Sec.  
655.20(x)). Section 655.20(x) modifies Sec.  655.22(l) of the 2008 rule 
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 temporary labor certification.
    y. Abandonment/termination of employment (Sec.  655.20(y)). Section 
655.20(y), which is largely consistent with the notification 
requirement in Sec.  655.22(f) of the 2008 rule, requires that 
employers notify OFLC 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 and notify DHS. The section also deems that an 
abandonment or abscondment begins after a worker fails to report for 
work without the employer's consent for 5 consecutive working days, and 
adds language relieving the employer of the subsequent transportation 
requirements under Sec.  655.22(j) and 29 CFR 503.16(j) if the 
separation is due to a worker's voluntary abandonment. Additionally, 
the section clarifies that if a worker voluntarily abandons employment 
or is terminated for cause, an employer is not required to guarantee 
three-fourths of the work in the worker's final partial 6- or 12-week 
period, as described in Sec.  655.22(f) and 29 CFR 503.16(f).
    This section provides employers with guidance regarding their 
notification obligations, which is informed by DOL's enforcement 
experience with the Sec.  655.22(f) of the 2008 rule, under which 
neither WHD nor employers expressed confusion or concerns since its 
introduction in the 2008 rule. DOL's enforcement experience under the 
H-2A program suggests that the 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 written notification 
required under 20 CFR 655.20(y) must be provided by one of the 
following means:
    1. By electronic mail (email) to: TLC.Chicago@dol.gov mailbox, or
    2. Employers without Internet access may instead send written 
notification by:
    (a) Facsimile to: (312) 886-1688; or
    (b) U.S. Mail to: U.S. Department of Labor, Office of Foreign Labor 
Certification, Chicago National Processing Center, Attention: H-2B 
Program Unit, 11 West Quincy Court, Chicago, IL 60604-2105.
    In order to ensure prompt and effective processing of the 
notification, DOL requests that the employer's notice include at a 
minimum the following information:
    1. The reason(s) for notification or late notification, if 
applicable;
    2. The H-2B temporary employment certification application Case 
Number(s);
    3. The employer's name; address, telephone number, and Federal 
Employer Identification Number (FEIN).
    4. The date of abandonment or separation from employment; and
    5. The number of H-2B worker(s) and/or other worker(s) in 
corresponding employment who abandoned or was/were separated from 
employment, and the name(s) of each such H-2B worker and/or worker in 
corresponding employment and each employee's last known address.
    The Chicago NPC will also accept a copy of the written notification 
of abandonment or separation from employment submitted by the employer 
to DHS as long as it contains all of the information listed above and 
is submitted to the Chicago NPC via one of the means enumerated in this 
IFR. Employers must retain records in accordance with documentation 
retention requirements outlined at 29 CFR 503.17. DOL penalties for 
this violation are different from DHS fines. The notification 
requirement serves different purposes for DHS and DOL, and DOL 
concludes it is fair and consistent to treat this violation in the same 
way it treats other violations of employers' H-2B obligations.
    The Departments emphasize that the notification requirements in 
Sec.  655.20(y) are not intended to be used as threats

[[Page 24073]]

against vulnerable foreign workers to keep them in abusive work 
situations. Further, the Departments caution that coercing workers into 
performing labor by threatening potential deportation or immigration 
enforcement may violate anti-trafficking laws. The Departments remind 
the public that DHS regulations already compel employers to notify DHS 
of early separations to assist the agency in keeping track of foreign 
nationals in the United States. See 8 CFR 214.2(h)(6)(i)(F), 
(h)(11)(i). Employers should note that DHS has its own notification 
requirements under 8 CFR 214.2(h)(6)(i)(F) that employers must comply 
with if: An H-2B worker fails to report for work within 5 work days 
after the employment start date; the H-2B labor or services for which 
H-2B workers were hired were completed more than 30 days early; or an 
H-2B worker absconds from the worksite or is terminated prior to the 
completion of the nonagricultural labor or services for which he or she 
was hired. 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.
    With respect to whether a termination actually was for cause, DOL 
reminds the public that WHD, as part of its enforcement practices, may 
investigate conditions behind the early termination of foreign workers 
to ensure that the dismissals were not affected merely to relieve an 
employer of its outbound transportation and three-quarter guarantee 
obligations. Further, Sec.  655.20(n) already protects workers from a 
dismissal in retaliation for protected activities. However, some 
employer personnel rules set the abscondment threshold at 3 days. This 
regulation does not intrude upon or supersede employer attendance 
policies. The requirement that an 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 Departments do not intend the 
H-2B regulations to provide job protection to workers in the case of 
illness or injury that may result in absences and considers such 
determinations beyond its authority. The rule leaves it largely to 
employers to determine the worker behaviors that trigger a dismissal 
for cause, beyond the protected activities described in Sec.  655.20(n) 
and the requirement in Sec.  655.20(z) that the employer comply with 
all applicable employment-related laws.
    z. Compliance with applicable laws (Sec.  655.20(z)). Section 
655.20(z) requires H-2B employers to comply with all other applicable 
Federal, State, and local employment laws, similar to the 2008 rule's 
provision at Sec.  655.22(d), and it explicitly references 18 U.S.C. 
1592(a), which prohibits employers from holding or confiscating 
workers' immigration documents such as passports or visas under certain 
circumstances. Because the prohibition must include employers' 
attorneys and agents in order to achieve the intended worker 
protection, appropriate language is included in Sec.  655.20(z) of this 
interim final rule to reflect that coverage.
    aa. Disclosure of foreign worker recruitment (Sec.  655.20(aa)). 
Section 655.20(aa) requires 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 recruitment of prospective H-2B 
workers under this Application for Temporary Employment Certification 
(Sec.  655.9), at the time of filing the application (Sec.  655.15(a)), 
as well as to disclose those persons and entities hired by or working 
for the recruiter or agent, and any of their agents or employees who 
recruit prospective foreign workers for the H-2B job opportunities 
offered by the employer. The Departments are adding this obligation to 
the list of Assurances and Obligations in this interim final rule, as 
it is a critical obligation that will significantly enhance the 
recruitment process, as explained in the preamble to Sec. Sec.  655.9 
and 655.15.
    bb. Cooperation with investigators (Sec.  655.20(bb)). Section 
655.20(bb) requires the employer to cooperate with any DOL employee who 
is exercising or attempting to exercise DOL's authority pursuant to 8 
U.S.C. 1184(c), INA section 214(c). Including this provision in the 
list of employer obligations will facilitate enforcement if an employer 
fails to cooperate in any administrative or enforcement proceeding, and 
if that failure is determined to be a violation under these 
regulations. Requirements for employer cooperation with WHD 
investigations are set forth more fully in 29 CFR 503.25.

E. Processing of an Application for Temporary Employment Certification

1. Sec.  655.30 Processing an Application and Job Order
    Under this provision, 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,\22\ 
will no longer entail a determination of temporary need following H-2B 
Registration. Instead, 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.
---------------------------------------------------------------------------

    \22\ As provided in the discussion of Sec.  655.11, each 
employer filing an Application for Temporary Employment 
Certification is required under the interim final rule to establish 
temporary need through the registration process. However, in limited 
circumstances where the employer has applied for a temporary labor 
certification on an emergency basis under emergency procedures in 
Sec.  655.17 without an approved H-2B Registration, the CO may be 
required to also make a determination of temporary need.
---------------------------------------------------------------------------

    The interim final rule also requires the use of next day delivery 
methods, including electronic mail, for any notice or request sent by 
the CO requiring a response from the employer and the employer's 
response to such a notice or request. This provision also contains a 
long-standing program requirement that the employer's response to the 
CO's notice or request must be sent by the due date or the next 
business day if the due date falls on a Saturday, Sunday, or a Federal 
holiday.
2. Sec.  655.31 Notice of Deficiency
    This provision requires 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 CO must 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. Once the CO issues a Notice of Deficiency to the employer, the 
CO will provide the SWA and the employer's attorney or agent, if 
applicable, a copy of the notice. The Notice of Deficiency will include 
the specific reason(s) why the Application for Temporary Employment

[[Page 24074]]

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 will also inform the employer that it may, 
alternatively, request administrative review before an Administrative 
Law Judge (ALJ) within 10 business days of the date of the Notice of 
Deficiency and instruct the employer how to file a request for such 
review in accordance with the administrative review provision under 
this subpart. Finally, the Notice of Deficiency will inform the 
employer that failing to timely submit a modified Application for 
Temporary Employment Certification and/or job order, or request 
administrative review, will cause the CO to deny that employer's 
Application for Temporary Employment Certification. The CO may 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 
will have the ability to address these situations.
3. Sec.  655.32 Submission of a Modified Application or Job Order
    The interim final rule permits the CO to deny any Application for 
Temporary Employment Certification where the employer neither submits, 
following request by the CO, a modification nor requests a timely 
administrative review, and such a denial cannot be appealed. The 
interim final rule also requires the CO to deny an Application for 
Temporary Employment Certification if the modification(s) made by the 
employer do not comply with the requirements for certification in Sec.  
655.50. A denial of a modified Application for Temporary Employment 
Certification may be appealed.
    If the CO deems a modified application acceptable, the CO will 
issue a Notice of Acceptance and require 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, this provision 
permits 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 CO's ability to require modification(s) of 
a job order strengthens H-2B program integrity. 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.
    The provision requires 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 provision also requires the 
employer to disclose the modified job order to all workers recruited 
under the original job order or Application for Temporary Employment 
Certification.
4. Sec.  655.33 Notice of Acceptance
    The interim final rule requires the CO to issue a formal notice 
accepting the employer's Application for Temporary Employment 
Certification for processing. Specifically, the CO will send a Notice 
of Acceptance to the employer (and the employer's attorney or agent, if 
applicable), with a copy to the SWA, within 7 business days from the 
CO's receipt of the Application for Temporary Employment Certification 
or modification, provided that the Application for Temporary Employment 
Certification and job order meet all the program and regulatory 
requirements.
    The Notice of Acceptance directs the SWA: (1) To place the job 
order in intra- and interstate clearance, including (i) circulating the 
job order to the SWAs in all other States listed on the employer's 
Application for Temporary Employment Certification and job order as 
anticipated worksites and (ii) to any States to which the CO directs 
the SWA to circulate the job order; (2) to keep the job order on its 
active file and continue to refer U.S. workers to the employer until 
the end of the recruitment period defined in Sec.  655.40(c), as well 
as transmit those instructions to all other SWAs to which it circulates 
the job order; and (3) to circulate a copy of the job order to certain 
labor organizations, where the job classification is traditionally or 
customarily unionized.
    The Notice of Acceptance will direct the employer to recruit U.S. 
workers in accordance with employer-conducted recruitment provisions in 
Sec. Sec.  655.40-655.46, as well as to conduct any reasonable 
additional recruitment the CO directs, consistent with Sec.  655.46, 
within 14 calendar days from the date of the notice. The Notice of 
Acceptance will inform the employer that such employer-conducted 
recruitment is required in addition to SWA circulation of the job order 
in intrastate and interstate clearance under Sec.  655.16. In addition, 
the Notice of Acceptance will require the employer to submit a written 
report of its recruitment efforts as specified in Sec.  655.48. 
Finally, the Notice of Acceptance may require the employer to contact 
appropriate designated community-based organizations with the notice of 
the job opportunity.
5. Sec.  655.34 Electronic Job Registry
    The CO will post 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, and DOL will expand it to 
include H-2B job orders. DOL will inform the public when the electronic 
job registry is available for the H-2B program. Once the registry is 
operational, the CO will post the job orders on the electronic job 
registry, after accepting an Application for Temporary Employment 
Certification, for the duration of the recruitment period, as provided 
in Sec.  655.40(c). Although 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. The electronic job registry will be accessible via the 
internet to anyone seeking employment. We will work with the SWAs to 
devise procedures to further publicize the electronic job registry. At 
the conclusion of the recruitment period, we will maintain the job 
order on the electronic job registry in inactive status, making the 
information available for a variety of other public examination 
purposes.
6. Sec.  655.35 Amendments to an Application or Job Order
    This provision permits 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

[[Page 24075]]

the Application for Temporary Employment Certification. The provision 
permits an employer to seek such amendments only before certification, 
not after certification. This provision provides 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. The provision recognizes that business is not static and 
employers can face changed circumstances from varying sources--from 
climatic conditions to cancelled contracts. Accordingly, we include 
this provision to provide some flexibility to enable employers to 
assess and respond to such changes.
    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. We do not intend this 
provision to allow employers to amend their applications beyond the 
parameters contained in Sec.  655.12; rather, part of the CO's review 
will involve comparing the requested amendments to the content of the 
approved H-2B Registration.
    We have included certain limitations to ensure that these job 
opportunities are not misrepresented or materially changed as a result 
of such amendments. We expect that these parameters, which limit the 
extent of the change in number of workers or period of need permitted, 
and the CO review process to control the frequency with which post-
acceptance and pre-certification job order amendments are requested or 
approved and maintain the integrity of the H-2B Registration process.
    Specifically, 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, amendments 
to increase the number of workers must be limited 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, the 
provision permits minor changes to the period of employment at any time 
before the CO's final determination. However, 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 is designed to ensure that 
the employer had a legitimate need before initiating the registration 
process, and accurately estimated its dates of need. Although an H-2B 
registration covers the entire period of need for up to 3 years, this 
provision, by contrast, allows an employer to request a change of up to 
14 days from the from the period listed on its Application for 
Temporary Employment Certification, allowing for up to 2 such changes 
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.
    Under this provision, 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 temporary labor certification determination, 
including the ability to adequately test the U.S. labor market. Changes 
will not be approved that affect the underlying H-2B 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).

F. Recruitment Requirements

    This interim final rule maintains and expands some of the 
requirements relating to the recruitment of U.S. workers that were 
contained in the 2008 rule. The Departments conclude that, with 
expanded requirements, including the requirement that the employer 
contact its former U.S. workers and the requirement to conduct 
additional recruitment at the discretion of the CO, recruitment is more 
likely to identify qualified and available U.S. workers than under the 
2008 rule and will better protect against the potential for adverse 
effect.
1. Sec.  655.40 Employer-Conducted Recruitment
    Unlike under the 2008 rule, this interim final rule requires that 
the employer conduct recruitment of U.S. workers after its Application 
for Temporary Employment Certification is accepted for processing by 
the CO.
    Paragraph (a) contains the general requirement that 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 and provides 
that U.S. applicants can be rejected only for lawful job-related 
reasons. This general requirement to test the U.S. labor market is 
needed to ensure that the importation of foreign workers will not have 
an adverse effect on U.S. workers.
    Paragraph (b) requires that employers complete specific recruitment 
steps outlined in Sec. Sec.  655.42 through 655.46 within 14 days from 
the date of the Notice of Acceptance unless otherwise instructed by the 
CO. This paragraph further requires that all employer-conducted 
recruitment must be completed before the employer submits the 
recruitment report as required in Sec.  655.48. We conclude that a 14-
day recruitment period provides an appropriate timeframe for the 
employer to conduct the recruitment described in Sec. Sec.  655.42 
through 655.46, especially when combined with the longer SWA referral 
period discussed further below.
    Paragraph (c) requires that employers must continue to accept 
referrals and applications of all U.S. applicants interested in the 
position until 21 days before the date of need. Separate from the 
employer-conducted recruitment, this interim final rule at Sec.  655.16 
requires the SWA, upon acceptance of the job order and Application for 
Temporary Employment Certification by the CO, to circulate the job 
order, and Sec.  655.34 of this interim final rule provides that the CO 
will post the job order to the electronic job registry. The requirement 
that employers 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 21 days before the date of need 
balances the need to ensure an adequate test of the U.S. 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.
    Paragraph (d) provides 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. This provision does not require employers to conduct 
employment interviews under this provision. Rather, employers are 
barred from offering preferential treatment to potential H-2B workers, 
including any requirement to interview for the job

[[Page 24076]]

opportunity. In addition, this interim final rule ensures that 
employers conduct a fair labor market test by requiring employers that 
conduct 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. 
Accordingly, 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.
    To ensure no adverse effect to U.S. workers, paragraph (e) requires 
that the employer must consider all U.S. applicants for the job 
opportunity and that the employer must accept and hire any applicants 
who are qualified and who will be available for the job opportunity.
    Paragraph (f) requires the employer to prepare a recruitment report 
meeting the requirements of Sec.  655.48.
2. Sec.  655.41 Advertising Requirements
    Section 655.41 of this interim final rule requires that all 
employer recruitment contain terms and conditions of employment no less 
favorable than those offered to the prospective H-2B workers and 
provide the terms and conditions of employment necessary to apprise 
U.S. workers of the job opportunity.
    Paragraph (a) requires that all recruitment must, at a minimum, 
comply with the assurances applicable to job orders as set forth in 
Sec.  655.18(a). While this requires advertising to conform to the job 
order assurances and include the minimum terms and conditions of 
employment, it does not require an advertisement to include the full 
text of the assurances applicable to job orders. Consistent with Sec.  
655.18(a), all job qualifications and requirements listed in the 
employer's advertising must be bona fide and consistent with normal and 
accepted job qualifications and requirements.
    Paragraph (b) provides a list of the minimum terms and conditions 
of employment that must be included in all advertising, including 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. In requiring 
that advertisements comply with the assurances from the job order and 
meet minimum content requirements, but not requiring that 
advertisements contain all of the text of the assurances from the job 
order, we strike a balance between the employer's cost in placing 
potentially lengthy advertisements and the need to ensure 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 help employers comply with these requirements, we 
provide below specific language which is sufficient on the issues of 
transportation; the three-fourths guarantee; and tools, equipment, and 
supplies to apprise U.S. applicants of those required items in the 
advertisement. As provided above, the employer may also abbreviate some 
of this language so long as the underlying guarantee can be clearly 
understood by a prospective applicant. The following statements in an 
employer's advertisements are permitted:

    1. Transportation: Transportation (including meals and, to the 
extent necessary, lodging) to the place of employment will be 
provided, or its cost to workers reimbursed, if the worker completes 
half the employment period. Return transportation will be provided 
if the worker completes the employment period or is dismissed early 
by the employer. 2. Three-fourths guarantee: For certified periods 
of employment lasting fewer than 120 days: The employer guarantees 
to offer work for hours equal to at least three-fourths of the 
workdays in each 6-week period of the total employment period. For 
certified periods of employment lasting 120 days or more: The 
employer guarantees to offer work for hours equal to at least three-
fourths of the workdays in each 12-week period of the total 
employment period. 3. Tools, equipment and supplies: The employer 
will provide workers at no charge all tools, supplies, and equipment 
required to perform the job.

    The interim final rule at Sec.  655.41(b)(14) requires all employer 
advertisements to direct applicants to apply for the job at the nearest 
SWA office because we conclude 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 interim final rule at Sec.  655.41(b)(1) requires that 
employers include their contact information to enable such direct 
contact. We anticipate that the enhanced role of the SWA in employee 
referrals and the additional duties inherent in that role will be 
offset through the elimination of the requirement for the SWA to 
conduct employment verification activities as discussed further below.
3. Sec.  655.42 Newspaper Advertisements
    As under the 2008 rule, this interim final rule at Sec.  655.42(a) 
requires 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, at least one appearing in a Sunday edition. In 
addition this paragraph requires the employer to place the 
advertisement(s) in a language other than English where the CO 
determines it is appropriate. Further, we eliminate the employer's 
option under the 2008 rule to replace one of the newspaper 
advertisements with an advertisement in a professional, trade, or 
ethnic newspaper.
    Newspapers of general circulation remain an important source for 
recruiting U.S. workers, particularly those interested in positions 
typically found in the H-2B program. Low-wage workers are less likely 
to have internet access than more skilled workers, and are thus more 
likely to search for jobs using traditional means. Particularly given 
that the CO has authority to require the newspaper advertisement to be 
published in a language other than English, newspapers continue to be a 
valuable source for recruitment. In addition, newspaper advertisements 
are also recognized as information sources likely to generate informal, 
word of mouth referrals. 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 these types of job 
opportunities.
    Paragraph (b) provides the CO with discretion to direct the 
employer, in place of a Sunday edition, to advertise in the regularly 
published daily print edition with the widest circulation in the area 
of intended employment if the job opportunity is located in a rural 
area that does not have a newspaper with a Sunday edition. This 
provision is similar to the 2008 rule, which required an employer to 
advertise in the regularly published daily edition with the widest 
circulation in the area of intended employment if the job opportunity 
was located in such an area.
    Paragraph (c) provides that the newspaper advertisements must meet 
the requirements in Sec.  655.41.

[[Page 24077]]

    Paragraph (d) requires the employer to maintain documentation of 
its newspaper advertisements in the form of copies of newspaper pages 
(with date of publication and full copy of the advertisement), 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 
Sec.  655.56. It further requires that if the advertisement was 
required to be placed in a language other than English, the employer 
must maintain a translation and retain it in accordance with Sec.  
655.56.
4. Sec.  655.43 Contact With Former U.S. Employees
    This provision requires employers to make reasonable efforts to 
contact by mail or other effective means its former U.S. workers who 
were employed by the employer in the same occupation at the place of 
employment during the previous year before the date of need listed in 
the Application for Temporary Employment Certification. This 
requirement expands the 2008 rule's requirement that employers contact 
former U.S. workers who have been laid off within 120 days of the 
employer's date of need. However, employers are not required to contact 
U.S. workers who were terminated for cause or who abandoned the 
worksite, as defined in Sec.  655.20(y). The Departments believe that 
this provision will help ensure that the greatest number of U.S. 
workers, particularly those that have previously held these positions, 
have awareness of and access to these job opportunities.
    Each employer must provide its former U.S. employees a full 
disclosure of the terms and conditions of the job order, and solicit 
their return to the job. Employers will be required to maintain 
documentation to be submitted in the event of an audit or investigation 
sufficient to prove contact with its former employees consistent with 
document retention requirements under Sec.  655.56. This documentation 
may consist of a copy of a form letter sent to all former employees, 
along with evidence of its transmission (postage account, address list, 
etc.).
    Although the requirement focuses on a longer period of time than 
the requirement under the 2008 rule, it is unlikely that it will impose 
a significantly greater burden on employers. Typically, employers will 
have laid off seasonal or temporary U.S. workers at the end of the 
period of need, which was up to 10 months under the 2008 rule. This 
means that such workers are those whom the employer would have been 
required to contact under Sec.  655.15(h) under the 2008 rule. If for 
some reason, the employer did lay off some workers who were hired to 
work during the employer's period of temporary need, before the end of 
the period of need--e.g., additional workers who were hired for a 
period of peakload need within the longer period of temporary need, the 
Departments believe that it would be most appropriate to give those 
workers the first opportunity to take the jobs. Generally, however, 
there will be little practical difference between the operation of the 
previous requirement and the operation of this requirement in the 
interim final rule except perhaps for seasonal jobs. In a seasonal 
program, reaching back to contact former employees who were employed 
over a cycle of a full year would be the minimum amount of time 
necessary to capture all of the seasonal activities for which H-2B 
workers are sought. For example, an oceanfront resort employer hires 
workers at the start of its season in May and releases them in 
September. The employer then seeks H-2B workers the following March, 
more than 60 days before the usual date of need. Reaching that 
particular workforce requires the employer to reach back to the time 
those employees were hired--the previous May--to ensure that the group 
of employees most likely to return to the employment are given the 
opportunity to do so.
    The Departments recognize that collective bargaining agreements may 
require the employer to contact laid-off employees in accordance with 
specific terms governing recall and a recall period. The requirement in 
this section that the employer contact former employees employed by the 
employer during the prior year would not substitute for the terms in a 
collective bargaining agreement. The employer is separately obligated 
to comply with the terms and conditions of the bargaining agreement, 
which may include recall provisions that cover workers employed by the 
employer beyond the prior year.
    The Departments also recognize that some unscrupulous employers may 
use termination as a means of retaliating against workers who complain 
about unlawful treatment or exercise their rights under the program. 
However, the requirement in this interim final rule that each employer 
affirmatively attest that it has not engaged in unfair treatment as 
defined in Sec.  655.20(n), i.e., that it has not retaliated against 
complaining employees, acts as a backstop against this prohibited 
activity and the possibility that an employer would be released from 
contacting such workers.
5. Sec.  655.44 [Reserved]
6. Sec.  655.45 Contact With Bargaining Representative, Posting 
Requirements, and Other Contact Requirements
    Paragraph (a) of this section requires 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 by providing a copy of the Application for 
Temporary Employment Certification and the job order. The employer must 
maintain documentation that the application and job order were sent to 
the bargaining representative(s). This requirement will provide 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 other U.S. workers, possibly including former 
workers, will be more likely to learn of the job opportunities as well. 
This paragraph further requires such employers to include information 
in their recruitment reports 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.
    Paragraph (b) requires that, where there is no bargaining 
representative of the employer's employees, the employer must post a 
notice to its employees of the job opportunities for at least 15 
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. Web posting 
can fulfill this requirement in some circumstances.
    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 provide 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. This

[[Page 24078]]

interim final rule provides 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, for example, by 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. This provision 
further 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 the posting otherwise meets the requirements of 
this section. Finally, this paragraph requires the notice to meet the 
requirements of Sec.  655.41 and that the employer maintain a copy of 
the posted notice and identify where and when it was posted in 
accordance with Sec.  655.56.
    Paragraph (c) provides, in addition to the requirements for 
notification to bargaining representatives or employees in this 
section, that the CO may also require the employer to contact 
community-based organizations to disseminate the notice of the job 
opportunity. Community-based organizations are an effective means of 
reaching out to domestic workers interested in specific 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 note that, not unlike additional recruitment (discussed below), 
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 and individuals who may 
be seeking positions in H-2B occupations that require little or no 
specialized knowledge. Although we will not require each employer to 
make this type of contact, this provision, where directed by the CO, 
will assist with fulfilling the intent of the H-2B program and 
enhancing the integrity of the labor market test.
7. Sec.  655.46 Additional Employer-Conducted Recruitment
    Where the CO determines that the employer-conducted recruitment 
described in Sec. Sec.  655.42 through 655.45 is not sufficient to 
attract qualified U.S. workers who are likely to be available for a job 
opportunity, Sec.  655.46 of this interim final rule provides the CO 
with discretion to require the employer to engage in additional 
reasonable recruitment activities. Paragraph (a) provides the CO with 
discretion to order additional reasonable recruitment where the CO has 
determined that there is a likelihood that U.S. workers 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. This discretion may be exercised, including in Areas of 
Substantial Unemployment where appropriate, where additional 
recruitment efforts will likely result in more opportunities for and a 
greater response from available and qualified U.S. workers. In 
addition, we recognize that the increased rate of technological 
innovation, 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 pace with 
the ever-changing labor market trends.
    Areas of Substantial Unemployment by their nature have a higher 
likelihood of worker availability; DOL's recognition of worker 
availability in these areas is a strong indicator that these open job 
opportunities may have more receptive potential populations. However, 
Areas of Substantial Unemployment are only one example of a situation 
in which the CO has discretion to order additional recruitment. This 
discretion permits DOL 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. 
It is also within the CO's discretion to determine that such additional 
efforts are unlikely to result in additional meaningful applications 
for the job opportunity.
    Additional positive recruitment under this paragraph 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. Thus, additional recruitment will not 
result in any delay in certification.
    Paragraph (b) provides that, if the CO elects to require additional 
recruitment, the CO will describe the number and type of additional 
recruitment efforts required. This paragraph also provides a non-
exclusive list of the types of additional recruitment that may be 
required by the CO, including, where appropriate: 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 reasonable additional print advertising. 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, where appropriate, and will consider both the cost and the 
likelihood that the additional recruitment will identify qualified and 
available U.S. workers, and where appropriate opt for the least 
burdensome method(s). CO-ordered efforts to contact community-based 
organizations and/or One-Stop Career Centers under this section are in 
addition to the requirements in Sec. Sec.  655.16 and 655.45.

[[Page 24079]]

    Paragraph (c) provides that, where the CO requires additional 
recruitment, the CO will specify the documentation or other supporting 
evidence that must be maintained by the employer as proof that the 
additional recruitment requirements were met. Documentation must be 
maintained as required in Sec.  655.56.
8. Sec.  655.47 Referrals of U.S. Workers
    Section 655.47 of this interim final rule requires that SWAs refer 
for employment only individuals who have been informed of the material 
terms and conditions of the job opportunity and are qualified and will 
be available for employment. Unlike the 2008 rule, this interim final 
rule does not require that the SWAs conduct employment (I-9) 
eligibility verification.
    In light of limited resources, we have determined that the 
requirement under the 2008 rule that SWAs conduct employment 
eligibility verification of job applicants was 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.
    The elimination of the requirement that SWAs conduct employment 
eligibility verification 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 the contrary, many H-2B 
referrals are not staff-assisted but are instead self-referrals (e.g., 
electronic job matching systems), and we have no intention of 
interfering with the current processes established by most SWAs to 
handle these job orders, since the material terms and conditions of 
employment will be available for self-review by U.S. applicants. 
However, to the extent that SWA staff is directly involved in a 
referral, we expect that the referrals made would be only of qualified 
workers. If staff are directly involved in the screening process, SWAs 
will be required to 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. We do not expect this to be an additional burden on SWA 
staff.
    The Departments do not presume that the judgment of the SWAs as to 
an applicant's qualifications is irrebuttable or a 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 
DOL that the applicant was rejected only for lawful, job-related 
reasons.
9. Sec.  655.48 Recruitment Report
    Consistent with the requirements of the 2008 rule, paragraph (a) 
continues to require the employer to submit to the Chicago NPC a signed 
recruitment report. Unlike the 2008 rule, however, this interim final 
rule requires 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 new recruitment model under this interim final 
rule under which the employer does not begin its recruitment until 
directed by the CO in the Notice of Acceptance. In addition, paragraph 
(a) clarifies that where recruitment is conducted by a job contractor 
or its employer-client, both joint employers must sign the recruitment 
report, consistent with Sec.  655.19(e).
    Paragraph (a) further details the information the employer is 
required to include in the recruitment report, including the 
recruitment steps undertaken and their results, as well as other 
pertinent information. The provision 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 DOL to ensure 
the employer has met its obligation and the agency has met its 
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.
    Paragraph (b) requires 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 employer is 
not required to submit the updated recruitment report to DOL, but is 
required to retain the report and make it available in the event of a 
post-certification audit, a WHD investigation, or upon request by the 
CO.
    DOL notes that it continues to reserve the right to post any 
documents received in connection with the Application for Temporary 
Employment Certification and will redact information accordingly.

G. Temporary Labor Certification Determinations

1. Sec.  655.50 Determinations
    This section corresponds to 20 CFR 655.32(a) and (b) in the 2008 
rule. Paragraph (a) generally authorizes the OFLC Administrator and 
center-based COs to certify or deny Applications for Temporary 
Employment Certification for H-2B workers. It also authorizes the 
Administrator to redirect applications to the OFLC National Office. 
Paragraph (b) requires the CO to determine whether to certify 
(including partially certify) or deny an application. It requires the 
CO to certify an application only when the employer has fully complied 
with requirements for H-2B temporary labor certification, including the 
criteria established in Sec.  655.51.
2. Sec.  655.51 Criteria for Certification
    This section requires, as conditions of certification, that the 
employer have a valid H-2B Registration and have demonstrated full 
compliance with the requirements of this subpart. In making a 
determination about the availability of U.S. workers for the job 
opportunity, the CO will treat, as available, individuals whom the 
employer rejected for any reason that was not lawful or job-related. 
Paragraph (c) makes clear that DOL will not grant certification to 
employers that have failed to comply with one or more sanctions or 
remedies imposed by final agency actions under the H-2B program.
3. Sec.  655.52 Approved Certification
    This section generally corresponds to 20 CFR 655.32(d) in the 2008 
rule, but has been updated to better reflect current practices and 
DOL's experience. In cases where the application is approved, this 
interim final rule requires that the CO use electronic mail or other 
next day delivery methods to send the Final Determination letter to the 
employer and, when applicable, a copy to the employer's representative. 
The requirement for next-day delivery is designed to add efficiency and 
economy

[[Page 24080]]

to the certification process. The requirement to advise the employer's 
attorney or agent, when applicable, is based on DOL's program 
experience with complications or miscommunications that can arise 
between employers and their agents or attorneys. Even when an employer 
is represented, it makes sense for that employer to receive and 
maintain the original, approved certification, as the employer attests 
to and is primarily responsible for meeting the obligations created by 
the Application for Temporary Employment Certification. Should the 
Application for Temporary Employment Certification be filed 
electronically, the employer must retain the approved temporary labor 
certification. As noted earlier in the discussion about electronic 
filing, upon receipt of the original certified ETA Form 9142B, the 
employer or its agent or attorney, if applicable, must complete the 
footer on the original Appendix B, retain the original Appendix B, and 
submit a signed copy of Appendix B, together with the original 
certified ETA Form 9142B directly to USCIS. Under the document 
retention requirements in Sec.  655.56, the employer must retain a copy 
of the temporary labor certification and the original signed Appendix 
B.
4. Sec.  655.53 Denied Certification
    This section generally corresponds to 20 CFR 655.32(e) in the 2008 
rule, but has been updated in ways similar to Sec.  655.52, above. In 
cases where the application is denied, this provision, as in Sec.  
655.52, requires that the CO use electronic mail or other means of next 
day delivery to send the Final Determination letter to the employer 
and, when applicable, a copy to the employer's attorney or agent. The 
Final Determination letter must state the reasons for the denial, and 
cite the relevant regulatory provisions that govern. The letter must 
also advise the employer of its right to seek administrative review of 
the determination and of the consequences, should the employer elect 
not to appeal.
5. Sec.  655.54 Partial Certification
    This section generally corresponds to 20 CFR 655.32(f) in the 2008 
rule. It grants the CO authority to issue a partial certification that 
reflects either a shorter-than-requested period of need or a lower-
than-requested number of H-2B workers, or both. For each qualified, 
available U.S. worker the SWA has referred or who applies directly with 
the employer, and whom the employer has accepted or has rejected for 
reasons that are unlawful or unrelated to the job, the CO will reduce 
by one the number of H-2B workers certified. To issue a partial 
certification, the CO will amend the application and return it and a 
Final Determination letter to the employer, with a copy to the 
employer's representative. The letter must state the reasons for the 
reduction, and governing legal authority; when appropriate, address the 
availability of U.S. workers in the occupation; explain the employer's 
right to seek administrative review; and describe the consequences, 
should the employer elect not to appeal.
6. Sec.  655.55 Validity of Temporary Employment Certification
    This section mirrors 29 CFR 503.18 and corresponds to 20 CFR 
655.34(a) and (b) in the 2008 rule, establishing the period of time and 
scope for which an Application for Temporary Employment Certification 
is valid. Under this provision, a temporary labor certification is 
valid only for the period of authorized employment. The certification 
is also valid only for the number of H-2B positions, the area of 
intended employment, the job classification and specific services, and 
the employer listed on the approved application. The sponsoring 
employer may not transfer the certification to another employer, except 
where the other employer is a successor in interest to the sponsoring 
employer. These limitations on validity are critical to the integrity 
of the certification and the broader H-2B program. They are also 
consistent with the prohibition on transfers of an H-2B Registration, 
and with the features DOL has put in place for certifications in the 
permanent program. See 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).
7. Sec.  655.56 Document Retention Requirements of H-2B Employers
    This section brings together recordkeeping requirements that 
appeared in separate paragraphs throughout the 2008 rule, including 20 
CFR 655.6(e), 655.10(i), and 655.15(c) and (j). These requirements are 
similar to those in the WHD provisions of this interim final rule, at 
29 CFR 503.17. Under Sec.  655.56, employers must retain documents and 
records proving compliance with this subpart and the WHD regulation at 
29 CFR part 503, including but not limited to the documents listed in 
paragraph (c). Paragraph (c) lists, among other things, the H-2B 
Registration, the H-2B Petition, documents related to recruitment of 
U.S. workers, payroll records, and copies of contracts with agents or 
recruiters. Paragraph (b) requires the employer to retain relevant 
records for three years from the date of certification (for approved 
applications), date of adjudication (for denied applications), or date 
DOL received the employer's letter of withdrawal (for withdrawn 
applications). Employers must be prepared to produce these records and 
documents for DOL or for other federal agencies in the event of an 
audit or investigation. Under paragraph (d), employers must make these 
documents and records available to WHD within 72 hours following a 
request. This interim final rule also provides that, if the Application 
for Temporary Employment Certification and the H-2B Registration are 
filed electronically, the employer must sign and retain a copy of each 
adjudicated Application for Temporary Employment Certification, 
including any approved modifications, amendments, or extensions.
    This requirement is substantively similar to the record retention 
requirement currently in place for H-2B employers. In addition, 
employers keeping records under this provision may keep those records 
electronically. Hence, this requirement does not create significant 
additional burden. Further, the records this provision covers serve a 
critical purpose in the operation and integrity of the H-2B program. 
For example, in the past, DOL has used employer records to make basic 
decisions related to the certification, verify compliance with program 
requirements, and confirm the nature of payments under contracts with 
agents or recruiters.
8. Sec.  655.57 Determinations Based on the Unavailability of U.S. 
Workers
    This section addresses employers for which certified numbers have 
been reduced due to the existence of qualified, available U.S. workers 
who later fail to report for work or fail to stay for the period of the 
contract. In such cases, the employer may request a new determination 
from the CO, who must make a determination within 72 hours after 
receiving the complete request. The employer must submit its request 
directly to the CO, attach a statement signed by the employer, and 
include contact information for every U.S. worker whom the employer 
claims has become unavailable and the reason for nonavailability.
    If the CO denies a new determination, the employer may appeal. If 
the CO cannot identify sufficient available U.S. workers, the CO will 
grant the

[[Page 24081]]

employer's request for a new determination. However, even when the CO 
makes a new determination, the employer may submit additional requests 
for new determinations in the future.

H. Post Certification Activities

    Sections 655.60 through 655.63 concern actions an employer may take 
after an Application for Temporary Employment Certification has been 
adjudicated, including making a request for extension of certification, 
appealing a decision of the CO, and withdrawing an Application for 
Temporary Employment Certification. In addition, this interim final 
rule codifies the DOL's practice of maintaining a publicly-accessible 
electronic database of employers that have applied for H-2B 
certification.
1. Sec.  655.60 Extensions
    Under the interim final rule, there will be instances when an 
employer will have a reasonable need for an extension of the time 
period that was not foreseen at the time the employer originally filed 
the Application for Temporary Employment Certification. This provision 
provides flexibility to the employer in the event of such circumstances 
while maintaining the integrity of the certification and the 
determination of temporary need.
    The provision requires that the employer submit its request to the 
CO in writing and provide documentation showing that the extension is 
needed and that the employer could not have reasonably foreseen the 
need. Except in extraordinary circumstances, extensions are available 
only to employers whose original certified period of employment is less 
than the 9-month maximum period allowable in this subpart.\23\ 
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). If an employer receives an extension, 
the employer must immediately provide a copy of the approved extension 
to its workers. An employer denied an extension may appeal the decision 
by following the procedures set forth in Sec.  655.61.
---------------------------------------------------------------------------

    \23\ If extraordinary circumstances warrant an extension beyond 
the 9-month period, consistent with DHS regulations, the maximum 
period of H-2B employment including the extension period generally 
cannot exceed one year. See 8 CFR 214.2(h)(6)(ii)(B).
---------------------------------------------------------------------------

2. Sec.  655.61 Administrative Review
    This provision sets forth the procedures for BALCA review of a 
decision of a CO. Subparagraph (a) provides the timeframe within which 
requests must be made and sets forth the various requirements related 
to the request, including that requests must contain only legal 
argument and be limited to evidence that was actually submitted to the 
CO before the date the CO's determination was issued. This provision 
does not provide for de novo review.
    The substance of this provision is the same as that in the 2008 
rule. However, this provision does not refer to the particular decision 
of the CO that may be appealed, such as the denial of temporary labor 
certification. Rather, this provision refers generally to the decisions 
of the CO that may be appealed, where authorized in this subpart. These 
decisions are identified in the section of the interim final rule that 
discusses the CO's authority and procedure for making that particular 
decision. Additionally, this provision increases from 5 business days 
to 7 business days: the time in which the CO will assemble and submit 
the appeal file in Sec.  655.61(b); the time in which the CO may file a 
brief in Sec.  655.61(c); and the time BALCA should provide a decision 
upon the submission of the CO's brief in Sec.  655.61(f).
3. Sec.  655.62 Withdrawal of an Application for Temporary Employment 
Certification
    Under this provision, an employer may withdraw an Application for 
Temporary Employment Certification before it is adjudicated. Such 
request must be made in writing.
4. Sec.  655.63 Public Disclosure
    This provision codifies DOL's practice of maintaining, apart from 
the electronic job registry, an electronic database accessible to the 
public containing information on all employers that apply for H-2B 
temporary labor certifications. The database will continue to include 
non-privileged 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 Departments through FOIA requests.

I. Integrity Measures

    Sections 655.70 through 655.73 have been grouped together under the 
heading Integrity Measures, describing those actions DOL plans to take 
to ensure that an Application for Temporary Employment Certification 
filed with DOL in fact complies with the requirements of this subpart.
    The Departments have not elected to establish procedures to allow 
for workers and organizations of workers to intervene and participate 
in the audit, revocation, and debarment processes. Such procedures 
would be administratively infeasible and inefficient and would cause 
numerous delays in the adjudication process. For example, 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.
1. Sec.  655.70 Audits
    This section outlines the process under which the CO will conduct 
audits of adjudicated temporary employment certification applications. 
These provisions are similar to the 2008 rule. The Departments' mandate 
to ensure that qualified workers in the United States are not available 
and that the foreign worker's employment will not adversely affect 
wages and working conditions of similarly employed U.S. workers serves 
as the basis for the Departments' authority to audit adjudicated 
applications, even if the employer's application was 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 those applications 
because they could be used to establish a record of employer compliance 
or non-compliance with program requirements and because the information 
they contain assists DOL in determining whether it needs to further 
investigate or debar an employer or its

[[Page 24082]]

agent or attorney from future labor certifications.
    Paragraph (a) provides the CO with sole 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, paragraph (b) requires the CO to send a letter to the employer 
and, if appropriate, a copy of the letter to the employer's attorney or 
agent, listing the documentation the employer must submit and the date 
by which the documentation must be sent to the CO. Paragraph (b) also 
provides that an employer's failure to fully comply with the audit 
process may result in the revocation of its certification or in 
debarment, under Sec. Sec.  655.72 and 655.73, respectively, or require 
the employer to undergo assisted recruitment in future filings of an 
Application for Temporary Employment Certification, under Sec.  655.71.
    Paragraph (c) permits the CO to request additional information and/
or documentation from the employer as needed in order to complete the 
audit. Paragraph (d) provides that 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, Office of Special 
Counsel for Immigration-Related Unfair Employment Practices.
2. Sec.  655.71 CO-Ordered Assisted Recruitment
    Paragraph (a) of this provision permits the CO to require an 
employer to participate in assisted recruitment for any future 
Application for Temporary Employment Certification, if the CO 
determines as a result of an audit or otherwise that a violation that 
does not warrant debarment has occurred. This provision will also 
assist those employers that, due to either program inexperience or 
confusion, have made mistakes in their Application for Temporary 
Employment Certification that indicate a need for further assistance 
from DOL.
    Under paragraph (b) 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 based on the unique circumstances of the employer.
    As set forth in paragraph (c), the assisted recruitment may consist 
of, but is not limited to, reviewing the employer's advertisements 
before posting and directing the employer where such advertisements are 
to be placed and for how long, requiring the employer to conduct 
additional recruitment, 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 materially fails to comply 
with the requirements of this section, paragraph (d) provides that the 
employer's application will be denied and the employer may be debarred 
from future program participation under Sec.  655.73.
3. Sec.  655.72 Revocation
    Under this section, OFLC can revoke an approved H-2B temporary 
labor certification under certain conditions, including where there is 
fraud or willful misrepresentation of a material fact in the 
application process as defined in Sec.  655.73(d), or a substantial 
failure to comply with the terms and conditions of the certification, 
as defined in Sec.  655.73(d) and (e). Discussion of the standards used 
in determining willful misrepresentations and substantial failures is 
discussed in the preamble to 29 CFR 503.19 (Violations) of this interim 
final rule. OFLC may also revoke a certification upon determining that 
the employer failed to cooperate with a DOL investigation or with a DOL 
official performing an investigation, inspection, audit, or law 
enforcement function, or that the employer failed to comply with one or 
more sanctions or remedies imposed by WHD, or with one or more 
decisions or orders of the Secretary of Labor, with respect to the H-2B 
program.
    The procedures for revocation begin with OFLC sending the employer 
a Notice of Revocation. Upon receiving the Notice of Revocation, the 
employer has two options: (1) It may submit rebuttal evidence or (2) 
appeal the revocation under the procedures in Sec.  655.61. If the 
employer does not file rebuttal evidence or an appeal within 10 
business days of the date of the Notice of Revocation, the Notice will 
be deemed final agency action and will take effect immediately at the 
end of the 10-day period. If the employer chooses to file rebuttal 
evidence, and the employer timely files that evidence, OFLC will review 
it and inform the employer of the final determination on revocation 
within 10 business days of receiving the rebuttal evidence.
    If OFLC determines that the certification should be revoked, OFLC 
will inform the employer of its right to appeal under Sec.  655.61. The 
employer must file the appeal of OFLC's determination within 10 
business days, or OFLC's decision becomes the final decision of the 
Secretary and will take effect immediately after the 10-day period.
    If the employer chooses to appeal either in lieu of submitting 
rebuttal evidence, or after OFLC makes a determination on the rebuttal 
evidence, the appeal will be conducted under the procedures contained 
in Sec.  655.61. The timely filing of either the rebuttal evidence or 
an administrative appeal stays the revocation pending the outcome of 
those proceedings. If the temporary labor certification is ultimately 
revoked, OFLC will notify DHS and the Department of State.
    Section 655.72(c) lists an employer's continuing obligations to its 
H-2B and corresponding workers if the employer's H-2B certification is 
revoked. The obligations include reimbursement of actual inbound 
transportation, visa, and other expenses (if they have not been paid), 
payment of the workers' outbound transportation expenses, payment to 
the workers of the amount due under the three-fourths guarantee; and 
payment of any other wages, benefits, and working conditions due or 
owing to workers under this subpart.
    When an employer's certification is revoked, the revocation applies 
to that particular certification only; violations relating to a 
particular certification will not be imputed to an employer's other 
certifications in which there has been no finding of employer 
culpability. However, in some situations, 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 OFLC 
finds that the employer meets either the basis for revocation in 
subparagraph (a)(3) of this section (failure to cooperate with a DOL 
investigation or with a DOL official performing an investigation, 
inspection, audit, or law enforcement function) or in subparagraph 
(a)(4) of this section (failure to comply with sanctions or remedies 
imposed by WHD or with decisions or orders of the Secretary of Labor 
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 OFLC finds that violations of 
paragraphs (a)(1) or (a)(2) of this section affect all of the

[[Page 24083]]

employer's certifications, such as where an employer misrepresents its 
legal status, OFLC also may revoke that employer's certifications. 
Lastly, where an employer's certification has been revoked, OFLC would 
take a more careful look at the employer's other certifications to 
determine if similar violations exist that would warrant their 
revocation.
    The Departments recognize the seriousness of revocation as a 
remedy; accordingly, the bases for revocation reflect violations that 
significantly undermine the integrity of the H-2B program. OFLC intends 
to use the authority to revoke only when an employer's actions warrant 
such a severe consequence. OFLC does not intend to revoke 
certifications if an employer commits minor mistakes.
 4. Sec.  655.73 Debarment
    This interim final rule revises the debarment provision from the 
2008 rule to strengthen the enforcement of H-2B labor certification 
requirements and to clarify the basis under which debarment may be 
applied. Under Sec.  655.73(a), OFLC may debar an employer if it finds 
that the employer: willfully misrepresented a material fact in its H-2B 
Registration, approved Application for Temporary Employment 
Certification, or H-2B Petition; substantially failed to meet any of 
the terms and conditions of H-2B Registration, approved Application for 
Temporary Employment Certification, or H-2B Petition; or willfully 
misrepresented a material fact to the Department of State during the 
visa application process. Section 655.73(a)(2) defines a ``substantial 
failure'' to mean a willful failure to comply that constitutes a 
significant deviation from the terms and conditions of such documents, 
in accordance with the statutory definition of ``substantial failure'' 
in 8 U.S.C. 1184(c)(14)(D), INA section 214(c)(14)(D).
    Section 655.73(d) provides the standard for determining whether a 
violation was willful. Section 655.73(e) describes the factors that 
OFLC may consider in determining whether a violation constitutes a 
significant deviation from the terms and conditions of the H-2B 
Registration, approved Application for Temporary Employment 
Certification, or H-2B Petition. This list of factors is not exclusive, 
but it offers some guidance as to what OFLC generally considers when 
determining whether a violation would warrant debarment. The factors 
are the same factors used by WHD to determine whether a violation is 
significant under 29 CFR 503.19(c) of this interim final rule. The 
preamble for 29 CFR 503.19 explains these definitions in detail.
    Section 655.73(f) provides a comprehensive but not exhaustive list 
of violations that would warrant debarment where the standards in Sec.  
655.73(d)-(e) are met. This is an updated list of debarrable violations 
from the 2008 rule. The most significant differences are that a single 
act, as opposed to a pattern or practice of such actions, would be 
sufficient to merit debarment and that the following violations would 
be considered debarrable:
     Improper layoff or displacement of U.S. workers or workers 
in corresponding employment (Sec.  655.73(f)(4));
     A violation of the requirements of Sec.  655.20(o) or (p) 
concerning fee shifting and related matters (Sec.  655.73(f)(10));
     A violation of any of the anti-discrimination provisions 
listed in Sec.  655.20(r) (Sec.  655.73(f)(11));
     Failure to comply with the assisted recruitment process 
(Sec.  655.73(f)(7)); and
     A material misrepresentation of fact during the 
registration or application process (Sec.  655.73(f)(14)).
    The procedures for debarment are similar to the debarment 
procedures contained in the 2008 rule. They begin with OFLC sending the 
employer, attorney, or agent a Notice of Debarment. Upon receiving the 
Notice of Debarment, the party has two options: It may submit rebuttal 
evidence or request a hearing. If the party does not file rebuttal 
evidence or request a hearing within 30 days, the Notice will be deemed 
final agency action and will take effect immediately at the end of the 
30-day period. If the party timely files rebuttal evidence, OFLC will 
review it and inform the party of the final determination on debarment 
within 30 days of receiving the rebuttal evidence. If OFLC determines 
that the party should be debarred, OFLC will inform the party of its 
right to request a hearing. The party must request a hearing of OFLC's 
determination within 30 days, or OFLC's decision becomes the final 
decision of the Secretary of Labor and will take effect immediately at 
the end of the 30-day period. The timely filing of either the rebuttal 
evidence or a hearing request stays the debarment pending the outcome 
of those proceedings.
    If the employer chooses to request a hearing either in lieu of 
submitting rebuttal evidence, or after OFLC makes a determination on 
the rebuttal evidence, the hearing will be conducted before an 
Administrative Law Judge (ALJ) under the procedures contained in 29 CFR 
part 18. After the hearing, the ALJ must affirm, reverse, or modify 
OFLC's determination. The ALJ's decision becomes the final agency 
action unless either party seeks review of the decision with the 
Administrative Review Board (ARB) within 30 days. If the ARB declines 
to accept the petition or does not issue a notice accepting the 
petition for review within 30 days, the ALJ's decision becomes the 
final agency action. If the ARB accepts the petition for review, the 
ALJ's decision is stayed until the ARB issues a decision.
    Paragraph (h) of this section provides that copies of final DOL 
debarment decisions will be forwarded to DHS and DOS promptly. See also 
8 CFR 214.1(k) (stating that upon debarment by the Department of Labor, 
USCIS may deny any petition filed by that petitioner for nonimmigrant 
status under section 101(a)(15)(H) for a period of at least 1 year but 
not more than 5 years). Where it is warranted, DOL will notify 
additional agencies, such as DOJ, of the violations.
    WHD also has independent debarment authority under this interim 
final rule. See 29 CFR 503.24 and the corresponding preamble. Section 
655.73(h) clarifies that while WHD and OFLC will have concurrent 
debarment jurisdiction, the two agencies will coordinate their 
activities so that a specific violation for which debarment is imposed 
will be cited in a single debarment proceeding. An important 
distinction between the OFLC and WHD debarment procedures is that the 
WHD debarment procedures do not provide for a 30-day rebuttal period 
because WHD debarments arise from investigations during which the 
employer has ample opportunity to submit any evidence and arguments in 
its favor.
    Finally, Sec.  655.73(i) provides that an employer, agent, or 
attorney who is debarred by OFLC or WHD from the H-2B program will also 
be debarred from all other foreign labor certification programs 
administered by DOL for the time period in the final debarment 
decision. Many employers, agents and attorneys participate in more than 
one foreign labor certification program administered by DOL. However, 
under the 2008 rule, a party that was debarred under the H-2B program 
could continue to file applications under DOL's other foreign labor 
programs. Under this interim final rule DOL will refuse to accept 
applications filed by or on behalf of a debarred party under the H-2B 
program in any of DOL's foreign labor certification programs.
    Although DOL does not have the authority to routinely seek 
debarment of entities that are not listed on the ETA

[[Page 24084]]

Form 9142, in appropriate circumstances, DOL may pierce the corporate 
veil in order to more effectively remedy the violations found. Piercing 
the corporate veil may be necessary to foreclose the ability of 
individual principals of a company or legal entity to reconstitute 
under another business entity.
Debarment of Agents and Attorneys
    This interim final rule does not limit debarment to employers. 
Under Sec.  655.73(b), agents and attorneys of the employer may be 
debarred for their own violations as well as their participation in an 
employer's violation (under the 2008 rule agents could only be debarred 
for their participation in an employer's violation). As discussed under 
Sec.  655.8, the Departments have had 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. However, the Departments recognize 
that the vast majority of employers file H-2B temporary employment 
certification applications using an agent, and that many of these 
agents are intimately familiar with the H-2B program requirements, and 
help guide employers through the process. The Departments believe that, 
in order to improve program integrity and compliance, these agents and 
attorneys should be accountable for their own program violations, just 
as their employer-clients are.
    The agents and attorneys who file applications on behalf of 
employers certify under penalty of perjury on the ETA Form 9142B 
Application for Temporary Employment Certification that everything 
stated on the application is true and correct. However, for example, a 
bad actor agent may pass on prohibited fees to workers in violation of 
the prohibition on collecting such fees in Sec.  655.20(o) and 29 CFR 
503.16(o) while affirming that everything on the application is true 
and correct, including the employer's declaration that its agents and/
or attorneys have not sought or received prohibited fees. In addition, 
Sec.  655.20(p) and 29 CFR 503.16(p) require an employer to 
contractually prohibit an agent or recruiter from seeking or receiving 
payments from prospective employees. This creates a potential loophole, 
under which an employer may contractually prohibit the attorney or 
agent 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, provided the employer did not know or have 
reason to know of such independent violation. The 2008 rule did not 
provide a mechanism for holding the attorney or agent accountable for 
such a violation absent a link to an employer violation. This interim 
final rule closes that loophole 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. 
This concept applies throughout the program sanction sections, 
including the OFLC and WHD debarment provisions at Sec.  655.73(b) and 
29 CFR 503.24(b), as well as the WHD sanctions and remedies section, as 
discussed further in the preamble at 29 CFR 503.20. These enhanced 
compliance measures apply only to the agents and attorneys who are 
signatories on the ETA Form 9142, as these agents and attorneys have 
become directly involved with the H-2B program and have made 
attestations to DOL.
    The Departments 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. DOL will be sensitive to the facts and circumstances in 
each particular instance when considering whether an attorney or agent 
has participated in an employer's violation; DOL 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.
    OFLC and WHD publicly post a list of employers, agents, or 
attorneys who have been debarred under all of the labor certification 
programs. Where circumstances warrant, DOL 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.
Period of Debarment
    Under this interim final rule, an employer, attorney, or agent may 
not be debarred for less than 1 year nor more than 5 years from the 
date of the final debarment decision. This increases the maximum 
debarment period, which was 3 years in the 2008 rule. The 1 to 5-year 
range for the period of debarment is consistent with the H-2B 
enforcement provisions in the INA, and the Departments believe that it 
is appropriate to apply the same standard in our regulations. 8 U.S.C. 
1184(c)(14)(A)(ii), INA section 214(c)(14)(A)(ii); see also 8 CFR 
214.1(k). The Departments 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 Prevailing Wage 
Determination, Application for Temporary Employment Certification, or 
H-2B Petition. Additionally, just because 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 OFLC retains the discretion to 
determine the appropriate period of debarment based on the severity of 
the violation.
    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, 
DOL cannot ensure any particular timing for the debarment process, or 
that the timing would align before an employer obtains authorization to 
bring in H-2B workers for another season.

V. Addition of 29 CFR Part 503

    Effective January 18, 2009, pursuant to INA section 214(c)(14)(B), 
DHS transferred to DOL enforcement authority for the provisions in 
section 214(c)(14)(A)(i) of the INA that govern petitions to admit H-2B 
workers. See also 8 CFR 214.2(h)(6)(ix) (stating that the Secretary of 
Labor may investigate employers to enforce compliance with the 
conditions of a petition and Department of Labor-approved

[[Page 24085]]

temporary labor certification to admit or otherwise provide status to 
an H-2B worker). This enforcement authority has been further delegated 
within the DOL to the Administrator of WHD.\24\ The 2008 rule contained 
the regulatory provisions governing ETA's processing of the employer's 
Application for Temporary Employment Certification and WHD's 
enforcement responsibilities in ensuring that the employer had not 
willfully misrepresented a material fact or substantially failed to 
meet a condition of such application or the DHS Form I-129, Petition 
for a Nonimmigrant Worker for an H-2B worker.
---------------------------------------------------------------------------

    \24\ Sec'y of Labor Order No. 01-2014 (Dec. 19, 2014).
---------------------------------------------------------------------------

    The Departments have carefully reviewed the 2008 rule, and this 
interim final rule provides substantive changes to both the 
certification and enforcement processes to enhance protection of U.S. 
and H-2B workers.
    This interim final rule includes a new part, 29 CFR part 503, to 
further define and clarify the protections for workers. This part and 
20 CFR part 655, subpart A, have 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 Departments have enhanced 
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 it did under 
the 2008 rule.
    To ensure consistency and clear delineation of responsibilities 
between DOL 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 interim final rule in 20 CFR part 
655, subpart A, to amend the employer certification process.

A. General Provisions and Definitions

    Sections 503.0 through 503.8 provide general background information 
about the H-2B program and its operation. Section 503.1 is similar to 
the 2008 rule provision at 20 CFR 655.1; it explains the standards 
governing the H-2B program, the respective roles of ETA and WHD, and 
the consultative role played by DOL. Section 503.2 is similar to the 
2008 rule provision at 20 CFR 655.2; it explains in particular that WHD 
does not enforce compliance with the provisions of the H-2B program in 
the Territory of Guam. Section 503.3 describes how DOL will coordinate 
both internally and with other agencies.
1. Sec.  503.4 Definition of Terms
    This section contains definitions that are identical to those 
contained in 20 CFR part 655, subpart A, except that this section 
contains only those definitions applicable to this part. The preamble 
to 20 CFR 655.5 contains the relevant discussion of these definitions.
2. Sec.  503.5 Temporary Need
    This section mirrors the requirements set forth in 20 CFR 655.6; 
the preamble to that section includes a full discussion of this 
provision.
3. Sec.  503.6 Waiver of Rights Prohibited
    This section prohibits an employer from seeking to have workers 
waive or modify any rights granted them under these regulations. Under 
this provision, any agreement purporting to waive or modify such rights 
is void, with limited exceptions. The Departments recognize the 
vulnerability of foreign H-2B workers, and believe that the non-waiver 
principle is important to ensure that unscrupulous employers do not 
induce waiver of rights under the program. Such waiver would also 
undermine the required H-2B wages and working conditions, which are 
necessary to prevent an adverse effect on U.S. workers. This provision 
is also consistent with similar prohibitions against waiver of rights 
under other laws, such as the Family and Medical Leave Act, see 29 CFR 
825.220(d), and the H-2A program, see 29 CFR 501.5.
4. Sec.  503.7 Investigation Authority of Secretary of Labor
    This section retains the authority established under 20 CFR 655.50 
of the 2008 rule, and affirms WHD's authority to investigate employer 
compliance with these regulations and WHD's obligation to protect the 
confidentiality of complainants. This section also discusses the 
reporting of violations. 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.
5. Sec.  503.8 Accuracy of Information, Statements, Data
    This section notes that information, statements, and data submitted 
in compliance with 8 U.S.C. 1184(c), INA section 214(c), or these 
regulations are subject to 18 U.S.C. 1001, under which entities that 
make false representations to the government are subject to penalties, 
including a fine of up to $250,000 and/or up to 5 years in prison.

B. Enforcement Provisions

1. Sec.  503.15 Enforcement
    This section provides that the investigation, inspection, and law 
enforcement functions that carry out the provisions of 8 U.S.C. 
1184(c), INA section 214(c), and the regulations in this interim final 
rule pertain to the employment of H-2B workers, any worker in 
corresponding employment, or any U.S. worker improperly rejected for 
employment or improperly laid off or displaced. 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 
DHS or DOS, regarding particular employers and agents. WHD also 
conducts targeted or directed (i.e., not complaint-based) 
investigations of H-2B employers to evaluate program compliance. WHD's 
enforcement authority is outlined in the preamble under 20 CFR 655.2 
and the addition of 29 CFR part 503, and was discussed in detail in the 
2008 rule, 73 FR 78020, 78046-47 (civil monetary penalties and 
remedies). The Departments reaffirm that DOL--and within DOL, WHD--is 
authorized to conduct the enforcement activities described in this 
interim final rule.
    Corresponding workers, as defined under 20 CFR 655.5, are included 
in these enforcement provisions in order to ensure that U.S. workers 
are not adversely affected by the employment of H-2B workers. The 
preamble at 20 CFR 655.5 discusses the rationale for including 
corresponding workers in this interim final rule. The Departments 
believe that giving corresponding workers this means of redress is 
critical to effectuating their mandate to ensure that the certification 
and employment of H-2B aliens does not harm similarly-situated U.S. 
workers. Further, it helps to prevent situations where U.S. workers who 
are employed alongside H-2B workers are not afforded the pay, benefits, 
and worker protections that their H-2B counterparts enjoy.
2. Sec.  503.16 Assurances and Obligations of H-2B Employers
    The assurances and obligations described in this section are 
identical to those in 20 CFR 655.20. The preamble to 20 CFR 655.20 
contains the relevant discussion of the assurances and obligations for 
employers participating in the H-2B program.

[[Page 24086]]

3. Sec.  503.17 Document Retention Requirements of H-2B Employers
    The document retention requirements in this section are similar to 
those in 20 CFR 655.56, with minor differences related to OFLC's and 
WHD's separate interests. The preamble to 20 CFR 655.56 discusses these 
recordkeeping requirements. Employers must retain documents and records 
proving compliance with the regulations, including but not limited to 
the specific documents listed in this section that require, for 
example, retention of documentation showing employers' recruitment 
efforts, workers' earnings, and reimbursement of transportation and 
subsistence costs incurred by workers. This section does not require 
employers to create any new documents, but simply to preserve those 
documents that are already required for participation in the H-2B 
program. The Departments believe that these documentation retention 
requirements and a retention period of 3 years will be sufficient for 
purposes of WHD's enforcement responsibilities in this interim final 
rule, which, as discussed in the preamble introducing this part, have 
been augmented by the addition of workers in corresponding employment 
to the protected worker group, 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.
    Employers are required to make such records available to WHD within 
72 hours following a request by WHD. This time frame is the same under 
the FLSA, where 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; indeed, 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.
4. Sec.  503.18 Validity of Temporary Labor Certification
    This section mirrors 20 CFR 655.55, and corresponds to 20 CFR 
655.34 (a) and (b) in the 2008 rule, providing the time frame and scope 
for which an Application for Temporary Employment Certification is 
valid. It explains that the temporary labor certification is only valid 
for the period of time between the beginning and ending dates of 
employment, and is only valid for the number of H-2B positions, the job 
classification and specific services to be performed, and the employer 
listed on the certification. Further, the certification may not be 
transferred to another employer unless that employer is a successor in 
interest to the employer to which the certification was issued.
5. Sec.  503.19 Violations
    Under this section, the Departments specify the types of violations 
that may be cited as a result of an investigation. However, the 
definitions and concepts used in this section apply to all violations 
under the H-2B program, regardless of whether the violation results in 
revocation imposed by OFLC pursuant to 20 CFR 655.72, debarment imposed 
by OFLC pursuant to 20 CFR 655.73 or WHD pursuant to Sec.  503.24, 
monetary or other remedies assessed by WHD pursuant to Sec.  503.20, or 
civil money penalties assessed by WHD pursuant to Sec.  503.23.
    Under paragraphs (a)(1) and (3) of this section, a violation may 
consist of a willful misrepresentation of a material fact on the H-2B 
Registration, the Application for Temporary Employment Certification, 
or the H-2B Petition, or to the Department of State during the visa 
application process. Under paragraph (a)(2) of this section, a 
violation may consist of a substantial failure to meet any of the 
conditions of the H-2B Registration, Application for Temporary 
Employment Certification, or H-2B Petition. A ``substantial failure'' 
is defined as ``a willful failure to comply that constitutes a 
significant deviation from the terms and conditions of such 
documents.''
    Violations under the H-2B program, both in the 2008 rule and this 
interim final rule, have been defined in accordance with the INA's 
provisions regarding H-2B violations. 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), INA section 
214(c)(14)(D). The H-2B Petition includes the approved Application for 
Temporary Employment Certification. See Sec.  503.4; 20 CFR 655.5.
    Based on this statutory language, it is the Departments' view that 
non-willful violations are not cognizable under the H-2B program. In 
this interim final rule, the basis for determining violations continues 
to be either a misrepresentation of material fact or a substantial 
failure to comply with terms and conditions, both of which will be 
determined to be a violation if the evidence surrounding the violation 
establishes that it is willful. See Sec.  503.19(a)(1) & (2) (WHD 
violations, which lead to remedies, civil monetary penalties, and/or 
debarment), 20 CFR 655.72(a)(1) & (2) (OFLC revocation), 20 CFR 
655.73(a)(1)-(3) (OFLC debarment). Paragraph (b) of this section sets 
out when a violation qualifies as willful. To determine whether a 
violation is willful, DOL 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 Sec.  503.19(b); 20 CFR 655.73(d). 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, 8 U.S.C. 1184(c)(14)(D), INA 
section 214(c)(14)(D), a substantial failure continues to be defined as 
willful as well as a significant deviation from the terms or conditions 
of a petition. See Sec.  503.19(a)(2), 20 CFR 655.72(a)(2), 20 CFR 
655.73(a)(2). Paragraph (c) of this section provides guidance on 
determining whether a failure to comply constitutes a significant 
deviation from the terms and conditions of the H-2B Registration, 
Application for Temporary Employment Certification, or H-2B Petition, 
and provides a non-exhaustive list of factors that WHD may consider. 
The factors are the same factors used by OFLC to determine whether a 
substantial failure is a ``significant deviation'' for purposes of 
debarment under 20 CFR 655.73 and are similar to the factors used by 
WHD to determine the amount of civil monetary penalties (CMPs) to be 
assessed under Sec.  503.23.
    When WHD encounters violations that do not rise to the level of 
willfulness, it puts the party on notice regarding future compliance. 
WHD will consider subsequent violations committed with the knowledge 
that such acts or omissions violate H-2B program requirements to be 
willful. In evaluating whether a first-time violation constitutes a 
willful violation, WHD will look at all circumstances, including the 
fact that employers submit a signed Application for Temporary 
Employment Certification attesting under penalty of perjury that that 
they know and accept the obligations of the program, which

[[Page 24087]]

are listed clearly in Appendix B of the Application, as well as 
submitting a signed H-2B Petition, which requires employers to certify 
under penalty of perjury that the information is true and accurate to 
the best of their knowledge. See Sec.  503.19(d).
6. Sec.  503.20 Sanctions and Remedies--General
    This section sets forth the remedies that WHD will pursue when it 
determines that there has been a violation(s), as described in Sec.  
503.19. These remedies are largely the same types of remedies WHD 
pursued in its enforcement under the 2008 rule, see 20 CFR 655.65, upon 
determining that a violation had occurred. Remedies include but are not 
limited to the recovery of unpaid wages, recovery of prohibited 
recruitment fees paid or impermissible deductions, and wages due for 
improperly placing workers in areas of employment or in occupations 
other than those identified on the Application for Temporary Employment 
Certification; enforcement of the provisions of the job order, 8 U.S.C. 
1184(c), INA section 214(c), 29 CFR part 655, subpart A, or the 
regulations in this part; assessment of civil money penalties (CMPs); 
and make-whole relief for any person who has been discriminated 
against, as well as reinstatement and other make-whole relief for U.S. 
workers who were improperly denied employment. These remedies may be 
sought from the employer, the employer's successor in interest, or from 
the employer's agent or attorney, as appropriate. WHD may also seek 
debarment, concurrent with ETA's debarment authority. WHD's debarment 
authority is discussed under Sec.  503.24.
    a. Liability for prohibited fees collected by foreign labor 
recruiters. As the preamble to the 2008 rule emphasized, see 73 FR 
78037, and as DHS regulations have made clear, see 8 CFR 
214.2(h)(6)(i)(B), the recruitment of foreign workers is an expense to 
be borne primarily by the employer and not by the foreign worker, who 
generally should not have to pay a fee as a condition of obtaining 
access to the job opportunity. 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. The 
Departments are concerned about the exploitation of workers who have 
heavily indebted themselves to secure a place in the H-2B program, and 
believe that such exploitation may adversely affect the wages and 
working conditions of U.S. workers, driving down wages and working 
conditions for all workers, foreign and domestic. The Departments' 
general prohibition on collecting placement or recruitment fees, 
directly or indirectly, as a condition of H-2B employment is consistent 
with Executive Order and regulatory changes in the federal contracting 
arena, prohibiting charging of recruitment fees to employees as part of 
the Federal Government's efforts to enhance protections against 
trafficking in persons. See, e.g., Strengthening Protections Against 
Trafficking in Persons in Federal Contracts, Exec. Order No. 13627 
(Sept. 25, 2012); 80 FR 4967 (Jan. 29, 2015); see also 8 U.S.C. 1375b 
(requiring pamphlet advising of temporary workers' rights and available 
protections against human trafficking).
    The Departments believe that requiring employers to incur the costs 
of recruitment is reasonable, even when taking place in a foreign 
country. However, the Departments recognize that an employer's ability 
to control the actions of agents and subcontractors across 
international borders is constrained, just as the Departments' ability 
to enforce regulations across international borders is constrained. As 
discussed in the preamble to 20 CFR 655.20(p), the Departments are 
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 recruitment of prospective 
H-2B workers to seek or receive payments from prospective employees. 
DOL 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, prohibited 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. This is consistent with the DHS 
regulations. 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 truly voluntary and 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, whether in the United States or abroad, 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 WHD determines that workers have paid 
these fees and the employer cannot demonstrate the requisite bona fide 
contractual prohibitions, WHD 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, and exercised reasonable diligence to ensure that its agents 
and others involved in the recruitment process, whether in the United 
States or abroad, adhere to this contractual prohibition, there is no 
willful violation.
    b. Agent and attorney liability. For the reasons stated in the 
discussion under Debarment of Agents and Attorneys in 20 CFR 655.73, 
agent and attorney signatories to Form 9142B will be liable for their 
independent willful violations of the H-2B program, as well as their 
participation in an employer's violation. As noted earlier under Sec.  
503.19 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. Under Sec.  503.20(b), 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, the employer has exercised reasonable

[[Page 24088]]

diligence in determining such fees were not collected, yet the agent or 
attorney does so unbeknownst to the employer, 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.
    c. Make-whole relief. Make-whole relief in this section means that 
the party subjected to the violation is restored to the position, both 
economically and in terms of employment status, that the party 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 that the employer was required 
to, but failed to provide, in addition to the recovery of back wages, 
where appropriate.
    d. Workers who have returned to their home countries. The 
Departments recognize that workers who have been subjected to H-2B 
violations often return to their home countries, and that it is more 
difficult for workers who live outside the United States to participate 
in investigations or proceedings and recover damages. The Departments 
do not prohibit such participation by workers who may have returned to 
their home country, and DOL often distributes back wages to workers who 
have experienced violations and have returned to their home countries. 
Where appropriate given the circumstances in any specific investigation 
or proceeding, the Departments might seek a means for the worker to 
travel to the U.S. to participate in such proceedings.
7. Sec.  503.21 Concurrent Actions
    Under this section, the Departments clarify the different roles and 
responsibilities of OFLC and WHD, and note that both agencies have 
concurrent jurisdiction to impose debarment. Section 503.3(c) is 
intended to protect the employer from being debarred by both entities 
for a single violation.
8. Sec.  503.22 Representation of the Secretary of Labor
    The Solicitor of Labor will continue to represent the 
Administrator, WHD and the Secretary of Labor in all administrative 
hearings under 8 U.S.C. 1184(c)(14), INA section 214(c), and these 
regulations.
9. Sec.  503.23 Civil Money Penalty Assessment
    This interim final rule utilizes a CMP assessment scheme similar to 
the CMP assessment contained in the 2008 rule, with additional and 
clarifying language specifying that WHD may find a separate violation 
for each failure to pay an individual worker properly or to honor the 
terms or conditions of the worker's employment, as long as the 
violation meets the willfulness standard and/or substantial failure 
standard in Sec.  503.19. CMPs represent a penalty for non-compliance, 
and are payable to WHD for deposit with the Treasury.
    Similar to the CMPs in the 2008 rule, the 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. There is also a catch-all CMP provision for 
any other violation that meets the standards in Sec.  503.19. Section 
503.23(e) sets forth the factors WHD will consider in determining the 
level of penalties to assess for all violations but wage violations, 
which are similar to the factors WHD used to determine the level of 
CMPs assessed under 20 CFR 655.65(g) in the 2008 rule. 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), INA section 214(c)(14)(A).
10. Sec.  503.24 Debarment
    Under this section, WHD has the authority, upon finding a violation 
that meets the standards in Sec.  503.19, to debar an employer, agent 
or attorney for not less than 1 year or more than 5 years. Section 
503.24(a) contains a non-exhaustive list of acts or omissions that may 
constitute debarrable violations. Section 503.24(e) clarifies that 
while WHD and OFLC will have concurrent debarment jurisdiction, the two 
agencies will coordinate their activities so that a specific violation 
for which debarment is imposed will be cited in a single debarment 
proceeding. 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 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 bureaucratic hurdles by removing 
extra steps. Under the 2008 rule, WHD conducted investigations of H-2B 
employers and assessed back wages, civil money penalties, and other 
remedies, which the employer had the right to challenge 
administratively. However, WHD could not order debarment, no matter how 
egregious the violations, and instead was required to take the extra 
step of recommending that OFLC issue a Notice of Debarment based on the 
exact same facts, which then had to be litigated again by OFLC. 
Allowing WHD 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-2A, H-1B, the Davis-Bacon Act, 
and the Service Contract Act. See, e.g., 29 CFR 5.12. As discussed in 
the preamble to the 2008 rule, ``[t]he debarment of entities from 
participating in a government program is an inherent part of an 
agency's responsibility to maintain the integrity or that program.'' 73 
FR 78020, 78044. WHD can assist OFLC to regulate the entities that 
appear before DOL, and in particular, can take more efficient action to 
debar based on violations WHD finds as a result of its investigations.
    WHD's debarment procedures at Sec.  503.24(d) include procedural 
protections similar to the procedures in OFLC's debarment proceedings 
at 20 CFR 655.73, including notice of

[[Page 24089]]

debarment, the right to a hearing before an Administrative Law Judge 
(ALJ), and the right to seek review of an ALJ's decision by the 
Administrative Review Board (ARB). However, an important distinction 
between the OFLC and WHD debarment procedures is that the WHD debarment 
procedures do not provide for a 30-day rebuttal period because WHD 
debarments arise from investigations during which the employer has 
ample opportunity to submit any evidence and arguments in its favor. 
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.
    The discussion of the time period for debarment in the preamble to 
OFLC's debarment provision at 20 CFR 655.73 applies equally to WHD's 
period of debarment. For the reasons stated under Debarment of Agents 
and Attorneys in 20 CFR 655.73, WHD may also debar agents and attorneys 
for their own independent violations as well as their participation in 
employer violations.
    Section 503.24(f) provides that an employer, agent, or attorney who 
is debarred by OFLC or WHD from the H-2B program will also be debarred 
from all other foreign labor certification programs administered by DOL 
for the time period in the final debarment decision. Many employers, 
agents and attorneys participate in more than one foreign labor 
certification program administered by DOL. However, under the 2008 
rule, a party that was debarred under the H-2B program could continue 
to file applications under DOL's other foreign labor programs. Under 
this interim final rule, DOL will refuse to accept applications filed 
by or on behalf of a debarred party under the H-2B program in any of 
DOL's foreign labor certification programs. Paragraph (e) of this 
section also provides that copies of final debarment decisions will be 
forwarded to DHS and DOS promptly.
    Although DOL does not have the authority to routinely seek 
debarment of entities that are not listed on the ETA Form 9142, in 
appropriate circumstances, DOL may pierce the corporate veil in order 
to more effectively remedy the violations found. Piercing the corporate 
veil may be necessary to foreclose the ability of individual principals 
of a company or legal entity to reconstitute under another business 
entity.
11. Sec.  503.25 Failure To Cooperate With Investigators
    This provision prohibits interference or refusal to cooperate with 
a DOL investigation or enforcement action. In addition, it describes 
the penalties for failure to cooperate. Specifically, it notes the 
federal criminal laws prohibiting interference with federal officers in 
the course of official duties and permits WHD to recommend revocation 
to OFLC, initiate debarment proceedings, and/or assess CMPs for 
failures to cooperate that meet the violation standards set forth in 
Sec.  503.19.
12. Sec.  503.26 Civil Money Penalties--Payment and Collection
    This provision instructs employers regarding how to submit payment 
of any CMPs owed. This section is administrative in nature and slightly 
modifies the provision from the 2008 rule at 20 CFR 655.65(j).

C. Administrative Proceedings

    This interim final rule generally adopts the applicable 
administrative proceedings from the 2008 rule at 20 CFR 655.70-655.80. 
See 29 CFR 503.40-503.56. As explained in Sec.  503.40(a), these 
procedures and rules prescribe the administrative appeal process that 
will be applied with respect to a WHD determination to assess CMPs, to 
debar, to enforce provisions of the job order or obligations under 8 
U.S.C. 1184(c), INA section 214(c), 20 CFR part 655, subpart A, or the 
regulations in this part, and/or to the collection of monetary relief. 
Paragraph (b) of Sec.  503.40 provides that the administrative appeals 
process prescribed by subpart C will apply to determinations (as 
described in paragraph (a)) involving the H-2B Petition regardless of 
the date of the violation. As discussed supra, WHD has been delegated 
enforcement authority for the provisions of section 214(c)(14)(A)(i) of 
the INA. Under this authority, WHD may impose administrative remedies 
(including civil money penalties) that it determines to be appropriate 
where it finds, after notice and the opportunity for a hearing, a 
violation of the H-2B Petition (i.e., a substantial failure to meet any 
of the conditions of or a willful misrepresentation of a material fact 
on the H-2B Petition). The administrative appeals process prescribed by 
subpart C of this interim final rule will apply to such determinations 
and hearings, regardless of the date of the violation, as subpart C 
contains procedural rules; therefore, they apply to the enforcement 
proceedings for violations that occurred before the enactment of this 
interim final rule.
    The administrative procedures begin with WHD notifying the party in 
writing regarding WHD's determination (Sec. Sec.  503.41, 503.42). A 
party that wishes to appeal WHD's determination must request an ALJ 
hearing within 30 days after the date of the determination (Sec.  
503.43). The determination will take effect unless the appeal is timely 
filed, staying the determination pending the outcome of the appeal 
proceedings (Sec.  503.43(e)).
    The ALJ hearing will be conducted in accordance with 29 CFR part 18 
(Sec.  503.44). The ALJ will prepare a decision following a hearing 
within 60 days after completion of the hearing and closing of the 
record (Sec.  503.50(a)). This decision will constitute the final 
agency order unless a party petitions the ARB to review the decision 
within 30 days and the ARB accepts a party's petition for review (Sec.  
503.50(e)).
    A party that wishes to review the ALJ's decision must, within 30 
days, petition the ARB to review the decision, specifying the issue(s) 
stated in the ALJ decision giving rise to the petition and the 
reason(s) why the party believes the decision is in error (Sec.  
503.51(a)-(b)). If the ARB does not accept the petition for review 
within 30 days, the decision of the ALJ is deemed the final agency 
action (Sec.  503.51(c)). When the ARB determines to review a petition, 
either on its own or by accepting a party's petition, it will serve 
notice on the ALJ and all parties to the proceeding (Sec.  503.51(d)). 
The ARB will notify the parties of the issue(s) raised, the form in 
which submissions will be made and the timeframe for doing so (Sec.  
503.53). Upon receipt of the ARB's notice, the Office of Administrative 
Law Judges (OALJ) will forward a copy of the hearing record to the ARB 
(Sec.  503.52).
    Section 503.54 provides the requirements for submission of 
documents to the ARB. The ARB's decision will be issued within 90 days 
from the notice granting the petition (Sec.  503.55). The official 
record of every completed administrative hearing will be maintained by 
the Chief ALJ, or, where the case was the subject of administrative 
review, the ARB (Sec.  503.56).
    For the reasons stated in the preamble under Integrity Measures (20 
CFR 655.70-655.73), the Departments have not adopted additional 
procedures allowing workers a right to intervene

[[Page 24090]]

and participate in every case. The importance of worker communication 
with WHD by filing complaints, participating in investigations, and 
serving as witnesses in administrative or judicial proceedings cannot 
be overstated; it is essential in carrying out WHD's enforcement 
obligations. However, WHD 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 ALJ. See 20 CFR 18.10(c) and (d).

VI. Administrative Information

A. Executive Orders 12866 and 13563

    Under Executive Order (E.O.) 12866 and E.O. 13563, the Departments 
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 Departments have 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 Departments also have 
determined that this rule is a significant regulatory action under sec. 
3(f)(4) of E.O. 12866. Accordingly, OMB has reviewed this rule.
    The results of the Departments' cost-benefit analysis under this 
Part (VI.A) are meant to satisfy the analytical requirements under 
Executive Orders 12866 and 13563. These longstanding requirements 
ensure that agencies select those regulatory approaches that maximize 
net benefits--including potential economic, environmental, public 
health and safety, and other advantages; distributive impacts; and 
equity--unless otherwise required by statute. The Departments did not 
use the cost-benefit analysis under this Part (VI.A) for purposes 
forbidden by or inconsistent with the Immigration and Nationality Act, 
as amended
Need for Regulation
    The Departments have determined that there is a need for this 
interim final rule in light of the litigation, described in the 
preamble, challenging DOL's authority to independently issue its own 
legislative rules in the H-2B program. See Bayou Lawn & Landscape 
Servs. et al. v. Sec'y of Labor, 613 F.3d 1080 (11th Cir. 2013) 
(holding that employers are likely to prevail on their allegation that 
DOL lacks H-2B rulemaking authority). But see La. Forestry Ass'n v. 
Perez, 745 F.3d 653 (3d Cir. 2014) (holding that DOL does have H-2B 
rulemaking authority). In particular, because of the district court's 
order in Perez v. Perez, No. 14-cv-682 (N.D. Fla. Mar. 4, 2015), 
vacating the 2008 rule and permanently enjoining DOL from enforcing it, 
DOL immediately ceased processing requests for prevailing wage 
determinations and applications for temporary labor certification in 
the H-2B program. Although on March 18, 2015, the Perez district court 
temporarily stayed the vacatur order, DOL cannot operate the H-2B 
program and cannot fulfill its consultative role and provide advice to 
DHS without regulations that set the framework, procedures, and 
applicable standards for receiving, reviewing, and issuing H-2B 
prevailing wages and temporary labor certifications.\25\ Without advice 
from DOL, DHS in turn has no means by which to adequately test the 
domestic labor market or determine whether there are available U.S. 
workers to fill the employer's job opportunity. Moreover, DHS is 
precluded by regulation from processing any H-2B petition without a 
temporary labor certification from DOL. See 8 CFR 214.2(h)(6)(iii)(C). 
Therefore, the Departments have determined that this interim final rule 
is necessary in order to ensure the continued operation and enforcement 
of the H-2B program.
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    \25\ On April 15, 2015, the federal district court in the 
Northern District of Florida issued an order effectively permitting 
DOL to continue issuing temporary labor certifications under the H-
2B program through May 15, 2015.
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1. Alternatives
    The Departments considered a number of alternatives: (1) 
Promulgating the policy changes contained in the interim final rule; 
(2) issuing the 2008 rule as the interim final rule; (3) and adopting 
various aspects of those two rules. The Departments conclude that this 
interim final rule retains the best features of the 2008 rule and 
adopts additional provisions to allow DOL to best achieve its policy 
objectives, consistent with its mandate under the H-2B program.
    DOL had previously examined these same issues in a notice-and-
comment rulemaking that was finalized in 2012; before issuing the 2012 
final rule, DOL carefully considered the hundreds of substantive 
comments that were received and made a number of modifications to the 
provisions that had been in the proposed rule based upon those 
comments. DOL's implementation of the 2012 final rule was enjoined in 
the Bayou litigation, and DOL continued to operate the H-2B program 
based on the 2008 rule.
    However, in light of the Perez vacatur order, the Departments have 
reevaluated the policy choices made in both the 2008 and the 2012 final 
rules, to determine the best ways for DOL to fulfill its responsibility 
to grant H-2B temporary labor certifications only when 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 when the employment of H-2B workers will 
not adversely affect the wages and working conditions of U.S. workers 
similarly employed. The Departments conclude, as DOL discussed in the 
preamble to the 2012 final rule, that the provisions of the 2008 rule 
do not adequately protect U.S. workers and fail to ensure the integrity 
of the program. The Departments conclude that the policy choices made 
in this interim final rule best allow DOL to fulfill its 
responsibilities under the H-2B program and to provide the appropriate 
consultation to DHS.
3. Economic Analysis
    DOL derives its estimates by comparing the baseline, that is, the 
program benefits and costs under the 2008 rule, against the benefits 
and costs associated with the implementation of the provisions in this 
interim final rule. The benefits and costs of the provisions of this 
interim final rule are estimated as incremental impacts relative to the

[[Page 24091]]

baseline. Thus, benefits and costs attributable to the 2008 rule are 
not considered as benefits and costs of this interim final rule. We 
explain how the actions of workers, employers, and government agencies 
resulting from the interim final rule are linked to the expected 
benefits and costs.
    DOL sought to quantify and monetize the benefits and costs of this 
interim final rule where feasible. Where DOL was unable to quantify 
benefits and costs--for example, due to data limitations--DOL described 
them qualitatively. The analysis covers 10 years (2015 through 2024) to 
ensure it captures major benefits and costs that accrue over time.\26\ 
DOL has sought to present benefits and costs both undiscounted and 
discounted at 7 percent and 3 percent.
---------------------------------------------------------------------------

    \26\ For the purposes of the cost-benefit analysis, the 10-year 
period starts on June 1, 2015.
---------------------------------------------------------------------------

    In addition, DOL provides an assessment of transfer payments 
associated with certain provisions of the interim final rule.\27\ 
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 interim final rule, DOL presents the 10-
year averages to reflect the typical annual effect.
---------------------------------------------------------------------------

    \27\ The specific provisions associated with transfer payments 
are: Wages paid to corresponding workers; payments for 
transportation, subsistence, and lodging for travel to and from the 
place of employment; and visa-related fees.
---------------------------------------------------------------------------

    The inputs used to calculate the costs of this interim final rule 
are described below.
a. Number of H-2B Workers
    DOL estimates that from FY 2013-2014, an average of 87,998 H-2B 
positions were certified per year. Because the number of H-2B visas is 
statutorily limited, only a 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 (134.8 million).\28\ The number of visas per year does 
not fully capture the number of H-2B workers in the United States 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 three years without being counted 
against the cap. DOL assumes that half of all H-2B workers entering the 
United States (33,000) in any year stay at least one additional year, 
and half of those workers (16,500) will stay a third year, for a total 
of 115,500 H-2B workers 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.
---------------------------------------------------------------------------

    \28\ U.S. Bureau of Labor Statistics (BLS). 2015. Employees on 
Nonfarm Payrolls by Major Industry Sector, 2005-2014. Available at 
http://www.bls.gov/webapps/legacy/cesbtab1.htm.
---------------------------------------------------------------------------

    According to H-2B program data for FY 2013-2014, the average annual 
numbers of H-2B positions certified in the top five industries were as 
follows:

Landscaping Services--33,438
Construction--8,357
Amusement, Gambling, and Recreation--7,939
Food Services and Drinking Places--7,098
Janitorial Services--5,857 \29\

    \29\ Another industry, Forest Services, made the initial list of 
the top five industries, but it 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.
---------------------------------------------------------------------------

These employment numbers represent the following percentages of the 
total employment in each of these industries: \30\

    \30\ U.S. Census Bureau. 2015. Available at http://www.census.gov/econ/census/. DOL obtained 2012 Economic Census data 
for the following industries: Landscaping Services; Janitorial 
Services; Food Services and Drinking Places; and Amusement, 
Gambling, and Recreation. The 2012 Economic Census did not publish 
data for the Construction industry because the data did not meet 
publication standards. In its place, DOL uses 2007 Economic Census 
data for the Construction industry.
---------------------------------------------------------------------------

Landscaping Services--5.78 percent (33,438/578,970)
Construction--0.11 percent (8,357/7,316,240)
Amusement, Gambling, and Recreation--0.52 percent (7,939/1,518,405)
Food Services and Drinking Places--0.07 percent (7,098/10,057,301)
Janitorial Services--0.59 percent (5,857/991,423)

    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
    DOL estimates that from FY 2013-2014, an average of 4,657 unique 
employers applied for H-2B workers,\31\ and of these, an average of 
3,955 were granted certifications. Several of the interim final rule's 
provisions (the requirement for employers to translate the job order 
from English to a language understood by the foreign workers, and 
payment of visa and visa-related fees) will predominantly or only apply 
to employers that ultimately employ H-2B workers. As there is no 
available source of data on the number of H-2B employer applicants who 
ultimately employ H-2B workers, DOL conservatively assumes that all 
certified H-2B employer applicants who are granted certification for H-
2B workers will ultimately employ H-2B workers.
---------------------------------------------------------------------------

    \31\ DOL estimates the number of unique employer applicants for 
FY 2013-2014 by multiplying the number of unique employers granted 
certification (3,955) by the ratio of unique applicants to unique 
employers granted certification over FY 2007-2009 (1.1774).
---------------------------------------------------------------------------

c. Number of Corresponding Workers
    Several provisions of the interim 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.\32\ Corresponding workers are 
U.S. workers employed by the same employer performing substantially the 
same tasks at the same locations 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

[[Page 24092]]

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 before the H-2B workers, and might remain 
after the H-2B workers leave. However, the interim final rule excludes 
two categories of workers from the definition of corresponding 
employment. Corresponding workers are entitled to the same wages and 
benefits that the employer provides to H-2B workers, including the 
three-fourths guarantee, during the period covered by the job order. 
The 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. DOL 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 United States from 
abroad because 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).
---------------------------------------------------------------------------

    \32\ This analysis sometimes uses the shorthand ``U.S. workers'' 
to refer to these workers.
---------------------------------------------------------------------------

    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. DOL does not systematically collect data 
regarding what have been defined as corresponding employees, and 
therefore cannot identify the numbers of workers to whom the 
obligations would apply. DOL extensively examined alternative data 
sources that might be used to accurately estimate the number of 
corresponding workers.
    First, DOL evaluated whether WHD field staff could provide reliable 
information on the number of corresponding workers employed by H-2B 
employers based on the data gathered during investigations. This 
information has not been relevant to WHD investigations because the 
2008 rule did not have a definition of corresponding employees and did 
not protect such incumbent workers; it protected only workers who were 
newly hired in response to the employer's required H-2B recruitment 
activities. Anecdotal information from investigations indicates that 
the number of U.S. workers similarly employed varies widely among the 
companies investigated. However, no reliable data on the number of 
workers in corresponding employment compared to the number of H-2B 
workers is available, because no definition of corresponding employment 
existed in the 2008 rule. It also is unclear whether the limited 
numbers available in WHD investigations reflect the number of U.S. 
workers who were working during the pay period that WHD conducted the 
on-site investigation or the number who worked there at any point 
during the two-year period typically covered by an investigation. 
Further, there is no data regarding the length of the employment of the 
U.S. workers. Therefore, it is impossible to compare the pattern of 
employment of U.S. and H-2B workers. Finally, the limited data that is 
available did not represent a random sample of H-2B employers, but just 
the subset of employers that WHD had some reason to investigate.
    Second, DOL reviewed a random sample of 225 certified and partially 
certified applications from FY 2010 submitted by employers in response 
to Requests for Information (RFIs) during the application process. 
While the 2011 version of ETA Form 9142B includes an optional item on 
the number of non-family full-time equivalent employees, that number 
includes all employees and not only the employees in corresponding 
employment. (See also the instructions to the Form 9142, which inform 
the employer to ``[e]nter the number of full-time equivalent (FTE) 
workers the employer employs.'') Moreover, even if this number 
accounted for the number of corresponding employees, none of the 
applications in the random sample used the 2011 version of the form. Of 
the 225 applications reviewed, two applications gave the current number 
of employees as part of the other information submitted. Additionally, 
DOL examined data in 34 payroll tables that were provided to supplement 
the application. The payroll tables reported data by month for at least 
one 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 U.S. workers similarly employed who responded to the job 
order). DOL 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. DOL compared the total number of 
workers in months where permanent workers were paid either more than or 
less than temporary employees for those months in which both were 
employed.
    DOL found 7,548 temporary and 10,310 permanent worker-months 
(defined as one worker, whether full- or part-time, employed one month) 
in the 34 payroll tables examined. Of these, permanent employees were 
paid more than temporary employees in 9,007 worker-months, and were 
paid less than temporary employees in 1,303 worker-months. This 
suggests that 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 DOL's estimate that 
there are a total of 115,500 H-2B employees at any given time, suggests 
that 19,939 permanent workers (115,500 x 0.17) would be eligible for 
pay raises due to the rule.
    DOL 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 by 4.5 percent to 
match temporary worker wages.
    For several reasons, however, DOL 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 DOL, the distribution 
of occupations represented in the payroll tables is not representative 
of the distribution of occupations in H-2B temporary employment 
certification applications. The 34 payroll tables examined by DOL 
included the following occupations:

Nonfarm Animal Caretakers (12 payroll tables)
Landscaping and Groundskeeping Workers (4 payroll tables)
Maids and Housekeeping Cleaners (4 payroll tables)
Cooks (2 payroll tables)
Waiters and Waitresses (2 payroll tables)

[[Page 24093]]

Forest and Conservation Workers (2 payroll tables)
Dishwashers (1 payroll table)
Dining Room and Cafeteria Attendants and Bartender Helpers (1 payroll 
table)
Separating, Filtering, Clarifying, Precipitating, and Still Machine 
Setters, Operators, and Tenders (1 payroll table)
Food Cooking Machine Operators and Tenders (1 payroll table)
Floor Sanders and Finishers (1 payroll table)
Production Workers, All Other (1 payroll table)
Receptionists and Information Clerks (1 payroll table)
Grounds Maintenance Workers, All Other (1 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 represented 35 percent of FY 2010 applications.\33\ 
Conversely, the 12 payroll tables from nonfarm animal caretakers made 
up 35 percent of the payroll tables in the sample, while applications 
for such workers made up only six percent of the FY 2010 
applications.\34\
---------------------------------------------------------------------------

    \33\ Applications for landscaping and groundskeeping workers 
similarly made up 35 percent of the total number (1,893/5,467) of 
applications in FY 2014.
    \34\ In FY 2014, applications for nonfarm animal caretakers made 
up only 3 percent of the total number of applications (178/5,467).
---------------------------------------------------------------------------

    Second, the total number of payroll tables or payroll records 
provided to DOL was very small. DOL found only 34 payroll tables in 225 
randomly selected applications. Furthermore, payroll records in H-2B 
temporary employment certification 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 DOL 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, DOL has no data regarding the number 
of employees who would fall under the two exclusions in the definition 
of corresponding employment.
    DOL, therefore, cannot confidently rely on 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, DOL 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 on all the information available to us, including the payroll 
tables and DOL's enforcement experience, DOL attempted to quantify the 
impact of the corresponding employment provision. DOL notes that the 
2008 rule already protected 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 interim final rule will have no impact on their wages. 
This interim 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, with the exception of the aforementioned incumbent 
employees. DOL believes that a reasonable estimate is that H-2B workers 
make up 75 to 90 percent of the workers in the particular job and 
location covered by a job order; DOL assumes, therefore, that 10 to 25 
percent of the workers will be U.S. workers newly covered by the 
interim final rule's coverage of corresponding workers. This assumption 
does not discount for the fact, as noted above, that some of these U.S. 
workers are already 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 its estimate that there 
are a total of 115,500 H-2B workers employed at any given time, DOL 
thus estimates that there will be between 12,833 (if 90 percent are H-
2B workers) and 38,500 (if 75 percent are H-2B workers) U.S. workers 
newly covered by the corresponding employment provision.
d. Wages Used in the Analysis
    In this analysis, DOL uses the most recent OES wage data available 
from BLS, and its most recent estimate of the ratio of fringe benefit 
costs to wages, 44.1 percent.\35\ To represent the hourly compensation 
rate for an administrative assistant/executive secretary, DOL uses the 
median hourly wage ($23.70) for SOC 43-6011 (Executive Secretaries and 
Executive Administrative Assistants).\36\ The hourly compensation rate 
for a human resources manager is the median hourly wage of $48.46 for 
SOC 11-3121 (Human Resources Managers).\37\ Both wage rates are 
multiplied by 1.441 to account for private-sector employee benefits.
---------------------------------------------------------------------------

    \35\ U.S. Bureau of Labor Statistics (BLS). 2015. Employer Costs 
for Employee Compensation, December 2014, news release text. March 
11, 2015. Available at http://www.bls.gov/news.release/ecec.nr0.htm 
(accessed on March 12, 2015).
    \36\ U.S. Bureau of Labor Statistics (BLS). 2014a. Occupational 
Employment and Wages, May 2013, 43-6011 Executive Secretaries and 
Executive Administrative Assistants. April 1, 2014. Available at 
http://www.bls.gov/oes/current/oes436011.htm (accessed on March 12, 
2015).
    \37\ U.S. Bureau of Labor Statistics (BLS). 2014b. Occupational 
Employment and Wages, May 2013, 11-3121 Human Resources Managers. 
April 1, 2014. Available at http://www.bls.gov/oes/current/oes113121.htm (accessed on March 12, 2015).
---------------------------------------------------------------------------

    For registry development and maintenance activities, DOL uses fully 
loaded rates based on an Independent Government Cost Estimate (IGCE) 
produced by OFLC in 2010,\38\ which are inclusive of direct labor and 
overhead costs for each labor category.\39\ DOL inflates these fully 
loaded wage rates to 2014 values using the CPI-U, published by the U.S. 
Bureau of Labor Statistics.\40\
---------------------------------------------------------------------------

    \38\ OFLC. 2010. Independent Government Cost Estimates.
    \39\ DOL would not typically use a wage that included overhead 
costs, but here DOL uses the services of a contractor to develop the 
registry, and therefore the fully loaded wage is more reflective of 
costs.
    \40\ U.S. Bureau of Labor Statistics. 2015. Available at http://data.bls.gov/cgi-bin/surveymost?cu (accessed on March 18, 2015).
---------------------------------------------------------------------------

    The 2014 wages used in the analysis are summarized in Table 3.

[[Page 24094]]

                                       Table 3--Wages Used in the Analysis
----------------------------------------------------------------------------------------------------------------
                                                                                    Loaded wage   CPI-U adjusted
                           Occupation                               Hourly wage         \a\          wage \b\
----------------------------------------------------------------------------------------------------------------
Administrative Assistant........................................             $24             $34             N/A
HR Manager......................................................              48              70             N/A
Program Manager.................................................             N/A             138             150
Computer Systems Analyst II.....................................             N/A              92             100
Computer Systems Analyst III....................................             N/A             110             119
Computer Programmer III.........................................             N/A              90              98
Computer Programmer IV..........................................             N/A             108             117
Computer Programmer Manager.....................................             N/A             124             135
Data Architect..................................................             N/A             105             114
Web Designer....................................................             N/A             125             136
Database Analyst................................................             N/A              78              85
Technical Writer II.............................................             N/A              85              92
Help Desk Support Analyst.......................................             N/A              55              60
Production Support Manager......................................             N/A             126             137
----------------------------------------------------------------------------------------------------------------
\a\ Source: OFLC. 2010. Independent Government Cost Estimate (IGCE). Accounts for 44.1 percent fringe.
\b\ Adjusted using CPI-U (2014 annual) and CPI-U (2010 annual), or 236.736/218.056
N/A: Not applicable.
Sources: BLS, 2015; BLS, 2014a; BLS, 2014b.

e. H-2B Employment in the Territory of Guam
    Subject to the transfer of authority to DOL, this interim 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. Because that transfer has 
not been effectuated, this analysis does not reflect any costs related 
to employment in Guam.
4. Subject-by-Subject Analysis
    DOL's analysis below considers the expected impacts of the interim 
final rule provisions against the baseline (i.e., the 2008 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
    In order to ensure that the capped H-2B visas are appropriately 
made available to employers based on their actual need for workers, and 
to ensure that U.S. workers can realistically evaluate the job 
opportunity, DOL asserts 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 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 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, DOL 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, DOL 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, DOL can reasonably 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 its estimate 
of the total number of H-2B workers (115,500) employed at any given 
time, DOL estimates 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. The prevailing wage calculation is based on 
the current wages received by all workers in the occupation and area of 
intended employment. Based on OES data,\41\ DOL estimated that the 
weighted mean wage for the top five occupations in the H-2B program 
\42\ reflects approximately the 60th percentile of the wage 
distribution of those occupations. Therefore, it is reasonable to 
assume that 40 percent of the corresponding workforce earns a wage that 
is equal to or greater than the calculated prevailing wage. Conversely,

[[Page 24095]]

it would be reasonable to assume that 60 percent of the workers in 
corresponding employment earn less than the prevailing wage and would 
have their wages increased as a result of the interim final rule. 
Applying this rate to DOL's estimate of the number of workers covered 
by the corresponding employment provision would mean that the number of 
newly covered workers who would receive a wage increase is between 
7,700 and 23,100.
---------------------------------------------------------------------------

    \41\ Bureau of Labor Statistics, Occupational Employment 
Statistics, May 2014 data, http://www.bls.gov/oes/#data.
    \42\ Landscaping and Groundskeeping Workers (SOC code: 37-3011); 
Maids and Housekeeping (SOC code: 37-2012); Amusement and Recreation 
Attendants (SOC code: 39-3091); Forest and Conservation Workers (SOC 
code: 45-4011); and Meat, Poultry, and Fish Cutters and Trimmers 
(SOC code: 51-3022).
---------------------------------------------------------------------------

    These newly covered U.S. workers who are currently paid below the 
new H-2B prevailing wage as established in the final wage rule 
promulgated simultaneously with this interim final rule (generally the 
OES mean in the area of intended employment) are likely to receive a 
wage increase that would be the difference between the new H-2B 
prevailing wage and their current wage. DOL estimated the weighted wage 
differences between workers at the 10th percentile and workers at the 
OES mean ($3.22), between workers at the 25th percentile and workers at 
the OES mean ($2.39), and between workers at the 50th percentile and 
workers at the OES mean ($1.03), respectively, for the top five 
occupations of the H-2B program. Using these weighted average hourly 
wage differences, DOL assumes that the wage increases for newly covered 
corresponding workers will be distributed between three hourly wage 
intervals: 10 percent of newly covered corresponding workers will 
receive an average hourly wage increase of $3.22; 15 percent will 
receive an average hourly wage increase of $2.39; and 35 percent will 
receive an hourly wage increase of $1.03.
    Finally, DOL estimates 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 on 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, DOL estimates 
the total annual transfer incurred due to the increase in wages for 
newly covered workers in corresponding employment ranges from $18.21 
million to $54.62 million. See Table 4.

                                 Table 4--Transfer of Corresponding Worker Wages
----------------------------------------------------------------------------------------------------------------
                                                                      Percent
                      Hourly wage increase                         corresponding   Corresponding    Total cost
                                                                     employees       employees
----------------------------------------------------------------------------------------------------------------
                                   H-2B Workers Are 90% of Occupation at Firm
----------------------------------------------------------------------------------------------------------------
$0.00...........................................................              40           5,133              $0
$3.22...........................................................              10           1,283       5,633,075
$2.39...........................................................              15           1,925       6,271,563
$1.03...........................................................              35           4,492       6,303,264
                                                                 -----------------------------------------------
    Total.......................................................             100          12,833      18,207,902
----------------------------------------------------------------------------------------------------------------
                                   H-2B Workers Are 75% of Occupation at Firm
----------------------------------------------------------------------------------------------------------------
$0.00...........................................................              40          15,400              $0
$3.22...........................................................              10           3,850      16,903,617
$2.39...........................................................              15           5,775      18,814,688
$1.03...........................................................              35          13,475      18,898,641
                                                                 -----------------------------------------------
    Total.......................................................             100          38,500      54,616,946
----------------------------------------------------------------------------------------------------------------
Source: DOL assumptions

    Also, based on DOL's 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. DOL found that two of the top five 
industries that most commonly employ H-2B workers are landscaping 
services and janitorial services. Establishments in these industries 
tend to be small: Approximately seven percent of janitorial service and 
three percent of landscaping establishments have more than 50 year-
round employees; and 83 percent of janitorial services and 91 percent 
of landscaping establishments have fewer than 20 year-round 
employees.\43\ Further, 20 percent of janitorial service firms and 30 
percent of firms in landscaping do not operate year-round.\44\ 
Therefore, DOL believes that a majority of H-2B employers are small-
sized firms whose workforces are composed predominately of H-2B 
workers.
---------------------------------------------------------------------------

    \43\ United States Census Bureau, 2007 Economic Census, http://www.census.gov/econ/census/data/.
    \44\ United States Census Bureau, 2007 Economic Census, http://www.census.gov/econ/census/data/.
---------------------------------------------------------------------------

    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. A 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 which janitorial and landscaping services 
are classified) is highly diffused throughout the economy.\45\
---------------------------------------------------------------------------

    \45\ U.S. Department of Commerce, Bureau of Economic Analysis, 
Direct Requirements/After Redefinitions/Producer Value (2007), 
http://www.bea.gov/industry/io_annual.htm..
---------------------------------------------------------------------------

    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 
389 sectors, building services account for less than $0.01 for each 
dollar of output in 379 sectors, and less than $0.005 for each dollar 
of output in 369 sectors. The largest users of these services tend to 
be

[[Page 24096]]

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 39,295 H-2B workers hired by these industries account for 
only 2.2 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 DOL 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, DOL concludes 
that there would be no short-term reduction in the employment of 
corresponding workers among participating employers. In the long-run, 
however, these firms might be reluctant to hire additional permanent 
staff. The extent to which such unemployment effects might result from 
the prevailing wage provision will be a function of: The number of 
permanent staff requiring wage increases; the underlying demand for the 
product or service provided by the firm during off-peak periods; and 
the firm's ability to substitute for labor to meet that off-peak demand 
for its products or services. First, the fewer the number of permanent 
staff receiving wage increases, 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.
c. Transportation to and From the Place of Employment for H-2B Workers
    The interim final rule requires H-2B employers to provide workers--
both H-2B workers and those in corresponding employment who are unable 
to reasonably return to their permanent residences each day--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 United States 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.\46\
---------------------------------------------------------------------------

    \46\ For the purpose of this analysis, H-2B workers are 
considered temporary residents of the United States.
---------------------------------------------------------------------------

    To estimate the transfer related to transportation, DOL first 
calculated the average number of certified H-2B positions per year 
during FY 2013-2014 from the 10 most common countries of origin, along 
with each country's proportion of this total.\47\ These figures, 
presented in Table 5, are used to create weighted averages of travel 
costs in the analysis below.
---------------------------------------------------------------------------

    \47\ U.S. Department of Homeland Security (DHS). 2013. Yearbook 
of Immigration Statistics. Available at http://www.dhs.gov/sites/default/files/publications/immigration-statistics/yearbook/2013/NI/nonimmsuptable2d.xls (accessed on March 18, 2015).

      Table 5--Number of H-2B Workers by Country of Origin, FY 2013
------------------------------------------------------------------------
                                            Number of       Percent of
                Country                      workers          total
------------------------------------------------------------------------
Mexico.................................          88,322             84.1
Jamaica................................           5,827              5.6
Guatemala..............................           2,734              2.6
United Kingdom.........................           1,414              1.3
South Africa...........................           1,009              1.0
Philippines............................             922              0.9
El Salvador............................             478              0.5
Honduras...............................             409              0.4
Canada.................................             337              0.3
Romania................................             306              0.3
                                        --------------------------------
    Total..............................         104,984            100
------------------------------------------------------------------------
Source: Department of Homeland Security, 2015.

    DOL calculates transportation costs by adding two components: The 
estimated cost of a bus or ferry trip from a regional city \48\ 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 (85 
percent of the total) are assumed to travel by bus; workers from all 
other

[[Page 24097]]

countries, by air. Because this interim final rule requires an employer 
to hire U.S. applicants until 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.
---------------------------------------------------------------------------

    \48\ Where possible, DOL used a selection of cities to represent 
travel from different regions of the country.
---------------------------------------------------------------------------

    The travel cost estimates are presented in Table 6. DOL estimated 
the round-trip transportation costs by doubling the weighted average 
one-way cost (for a round-trip travel cost of $836), then multiplying 
by the annual number of H-2B workers entering the United States 
(66,000). DOL estimates average annual transfer payments associated 
with transportation expenditures to be approximately $55.2 million. 
Employers likely are already paying some of this cost, either 
voluntarily 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. However, it is not possible to determine how much of the 
cost of transportation employers currently are paying. To the extent 
that this does already occur, this transportation transfer is an upper-
bound estimate. DOL also believes it has over-estimated this transfer 
for the additional reason that inbound transportation is only due for 
workers who complete 50 percent of the job order and outbound 
transportation is due only for those who complete the full job order or 
are dismissed early.

                Table 6--Cost of Travel for H-2B Workers
------------------------------------------------------------------------
                      Item                                Value
------------------------------------------------------------------------
New entrants per year..........................                   66,000
------------------------------------------------------------------------
                                 Mexico
------------------------------------------------------------------------
One way travel (bus)--Hometown to Monterrey                          $52
 \49\..........................................
One way travel (bus)--Monterrey to Juarez \50\.                       78
One way travel (bus)--El Paso to St. Louis \51\                      230
                                                ------------------------
    Total one way travel.......................                      360
------------------------------------------------------------------------
                                 Jamaica
------------------------------------------------------------------------
One way travel (bus)--Hometown to Kingston \52\                        1
One way travel (air)--Kingston to St. Louis                          502
 \53\..........................................
                                                ------------------------
    Total one way travel.......................                      503
------------------------------------------------------------------------
                                Guatemala
------------------------------------------------------------------------
One way travel (bus)--Hometown to Guatemala                            2
 City \54\.....................................
One way travel (air)--Guatemala City to St.                          758
 Louis \55\....................................
                                                ------------------------
    Total one way travel.......................                      760
------------------------------------------------------------------------
                             United Kingdom
------------------------------------------------------------------------
One way travel (bus or rail)--Hometown to                             32
 London \56\...................................
One way travel (air)--London to St. Louis \57\.                    2,006
                                                ------------------------
    Total one way travel.......................                    1,143
------------------------------------------------------------------------
                              South Africa
------------------------------------------------------------------------
One way travel (bus)--Hometown to Johannesburg                        57
 \58\..........................................
One way travel (air)--Johannesburg to St. Louis                    1,323
 \59\..........................................
                                                ------------------------
    Total one way travel.......................                    1,380
------------------------------------------------------------------------
                               Philippines
------------------------------------------------------------------------
One way travel (ferry)--Hometown to Manila \60\                       40
One way travel (air)--Manila to St. Louis \61\.                    1,735
                                                ------------------------
    Total one way travel.......................                    1,775
------------------------------------------------------------------------
                               El Salvador
------------------------------------------------------------------------
One way travel (bus)--Hometown to San Salvador                         1
 \62\..........................................
One way travel (air)--San Salvador to St. Louis                      472
 \63\..........................................
                                                ------------------------
    Total one way travel.......................                      473
------------------------------------------------------------------------
                                Honduras
------------------------------------------------------------------------
One way travel (bus)--Hometown to Tegucigalpa                         23
 \64\..........................................

[[Page 24098]]

 
One way travel (air)--Tegucigalpa to St. Louis                       748
 \65\..........................................
                                                ------------------------
    Total one way travel.......................                      771
------------------------------------------------------------------------
                                 Canada
------------------------------------------------------------------------
One way travel (air)--Hometown to Ottawa \66\..                      175
One way travel (bus)--Ottawa to St. Louis \67\.                      189
                                                ------------------------
    Total one way travel.......................                      353
------------------------------------------------------------------------
                                 Romania
------------------------------------------------------------------------
One way travel (bus)--Hometown to Bucharest                           28
 \68\..........................................
One way travel (air)--Bucharest to St. Louis                       1,396
 \69\..........................................
                                                ------------------------
    Total one way travel.......................                    1,424
------------------------------------------------------------------------
                                   All
------------------------------------------------------------------------
One way travel--Weighted average...............                      418
Roundtrip travel--Weighted average.............                      836
                                                ------------------------
    Total Travel Costs--H-2B Workers...........               55,190,325
------------------------------------------------------------------------

d. Transportation to and From the Place of Employment for Corresponding 
Workers
---------------------------------------------------------------------------

    \49\ Omnibus de M[eacute]xico. 2015. Venta en L[iacute]nea. 
Available at http://www.odm.com.mx/ (accessed on March 12, 2015). 
Averages cost of a bus ticket to Monterrey from: Tampico (690 
pesos), Actopan (875 pesos); and Ac[aacute]mbaro (835 pesos). 
Converted from pesos to U.S. dollars at the rate of 0.065 pesos per 
dollar for an average cost of $52.
    \50\ Omnibus de M[eacute]xico. 2015. Venta en L[iacute]nea. 
Available at http://www.odm.com.mx/ (accessed on March 12, 2015). 
The cost of a bus ticket from Monterrey to Ciudad Juarez is 1200 
pesos, converted from pesos to U.S. dollars at the rate of 0.065 
pesos per dollar for a cost of $78.
    \51\ Greyhound. 2015. Tickets. Available at https://www.greyhound.com/farefinder/ (accessed on March 12, 2015).
    \52\ Jamaica Guide. 2015. Jamaica Buses. Available at http://caribya.com/jamaica/buses/ (accessed on March 12, 2015).
    \53\ Orbitz. 2015. Home page. Available at http://www.orbitz.com/ (accessed on March 12, 2015).
    \54\ Virtual Tourist. 2015. Guatemala City Transportation. 
Available at http://www.virtualtourist.com/travel/Caribbean_and_Central_America/Guatemala/Departamento_de_Guatemala/Guatemala_City-1671108/Transportation-Guatemala_City-TG-C-1.html 
(accessed on March 12, 2015).
    \55\ Orbitz. 2015. Home page. Available at http://www.orbitz.com/ (accessed on March 12, 2015).
    \56\ Megabus. 2011. Megabus UK home page. Available at http://uk.megabus.com/default.aspxhttp\:uk.megabus.com (accessed on July 
10, 2011) and Raileasy. 2011. Raileasy home page. Available at 
https://www.raileasy.co.uk/ (accessed on 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.
    \57\ Orbitz. 2015. Home page. Available at http://www.orbitz.com/ (accessed on March 12, 2015).
    \58\ Computicket. 2015. Computicket home page. Available at 
http://www.computicket.com/web/bus_tickets/ (accessed on March 12, 
2015). The maximum bus fare from one of the farthest cities (Cape 
Town) to Johannesburg is 715 Rand, which is approximately $57 (= 715 
Rand x 0.08).
    \59\ Orbitz. 2015. Home page. Available at http://www.orbitz.com/ (accessed on March 12, 2015).
    \60\ Lonely Planet. 2015. Ferry travel in the Philippines. 
Available at http://www.lonelyplanet.com/philippines/transport/getting-around (accessed on March 12, 2015).
    \61\ Orbitz. 2015. Home page. Available at http://www.orbitz.com/ (accessed on March 12, 2015).
    \62\ Rome2Rio. 2015. Home page. Available at https://www.rome2rio.com/s/Santa-Ana-El-Salvador/San-Salvador (accessed on 
March 18, 2015).
    \63\ Orbitz. 2015. Home page. Available at http://www.orbitz.com/ (accessed on March 18, 2015).
    \64\ Rome2Rio. 2015. Home page. Available at http://www.rome2rio.com/s/Tegucigalpa/San-Pedro-Sula (accessed on March 18, 
2015).
    \65\ Orbitz. 2015. Home page. Available at http://www.orbitz.com/ (accessed on March 18, 2015).
    \66\ Air Canada. 2011. Air Canada home page. Available at http://www.aircanada.com (accessed on July 10, 2011).
    \67\ Greyhound. 2015. Tickets. Available at https://www.greyhound.com/farefinder/ (accessed on March 12, 2015).
    \68\ Lonely Planet. 2015. Getting around Romania. Available at 
http://www.lonelyplanet.com/romania/transport/getting-around/bus/ 
(accessed on March 12, 2015). According to Lonely Planet, ``Figure 
on about 3 to 4 lei for every 20km travelled.'' The travel distance 
from one of the farthest cities (Baia Mare) to Bucharest is 
approximately 600 km, so the maximum cost would be 120 lei (= 4 lei 
x 600km/20km), which is approximately $28 (= 120 lei x 0.236).
    \69\ Orbitz. 2015. Home page. Available at http://www.orbitz.com/ (accessed on March 12, 2015).
---------------------------------------------------------------------------

    The interim final rule also requires the employer provide inbound 
and outbound transportation to and from the place of employment for 
corresponding workers who are unable to return daily to their permanent 
residences. DOL 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 ($86), Pittsburgh, PA ($135), Omaha, 
NE ($88), Nashville, TN ($81), and Palmdale, CA ($230).\70\ Averaging 
the cost of travel from these five cities results in an average one way 
cost of $124, and a round-trip cost of $248 (see Table 7).
---------------------------------------------------------------------------

    \70\ Greyhound. 2015. Tickets. Available at https://www.greyhound.com/farefinder/ (accessed on March 12, 2015).

           Table 7--Unit Costs of Corresponding Worker Travel
------------------------------------------------------------------------
            One way travel to  St. Louis, MO                   Cost
------------------------------------------------------------------------
Fort Wayne, IN..........................................             $86
Pittsburgh, PA..........................................             135
Omaha, NE...............................................              88
Nashville, TN...........................................              81
Palmdale, CA............................................             230
One way travel--Average.................................             124
Round-trip travel.......................................             248
------------------------------------------------------------------------
Source: Greyhound, 2015.

    Because DOL 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, DOL is unable 
to further estimate the total transfer involved.

[[Page 24099]]

e. Subsistence Payments
    DOL estimated the transfer related to subsistence payments by 
multiplying the annual cap set for the number of H-2B workers generally 
entering the United States (66,000) by the subsistence per diem 
($11.86), and the round-trip travel time for the top 10 H-2B countries 
(4 days--3 days to account for travel from the worker's home town to 
the consular city to obtain a visa and from the consular city to the 
place of employment, and 1 day to account for the workers' 
transportation back to their home town). Multiplying by 66,000 new 
entrants per year and the subsistence per diem of $11.86 results in 
average annual transfers associated with the subsistence per diem of 
approximately $3.1 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--Transfer of Subsistence Payments
------------------------------------------------------------------------
                       Cost component                           Value
------------------------------------------------------------------------
New entrants per year......................................       66,000
Subsistence Per Diem.......................................       $11.86
One way travel days--Inbound...............................            3
One way travel days--Outbound..............................            1
Round-trip travel days.....................................            4
                                                            ------------
  Total annual subsistence transfer for H-2B workers.......    3,131,040
------------------------------------------------------------------------

    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 round-trip travel days at a rate of $11.86 per day, each 
corresponding worker would receive $23.72 in subsistence payments. DOL 
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
    Any expenses incurred between a worker's hometown and the consular 
city are within the scope of inbound transportation and subsistence 
costs, which also includes 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. DOL estimates that H-2B workers will 
spend an average of two nights in an inexpensive hostel-style 
accommodation and the costs of those stays in consular cities of the 10 
most common countries of origin are as follows: Monterrey (Mexico), 
$13.81; Kingston (Jamaica), $22.72; Guatemala City (Guatemala), $13.25; 
London (United Kingdom), $38.66; Pretoria (South Africa), $17.55; 
Manila (Philippines), $11.25; San Salvador (El Salvador), $10.00; 
Tegucigalpa (Honduras), $15.78; Ottawa (Canada), $25.06; and Bucharest 
(Romania), $10.38.\71\ Using the number of certified H-2B workers from 
the top 10 countries of origin, DOL calculates a weighted average of 
$14.13 for one night's stay, and $28.27 for two nights' stay. 
Multiplying by the 66,000 new entrants per year suggests total 
transfers associated with travel lodging of $1.9 million per year (see 
Table 9). This cost would not apply to U.S. workers.
---------------------------------------------------------------------------

    \71\ HostelWorld.com. Available at http://www.hostelworld.com/ 
(accessed on March 13, 2015).

                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 (Mexico)......................................          $13.18
Kingston (Jamaica)*.....................................           22.72
Guatemala City (Guatemala)..............................           13.25
London (United Kingdom).................................           38.66
Pretoria (South Africa).................................           17.55
Manila (Philippines)....................................           11.15
San Salvador (El Salvador)..............................           10.00
Tegucigalpa (Honduras)..................................           15.78
Ottawa (Canada).........................................           25.06
Bucharest (Romania).....................................           10.38
Weighted Average--One Night.............................           14.13
Weighted Average--Two Nights............................           28.27
                                                         ---------------
    Total Cost of Lodging...............................       1,865,637
------------------------------------------------------------------------
Source: Assumed foreign workers stayed in dormitory style accommodations
  at these hostels unless otherwise noted. *Foreign workers will stay at
  private accommodations at this hostel since dormitory style facilities
  were not provided.

g. Visa and Consular Fees
    Under the 2008 rule, visa-related fees--including fees required by 
the Department of State for scheduling and/or conducting an interview 
at the Consulate--may be paid by the temporary worker. This interim 
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

[[Page 24100]]

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 interview at the consular post is a 
transfer from employers to H-2B workers. DOL 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 $160 in all of 
the 10 most common countries of origin. We have not attributed a cost 
with respect to Canada because Canadian citizens traveling to the 
United States for temporary employment generally do not need a 
visa,\72\ resulting in a weighted average visa fee of $159. The same 
countries charge the following appointment fees: Mexico ($0),\73\ 
Jamaica ($10),\74\ Guatemala ($12),\75\ the U.K. ($0),\76\ South Africa 
($0),\77\ Philippines ($10),\78\ El Salvador ($0), Honduras ($0), 
Canada ($0),\79\ and Romania ($11),\80\ for a weighted average 
appointment fee of $1.02. Additionally, South Africa charges a 
reciprocity fee of $85, resulting in a weighted average of $0.84.\81\ 
Multiplying the weighted average visa cost, appointment fee, and 
reciprocity fee by the 66,000 H-2B workers entering the United States 
annually results in an annual average transfer of visa-related fees 
from H-2B employers to H-2B workers of $10.6 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.
---------------------------------------------------------------------------

    \72\ U.S. Department of State. 2015. Citizens of Canada and 
Bermuda--http://travel.state.gov/content/visas/english/visit/canada-bermuda.html (accessed on March 13, 2015).
    \73\ Consulate General of the United States--Monterrey--Mexico. 
2015. Temporary worker. Available at http://monterrey.usconsulate.gov/work_visa.html (accessed on March 13, 
2015).
    \74\ The U.S. Visa Information Service in Jamaica. 2011. How the 
Online System Works. Available at http://www.usvisa-jamaica.com/jam/ 
(accessed on July 22, 2011).
    \75\ Embassy of the United States--Guatemala. 2011. Application 
Process. Available at http://guatemala.usembassy.gov/niv_how_to_apply.html#appointment (accessed on July 22, 2011).
    \76\ Embassy of the United States--London--U.K. 2011. MRV 
Application Fee. Available at http://london.usembassy.gov/fee.html 
(accessed on July 22, 2011).
    \77\ The 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 on July 22, 2011).
    \78\ Embassy 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 on July 22, 2011).
    \79\ U.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 on 
July 22, 2011).
    \80\ Embassy of the United States--Bucharest--Romania. 2011. Non 
Immigrant Visas. Available at http://romania.usembassy.gov/visas/visa_application_process.html (accessed on July 22, 2011).
    \81\ U.S. Department of State. 2015. Reciprocity by Country. 
Available at http://travel.state.gov/content/visas/english/fees/reciprocity-by-country.html (accessed on March 13, 2015).

                Table 10--Cost of Visa and Consular Fees
------------------------------------------------------------------------
                     Cost component                            Value
------------------------------------------------------------------------
New Entrants per Year...................................          66,000
------------------------------------------------------------------------
                          Visa Application Fee
------------------------------------------------------------------------
Mexico..................................................            $160
Jamaica.................................................             160
Guatemala...............................................             160
United Kingdom..........................................             160
South Africa............................................             160
Philippines.............................................             160
El Salvador.............................................             160
Honduras................................................             160
Canada..................................................               0
Romania.................................................             160
Weighted Average Visa Fee...............................             159
H-2B Visa--Total Costs..................................      10,525,028
------------------------------------------------------------------------
                             Appointment Fee
------------------------------------------------------------------------
Mexico..................................................            0.00
Jamaica.................................................           10.00
Guatemala...............................................           12.00
United Kingdom..........................................            0.00
South Africa............................................            0.00
Philippines.............................................           10.00
El Salvador.............................................            0.00
Honduras................................................            0.00
Canada..................................................            0.00
Romania.................................................           11.00
Weighted Average Appointment Fee........................            1.02
Appointment Fee--Total Costs............................          67,236
------------------------------------------------------------------------
                             Reciprocity Fee
------------------------------------------------------------------------
Mexico..................................................            0.00
Jamaica.................................................            0.00
Guatemala...............................................            0.00
United Kingdom..........................................            0.00
South Africa............................................           85.00
Philippines.............................................            0.00
El Salvador.............................................            0.00
Honduras................................................            0.00
Canada..................................................            0.00
Romania.................................................            0.00
Weighted Average Reciprocity Fee........................            0.84
Reciprocity Fee--Total Costs............................          55,627
------------------------------------------------------------------------
                               Total Costs
------------------------------------------------------------------------
Total Visa and Consular Fees............................      10,647,891
------------------------------------------------------------------------
Sources: Given in text.

h. Enhanced U.S. Worker Referral Period
    The interim 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 
``j'' below, which discuss additional provisions aimed at further 
improving the recruitment of U.S. workers.
    The extension of the referral period in this interim final rule 
will likely result in more U.S. workers applying for these jobs, 
requiring more SWA staff time to process additional referrals. DOL 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.
    DOL 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 DOL 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 interim 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

[[Page 24101]]

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, DOL is 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 interim final rule, an employer may be directed by the CO 
to conduct additional recruitment if the CO has determined that there 
may be qualified 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, DOL estimates costs using 
the estimated number of unique employer applicants for FY 2013-2014 
(4,657). DOL conservatively estimates that 50 percent of these employer 
applicants (2,329) will be directed by the CO to conduct additional 
recruitment.
    To estimate the cost of a newspaper advertisement, DOL calculates 
the cost of placing a classified advertisement in the following 
newspapers: The Virginian Pilot ($574.00),\82\ The Austin Chronicle 
($76.60),\83\ The Gainesville Sun ($569.24),\84\ Plaquemines (LA) 
Gazette ($70.00),\85\ Aspen Times ($513.00),\86\ and Branson Tri-Lakes 
News ($104.00),\87\ for an average cost of $318. Employers may use 
other means of recruiting, such as listings on Monster.com ($375) \88\ 
and Career Builder ($419).\89\ Because so many newspapers include 
posting of the advertisement on their Web sites and/or Career Builder 
in the cost of the print advertisement, DOL bases the estimate on the 
cost of newspaper recruiting. Multiplying the number of unique employer 
applicants who will be directed to conduct additional recruitment 
(2,329) by the average cost of a newspaper advertisement ($318) results 
in a total cost for newspaper ads of $0.7 million.
---------------------------------------------------------------------------

    \82\ The Virginian Pilot, available at http://selfserve.pilotezads.com/vp-adportal/classified/index.html. Selected 
the Platinum package for 14 days (accessed on March 12, 2015).
    \83\ The Austin Chronicle. 2015. Place an Ad. Selected the Gold 
Plan. Available at http://austinchronicle.adperfect.com/?catid=33631&chanid=C0A801411d5931FD07Ggh2E376AE&clsid=621631 
(accessed on March 12, 2015).
    \84\ The Gainesville Sun, available at http://gainesvillesun.adperfect.com/. Selected Employment Print and Online 
option (Thursday through Sunday). The latter option was for two 
weeks.
    \85\ The Plaquemines Gazette, available at http://plaqueminesgazette.com/?page_id=118. For this newspaper selected $5 
per day ad for 14 days.
    \86\ Contacted the classified ad staff for the Aspen Times. They 
do not give quotes over the phone because it depends on the number 
of lines, length of time published, and other variables. The staff 
member stated employment classifieds could run at least $300 up to 
$1,000. The rate of $513 was used for this publication.
    \87\ Contacted the classified ad staff on March 12, 2015. The 
paper is only published on Wednesday and Saturdays of each week. For 
a 30-word ad, for one week is $32 and for two weeks is $64. For one 
month, it is $104.
    \88\ Monster.com. 2015. Job Postings Inventory. Available at 
http://hiring.monster.com/indexProspect.Redux.aspx (accessed on 
March 12, 2015).
    \89\ CareerBuilder. 2015. Job Posting. Available at https://www.careerbuilder.com/JobPoster/ECommerce/CartOrderSummary.aspx?cblid=epjobbtn&sc_cmp2=JP_HP_PostJobButton&sslRedirectCnt=1 (accessed on March 12, 2015).
---------------------------------------------------------------------------

    DOL 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. DOL calculated translation costs 
for translating a one-page document from English to any language to be 
$21.95.\90\ Multiplying the number of employers performing translation 
(466) by the translation cost results in total translation costs of 
$0.01 million.
---------------------------------------------------------------------------

    \90\ ServiceScape. 2015. How it Works--Cost Calculator. 
Available at http://www.servicescape.com/help.asp (accessed on March 
12, 2015).
---------------------------------------------------------------------------

    To account for labor costs in posting additional ads, DOL 
multiplies the estimated number of unique employer applicants required 
to conduct additional recruiting (2,329) 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 ($34.15). The result, $0.01 million, is added to the average 
annual cost of CO-directed recruiting activities for a total of 
approximately $0.8 million (see Table 11).

                 Table 11--Cost of Additional Recruiting
------------------------------------------------------------------------
                     Cost component                            Value
------------------------------------------------------------------------
Number of unique H-2B employer applicants...............           4,657
Percent directed to conduct additional recruiting.......             50%
Employer applicants conducting additional recruiting....           2,329
Newspaper advertisement--Unit cost......................            $318
                                                         ---------------
  Total Cost of Newspaper Ad............................        $740,463
Percent of employer applicants needing to perform                    10%
 translation............................................
Employers performing translation........................             466
English to any language (two day delivery)..............             $22
                                                         ---------------
  Total Cost of Translation.............................         $10,222
Time to post advertisement (hours)......................            0.08
Administrative Assistant hourly wage w/fringe...........          $34.15
                                                         ---------------
  Total Cost of Labor to Post Newspaper Ad..............          $6,362
------------------------------------------------------------------------
                               Total Cost
------------------------------------------------------------------------
Total Cost of Additional Recruiting.....................        $757,047
------------------------------------------------------------------------
Sources: BLS, 2011a; BLS, 2011b; U.S. Census, 2008; ServiceScape 2015;
  Consulted the following publications for their rates on employment
  classifieds: Branson Tri-Lake News; Aspen Times; The Austin Chronicle;
  The Gainesville Sun; Plaquemines Gazette; The Virginian 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, DOL is unable to quantify the impact.
j. Electronic Job Registry
    Under the interim final rule, DOL 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 interim 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 DOL's administration of

[[Page 24102]]

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. DOL, 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 interim 
final rule represents increased maintenance costs to DOL. DOL 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 ($1,342) suggests that 105 labor 
hours will be required in the first year, and 35 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..................          $1,342
Registry development and maintenance hours--Year 1......             105
Registry maintenance hours--Year 2-10...................              35
Cost to DOL to Develop and Maintain Job Registry--Year 1        $140,341
Cost to DOL to Maintain Job Registry--Year 2-10.........         $46,434
------------------------------------------------------------------------

k. Disclosure of Job Order
    The interim final rule requires an employer to provide a copy of 
the job order to H-2B workers outside the United States no later than 
the time at which the worker applies for the visa, and to workers 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.
    DOL estimates 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 2013-2014, 89.1 percent of H-2B workers work in an 
industry other than reforestation, suggesting that the job order will 
need to be reproduced for 102,911 (89.1 percent of 115,500) H-2B 
workers. DOL estimates the cost of reproducing the terms and conditions 
document by multiplying the number of affected H-2B workers (102,911) 
by the number of pages to be photocopied (3) and by the cost per 
photocopy ($0.09). DOL estimates average annual costs of reproducing 
the document containing the terms and conditions of employment to be 
approximately $0.03 million (see Table 13).
    DOL estimates that 91.6 percent of H-2B workers from the top 10 
countries of origin do not speak English,\91\ so approximately 3,621 H-
2B employers will need to translate their job orders. DOL 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. The estimate 
of the cost of translating a 3-page document into English from 
languages spoken in the top 10 countries of origin is $56.85.\92\ 
Multiplying the number of H-2B employers who will need to translate the 
job order (3,621) by the cost of translation ($56.85) suggests that 
translation costs will total $0.2 million (see Table 13).
---------------------------------------------------------------------------

    \91\ U.S. Department of Homeland Security (DHS). 2013. Yearbook 
of Immigration Statistics. Available at http://www.dhs.gov/sites/default/files/publications/immigration-statistics/yearbook/2013/NI/nonimmsuptable2d.xls (accessed on March 18, 2015).
    \92\ ServiceScape. 2015. How it Works--Cost Calculator. 
Available at http://www.servicescape.com/help.asp (accessed on March 
12, 2015).
---------------------------------------------------------------------------

    Summing the costs of reproducing and translating the job order 
results in total costs related to disclosure of the job order of $0.2 
million (see Table 13).

                Table 13--Cost of Disclosure of Job Order
------------------------------------------------------------------------
                     Cost component                            Value
------------------------------------------------------------------------
                          Reproducing Job Order
------------------------------------------------------------------------
H-2B workers............................................         115,500
Percent workers not in reforestation....................           89.1%
Affected workers........................................         102,911
Pages to be photocopied.................................               3
Cost per page...........................................           $0.09
Cost per job order......................................           $0.27
                                                         ---------------
    Total Cost of Reproducing Document..................         $27,786
------------------------------------------------------------------------
                          Translating Job Order
------------------------------------------------------------------------
Number of unique certified H-2B employers...............           3,955
Percent workers needing translation.....................           91.6%

[[Page 24103]]

 
Employers performing translation........................           3,621
English to any language--3 page document, 2 day delivery          $56.85
                                                         ---------------
    Total Translation Cost..............................        $205,868
------------------------------------------------------------------------
                               Total Cost
------------------------------------------------------------------------
Total Cost of Disclosure of Job Order...................        $233,654
------------------------------------------------------------------------
Sources: DHS, 2009; ServiceScape, 2015.

 l. Use of Post-Filing Recruitment Model
    The 2008 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 DOL 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. DOL has determined that this attestation-based model did not 
provide sufficient protection to workers. The recruitment process under 
this interim final rule 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 the interim final rule is to 
change the timing of recruitment rather than to change the substantive 
requirements.
    Using a post-filing recruitment 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 levels. 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 DOL 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. DOL, however, is not able to 
estimate the economic impacts of these several effects and is therefore 
unable to quantify the related benefits.
    Requiring post-filing recruitment 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).
    DOL estimated two costs for post-filing recruitment: the material 
cost of reproducing and mailing the documents, and the associated labor 
cost. DOL estimated material costs equal to $2,492, calculated by 
multiplying the number of unique certified H-2B employers (3,955) by 
the estimated additional number of pages that must be submitted (3) and 
the additional postage required to ship those pages ($0.21). DOL 
estimated labor cost of $10,806 by multiplying the number of unique 
certified H-2B employers (3,955) 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 
($34.15). Summing these two components results in incremental costs of 
$0.01 million per year associated with post-filing recruitment (see 
Table 14).

                Table 14--Cost of Post-Filing Recruitment
------------------------------------------------------------------------
              Cost component                            Value
------------------------------------------------------------------------
                              Postage Costs
------------------------------------------------------------------------
Number of unique certified H-2B employers.                         3,955
Additional pages to submit................                             3
Additional postage........................                         $0.21
                                           -----------------------------
    Total Postage Costs...................                        $2,492
------------------------------------------------------------------------
               Labor Costs to Photocopy and Mail Documents
------------------------------------------------------------------------
Number of unique certified H-2B employers.                         3,955
Labor time to photocopy and mail documents                          0.08
 (hours)..................................
Administrative Assistant hourly wage with                         $34.15
 fringe...................................
                                           -----------------------------
    Total Labor Costs to Photocopy and                           $10,806
     Mail Documents.......................
------------------------------------------------------------------------
                               Total Cost
------------------------------------------------------------------------
Total Costs of Post-Filing Recruitment....                       $13,297
------------------------------------------------------------------------
Sources: In January 2014, first class mail increased temporarily to 49
  cents for one ounce while two ounces would be 70 cents. So the extra
  postage is 70 cents-49 cents, or 21 cents. See the latest first class
  mail prices at http://pe.usps.com/cpim/ftp/manuals/dmm300/Notice123.pdf on page 1 (accessed on March 12, 2015).

[[Page 24104]]

n. Document Retention
    Under the interim final rule, H-2B employers must retain 
documentation in addition to that required by the 2008 rule. DOL 
assumes that each H-2B employer will purchase a filing cabinet at a 
cost of $67.99 \93\ in which to store the additional documents starting 
in the first year of the rule. To obtain the cost of storing documents, 
DOL multiplies the number of unique certified H-2B employers (3,955) by 
the cost per file cabinet for a total one-time cost of $0.3 million 
(see Table 15). This cost is likely an overestimate since the 2008 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 were required to retain under that rule.
---------------------------------------------------------------------------

    \93\ Price at Office Depot. Vertical file cabinets. Available at 
http://www.officedepot.com/a/browse/vertical-metal-file-cabinets/N=5+501585&cbxRefine=311457&recordsPerPageNumber=24&No=0/ (accessed 
on March 12, 2015).

                  Table 15--Cost of Document Retention
------------------------------------------------------------------------
                     Cost component                            Value
------------------------------------------------------------------------
Number of unique certified H-2B employers...............           3,955
Filing cabinet..........................................          $67.99
                                                         ---------------
    Total Document Retention Costs......................        $268,900
------------------------------------------------------------------------
Source: Office Depot, 2015.

m. SWA Administrative Burden
    Under this interim final rule, SWAs will see both additions to and 
reductions from the 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 larger 
number of U.S. applicants during the extended recruitment period. DOL, 
however, does not have reliable data to measure these increased 
activities and is therefore unable to provide an estimate of the 
increased workload.
    In contrast, SWAs will not be responsible for conducting employment 
eligibility verification activities. These activities included 
completion of Form I-9 and vetting of application documents by SWA 
personnel.
    Under the 2008 rule, SWAs were 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 interim final rule, SWAs will 
not be required to complete this process, resulting in cost savings. 
Due to a lack of data on the number of SWA referrals, DOL is not able 
to quantify this cost reduction.
n. Read and Understand the Rule
    During the first year that the interim final rule will be in 
effect, H-2B employer applicants will need to learn about the new 
processes and requirements. DOL estimates the cost to read and 
understand the rule by multiplying the average number of unique H-2B 
employer applicants in FY 2013-2014 (4,657) 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 
($69.83). In the first year of the rule, this amounts to labor costs of 
approximately $1.0 million (see Table 16).

               Table 16--Cost To Read and Understand Rule
------------------------------------------------------------------------
                     Cost component                           Value6
------------------------------------------------------------------------
Number of unique H-2B employer applicants...............           4,657
Time to read rule and materials (hours).................               3
HR Manager hourly wage..................................          $69.83
                                                         ---------------
    Total Cost to Read and Understand Rule..............        $975,607
------------------------------------------------------------------------
Sources: The median hourly wage rate was obtained Occupational and
  Employment Statistics, 2013, Bureau of Labor Statistics, accessed
  from: http://www.bls.gov/oes/current/oes_nat.htm#13-0000.

o. Job Posting Requirement
    The interim 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, DOL multiplied 
the average number of unique H-2B employer applicants FY 2013-2014 
(4,657) by the cost per photocopy ($0.09) and the number of postings 
per place of employment (2), which amounts to $838 per year (see Table 
17).

                Table 17--Cost of Job Posting Requirement
------------------------------------------------------------------------
                     Cost component                            Value
------------------------------------------------------------------------
Number of unique H-2B employer applicants...............           4,657
Job postings per work site..............................               2
Cost per photocopy......................................           $0.09
                                                         ---------------
    Total Cost to Post Job Opportunity..................            $838
------------------------------------------------------------------------

p. Workers' Rights Poster
    In addition, the interim final rule requires employers to post and 
maintain in a conspicuous location at the place of employment a poster 
provided by DOL which sets out the rights and protections for workers. 
The poster must be in English and, to the extent necessary and as 
provided by DOL, 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, DOL multiplied the estimated number 
of unique certified H-2B employers (3,955) by the cost of downloading 
and printing the poster ($0.09). In total, the cost of producing 
workers' rights posters is $356 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' Right Poster
------------------------------------------------------------------------
                     Cost component                            Value
------------------------------------------------------------------------
Number of unique certified H-2B employers...............           3,955
Cost per poster.........................................           $0.09
                                                         ---------------
    Total Cost of Workers' Rights Poster................            $356
------------------------------------------------------------------------

5. Summary of Cost-Benefit Analysis
    Table 19 presents a summary of the costs associated with this 
interim 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, DOL 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 interim final rule. 
However, because the size of the H-2B program is limited, DOL expects 
that any deadweight loss would be small. The monetized costs displayed 
are the annual summations of the calculations described above. The 
total undiscounted costs of the rule in

[[Page 24105]]

Years 1-10 are expected to total approximately $11.85 million.

                                Table 19--Total Costs and Transfers--Undiscounted
----------------------------------------------------------------------------------------------------------------
            Cost component                   Year 1 costs           Year 2-10 costs          Year 1-10 costs
----------------------------------------------------------------------------------------------------------------
                                                    Transfers
----------------------------------------------------------------------------------------------------------------
Corresponding Workers' Wages--90       $18,207,902............  $18,207,902............  $182,079,024
 Percent.
Corresponding Workers' Wages--75       $54,616,946............  $54,616,946............  $546,169,461
 percent.
Transportation.......................  $55,190,325............  $55,190,325............  $551,903,254
Subsistence..........................  $3,131,040.............  $3,131,040.............  $31,310,400
Lodging..............................  $1,865,637.............  $1,865,637.............  $18,656,366
Visa and Border Crossing Fees........  $10,647,891............  $10,647,891............  $106,478,908
Total Transfers--Low.................  $87,241,061............  $87,241,061............  $890,427,952.48
Total Transfers--High................  $125,451,839...........  $125,451,839...........  $1,254,518,389.50
----------------------------------------------------------------------------------------------------------------
                                            Annual Costs to Employers
----------------------------------------------------------------------------------------------------------------
Additional Recruiting................  $757,047...............  $757,047...............  $7,570,469
Disclosure of Job Order..............  $233,654...............  $233,654...............  $2,336,540
Elimination of Attestation-Based       $13,297................  $13,297................  $132,972
 Model.
Post Job Opportunity.................  $838...................  $838...................  $8,383
Workers' Rights Poster...............  $356...................  $356...................  $3,560
                                      --------------------------------------------------------------------------
    Total Annual Costs to Employers..  $1,005,192.............  $1,005,192.............  $10,051,923
----------------------------------------------------------------------------------------------------------------
                                          First Year Costs to Employers
----------------------------------------------------------------------------------------------------------------
Read and Understand Rule.............  $975,607...............  $0.....................  $975,607
Document Retention...................  $268,900...............  $0.....................  $268,900
                                      --------------------------------------------------------------------------
    Total First Year Costs to          $1,244,507.............  $0.....................  $1,244,507
     Employers.
----------------------------------------------------------------------------------------------------------------
                                               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 Costs to Government........  $140,341...............  $46,434................  $558,248
----------------------------------------------------------------------------------------------------------------
                                                   Total Costs
----------------------------------------------------------------------------------------------------------------
Total Costs and Transfers--Low.......  $91,432,836............  $90,094,422............  $902,282,631
Total Costs and Transfers--High......  $127,841,880...........  $126,503,465...........  $1,266,373,068
Total Transfers--Low.................  $89,042,795............  $89,042,795............  $890,427,952
Total Transfers--High................  $125,451,839...........  $125,451,839...........  $1,254,518,390
Total Costs..........................  $2,390,041.............  $1,051,626.............  $11,854,679
----------------------------------------------------------------------------------------------------------------
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 $9.24 million to $10.58 million 
(with 7 percent and 3 percent discounting, respectively) (see Table 
20). The total transfers over 10 years range from $669.18 million to 
$942.80 million and from $792.92 million to $1,112.81 million with 7 
percent and 3 percent discounting, respectively. The annual average 
cost is $0.92 million with 7 percent discounting and $1.06 million with 
3 percent discounting. The annual average transfers range from $66.92 
million to $94.28 million with 7 percent discounting and from $79.29 to 
$111.28 million with 3 percent discounting.

       Table 20--Total Costs and Transfers--Sum of Present Values
------------------------------------------------------------------------
                   Cost component                       Year 1-10 costs
------------------------------------------------------------------------
                      Present Value--7% Discounting
------------------------------------------------------------------------
Total Costs & Transfers--Low........................        $678,418,918
Total Costs & Transfers--High.......................         952,041,337
Total Transfers--Low................................         669,177,286
Total Transfers--High...............................         942,799,706
Total Costs.........................................           9,241,631
------------------------------------------------------------------------
                      Present Value--3% Discounting
------------------------------------------------------------------------
Total Costs & Transfers--Low........................        $792,917,817
Total Costs & Transfers--High.......................       1,112,811,640
Total Transfers--Low................................         782,339,698
Total Transfers--High...............................       1,102,233,521

[[Page 24106]]

 
Total Costs.........................................          10,578,119
------------------------------------------------------------------------
Note: Totals may not sum due to rounding.

    Because DOL was not able to monetize any benefits for this interim 
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.
    DOL 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 (and cost 
reductions) result from the following provisions of this interim final 
rule: the enhanced U.S. worker referral period, additional recruiting 
directed by the CO, the electronic job registry, transportation to and 
from the place of employment, payment of visa and consular fees, 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 an electronic job registry will provide greater 
transparency with respect to DOL's administration of the H-2B program 
to the public, members of Congress, and other stakeholders.
    The changes and increased protections for workers will result in an 
improved ability on the part of workers and their families to meet 
their costs of living and spend money in their local communities. These 
protections may also decrease turnover among U.S. workers and thereby 
decrease the costs of recruitment and retention to employers. Reduced 
worker turnover is associated with lower costs to employers arising 
from recruiting and training replacement workers. Because seeking and 
training new workers is costly, reduced turnover leads to savings for 
employers. Research indicates that decreased turnover costs partially 
offset increased labor costs.\94\ In addition, greater worker 
protections may increase a worker's productivity by incentivizing the 
worker to work harder. Thus, the additional costs may be partially 
offset by higher productivity. A strand of economic research, commonly 
referred to as ``efficiency wages,'' indicates that employees may 
interpret the greater protections as a signal of the employer's good 
will and reciprocate by working harder, or they put in more effort in 
order to reduce the risk of losing the job because it is now seen as 
more valuable.\95\ All of these benefits, however, are difficult to 
quantify due to data limitations.
---------------------------------------------------------------------------

    \94\ Reich, Michael, Peter Hall and Ken Jacobs, ``Living Wages 
and Economic Performance: The San Francisco Airport Model,'' 
Institute of Industrial Relations, University of California, 
Berkeley, March 2003. Fairris, David, David Runsten, Carolina 
Briones, and Jessica Goodheart, ``Examining the Evidence: The Impact 
of the Los Angeles Living Wage Ordinance on Workers and 
Businesses,'' LAANE, 2005.
    \95\ Akerlof, G.A. (1982), ``Labor Contracts as Partial Gift 
Exchange,'' The Quarterly Journal of Economics, 97(4), 543-569; 
Shapiro, C. and Stiglitz, J.E. (1984), ``Equilibrium Unemployment as 
a Worker Discipline Device,'' The American Economic Review, 74(3), 
433-444.
---------------------------------------------------------------------------

    Several unquantifiable benefits result in the form of cost savings. 
As more U.S. workers are hired as a result of this interim 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 rule, SWAs were 
required to complete Form I-9 for non-agricultural job orders, and 
inspect and verify the employment eligibility documents furnished by 
the applicants. Under this interim final rule, SWAs will not be 
required to complete this process, resulting in cost savings to SWAs. 
DOL was 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 interim final rule, DOL has concluded that the societal benefits 
of the rule justify the societal costs.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA), imposes 
certain requirements on Federal agency rules that are subject to the 
notice and comment requirements the APA, 5 U.S.C. 553(b), and that are 
likely to have a significant economic impact on a substantial number of 
small entities. Under the APA, a general notice of proposed rulemaking 
is not required when an agency, for good cause, finds that notice and 
public comment thereon are impracticable, unnecessary, or contrary to 
the public interest. 5 U.S.C. 553(b)(B). This interim final rule is 
exempt from the requirements of the APA because DOL and DHS have made a 
good cause finding, supra, that a general notice of proposed rulemaking 
is impracticable and contrary to the public interest under 5 U.S.C. 
553(b)(B). Therefore, the requirements of the RFA applicable to notices 
of proposed rulemaking, 5 U.S.C. 603, do not apply to this interim 
final rule. Accordingly, the Departments are not required to either 
certify that the interim final rule would not have a significant 
economic impact on a substantial number of small entities or conduct a 
regulatory flexibility analysis. Nevertheless, for informational 
purposes DOL and DHS refer the public to the initial and final 
regulatory flexibility analyses that DOL completed in the 2012 
rulemaking process. See 76 FR 15166; 77 FR 10132. DOL and DHS refer to 
the public to the rulemaking docket on regulations.gov in connection 
with that rule (RIN 1205-AB58) to obtain further information about 
DOL's regulatory flexibility analyses under the 2012 rule.

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 interim final 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 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 interim final rule the SWA will continue 
to play a significant and active role. The Departments continue 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,

[[Page 24107]]

with the added requirement that the SWA review the job order prior to 
posting it. The interim 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. DOL 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 interim final rule requires SWAs to contact labor 
organizations where union representation is customary in the occupation 
and area of intended employment. DOL recognizes that SWAs may 
experience a slight increase in their workload in terms of review, 
referrals, and employer guidance. However, DOL 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 DOL 
through grants provided under the Wagner-Peyser Act. 29 U.S.C. 49 et 
seq., and directly through appropriated funds for administration of 
DOL's foreign labor certification program.

D. Executive Order 13132--Federalism

    We have reviewed this interim final rule in accordance with E.O. 
13132 on federalism and have determined that it does not have 
federalism implications. The interim 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 interim final rule will not have a sufficient 
federalism implication to warrant the preparation of a summary impact 
statement.

E. Executive Order 13175--Indian Tribal Governments

    We reviewed this interim final rule under the terms of E.O. 13175 
and determined it not to have tribal implications. The interim final 
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.

F. Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act, enacted as part of the Omnibus Consolidated and Emergency 
Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 
2681) requires us to assess the impact of this interim 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 interim final rule and determined that it will not have a 
negative effect on families.

G. Executive Order 12630--Government Actions and Interference With 
Constitutionally Protected Property Rights

    The interim 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.

H. Executive Order 12988--Civil Justice

    The interim 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 Departments have developed the interim final 
rule to minimize litigation and provide a clear legal standard for 
affected conduct, and has reviewed the interim final rule carefully to 
eliminate drafting errors and ambiguities.

I. Plain Language

    We drafted this interim final rule in plain language.

J. Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (PRA) (44 
U.S.C. 3501 et seq.) information collection requirements, which must be 
implemented as a result of this regulation, a clearance package 
containing proposed changes to the already previously collection was 
submitted to OMB under the emergency provisions of the PRA, 5 CFR 
1320.13, in order to have the information collection take effect on the 
same date as all other parts of the interim final rule. OMB approved 
the information collection for 6 months, during which time DOL will 
publish Notices in the Federal Register that invite public comment on 
the collection requirements, in anticipation of extending the ICR.
    The Departments note that a Federal agency generally cannot conduct 
or sponsor a collection of information, and the public is generally not 
required to respond to an information collection, unless it is approved 
by the OMB under the PRA and displays a currently valid OMB Control 
Number. In addition, notwithstanding any other provisions of law, no 
person shall generally be subject to penalty for failing to comply with 
a collection of information that does not display a valid Control 
Number. See 5 CFR 1320.5(a), 1320.6, and 1320.11(k)(1).
    The forms used to comply with this interim final rule include those 
that have been required in the H-2B program over the last few years of 
program operation, except that Form ETA-9142, Appendix B has been 
modified to reflect the assurances and obligations of the H-2B employer 
as required under the compliance-based system of this interim final 
rule. Also, a new form was created for registering as an H-2B 
employer--the Form ETA-9155, H-2B Registration. DOL continues to 
include the Seafood Industry Attestation, but has made slight changes 
to it for clarity and accuracy. Changes to the program as reflected in 
the new regulations and which have PRA implications, have increased the 
hourly and cost burdens for employers. Those burdens and costs are 
outlined below. The Form ETA-9142B with Appendix B has a public 
reporting burden estimated to average 1 hour per response or 
application filed. Additionally, the Form ETA-9155 has a public 
reporting burden estimated to average 1 hour per response or 
application filed. For an additional explanation of how the Departments 
calculated the burden hours and related costs, the PRA package for this 
information collection may be obtained from the RegInfo.gov Web site at 
http://www.reginfo.gov/public/do/PRAMain or by contacting the DOL 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.
Overview of Information Collection
    Type of Review: Emergency.
    Agency: Employment and Training Administration.
    Title: H-2B Application for Temporary Employment Certification; H-
2B Registration; and Seafood Industry Attestation.
    OMB Number: 1205-0509.
    Agency Number(s): Forms ETA-9142B (including Appendix B) and ETA-
9155.

[[Page 24108]]

    Annual Frequency: On occasion.
    Affected Public: Individuals or Households, Private Sector--
businesses or other for profits, Government, State, Local and Tribal 
Governments.
    Total Respondents: 7,355.
    Total Responses: 184,442.
    Estimated Total Burden Hours: 47,992.
    Total Burden Cost (capital/startup): 0.
    Total Burden Cost (operating/maintaining): $351,800.
    The information collection aspects of this rulemaking are taking 
effect immediately, but DOL will be following the normal approval 
process for the extension of this collection within the next 6 months.

List of Subjects

8 CFR Part 214

    Administrative practice and procedure, Aliens, Cultural exchange 
programs, Employment, Foreign officials, Health professions, Reporting 
and recordkeeping requirements, Students.

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.

Department of Homeland Security

8 CFR Chapter I

    Accordingly, for the reasons stated in the joint preamble, part 214 
of chapter I of title 8 of the Code of Federal Regulations is amended 
as follows:

PART 214--NONIMMIGRANT CLASSES

0
1. The authority citation for part 214 continues to read as follows:

    Authority:  8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 
1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Pub. L. 104-208, 110 
Stat. 3009-708; Pub. L. 106-386, 114 Stat. 1477-1480; section 141 of 
the Compacts of Free Association with the Federated States of 
Micronesia and the Republic of the Marshall Islands, and with the 
Government of Palau, 48 U.S.C. 1901 note, and 1931 note, 
respectively; 48 U.S.C. 1806; 8 CFR part 2.

0
2. Section 214.1 is amended by revising paragraph (k) to read as 
follows:

Sec.  214.1  Requirements for admission, extension, and maintenance of 
status.

* * * * *
    (k) Denial of petitions under section 214(c) of the Act based on a 
finding by the Department of Labor. Upon debarment by the Department of 
Labor pursuant to 20 CFR part 655, USCIS may deny any petition filed by 
that petitioner for nonimmigrant status under section 101(a)(15)(H) 
(except for status under sections 101(a)(15)(H)(i)(b1)), (L), (O), and 
(P)(i) of the Act) for a period of at least 1 year but not more than 5 
years. The length of the period shall be based on the severity of the 
violation or violations. The decision to deny petitions, the time 
period for the bar to petitions, and the reasons for the time period 
will be explained in a written notice to the petitioner.

0
3. Section 214.2 is amended by revising paragraph (h)(9)(iii)(B) to 
read as follows:

Sec.  214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (h) * * *
    (9) * * *
    (iii) * * *
    (B) H-2B petition. The approval of the petition to accord an alien 
a classification under section 101(a)(15)(H)(ii)(b) of the Act shall be 
valid for the period of the approved temporary labor certification.
* * * * *

Department of Labor

    Accordingly, for the reasons stated in the joint preamble, 20 CFR 
part 655 is amended and 29 CFR part 503 is added as follows:

Title 20--EMPLOYEES' BENEFITS

PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED 
STATES

0
4. The authority citation for part 655 is revised 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), 8 U.S.C. 
1103(a)(6), 1182(m), (n) and (t), 1184(c), (g), and (j), 1188, and 
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102 
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105 
Stat. 733, 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); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR 
214.2(h)(4)(i); and 8 CFR 214.2(h)(6)(iii).
    Subpart A 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 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 L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).

0
5. Revise subpart A 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 this subpart.
655.2 Authority of the agencies, offices, and divisions in the 
Department of Labor.
655.3 Territory of Guam.
655.4 Transition procedures.
655.5 Definition of terms.
655.6 Temporary need.
655.7 Persons and entities authorized to file.
655.8 Requirements for agents.
655.9 Disclosure of foreign worker recruitment.

Prefiling Procedures

655.10 Determination of prevailing wage for temporary labor 
certification purposes.
655.11 Registration of H-2B employers.
655.12 Use of registration of H-2B employers.
655.13 Review of PWDs.
655.14 [Reserved]

Application for Temporary Employment Certification Filing Procedures

655.15 Application filing requirements.
655.16 Filing of the job order at the SWA.
655.17 Emergency situations.
655.18 Job order assurances and contents.
655.19 Job contractor filing requirements.

Assurances and Obligations

655.20 Assurances and obligations of H-2B employers.
655.21-655.29 [Reserved]

Processing of An Application for Temporary Employment Certification

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.

[[Page 24109]]

655.34 Electronic job registry.
655.35 Amendments to an application or job order.
655.36-655.39 [Reserved]

Post-Acceptance Requirements

655.40 Employer-conducted recruitment.
655.41 Advertising requirements.
655.42 Newspaper advertisements.
655.43 Contact with former U.S. employees.
655.44 [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.
655.49 [Reserved]

Labor Certification Determinations

655.50 Determinations.
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.
655.5-655.59 [Reserved]

Post Certification Activities

655.60 Extensions.
655.61 Administrative review.
655.62 Withdrawal of an Application for Temporary Employment 
Certification.
655.63 Public disclosure.
655.64-655.69 [Reserved]

Integrity Measures

655.70 Audits.
655.71 CO-ordered assisted recruitment.
655.72 Revocation.
655.73 Debarment.
655.74-655.76 [Reserved]
655.80-655.99 [Reserved]

Sec.  655.1  Scope and purpose of this subpart.

    Section 214(c)(1) of the Immigration and Nationality Act (INA), 8 
U.S.C. 1184(c)(1), requires the Secretary of Homeland Security to 
consult with appropriate agencies before authorizing the classification 
of aliens as H-2B workers. Department of Homeland Security (DHS) 
regulations at 8 CFR 214.2(h)(6)(iii)(D) designate the Secretary of 
Labor as an appropriate authority with whom DHS consults regarding the 
H-2B program, and specifies that the Secretary of Labor, in carrying 
out this consultative function, shall issue regulations regarding the 
issuance of temporary labor certifications. DHS regulations at 8 CFR 
214.2(h)(6)(iv) further provide that an employer's petition to employ 
H-2B nonimmigrant workers 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 nonimmigrant classification, 
as defined in 8 U.S.C. 1101(a)(15)(H)(ii)(b), section 
101(a)(15)(H)(ii)(b) of the INA. It also establishes obligations with 
respect to the terms and conditions of the temporary labor 
certification with which H-2B employers must comply, as well as their 
obligations to H-2B workers and workers in corresponding employment. 
Additionally, this subpart sets forth integrity measures for ensuring 
employers' continued compliance with the terms and conditions of the 
temporary labor certification.

Sec.  655.2  Authority of the agencies, offices, and divisions in the 
Department of Labor.

    (a) Authority and role of the Office of Foreign Labor Certification 
(OFLC). The Secretary has delegated authority to make determinations 
under this subpart, pursuant to 8 CFR 214.2(h)(6)(iii)(D) and 
(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 section 214(c)(14)(B) of the INA, 8 U.S.C. 
1184(c)(l4)(B), DHS has delegated to the Secretary certain 
investigatory and enforcement functions with respect to terms and 
conditions of employment in the H-2B program. The Secretary has, in 
turn, delegated that authority to WHD. The regulations governing WHD 
investigation and enforcement functions, including those related to the 
enforcement of temporary labor certifications, issued under this 
subpart, may be found in 29 CFR part 503.
    (c) Concurrent authority. OFLC and WHD have concurrent authority to 
impose a debarment remedy under Sec.  655.73 or under 29 CFR 503.24.

Sec.  655.3  Territory of Guam.

    This subpart does not apply to temporary employment in the 
Territory of Guam, except that an employer who applies for a temporary 
labor certification for a job opportunity on Guam will need to obtain a 
prevailing wage from the U.S. Department of Labor (DOL) in accordance 
with Sec.  655.10, subject to the transfer of authority to set the 
prevailing wage for a job opportunity on Guam to DOL in title 8 of the 
Code of Federal Regulations. DOL does not certify to DHS the temporary 
employment of H-2B nonimmigrant foreign workers, or enforce compliance 
with the provisions of the H-2B visa program, in the Territory of Guam.

Sec.  655.4  Transition procedures.

    (a) The NPWC shall continue to process an Application for 
Prevailing Wage Determination submitted prior to April 29, 2015, in 
accordance with the prevailing wage methodology at 20 CFR part 655, 
subpart A, revised as of April 1, 2009, except for Sec.  655.10(b)(2), 
see 20 CFR part 655, subpart A, revised as of April 1, 2014. Employers 
with a pending Application for Prevailing Wage Determination who seek a 
prevailing wage based on an alternate wage source must submit a new 
Application for Prevailing Wage Determination.
    (b) The NPWC shall process an Application for a Prevailing Wage 
Determination submitted on or after April 29, 2015, in accordance with 
the wage methodology established in Sec.  655.10 of the final 
prevailing wage rule.
    (c) The NPC shall continue to process an Application for Temporary 
Employment Certification submitted prior to April 29, 2015, in 
accordance with 20 CFR part 655, subpart A, revised as of April 1, 
2009.
    (d) The NPC shall process an Application for Temporary Employment 
Certification submitted on or after April 29, 2015, and that has a 
start date of need prior to October 1, 2015, as follows:
    (1) Employers will be permitted to file an Application for 
Temporary Employment Certification job order with the NPC using the 
emergency situations provision at Sec.  655.17. The Application for 
Temporary Employment Certification must include a signed and dated copy 
of the new Appendix B associated with the ETA Form 9142B containing the 
requisite program

[[Page 24110]]

assurances and obligations under this rule. In the case of a job 
contractor filing as a joint employer with its employer-client, the NPC 
must receive a separate attachment containing the employer-client's 
business and contact information (i.e., sections C and D of the ETA 
Form 9142B) as well as a separate signed and dated copy of the Appendix 
B for its employer-client, as required by Sec.  655.19.
    (2) The NPC will waive the regulatory filing timeframe under Sec.  
655.15 and process the Application for Temporary Employment 
Certification and job order in a manner consistent with the handling of 
applications under Sec.  655.17 for emergency situations, including the 
recruitment of U.S. workers on an expedited basis, and make a 
determination as required by Sec.  655.50. The recruitment of U.S. 
workers on an expedited basis will consist of placing a new job order 
with the SWA serving the area of intended employment that contains the 
job assurances and contents set forth in Sec.  655.18 for a period of 
not less than 10 calendar days. In addition, employers who have not 
placed any newspaper advertisements under the rule published at 20 CFR 
part 655, subpart A, revised as of April 1, 2009. must place one 
newspaper advertisement, which may be published on any day of the week, 
meeting the advertising requirements of Sec.  655.41, during the period 
of time the SWA is actively circulating the job order for intrastate 
clearance.
    (3) If the Chicago NPC grants a temporary labor certification, the 
employer will receive an original certified ETA Form 9142B and a Final 
Determination letter. Upon receipt of the original certified ETA Form 
9142B, the employer or its agent or attorney, if applicable, must 
complete the footer on the original Appendix B of the Application for 
Temporary Employment Certification, retain the original Appendix B, and 
submit a signed copy of Appendix B, together with the original 
certified ETA Form 9142B directly to USCIS. Under the document 
retention requirements in Sec.  655.56, the employer must retain a copy 
of the temporary labor certification and the original signed Appendix 
B.
    (4) An employer who did not submit an Application for a Prevailing 
Wage Determination prior to April 29, 2015, but who has a start date of 
need prior to October 1, 2015 may submit a completed Application for a 
Prevailing Wage Determination to the NPC with its emergency Application 
for Temporary Employment Certification requesting a prevailing wage 
determination for the job opportunity. Upon receipt, the NPC will 
transmit, on behalf of the employer, a copy of the Application for a 
Prevailing Wage Determination to the NPWC for processing and issuance 
of a prevailing wage determination using the wage methodology 
established in Sec.  655.10.
    (e) The NPC shall process an Application for Temporary Employment 
Certification submitted on or after April 29, 2015, and that has a 
start date of need after October 1, 2015, in accordance with all 
application filing requirements under this rule, and the employer must 
obtain a valid prevailing wage determination under the wage methodology 
established in Sec.  655.10 prior to filing the job order with the SWA 
under Sec.  655.16.
    (f) Employers with a prevailing wage determination issued by the 
NPWC, or who have a pending or granted Application for Temporary 
Employment Certification on April 29, 2015, may seek a supplemental 
prevailing wage determination (SPWD) in order to obtain a prevailing 
wage based on an alternate wage source under this rule.
    (1) The SPWD will apply during the validity period of the 
certification, except that such SPWD will be applicable only to those 
H-2B workers who are not yet employed in the certified position on the 
date of the issuance of the SPWD. The SPWD will not be applicable to H-
2B workers who are already employed in the certified position at the 
time of the issuance of the SPWD, and it will not apply to U.S. workers 
recruited and hired under the original job order. For seafood employers 
whose workers' entry into the U.S. may be staggered under Sec.  
655.15(f), an SPWD issued under this provision will apply only to those 
H-2B workers who have not yet entered the U.S. and are therefore not 
yet employed in the certified position at the time of the issuance of 
the SPWD.
    (2) In order to receive an SPWD under this provision, the employer 
must submit a new ETA Form 9141 to the NPWC that contains in Section 
E.a.5 Job Duties the original PWD tracking number (starting with P-
400), the H-2B temporary employment certification application number 
(starting with H-400), and the words ``Request for a Supplemental 
Prevailing Wage Determination.'' Electronic submission through the 
iCERT Visa Portal System is preferred. Upon receipt of the request, the 
NPWC will issue to the employer, or if applicable, the employer's 
attorney or agent, an SPWD in an expedited manner and provide a copy to 
the Chicago NPC.

Sec.  655.5  Definition of terms.

    For purposes of this subpart:
    Act means the Immigration and Nationality Act or INA, as amended, 8 
U.S.C. 1101 et seq.
    Administrative Law Judge (ALJ) means a person within the 
Department's Office of Administrative Law Judges appointed under 5 
U.S.C. 3105.
    Administrator, Office of Foreign Labor Certification (OFLC) means 
the primary official of the Office of Foreign Labor Certification, ETA, 
or the Administrator's designee.
    Administrator, Wage and Hour Division (WHD) means the primary 
official of the WHD, or the Administrator's designee.
    Agent means:
    (1) 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 of Labor, 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 9142B and the appropriate appendices).
    Application for Temporary Employment Certification means the Office 
of Management and Budget (OMB)-approved ETA Form 9142B and the 
appropriate appendices, a valid wage determination, as required by 
Sec.  655.10, and a subsequently-filed U.S. worker recruitment report, 
submitted by an employer to secure a temporary labor certification 
determination from DOL.
    Area of intended employment means the geographic area within normal 
commuting distance of the place (worksite address) of the job 
opportunity for which the certification is sought. There is no rigid 
measure of distance that constitutes a normal commuting distance or 
normal commuting area, because there may be widely varying factual 
circumstances among different areas (e.g., average commuting times, 
barriers to reaching the worksite, or quality of the regional 
transportation network). If the place of intended employment is within 
a Metropolitan Statistical Area (MSA),

[[Page 24111]]

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 of Labor, 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 of Labor 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 means:
    (1) 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 component 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 a job contractor and that is not an affiliate, branch or 
subsidiary of the job contractor, under which the job contractor 
provides services or labor to the employer on a temporary basis and 
will not exercise substantial, direct day-to-day supervision and 
control in the performance of the services or labor to be performed 
other than hiring, paying and firing the workers.
    Employment and Training Administration (ETA) means the agency 
within the Department of Labor that 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 Form I-129 Petition for a Nonimmigrant 
Worker, with H Supplement or successor form or supplement, and 
accompanying documentation required by DHS for employers seeking to 
employ foreign persons as H-2B nonimmigrant workers
    H-2B Registration means the OMB-approved ETA Form 9155, submitted 
by an employer to register its intent to hire H-2B workers and to file 
an Application for Temporary Employment Certification.
    H-2B worker means any temporary foreign worker who is lawfully 
present in the U.S. and authorized by DHS to perform nonagricultural 
labor or services of a temporary or seasonal nature under 8 U.S.C. 
1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b).

[[Page 24112]]

    Job contractor means a person, association, firm, or a corporation 
that meets the definition of an employer and that contracts services or 
labor on a temporary basis to one or more employers, which is not an 
affiliate, branch or subsidiary of the job contractor and where the job 
contractor will not exercise substantial, direct day-to-day supervision 
and control in the performance of the services or labor to be performed 
other than hiring, paying and firing the workers.
    Job offer means the offer made by an employer or potential employer 
of H-2B workers to both U.S. and H-2B workers describing all the 
material terms and conditions of employment, including those relating 
to wages, working conditions, and other benefits.
    Job opportunity means one or more openings for full-time employment 
with the petitioning employer within a specified area(s) of intended 
employment for which the petitioning employer is seeking workers.
    Job order means the document containing the material terms and 
conditions of employment relating to wages, hours, working conditions, 
worksite and other benefits, including obligations and assurances under 
29 CFR part 503 and this subpart that is posted between and among the 
State Workforce Agencies (SWAs) on their job clearance systems.
    Joint employment means that where two or more employers each have 
sufficient definitional indicia of being an employer to be considered 
the employer of a worker, those employers will be considered to jointly 
employ that worker. Each employer in a joint employment relationship to 
a worker is considered a joint employer of that worker.
    Layoff means any involuntary separation of one or more U.S. 
employees without cause.
    Metropolitan Statistical Area (MSA) means a geographic entity 
defined by OMB for use by Federal statistical agencies in collecting, 
tabulating, and publishing Federal statistics. A metro area contains a 
core urban area of 50,000 or more population, and a micro area contains 
an urban core of at least 10,000 (but fewer than 50,000) population. 
Each metro or micro area consists of one or more counties and includes 
the counties containing the core urban area, as well as any adjacent 
counties that have a high degree of social and economic integration (as 
measured by commuting to work) with the urban core.
    National Prevailing Wage Center (NPWC) means that office within 
OFLC from which employers, agents, or attorneys who wish to file an 
Application for Temporary Employment Certification receive a prevailing 
wage determination (PWD).
    NPWC Director means the OFLC official to whom the Administrator, 
OFLC has delegated authority to carry out certain NPWC operations and 
functions.
    National Processing Center (NPC) means the office within OFLC which 
is charged with the adjudication of an Application for Temporary 
Employment Certification or other applications. For purposes of this 
subpart, the NPC receiving a request for an H-2B Registration and an 
Application for Temporary Employment Certification is the Chicago NPC 
whose address is published in the Federal Register.
    NPC Director means the OFLC official to whom the Administrator, 
OFLC has delegated authority for purposes of certain Chicago NPC 
operations and functions.
    Non-agricultural labor and services means any labor or services not 
considered to be agricultural labor or services as defined in subpart B 
of this part. It does not include the provision of services as members 
of the medical profession by graduates of medical schools.
    Occupational employment statistics (OES) survey means the program 
under the jurisdiction of the Bureau of Labor Statistics (BLS) that 
provides annual wage estimates for occupations at the State and MSA 
levels.
    Offered wage means the wage offered by an employer in an H-2B job 
order. The offered wage must equal or exceed the highest of the 
prevailing wage or Federal, State or local minimum wage.
    Office of Foreign Labor Certification (OFLC) means the 
organizational component of the ETA that provides national leadership 
and policy guidance and develops regulations to carry out the 
Secretary's responsibilities, including determinations related to an 
employer's request for H-2B Registration, Application for Prevailing 
Wage Determination, or Application for Temporary Employment 
Certification.
    Prevailing wage determination (PWD) means the prevailing wage for 
the position, as described in Sec.  655.10, that is the subject of the 
Application for Temporary Employment Certification. The PWD is made on 
ETA Form 9141, Application for Prevailing Wage Determination.
    Professional athlete 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.
    Seafood is defined as fresh or saltwater finfish, crustaceans, 
other forms of aquatic animal life, including, but not limited to, 
alligator, frog, aquatic turtle, jellyfish, sea cucumber, and sea 
urchin and the roe of such animals, and all mollusks.
    Secretary means the Secretary of Labor, the chief official of the 
U.S. Department of Labor, or the Secretary's designee.
    Secretary of Homeland Security means the chief official of the U.S. 
Department of Homeland Security (DHS) or the Secretary of Homeland 
Security's designee.
    Secretary of State means the chief official of the U.S. Department 
of State or the Secretary of State's designee.
    State Workforce Agency (SWA) means a State government agency that 
receives funds under the Wagner-Peyser Act (29 U.S.C. 49 et seq.) to 
administer the State's public labor exchange activities.
    Strike means a concerted stoppage of work by employees as a result 
of a labor dispute, or any concerted slowdown or other concerted 
interruption of operation (including stoppage by reason of the 
expiration of a collective bargaining agreement).
    Successor in interest means:
    (1) Where an employer has violated 29 CFR part 503, or this 
subpart, and has ceased doing business or cannot be located for 
purposes of enforcement, a successor in interest to that employer may 
be held liable for the duties and obligations of the violating employer 
in certain circumstances. The following factors, as used under Title 
VII of the Civil Rights Act and the Vietnam Era Veterans' Readjustment 
Assistance Act, may be considered in determining whether an employer is 
a successor in interest; no one factor is dispositive, but all of the 
circumstances will be considered as a whole:
    (i) Substantial continuity of the same business operations;
    (ii) Use of the same facilities;
    (iii) Continuity of the work force;
    (iv) Similarity of jobs and working conditions;
    (v) Similarity of supervisory personnel;
    (vi) Whether the former management or owner retains a direct or 
indirect interest in the new enterprise;
    (vii) Similarity in machinery, equipment, and production methods;
    (viii) Similarity of products and services; and

[[Page 24113]]

    (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 United States, Alaska, 
Hawaii, the Commonwealth of Puerto Rico, Guam, the U.S. Virgin Islands, 
and the Commonwealth of the Northern Mariana Islands (CNMI).
    U.S. 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, section 207 of 
the INA, is granted asylum under 8 U.S.C. 1158, section 208 of the INA, 
or is an alien otherwise authorized under the immigration laws 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), section 274a(h)(3) of the INA) with respect to the 
employment in which the worker is engaging.
    Wage and Hour Division (WHD) means the agency within the Department 
of Labor with investigatory and law enforcement authority, as delegated 
from DHS, to carry out the provisions under 8 U.S.C. 1184(c), section 
214(c) of the INA.
    Wages mean all forms of cash remuneration to a worker by an 
employer in payment for personal services.

Sec.  655.6  Temporary need.

    (a) An employer seeking certification under this subpart must 
establish that its need for non-agricultural services or labor is 
temporary, regardless of whether the underlying job is permanent or 
temporary.
    (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 regulations. 
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.
    (d) Nothing in this paragraph (d) is intended to limit the 
authority of the Secretary of Homeland Security, in the course of 
adjudicating an H-2B petition, to make the final determination as to 
whether a prospective H-2B employer's need is temporary in nature.

Sec.  655.7  Persons and entities authorized to file.

    (a) Persons authorized to file. In addition to the employer 
applicant, a request for an H-2B Registration or an Application for 
Temporary Employment Certification may be filed by an attorney or 
agent, as defined in Sec.  655.5.
    (b) Employer's signature required. Regardless of whether the 
employer is represented by an attorney or agent, the employer is 
required to sign the H-2B Registration and Application for Temporary 
Employment Certification and all documentation submitted to the 
Department of Labor.

Sec.  655.8  Requirements for agents.

    An agent filing an Application for Temporary Employment 
Certification on behalf of an employer must provide:
    (a) A copy of the agent agreement or other document demonstrating 
the agent's authority to represent the employer; and
    (b) A copy of the Migrant and Seasonal Agricultural Worker 
Protection Act (MSPA) Farm Labor Contractor Certificate of 
Registration, if the agent is required under MSPA, at 29 U.S.C. 1801 et 
seq., to have such a certificate, identifying the specific farm labor 
contracting activities the agent is authorized to perform.

Sec.  655.9  Disclosure of foreign worker recruitment.

    (a) The employer, and its attorney or agent, as applicable, must 
provide a copy of all agreements with any agent or recruiter whom it 
engages or plans to engage in the recruitment of H-2B workers under 
this Application for Temporary Employment Certification. These 
agreements must contain the contractual prohibition against charging 
fees as set forth in Sec.  655.20(p).
    (b) The employer, and its attorney or agent, as applicable, must 
also provide the identity and location of all persons and entities 
hired by or working for the recruiter or agent referenced in paragraph 
(a) of this section, and any of the agents or employees of those 
persons and entities, to recruit prospective foreign workers for the H-
2B job opportunities offered by the employer.
    (c) The Department of Labor 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.

Prefiling Procedures

Sec.  655.10  Determination of prevailing wage for temporary labor 
certification purposes.

    (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.
    (b) [Reserved]
    (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.
    (f) [Reserved]
    (g) Review of employer-provided surveys. (1) If the NPWC finds an 
employer-provided survey not to be acceptable, the NPWC shall inform 
the employer in writing of the reasons the survey was not accepted.
    (2) The employer, after receiving notification that the survey it 
provided for consideration is not acceptable, may request review under 
Sec.  655.13.
    (h) Validity period. The NPWC must specify the validity period of 
the

[[Page 24114]]

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.
    (j) Retention of documentation. The employer must retain the PWD 
for 3 years from the date of issuance or the date of a final 
determination on the Application for Temporary Employment 
Certification, whichever is later, and submit it to a CO if requested 
by a Notice of Deficiency, described in Sec.  655.31, or audit, as 
described in Sec.  655.70, or to a WHD representative during a WHD 
investigation.
    (k) Guam. The requirements of this section apply to any request 
filed for an H-2B job opportunity on Guam, subject to the transfer of 
authority to set the prevailing wage for a job opportunity on Guam to 
DOL in Title 8 of the Code of Federal Regulations.

Sec.  655.11  Registration of H-2B employers.

    All employers, including job contractors, 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 by DHS regulations and Sec.  
655.6 (or in the case of job contractors, a seasonal need or one-time 
occurrence); and
    (4) For job contractors, the job contractor's own seasonal need or 
one-time occurrence, such as through the provision of payroll records.
    (b) Original signature. The H-2B Registration must bear the 
original signature of the employer (and that of the employer's attorney 
or agent if applicable). If and when the H-2B Registration is permitted 
to be filed electronically, the employer will satisfy this requirement 
by signing the H-2B Registration as directed by the CO.
    (c) Timeliness of registration filing. A completed request for an 
H-2B Registration must be received by no less than 120 calendar days 
and no more than 150 calendar days before the employer's date of need, 
except where the employer submits the H-2B Registration in support of 
an emergency filing under Sec.  655.17.
    (d) Temporary need. (1) The employer must establish that its need 
for non-agricultural services or labor is temporary, regardless of 
whether the underlying job is permanent or temporary, consistent with 
DHS regulations. 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 Homeland Security and as 
further defined in Sec.  655.6.
    (e) NPC review. The CO will review the H-2B Registration and its 
accompanying documentation for completeness and make a determination 
based on the following factors:
    (1) The job classification and duties qualify as non-agricultural;
    (2) The employer's need for the services or labor to be performed 
is temporary in nature, and for job contractors, demonstration of the 
job contractor's own seasonal need or one-time occurrence;
    (3) The number of worker positions and period of need are 
justified; and
    (4) The request represents a bona fide job opportunity.
    (f) Mailing and postmark requirements. Any notice or request 
pertaining to an H-2B Registration sent by the CO to an employer 
requiring a response will be mailed to the address provided on the H-2B 
Registration using methods to assure next day delivery, including 
electronic mail. The employer's response to the notice or request must 
be mailed using methods to assure next day delivery, including 
electronic mail, and be sent by the due date specified by the CO or by 
the next business day if the due date falls on a Saturday, Sunday or 
Federal holiday.
    (g) Request for information (RFI). If the CO determines the H-2B 
Registration cannot be approved, the CO will issue an RFI. The RFI will 
be issued within 7 business days of the CO's receipt of the H-2B 
Registration. The RFI will:
    (1) State the reason(s) why the H-2B Registration cannot be 
approved and what supplemental information or documentation is needed 
to correct the deficiencies;
    (2) Specify a date, no later than 7 business days from the date the 
RFI is issued, by which the supplemental information or documentation 
must be sent by the employer;
    (3) State that, upon receipt of a response to the RFI, the CO will 
review the H-2B Registration as well as any supplemental information 
and documentation and issue a Notice of Decision on the H-2B 
Registration. The CO may, at his or her discretion, issue one or more 
additional RFIs before issuing a Notice of Decision on the H-2B 
Registration; and
    (4) State that failure to comply with an RFI, including not 
responding in a timely manner or not providing all required 
documentation within the specified timeframe, will result in a denial 
of the H-2B Registration.
    (h) Notice of Decision. The CO will notify the employer in writing 
of the final decision on the H-2B Registration.
    (1) Approved H-2B Registration. If the H-2B Registration is 
approved, the CO will send a Notice of Decision to the employer, and a 
copy to the employer's attorney or agent, if applicable. The Notice of 
Decision will notify the employer that it is eligible to seek H-2B 
workers in the occupational classification for the anticipated number 
of positions and period of need stated on the approved H-2B 
Registration. The CO may approve the H-2B Registration for a period of 
up to 3 consecutive years.
    (2) Denied H-2B Registration. If the H-2B Registration is denied, 
the CO will send a Notice of Decision to the employer, and a copy to 
the employer's attorney or agent, if applicable. The Notice of Decision 
will:
    (i) State the reason(s) why the H-2B Registration is denied;
    (ii) Offer the employer an opportunity to request administrative 
review under Sec.  655.61 within 10 business days from the date the 
Notice of Decision is issued and state that if the employer does not 
request administrative review within that period the denial is final.
    (i) Retention of documents. All employers filing an H-2B 
Registration are required to retain any documents and records not 
otherwise submitted proving compliance with this subpart. Such records 
and documents must be retained for a period of 3 years from the date of 
certification of the last Application for Temporary Employment 
Certification supported by the H-2B Registration, if approved, or 3 
years from the date the decision is issued if the H-2B Registration is 
denied or 3 years from the day the Department of Labor receives written 
notification from the employer withdrawing its pending H-2B 
Registration.

[[Page 24115]]

    (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.

Sec.  655.12  Use of registration of H-2B employers.

    (a) Upon approval of the H-2B Registration, the employer is 
authorized for the specified period of up to 3 consecutive years from 
the date the H-2B Registration is approved to file an Application for 
Temporary Employment Certification, unless:
    (1) The number of workers to be employed has increased by more than 
20 percent (or 50 percent for employers requesting fewer than 10 
workers) from the initial year;
    (2) The dates of need for the job opportunity have changed by more 
than a total of 30 calendar days from the initial year for the entire 
period of need;
    (3) The nature of the job classification and/or duties has 
materially changed; or
    (4) The temporary nature of the employer's need for services or 
labor to be performed has materially changed.
    (b) If any of the changes in paragraphs (a)(1) through (4) of this 
section apply, the employer must file a new H-2B Registration in 
accordance with Sec.  655.11.
    (c) The H-2B Registration may not be transferred from one employer 
to another unless the employer to which it is transferred is a 
successor in interest to the employer to which it was issued.

Sec.  655.13  Review of PWDs.

    (a) Request for review of PWDs. Any employer desiring review of a 
PWD must make a written request for such review to the NPWC Director 
within 7 business days from the date the PWD is issued. The request for 
review must clearly identify the PWD for which review is sought; set 
forth the particular grounds for the request; and include any materials 
submitted to the NPWC for purposes of securing the PWD.
    (b) NPWC review. Upon the receipt of the written request for 
review, the NPWC Director will review the employer's request and 
accompanying documentation, including any supplementary material 
submitted by the employer, and after review shall issue a Final 
Determination letter; that letter may:
    (1) Affirm the PWD issued by the NPWC; or
    (2) Modify the PWD.
    (c) Request for review by BALCA. Any employer desiring review of 
the NPWC Director's decision on a PWD must make a written request for 
review of the determination by BALCA within 10 business days from the 
date the Final Determination letter is issued.
    (1) The request for BALCA review must be in writing and addressed 
to the NPWC Director who made the final determinations. Upon receipt of 
a request for BALCA review, the NPWC will prepare an appeal file and 
submit it to BALCA.
    (2) The request for review, statements, briefs, and other 
submissions of the parties must contain only legal arguments and may 
refer to only the evidence that was within the record upon which the 
decision on the PWD was based.
    (3) BALCA will handle appeals in accordance with Sec.  655.61.

Sec.  655.14  [Reserved]

Application for Temporary Employment Certification Filing Procedures

Sec.  655.15  Application filing requirements.

    All registered employers that desire to hire H-2B workers must file 
an Application for Temporary Employment Certification with the NPC 
designated by the Administrator, OFLC. Except for employers that 
qualify for emergency procedures at Sec.  655.17, employers that fail 
to register under the procedures in Sec.  655.11 and/or that fail to 
submit a PWD obtained under Sec.  655.10 will not be eligible to file 
an Application for Temporary Employment Certification and their 
applications will be returned without review.
    (a) What to file. A registered employer seeking H-2B workers must 
file a completed Application for Temporary Employment Certification 
(ETA Form 9142B and the appropriate appendices and valid PWD), a copy 
of the job order being submitted concurrently to the SWA serving the 
area of intended employment, as set forth in Sec.  655.16, and copies 
of all contracts and agreements with any agent and/or recruiter, 
executed in connection with the job opportunities and all information 
required, as specified in Sec. Sec.  655.8 and 655.9.
    (b) Timeliness. A completed Application for Temporary Employment 
Certification must be filed no more than 90 calendar days and no less 
than 75 calendar days before the employer's date of need.
    (c) Location and method of filing. The employer must submit the 
Application for Temporary Employment Certification and all required 
supporting documentation to the NPC either electronically or by mail.
    (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 the Application for Temporary Employment 
Certification is filed electronically, the employer must 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. Except as otherwise permitted by this 
paragraph (f), only one Application for Temporary Employment 
Certification may be filed for worksite(s) within one area of intended 
employment for each job opportunity with an employer for each period of 
employment. Except where otherwise permitted under Sec.  655.4, an 
association or other organization of employers is not permitted to file 
master applications on behalf of its employer-members under the H-2B 
program.
    (1) Subject to paragraph (f)(2) of this section, if a petition for 
H-2B nonimmigrants filed by an employer in the seafood industry is 
granted, the employer may bring the nonimmigrants described in the 
petition into the United States at any time during the 120-day period 
beginning on the start date for which the employer is seeking the 
services of the nonimmigrants without filing another petition.
    (2) An employer in the seafood industry may not bring H-2B 
nonimmigrants into the United States after the date that is 90 days 
after the start date for which the employer is seeking the services of 
the nonimmigrants unless the employer conducts new recruitment, that 
begins at least 45 days after, and ends before the 90th day after, the 
certified start date of need as follows:
    (i) Completes a new assessment of the local labor market by--
    (A) Listing the job orders in local newspapers on 2 separate 
Sundays; and
    (B) Placing new job orders for the job opportunity with the State 
Workforce Agency serving the area of intended employment and posting 
the job opportunity at the place of employment for at least 10 days; 
and

[[Page 24116]]

    (C) Offering the job to an equally or better qualified United 
States worker who--
    (1) Applies for the job; and
    (2) Will be available at the time and place of need.
    (3) In order to comply with this provision, employers in the 
seafood industry must--
    (1) Sign and date an attestation form stating the employer's 
compliance with this subparagraph. The attestation form is available at 
http://www.foreignlaborcert.doleta.gov/form.cfm;
    (2) Provide each H-2B nonimmigrant worker seeking admission to the 
United States a copy of the signed and dated attestation, with 
instructions that the worker must present the documentation upon 
request to the Department of State's consular officers when they apply 
for a visa and/or the Department of Homeland Security's U.S Customs and 
Border Protection officers when seeking admission to the United States. 
Without this attestation, an H-2B nonimmigrant may be denied a visa or 
admission to the United States if seeking to enter at any time other 
than the start date stated in the petition. (The attestation is not 
necessary when filing an amended petition based on a worker who is 
being substituted in accordance with DHS regulations.) The attestation 
presented by an H-2B nonimmigrant worker must be the official 
attestation downloaded from OFLC's Web site and may not be altered or 
revised in any manner; and
    (3) Retain the additional recruitment documentation, together with 
their prefiling recruitment documentation, for a period of 3 years from 
the date of certification, consistent with the document retention 
requirements under Sec.  655.56. Seafood industry employers who conduct 
the required additional recruitment should not submit proof of the 
additional recruitment to the Office of Foreign Labor Certification.
    (g) One-time occurrence. Where a one-time occurrence lasts longer 
than 1 year, the CO will instruct the employer on any additional 
recruitment requirements with respect to the continuing validity of the 
labor market test or offered wage obligation.
    (h) Information dissemination. Information received in the course 
of processing a request for an H-2B Registration, an Application for 
Temporary Employment Certification or program integrity measures such 
as audits may be forwarded from OFLC to WHD, or any other Federal 
agency as appropriate, for investigative and/or enforcement purposes.

Sec.  655.16  Filing of the job order at the SWA.

    (a) Submission of the job order. (1) The employer must submit the 
job order to the SWA serving the area of intended employment at the 
same time it submits the Application for Temporary Employment 
Certification and a copy of the job order to the NPC in accordance with 
Sec.  655.15. If the job opportunity is located in more than one State 
within the same area of intended employment, the employer may submit 
the job order to any one of the SWAs having jurisdiction over the 
anticipated worksites, but must identify the receiving SWA on the copy 
of the job order submitted to the NPC with its Application for 
Temporary Employment Certification. The employer must inform the SWA 
that the job order is being placed in connection with a concurrently 
submitted Application for Temporary Employment Certification for H-2B 
workers.
    (2) In addition to complying with State-specific requirements 
governing job orders, the job order submitted to the SWA must satisfy 
the requirements set forth in Sec.  655.18.
    (b) SWA review of the job order. The SWA must review the job order 
and ensure that it complies with criteria set forth in Sec.  655.18. If 
the SWA determines that the job order does not comply with the 
applicable criteria, the SWA must inform the CO at the NPC of the noted 
deficiencies within 6 business days of receipt of the job order.
    (c) Intrastate and interstate clearance. Upon receipt of the Notice 
of Acceptance, as described in Sec.  655.33, the SWA must promptly 
place the job order in intrastate clearance, and in interstate 
clearance by providing a copy of the job order to other states as 
directed by the CO.
    (d) Duration of job order posting and SWA referral of U.S. workers. 
Upon receipt of the Notice of Acceptance, any SWA in receipt of the 
employer's job order must keep the job order on its active file until 
the end of the recruitment period, as set forth in Sec.  655.40(c), and 
must refer to the employer in a manner consistent with Sec.  655.47 all 
qualified U.S. workers who apply for the job opportunity or on whose 
behalf a job application is made.
    (e) Amendments to a job order. The employer may amend the job order 
at any time before the CO makes a final determination, in accordance 
with procedures set forth in Sec.  655.35.

Sec.  655.17  Emergency situations.

    (a) Waiver of time period. The CO may waive the time period(s) for 
filing an H-2B Registration and/or an Application for Temporary 
Employment Certification for employers that have good and substantial 
cause, provided that the CO has sufficient time to thoroughly test the 
domestic labor market on an expedited basis and to make a final 
determination as required by Sec.  655.50.
    (b) Employer requirements. The employer requesting a waiver of the 
required time period(s) must submit to the NPC a request for a waiver 
of the time period requirement, a completed Application for Temporary 
Employment Certification and the proposed job order identifying the SWA 
serving the area of intended employment, and must otherwise meet the 
requirements of Sec.  655.15. If the employer did not previously apply 
for an H-2B Registration, the employer must also submit a completed H-
2B Registration with all supporting documentation, as required by Sec.  
655.11. If the employer did not previously apply for a PWD, the 
employer must also submit a completed PWD request. The employer's 
waiver request must include detailed information describing the good 
and substantial cause that has necessitated the waiver request. Good 
and substantial cause may include, but is not limited to, the 
substantial loss of U.S. workers due to Acts of God, or a similar 
unforeseeable man-made catastrophic event (such as an oil spill or 
controlled flooding) that is wholly outside of the employer's control, 
unforeseeable changes in market conditions, or pandemic health issues. 
A denial of a previously submitted H-2B Registration in accordance with 
the procedures set forth in Sec.  655.11 does not constitute good and 
substantial cause necessitating a waiver under this section.
    (c) Processing of emergency applications. The CO will process the 
emergency H-2B Registration and/or Application for Temporary Employment 
Certification and job order in a manner consistent with the provisions 
of this subpart and make a determination on the Application for 
Temporary Employment Certification in accordance with Sec.  655.50. If 
the CO grants the waiver request, the CO will forward a Notice of 
Acceptance and the approved job order to the SWA serving the area of 
intended employment identified by the employer in the job order. If the 
CO determines that the certification cannot be granted because, under 
paragraph (a) of this section, the request for emergency filing is not 
justified and/or there is not sufficient time to make a determination 
of temporary need or ensure compliance with the criteria for 
certification contained in Sec.  655.51, the CO will send a Final 
Determination

[[Page 24117]]

letter to the employer in accordance with Sec.  655.53.

Sec.  655.18  Job order assurances and contents.

    (a) General. Each job order placed in connection with an 
Application for Temporary Employment Certification must at a minimum 
include the information contained in paragraph (b) of this section. In 
addition, by submitting the Application for Temporary Employment 
Certification, an employer agrees to comply with the following 
assurances with respect to each job order:
    (1) Prohibition against preferential treatment. The employer's job 
order must offer to U.S. workers no less than the same benefits, wages, 
and working conditions that the employer is offering, intends to offer, 
or will provide to H-2B workers. Job offers may not impose on U.S. 
workers any restrictions or obligations that will not be imposed on the 
employer's H-2B workers. This does not relieve the employer from 
providing to H-2B workers at least the minimum benefits, wages, and 
working conditions which must be offered to U.S. workers consistent 
with this section.
    (2) Bona fide job requirements. Each job qualification and 
requirement must be listed in the job order and must be bona fide and 
consistent with the normal and accepted qualifications and requirements 
imposed by non-H-2B employers in the same occupation and area of 
intended employment.
    (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, the range of wage offers, and ensure that the 
wage offer equals or exceeds the highest of the prevailing wage or the 
Federal, State, or local minimum wage;
    (6) If applicable, specify that overtime will be available to the 
worker and the wage offer(s) for working any overtime hours;
    (7) If applicable, state that on-the-job training will be provided 
to the worker;
    (8) State that the employer will use a single workweek as its 
standard for computing wages due;
    (9) Specify the frequency with which the worker will be paid, which 
must be at least every 2 weeks or according to the prevailing practice 
in the area of intended employment, whichever is more frequent;
    (10) If the employer provides the worker with the option of board, 
lodging, or other facilities, including fringe benefits, or intends to 
assist workers to secure such lodging, disclose the provision and cost 
of the board, lodging, or other facilities, including fringe benefits 
or assistance to be provided;
    (11) State that the employer will make all deductions from the 
worker's paycheck required by law. Specify any deductions the employer 
intends to make from the worker's paycheck which are not required by 
law, including, if applicable, any deductions for the reasonable cost 
of board, lodging, or other facilities;
    (12) Detail how the worker will be provided with or reimbursed for 
transportation and subsistence from the place from which the worker has 
come to work for the employer, whether in the U.S. or abroad, to the 
place of employment, if the worker completes 50 percent of the period 
of employment covered by the job order, consistent with Sec.  
655.20(j)(1)(i);
    (13) State that the employer will provide or pay for the worker's 
cost of return transportation and daily subsistence from the place of 
employment to the place from which the worker, disregarding intervening 
employment, departed to work for the employer, if the worker completes 
the certified period of employment or is dismissed from employment for 
any reason by the employer before the end of the period, consistent 
with Sec.  655.20(j)(1)(ii);
    (14) If applicable, state that the employer will provide daily 
transportation to and from the worksite;
    (15) State that the employer will reimburse the H-2B worker in the 
first workweek for all visa, visa processing, border crossing, and 
other related fees, including those mandated by the government, 
incurred by the H-2B worker (but need not include passport expenses or 
other charges primarily for the benefit of the worker);
    (16) State that the employer will provide to the worker, without 
charge or deposit charge, all tools, supplies, and equipment required 
to perform the duties assigned, in accordance with Sec.  655.20(k);
    (17) State the applicability of the three-fourths guarantee, 
offering the worker employment for a total number of work hours equal 
to at least three-fourths of the workdays of each 12-week period, if 
the period of employment covered by the job order is 120 or more days, 
or each 6-week period, if the period of employment covered by the job 
order is less than 120 days, in accordance with Sec.  655.20(f); and
    (18) Instruct applicants to inquire about the job opportunity or 
send applications, indications of availability, and/or resumes directly 
to the nearest office of the SWA in the State in which the 
advertisement appeared and include the SWA contact information.

Sec.  655.19  Job contractor filing requirements.

    (a) Provided that a job contractor and any employer-client are 
joint employers, a job contractor may submit an Application for 
Temporary Employment Certification on behalf of itself and that 
employer-client.
    (b) A job contractor must have separate contracts with each 
different employer-client. Each contract or agreement may support only 
one Application for Temporary Employment Certification for each 
employer-client job opportunity within a single area of intended 
employment.
    (c) Either the job contractor or its employer-client may submit an 
ETA Form 9141, Application for Prevailing Wage Determination, 
describing the job opportunity to the NPWC. However, each of the joint 
employers is separately responsible for ensuring that the wage offer 
listed on the Application for Temporary Employment Certification, ETA 
Form 9142B, and related recruitment at least equals the prevailing wage 
rate determined by the NPWC and that all other wage obligations are 
met.
    (d)(1) A job contractor that is filing as a joint employer with its 
employer-client must submit to the NPC a completed Application for 
Temporary Employment Certification, ETA Form 9142, that clearly 
identifies the joint employers (the job contractor and its employer-
client) and the employment relationship (including the actual 
worksite), in accordance with the instructions provided by the

[[Page 24118]]

Department of Labor. The Application for Temporary Employment 
Certification must bear the original signature of the job contractor 
and the employer-client and be accompanied by the contract or agreement 
establishing the employers' relationship related to the workers sought.
    (2) By signing the Application for Temporary Employment 
Certification, each employer independently attests to the conditions of 
employment required of an employer participating in the H-2B program 
and assumes full responsibility for the accuracy of the representations 
made in the application and for all of the responsibilities of an 
employer in the H-2B program.
    (e)(1) Either the job contractor or its employer-client may place 
the required job order and conduct recruitment as described in Sec.  
655.16 and Sec. Sec.  655.42 through 655.46. 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 9142B.
    (2) The job order and all recruitment conducted by joint employers 
must satisfy the content requirements identified in Sec. Sec.  655.18 
and 655.41. Additionally, in order to fully apprise applicants of the 
job opportunity and avoid potential confusion inherent in a job 
opportunity involving two employers, joint employer recruitment must 
clearly identify both employers (the job contractor and its employer-
client) by name and must clearly identify the worksite location(s) 
where workers will perform labor or services.
    (3)(i) Provided that all of the employer-clients' job opportunities 
are in the same occupation and area of intended employment and have the 
same requirements and terms and conditions of employment, including 
dates of employment, a job contractor may combine more than one of its 
joint employer employer-clients' job opportunities in a single 
advertisement. Each advertisement must fully apprise potential workers 
of the job opportunity available with each employer-client and 
otherwise satisfy the advertising content requirements required for all 
H-2B-related advertisements, as identified in Sec.  655.41. Such a 
shared advertisement must clearly identify the job contractor by name, 
the joint employment relationship, and the number of workers sought for 
each job opportunity, identified by employer-client name and location 
(e.g. 5 openings with Employer-Client 1 (worksite location), 3 openings 
with Employer-Client 2 (worksite location)).
    (ii) In addition, the advertisement must contain the following 
statement: ``Applicants may apply for any or all of the jobs listed. 
When applying, please identify the job(s) (by company and work 
location) you are applying to for the entire period of employment 
specified.'' If an applicant fails to identify one or more specific 
work location(s), that applicant is presumed to have applied to all 
work locations listed in the advertisement.
    (f) If an application for joint employers is approved, the NPC will 
issue one certification and send it to the job contractor. In order to 
ensure notice to both employers, a courtesy copy of the certification 
cover letter will be sent to the employer-client. (g) When submitting a 
certified Application for Temporary Employment Certification to USCIS, 
the job contractor should submit the complete ETA Form 9142B containing 
the original signatures of both the job contractor and employer-client.

Assurances and Obligations

Sec.  655.20  Assurances and obligations of H-2B employers.

    An employer employing H-2B workers and/or workers in corresponding 
employment under an Application for Temporary Employment Certification 
has agreed as part of the Application for Temporary Employment 
Certification that it will abide by the following conditions with 
respect to its H-2B workers and any workers in corresponding 
employment:
    (a) Rate of pay. (1) The offered wage in the job order equals or 
exceeds the highest of the prevailing wage or Federal minimum wage, 
State minimum wage, or local minimum wage. The employer must pay at 
least the offered wage, free and clear, during the entire period of the 
Application for Temporary Employment Certification granted by OFLC.
    (2) The offered wage is not based on commissions, bonuses, or other 
incentives, including paying on a piece-rate basis, unless the employer 
guarantees a wage earned every workweek that equals or exceeds the 
offered wage.
    (3) If the employer requires one or more minimum productivity 
standards of workers as a condition of job retention, the standards 
must be specified in the job order and the employer must demonstrate 
that they are normal and usual for non-H-2B employers for the same 
occupation in the area of intended employment.
    (4) An employer that pays on a piece-rate basis must demonstrate 
that the piece rate is no less than the normal rate paid by non-H-2B 
employers to workers performing the same activity in the area of 
intended employment. The average hourly piece rate earnings must result 
in an amount at least equal to the offered wage. If the worker is paid 
on a piece rate basis and at the end of the workweek the piece rate 
does not result in average hourly piece rate earnings during the 
workweek at least equal to the amount the worker would have earned had 
the worker been paid at the offered hourly wage, then the employer must 
supplement the worker's pay at that time so that the worker's earnings 
are at least as much as the worker would have earned during the 
workweek if the worker had instead been paid at the offered hourly wage 
for each hour worked.
    (b) Wages free and clear. The payment requirements for wages in 
this section will be satisfied by the timely payment of such wages to 
the worker either in cash or negotiable instrument payable at par. The 
payment must be made finally and unconditionally and ``free and 
clear.'' The principles applied in determining whether deductions are 
reasonable and payments are received free and clear and the 
permissibility of deductions for payments to third persons are 
explained in more detail in 29 CFR part 531.
    (c) Deductions. The employer must make all deductions from the 
worker's paycheck required by law. The job order must specify all 
deductions not required by law which the employer will make from the 
worker's pay; any such deductions not disclosed in the job order are 
prohibited. The wage payment requirements of paragraph (b) of this 
section are not met where unauthorized deductions, rebates, or refunds 
reduce the wage payment made to the worker below the minimum amounts 
required by the offered wage or where the worker fails to receive such 
amounts free and clear because the worker ``kicks back'' directly or 
indirectly to the employer or to another person for the employer's 
benefit the whole or part of the wages delivered to the worker. 
Authorized deductions are limited to: Those required by law, such as 
taxes payable by workers that are required to be withheld by the 
employer and amounts due workers which the employer is required by 
court order to pay to another; deductions for the reasonable cost or 
fair value of board, lodging, and facilities furnished; and deductions 
of amounts which are authorized to be paid to third persons for the 
worker's account and benefit through his or her

[[Page 24119]]

voluntary assignment or order or which are authorized by a collective 
bargaining agreement with bona fide representatives of workers which 
covers the employer. Deductions for amounts paid to third persons for 
the worker's account and benefit which are not so authorized or are 
contrary to law or from which the employer, agent or recruiter 
including any agents or employees of these entities, or any affiliated 
person derives any payment, rebate, commission, profit, or benefit 
directly or indirectly, may not be made if they reduce the actual wage 
paid to the worker below the offered wage indicated on the Application 
for Temporary Employment Certification.
    (d) Job opportunity is full-time. The job opportunity is a full-
time temporary position, consistent with Sec.  655.5, and the employer 
must use a single workweek as its standard for computing wages due. An 
employee's workweek must be a fixed and regularly recurring period of 
168 hours--seven consecutive 24-hour periods. It need not coincide with 
the calendar week but may begin on any day and at any hour of the day.
    (e) Job qualifications and requirements. Each job qualification and 
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 not be less favorable than the 
qualifications and requirements that the employer is imposing or will 
impose on H-2B workers. A qualification means a characteristic that is 
necessary to the individual's ability to perform the job in question. A 
requirement means a term or condition of employment which a worker is 
required to accept in order to obtain the job opportunity. The CO may 
require the employer to submit documentation to substantiate the 
appropriateness of any job qualification and/or requirement specified 
in the job order.
    (f) Three-fourths guarantee. (1) The employer must guarantee to 
offer the worker employment for a total number of work hours equal to 
at least three-fourths of the workdays in each 12-week period (each 6-
week period if the period of employment covered by the job order is 
less than 120 days) beginning with the first workday after the arrival 
of the worker at the place of employment or the advertised first date 
of need, whichever is later, and ending on the expiration date 
specified in the job order or in its extensions, if any. See the 
exception in paragraph (y) of this section.
    (2) For purposes of this paragraph (f) a workday means the number 
of hours in a workday as stated in the job order. The employer must 
offer a total number of hours of work to ensure the provision of 
sufficient work to reach the three-fourths guarantee in each 12-week 
period (each 6-week period if the period of employment covered by the 
job order is less than 120 days) during the work period specified in 
the job order, or during any modified job order period to which the 
worker and employer have mutually agreed and that has been approved by 
the CO.
    (3) In the event the worker begins working later than the specified 
beginning date the guarantee period begins with the first workday after 
the arrival of the worker at the place of employment, and continues 
until the last day during which the job order and all extensions 
thereof are in effect.
    (4) The 12-week periods (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 in the first 12-week period (12 weeks x 35 hours/week = 420 hours 
x 75 percent = 315), at least 315 hours in the second 12-week period, 
and at least 210 hours (8 weeks x 35 hours/week = 280 hours x 75 
percent = 210) in the final partial period. If the job order is for a 
16-week period (less than 120 days), during which the normal workdays 
and work hours for the workweek are specified as 5 days a week, 7 hours 
per day, the worker would have to be guaranteed employment for at least 
157.5 hours (6 weeks x 35 hours/week = 210 hours x 75 percent = 157.5) 
in the first 6-week period, at least 157.5 hours in the second 6-week 
period, and at least 105 hours (4 weeks x 35 hours/week = 140 hours x 
75 percent = 105) in the final partial period.
    (6) If the worker is paid on a piece rate basis, the employer must 
use the worker's average hourly piece rate earnings or the offered 
wage, whichever is higher, to calculate the amount due under the 
guarantee.
    (7) A worker may be offered more than the specified hours of work 
on a single workday. For purposes of meeting the guarantee, however, 
the worker will not be required to work for more than the number of 
hours specified in the job order for a workday. The employer, however, 
may count all hours actually worked in calculating whether the 
guarantee has been met. If during any 12-week period (6-week period if 
the period of employment covered by the job order is less than 120 
days) during the period of the job order the employer affords the U.S. 
or H-2B worker less employment than that required under paragraph 
(f)(1) of this section, the employer must pay such worker the amount 
the worker would have earned had the worker, in fact, worked for the 
guaranteed number of days. An employer has not met the work guarantee 
if the employer has merely offered work on three-fourths of the 
workdays in an 12-week period (or 6-week period, as appropriate) if 
each workday did not consist of a full number of hours of work time as 
specified in the job order.
    (8) Any hours the worker fails to work, up to a maximum of the 
number of hours specified in the job order for a workday, when the 
worker has been offered an opportunity to work in accordance with 
paragraph (f)(1) of this section, and all hours of work actually 
performed (including voluntary work over 8 hours in a workday), may be 
counted by the employer in calculating whether each 12-week period (or 
6-week period, as appropriate) of guaranteed employment has been met. 
An employer seeking to calculate whether the guaranteed number of hours 
has been met must maintain the payroll records in accordance with this 
part.
    (g) Impossibility of fulfillment. If, before the expiration date 
specified in the job order, the services of the worker are no longer 
required for reasons beyond the control of the employer due to fire, 
weather, or other Act of God, or similar unforeseeable man-made 
catastrophic event (such as an oil spill or controlled flooding) that 
is wholly outside the employer's control that

[[Page 24120]]

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.
    (2) The employer must furnish to the worker on or before each 
payday in one or more written statements the following information:
    (i) The worker's total earnings for each workweek in the pay 
period;
    (ii) The worker's hourly rate and/or piece rate of pay;
    (iii) For each workweek in the pay period the hours of employment 
offered to the worker (showing offers in accordance with the three-
fourths guarantee as determined in paragraph (f) of this section, 
separate from any hours offered over and above the guarantee);
    (iv) For each workweek in the pay period the hours actually worked 
by the worker;
    (v) An itemization of all deductions made from or additions made to 
the worker's wages;
    (vi) If piece rates are used, the units produced daily;
    (vii) The beginning and ending dates of the pay period; and
    (viii) The employer's name, address and FEIN.
    (j) Transportation and visa fees. (1)(i) Transportation to the 
place of employment. The employer must provide or reimburse the worker 
for transportation and subsistence from the place from which the worker 
has come to work for the employer, whether in the U.S. or abroad, to 
the place of employment if the worker completes 50 percent of the 
period of employment covered by the job order (not counting any 
extensions). The employer may arrange and pay for the transportation 
and subsistence directly, advance at a minimum the most economical and 
reasonable common carrier cost of the transportation and subsistence to 
the worker before the worker's departure, or pay the worker for the 
reasonable costs incurred by the worker. When it is the prevailing 
practice of non-H-2B employers in the occupation in the area to do so 
or when the employer extends such benefits to similarly situated H-2B 
workers, the employer must advance the required transportation and 
subsistence costs (or otherwise provide them) to workers in 
corresponding employment who are traveling to the employer's worksite. 
The amount of the transportation payment must be no less (and is not 
required to be more) than the most economical and reasonable common 
carrier transportation charges for the distances involved. The amount 
of the daily subsistence must be at least the amount permitted in Sec.  
655.173. 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 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

[[Page 24121]]

documents required by this paragraph (l) 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 of Labor that 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 of Labor, 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), section 
214(c) of the INA, 29 CFR part 503, or this subpart, or any other 
regulation promulgated thereunder;
    (2) Instituted or caused to be instituted any proceeding under or 
related to 8 U.S.C. 1184(c), section 214(c) of the INA, 29 CFR part 
503, or this subpart or any other regulation promulgated thereunder;
    (3) Testified or is about to testify in any proceeding under or 
related to 8 U.S.C. 1184(c), section 214(c) of the INA, 29 CFR part 
503, or this subpart or any other 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), section 214(c) of the INA, 29 CFR part 503, or this 
subpart or any other 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), section 214(c) of 
the INA, 29 CFR part 503, or this subpart or any other 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 (o), 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 recruitment of H-2B workers 
to seek or receive payments or other compensation from prospective 
workers. The contract must include the following statement: ``Under 
this agreement, [name of agent, recruiter] and any agent of or employee 
of [name of agent or recruiter] are prohibited from seeking or 
receiving payments from any prospective employee of [employer name] at 
any time, including before or after the worker obtains employment. 
Payments include but are not limited to, any direct or indirect fees 
paid by such employees for recruitment, job placement, processing, 
maintenance, attorneys' fees, agent fees, application fees, or petition 
fees.''
    (q) Prohibition against preferential treatment of foreign workers. 
The employer's job offer must offer to U.S. workers no less than the 
same benefits, wages, and working conditions that the employer is 
offering, intends to offer, or will provide to H-2B workers. Job offers 
may not impose on U.S. workers any restrictions or obligations that 
will not be imposed on the employer's H-2B workers. This does not 
relieve the employer from providing to H-2B workers at least the 
minimum benefits, wages, and working conditions which must be offered 
to U.S. workers consistent with this section.
    (r) Non-discriminatory hiring practices. The job opportunity is, 
and through the period set forth in paragraph (t) of this section must 
continue to be, open to any qualified U.S. worker regardless of race, 
color, national origin, age, sex, religion, disability, or citizenship. 
Rejections of any U.S. workers who applied or apply for the job must 
only be for lawful, job-related reasons, and those not rejected on this 
basis have been or will be hired. In addition, the employer has and 
will continue to retain records of all hired workers and rejected 
applicants as required by Sec.  655.56.
    (s) Recruitment requirements. The employer must conduct all 
required recruitment activities, including any additional employer-
conducted recruitment activities as directed by the CO, and as 
specified in Sec. Sec.  655.40 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.

[[Page 24122]]

    (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 of Labor 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 (y), 
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. This includes compliance with 18 U.S.C. 
1592(a), with respect to prohibitions against employers, the employer's 
agents or their attorneys knowingly holding, destroying or confiscating 
workers' passports, visas, or other immigration documents.
    (aa) Disclosure of foreign worker recruitment. The employer, and 
its attorney or agent, as applicable, must comply with Sec.  655.9 by 
providing a copy of all agreements with any agent or recruiter whom it 
engages or plans to engage in the recruitment of H-2B workers, and the 
identity and location of the persons or entities hired by or working 
for the agent or recruiter and any of the agents or employees of those 
persons and entities, to recruit foreign workers. Pursuant to Sec.  
655.15(a), the agreements and information must be filed with the 
Application for Temporary Employment Certification.
    (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)(14)(B), section 214(c)(14)(B) of the INA.

Sec. Sec.  655.21-655.29   [Reserved]

Processing of an Application for Temporary Employment Certification

Sec.  655.30  Processing of an application and job order.

    (a) NPC review. The CO will review the Application for Temporary 
Employment Certification and job order for compliance with all 
applicable program requirements.
    (b) Mailing and postmark requirements. Any notice or request sent 
by the CO to an employer requiring a response will be mailed to the 
address provided in the Application for Temporary Employment 
Certification using methods to assure next day delivery, including 
electronic mail. The employer's response to such a notice or request 
must be mailed using methods to assure next day delivery, including 
electronic mail, and be sent by the due date or the next business day 
if the due date falls on a Saturday, Sunday or Federal holiday.
    (c) Information dissemination. OFLC may forward information 
received in the course of processing an Application for Temporary 
Employment Certification and program integrity measures to WHD, or any 
other Federal agency, as appropriate, for investigation and/or 
enforcement purposes.

Sec.  655.31  Notice of deficiency.

    (a) Notification timeline. If the CO determines the Application for 
Temporary Employment Certification and/or job order is incomplete, 
contains errors or inaccuracies, or does not meet the requirements set 
forth in this subpart, the CO will notify the employer within 7 
business days from the CO's receipt of the Application for Temporary 
Employment Certification. If applicable, the Notice of Deficiency will 
include job order deficiencies identified by the SWA under Sec.  
655.16. The CO will send a copy of the Notice of Deficiency to the SWA 
serving the area of intended employment identified by the employer on 
its job order, and if applicable, to the employer's attorney or agent.
    (b) Notice content. The Notice of Deficiency will:
    (1) State the reason(s) why the Application for Temporary 
Employment Certification or job order fails to meet the criteria for 
acceptance and state the modification needed for the CO to issue a 
Notice of Acceptance;
    (2) Offer the employer an opportunity to submit a modified 
Application for Temporary Employment Certification or job order within 
10 business days from the date of the Notice of Deficiency. The Notice 
will state the modification needed for the CO to issue a Notice of 
Acceptance;
    (3) Offer the employer an opportunity to request administrative 
review of the Notice of Deficiency before an ALJ under provisions set 
forth in Sec.  655.61. The Notice will inform the employer that it must 
submit a written request for review to the Chief ALJ of DOL within 10 
business days from the date the Notice of Deficiency is issued by 
facsimile or other means normally assuring next day delivery, and that 
the employer must simultaneously serve a copy on the CO. The Notice 
will also state that the employer may submit any legal arguments that 
the employer believes will rebut the basis of the CO's action; and
    (4) State that if the employer does not comply with the 
requirements of this section by either submitting a modified 
application within 10 business days or requesting administrative review 
before an ALJ under Sec.  655.61, the CO will deny the Application for 
Temporary Employment Certification. The Notice will inform the employer 
that the denial of the Application for Temporary Employment 
Certification is final, and cannot be appealed. The Department of Labor 
will not further consider that Application for Temporary Employment 
Certification.

Sec.  655.32  Submission of a modified application or job order.

    (a) Review of a modified Application for Temporary Employment 
Certification or job order. Upon receipt of a response to a Notice of 
Deficiency, including any modifications, the CO will review the 
response. The CO may issue one or more additional Notices of Deficiency 
before issuing a 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

[[Page 24123]]

accepts the modification(s) to the Application for Temporary Employment 
Certification and/or job order, the CO will issue a Notice of 
Acceptance to the employer. The CO will send a copy of the Notice of 
Acceptance to the SWA instructing it to make any necessary 
modifications to the not yet posted job order and, if applicable, to 
the employer's attorney or agent, and follow the procedure set forth in 
Sec.  655.33.
    (c) Denial of a modified Application for Temporary Employment 
Certification or job order. If the CO finds the response to Notice of 
Deficiency unacceptable, the CO will deny the Application for Temporary 
Employment Certification in accordance with the labor certification 
determination provisions in Sec.  655.51.
    (d) Appeal from denial of a modified Application for Temporary 
Employment Certification or job order. The procedures for appealing a 
denial of a modified Application for Temporary Employment Certification 
and/or job order are the same as for appealing the denial of a non-
modified Application for Temporary Employment Certification outlined in 
Sec.  655.61.
    (e) Post acceptance modifications. Irrespective of the decision to 
accept the Application for Temporary Employment Certification, the CO 
may require modifications to the job order at any time before the final 
determination to grant or deny the Application for Temporary Employment 
Certification if the CO determines that the offer of employment does 
not contain all the minimum benefits, wages, and working condition 
provisions as set forth in Sec.  655.18. The employer must make such 
modification, or certification will be denied under Sec.  655.53. The 
employer must provide all workers recruited in connection with the job 
opportunity in the Application for Temporary Employment Certification 
with a copy of the modified job order no later than the date work 
commences, as approved by the CO.

Sec.  655.33  Notice of acceptance.

    (a) Notification timeline. If the CO determines the Application for 
Temporary Employment Certification and job order are complete and meet 
the requirements of this subpart, the CO will notify the employer in 
writing within 7 business days from the date the CO received the 
Application for Temporary Employment Certification and job order or 
modification thereof. A copy of the Notice of Acceptance will be sent 
to the SWA serving the area of intended employment identified by the 
employer on its job order and, if applicable, to the employer's 
attorney or agent.
    (b) Notice content. The notice will:
    (1) Direct the employer to engage in recruitment of U.S. workers as 
provided in Sec. Sec.  655.40 through 655.46, including any additional 
recruitment ordered by the CO under Sec.  655.46;
    (2) State that such employer-conducted recruitment is in addition 
to the job order being circulated by the SWA(s) and that the employer 
must conduct recruitment within 14 calendar days from the date the 
Notice of Acceptance is issued, consistent with Sec.  655.40;
    (3) Direct the SWA to place the job order into intra- and 
interstate clearance as set forth in Sec.  655.16 and to commence such 
clearance by:
    (i) Sending a copy of the job order to other States listed as 
anticipated worksites in the Application for Temporary Employment 
Certification and job order, if applicable; and
    (ii) Sending a copy of the job order to the SWAs for all States 
designated by the CO for interstate clearance;
    (4) Instruct the SWA to keep the approved job order on its active 
file until the end of the recruitment period as defined in Sec.  
655.40(c), and to transmit the same instruction to other SWAs to which 
it circulates the job order in the course of interstate clearance;
    (5) Where the occupation or industry is traditionally or 
customarily unionized, direct the SWA to circulate a copy of the job 
order to the following labor organizations:
    (i) The central office of the State Federation of Labor in the 
State(s) in which work will be performed; and
    (ii) The office(s) of local union(s) representing employees in the 
same or substantially equivalent job classification in the area(s) in 
which work will be performed;
    (6) Advise the employer, as appropriate, that it must contact the 
appropriate designated community-based organization(s) with notice of 
the job opportunity; and
    (7) Require the employer to submit a report of its recruitment 
efforts as specified in Sec.  655.48.

Sec.  655.34  Electronic job registry.

    (a) Location of and placement in the electronic job registry. Upon 
acceptance of the Application for Temporary Employment Certification 
under Sec.  655.33, the CO will place for public examination a copy of 
the job order posted by the SWA on the Department's electronic job 
registry, including any amendments or required modifications approved 
by the CO.
    (b) Length of posting on electronic job registry. The Department of 
Labor will keep the job order posted on the electronic job registry 
until the end of the recruitment period, as set forth in Sec.  
655.40(c).
    (c) Conclusion of active posting. Once the recruitment period has 
concluded the job order will be placed in inactive status on the 
electronic job registry.

Sec.  655.35  Amendments to an application or job order.

    (a) Increases in number of workers. The employer may request to 
increase the number of workers noted in the H-2B Registration by no 
more than 20 percent (50 percent for employers requesting fewer than 10 
workers). All requests for increasing the number of workers must be 
made in writing and will not be effective until approved by the CO. In 
considering whether to approve the request, the CO will determine 
whether the proposed amendment(s) are sufficiently justified and must 
take into account the effect of the changes on the underlying labor 
market test for the job opportunity. Upon acceptance of an amendment, 
the CO will submit to the SWA any necessary changes to the job order 
and update the electronic job registry. The employer must promptly 
provide copies of any approved amendments to all U.S. workers hired 
under the original job order.
    (b) Minor changes to the period of employment. The employer may 
request minor changes to the total period of employment listed on its 
Application for Temporary Employment Certification and job order, for a 
period of up to 14 days, but the period of employment may not exceed a 
total of 9 months, except in the event of a one-time occurrence. All 
requests for minor changes to the total period of employment must be 
made in writing and will not be effective until approved by the CO. In 
considering whether to approve the request, the CO will determine 
whether the proposed amendment(s) are sufficiently justified and must 
take into account the effect of the changes on the underlying labor 
market test for the job opportunity. Upon acceptance of an amendment, 
the CO will submit to the SWA any necessary changes to the job order 
and update the electronic job registry. The employer must promptly 
provide copies of any approved amendments to all U.S. workers hired 
under the original job order
    (c) Other amendments to the Application for Temporary Employment 
Certification and job order. The employer may request other

[[Page 24124]]

amendments to the Application for Temporary Employment Certification 
and job order. All such requests must be made in writing and will not 
be effective until approved by the CO. In considering whether to 
approve the request, the CO will determine whether the proposed 
amendment(s) are sufficiently justified and must take into account the 
effect of the changes on the underlying labor market test for the job 
opportunity. Upon acceptance of an amendment, the CO will submit to the 
SWA any necessary changes to the job order and update the electronic 
job registry.
    (d) Amendments after certification are not permitted. The employer 
must promptly provide copies of any approved amendments to all U.S. 
workers hired under the original job order.

Sec. Sec.  655.36-655.39  [Reserved]

Post-Acceptance Requirements

Sec.  655.40  Employer-conducted recruitment.

    (a) Employer obligations. Employers must conduct recruitment of 
U.S. workers to ensure that there are not qualified U.S. workers who 
will be available for the positions listed in the Application for 
Temporary Employment Certification. U.S. Applicants can be rejected 
only for lawful job-related reasons.
    (b) Employer-conducted recruitment period. Unless otherwise 
instructed by the CO, the employer must conduct the recruitment 
described in Sec. Sec.  655.42 through 655.46 within 14 calendar days 
from the date the Notice of Acceptance is issued. All employer-
conducted recruitment must be completed before the employer submits the 
recruitment report as required in Sec.  655.48.
    (c) U.S. workers. Employers must continue to accept referrals and 
applications of all U.S. applicants interested in the position until 21 
days before the date of need.
    (d) Interviewing U.S. workers. Employers that wish to require 
interviews must conduct those interviews by phone or provide a 
procedure for the interviews to be conducted in the location where the 
worker is being recruited so that the worker incurs little or no cost. 
Employers cannot provide potential H-2B workers with more favorable 
treatment with respect to the requirement for, and conduct of, 
interviews.
    (e) Qualified and available U.S. workers. The employer must 
consider all U.S. applicants for the job opportunity. The employer must 
accept and hire any applicants who are qualified and who will be 
available.
    (f) Recruitment report. The employer must prepare a recruitment 
report meeting the requirements of Sec.  655.48.

Sec.  655.41  Advertising requirements.

    (a) All recruitment conducted under Sec. Sec.  655.42 through 
655.46 must contain terms and conditions of employment that are not 
less favorable than those offered to the H-2B workers and, at a 
minimum, must comply with the assurances applicable to job orders as 
set forth in Sec.  655.18(a).
    (b) All advertising must contain the following information:
    (1) The employer's name and contact information;
    (2) The geographic area of intended employment with enough 
specificity to apprise applicants of any travel requirements and where 
applicants will likely have to reside to perform the services or labor;
    (3) A description of the job opportunity for which certification is 
sought with sufficient information to apprise U.S. workers of the 
services or labor to be performed, including the duties, the minimum 
education and experience requirements, the work hours and days, and the 
anticipated start and end dates of the job opportunity;
    (4) A statement that the job opportunity is a temporary, full-time 
position including the total number of job openings the employer 
intends to fill;
    (5) If applicable, a statement that overtime will be available to 
the worker and the wage offer(s) for working any overtime hours;
    (6) If applicable, a statement indicating that on-the-job training 
will be provided to the worker;
    (7) The wage that the employer is offering, intends to offer or 
will provide to the H-2B workers or, in the event that there are 
multiple wage offers, the range of applicable wage offers, each of 
which must equal or exceed the highest of the prevailing wage or the 
Federal, State, or local minimum wage;
    (8) If applicable, any board, lodging, or other facilities the 
employer will offer to workers or intends to assist workers in 
securing;
    (9) All deductions not required by law that the employer will make 
from the worker's paycheck, including, if applicable, reasonable 
deduction for board, lodging, and other facilities offered to the 
workers;
    (10) A statement that transportation and subsistence from the place 
where the worker has come to work for the employer to the place of 
employment and return transportation and subsistence will be provided, 
as required by Sec.  655.20(j)(1);
    (11) If applicable, a statement that work tools, supplies, and 
equipment will be provided to the worker without charge;
    (12) If applicable, a statement that daily transportation to and 
from the worksite will be provided by the employer;
    (13) A statement summarizing the three-fourths guarantee as 
required by Sec.  655.20(f); and
    (14) A statement directing applicants to apply for the job 
opportunity at the nearest office of the SWA in the State in which the 
advertisement appeared, the SWA contact information, and, if 
applicable, the job order number.

Sec.  655.42  Newspaper advertisements.

    (a) The employer must place an advertisement (which must be in a 
language other than English, where the CO determines appropriate) on 2 
separate days, which may be consecutive, one of which must be a Sunday 
(except as provided in paragraph (b) of this section), in a newspaper 
of general circulation serving the area of intended employment and 
appropriate to the occupation and the workers likely to apply for the 
job opportunity.
    (b) If the job opportunity is located in a rural area that does not 
have a newspaper with a Sunday edition, the CO may direct the employer, 
in place of a Sunday edition, to advertise in the regularly published 
daily edition with the widest circulation in the area of intended 
employment.
    (c) The newspaper advertisements must satisfy the requirements in 
Sec.  655.41.
    (d) The employer must maintain copies of newspaper pages (with date 
of publication and full copy of the advertisement), or tear sheets of 
the pages of the publication in which the advertisements appeared, or 
other proof of publication furnished by the newspaper containing the 
text of the printed advertisements and the dates of publication, 
consistent with the document retention requirements in Sec.  655.56. If 
the advertisement was required to be placed in a language other than 
English, the employer must maintain a translation and retain it in 
accordance with Sec.  655.56.

Sec.  655.43  Contact with former U.S. employees.

    The employer must contact (by mail or other effective means) its 
former U.S. workers, including those who have been laid off within 120 
calendar days before

[[Page 24125]]

the date of need, employed by the employer in the occupation at the 
place of employment during the previous year (except those who were 
dismissed for cause or who abandoned the worksite), disclose the terms 
of the job order, and solicit their return to the job. The employer 
must maintain documentation sufficient to prove such contact in 
accordance with Sec.  655.56.

Sec.  655.44  [Reserved]

Sec.  655.45  Contact with bargaining representative, posting and other 
contact requirements.

    (a) If there is a bargaining representative for any of the 
employer's employees in the occupation and area of intended employment, 
the employer must provide written notice of the job opportunity, by 
providing a copy of the Application for Temporary Employment 
Certification and the job order, and maintain documentation that it was 
sent to the bargaining representative(s). An employer governed by this 
paragraph (a) must include information in its recruitment report that 
confirms that the bargaining representative(s) was contacted and 
notified of the position openings and whether the organization referred 
qualified U.S. worker(s), including the number of referrals, or was 
non-responsive to the employer's requests.
    (b) If there is no bargaining representative, the employer must 
post the availability of the job opportunity in at least 2 conspicuous 
locations at the place(s) of anticipated employment or in some other 
manner that provides reasonable notification to all employees in the 
job classification and area in which the work will be performed by the 
H-2B workers. Electronic posting, such as displaying the notice 
prominently on any internal or external Web site that is maintained by 
the employer and customarily used for notices to employees about terms 
and conditions of employment, is sufficient to meet this posting 
requirement as long as it otherwise meets the requirements of this 
section. The notice must meet the requirements under Sec.  655.41 and 
be posted for at least 15 consecutive business days. The employer must 
maintain a copy of the posted notice and identify where and when it was 
posted in accordance with Sec.  655.56.
    (c) If appropriate to the occupation and area of intended 
employment, as indicated by the CO in the Notice of Acceptance, the 
employer must provide written notice of the job opportunity to a 
community-based organization, and maintain documentation that it was 
sent to any designated community-based organization. An employer 
governed by this paragraph (c) must include information in its 
recruitment report that confirms that the community-based organization 
was contacted and notified of the position openings and whether the 
organization referred qualified U.S. worker(s), including the number of 
referrals, or was non-responsive to the employer's requests.

Sec.  655.46  Additional employer-conducted recruitment.

    (a) Requirement to conduct additional recruitment. The employer may 
be instructed by the CO to conduct additional reasonable recruitment. 
Such recruitment may be required at the discretion of the CO where the 
CO has determined that there is a likelihood that U.S. workers who are 
qualified and will be available for the work, including but not limited 
to where the job opportunity is located in an Area of Substantial 
Unemployment.
    (b) Nature of the additional employer-conducted recruitment. The CO 
will describe the precise number and nature of the additional 
recruitment efforts. Additional recruitment may include, but is not 
limited to, posting on the employer's Web site or another Web site, 
contact with additional community-based organizations, additional 
contact with State One-Stop Career Centers, and other print 
advertising, such as using a professional, trade or ethnic publication 
where such a publication is appropriate for the occupation and the 
workers likely to apply for the job opportunity. When assessing the 
appropriateness of a particular recruitment method, the CO will 
consider the cost of the additional recruitment and the likelihood that 
the additional recruitment method(s) will identify qualified and 
available U.S. workers.
    (c) Proof of the additional employer-conducted recruitment. The CO 
will specify the documentation or other supporting evidence that must 
be maintained by the employer as proof that the additional recruitment 
requirements were met. Documentation must be maintained as required in 
Sec.  655.56.

Sec.  655.47  Referrals of U.S. workers.

    SWAs may only refer for employment individuals who have been 
apprised of all the material terms and conditions of employment and who 
are qualified and will be available for employment.

Sec.  655.48  Recruitment report.

    (a) Requirements of the recruitment report. The employer must 
prepare, sign, and date a recruitment report. Where recruitment was 
conducted by a job contractor or its employer-client, both joint 
employers must sign the recruitment report in accordance with Sec.  
655.19(e). The recruitment report must be submitted by a date specified 
by the CO in the Notice of Acceptance and contain the following 
information:
    (1) The name of each recruitment activity or source (e.g., job 
order and the name of the newspaper);
    (2) The name and contact information of each U.S. worker who 
applied or was referred to the job opportunity up to the date of the 
preparation of the recruitment report, and the disposition of each 
worker's application. The employer must clearly indicate whether the 
job opportunity was offered to the U.S. worker and whether the U.S. 
worker accepted or declined;
    (3) Confirmation that former U.S. employees were contacted, if 
applicable, and by what means;
    (4) Confirmation that the bargaining representative was contacted, 
if applicable, and by what means, or that the employer posted the 
availability of the job opportunity to all employees in the job 
classification and area in which the work will be performed by the H-2B 
workers;
    (5) Confirmation that the community-based organization designated 
by the CO was contacted, if applicable;
    (6) If applicable, confirmation that additional recruitment was 
conducted as directed by the CO; and
    (7) If applicable, for each U.S. worker who applied for the 
position but was not hired, the lawful job-related reason(s) for not 
hiring the U.S. worker.
    (b) Duty to update recruitment report. The employer must continue 
to update the recruitment report throughout the recruitment period. In 
a joint employment situation, either the job contractor or the 
employer-client may update the recruitment report. The updated report 
must be signed, dated and need not be submitted to the Department of 
Labor, but must be made available in the event of a post-certification 
audit or upon request by DOL.

Sec.  655.49  [Reserved]

Labor Certification Determinations

Sec.  655.50  Determinations.

    (a) Certifying Officers (COs). The Administrator, OFLC is the 
Department's National CO. The Administrator, OFLC and the CO(s), by 
virtue of delegation from the Administrator, OFLC, have the authority 
to certify or deny Applications for Temporary Employment Certification 
under the H-2B nonimmigrant

[[Page 24126]]

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 
(b), the CO will make a determination either to certify or deny the 
Application for Temporary Employment Certification. The CO will certify 
the application only if the employer has met all the requirements of 
this subpart, including the criteria for certification in Sec.  655.51, 
thus demonstrating that there is an insufficient number of U.S. workers 
who are qualified and who will be available for the job opportunity for 
which certification is sought and that the employment of the H-2B 
workers will not adversely affect the wages and working conditions of 
similarly employed U.S. workers.

Sec.  655.51  Criteria for certification.

    (a) The criteria for certification include whether the employer has 
a valid H-2B Registration to participate in the H-2B program and has 
complied with all of the requirements necessary to grant the labor 
certification.
    (b) In making a determination whether there are insufficient U.S. 
workers to fill the employer's job opportunity, the CO will count as 
available any U.S. worker referred by the SWA or any U.S. worker who 
applied (or on whose behalf an application is made) directly to the 
employer, but who was rejected by the employer for other than a lawful 
job-related reason.
    (c) A certification will not be granted to an employer that has 
failed to comply with one or more sanctions or remedies imposed by 
final agency actions under the H-2B program.

Sec.  655.52  Approved certification.

    If a temporary labor certification is granted, the CO will send the 
approved Application for Temporary Employment Certification and a Final 
Determination letter to the employer by means normally assuring next 
day delivery, including electronic mail, and a copy, if applicable, to 
the employer's attorney or agent. If the Application for Temporary 
Employment Certification is 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 and the original 
signed Appendix B of the Application, as required by Sec.  655.56.

Sec.  655.53  Denied certification.

    If a temporary labor certification is denied, the CO will send the 
Final Determination letter to the employer by means normally assuring 
next day delivery, including electronic mail, and a copy, if 
applicable, to the employer's attorney or agent. The Final 
Determination letter will:
    (a) State the reason(s) certification is denied, citing the 
relevant regulatory standards;
    (b) Offer the employer an opportunity to request administrative 
review of the denial under Sec.  655.61; and
    (c) State that if the employer does not request administrative 
review in accordance with Sec.  655.61, the denial is final and the 
Department of Labor will not accept any appeal on that Application for 
Temporary Employment Certification.

Sec.  655.54  Partial certification.

    The CO may issue a partial certification, reducing either the 
period of need or the number of H-2B workers or both for certification, 
based upon information the CO receives during the course of processing 
the Application for Temporary Employment Certification. The number of 
workers certified will be reduced by one for each U.S. worker who is 
qualified and who will be available at the time and place needed to 
perform the services or labor and who has not been rejected for lawful 
job-related reasons. If a partial labor certification is issued, the CO 
will amend the Application for Temporary Employment Certification and 
then return it to the employer with a Final Determination letter, with 
a copy to the employer's attorney or agent, if applicable. The Final 
Determination letter will:
    (a) State the reason(s) why either the period of need and/or the 
number of H-2B workers requested has been reduced, citing the relevant 
regulatory standards;
    (b) If applicable, address the availability of U.S. workers in the 
occupation;
    (c) Offer the employer an opportunity to request administrative 
review of the partial certification under Sec.  655.61; and
    (d) State that if the employer does not request administrative 
review in accordance with Sec.  655.61, the partial certification is 
final and the Department of Labor will not accept any appeal on that 
Application for Temporary Employment Certification.

Sec.  655.55  Validity of temporary labor certification.

    (a) Validity period. A temporary labor certification is valid only 
for the period as approved on the Application for Temporary Employment 
Certification. The certification expires on the last day of authorized 
employment.
    (b) Scope of validity. A temporary labor certification is valid 
only for the number of H-2B positions, the area of intended employment, 
the job classification and specific services or labor to be performed, 
and the employer specified on the approved Application for Temporary 
Employment Certification, including any approved modifications. The 
temporary labor certification may not be transferred from one employer 
to another unless the employer to which it is transferred is a 
successor in interest to the employer to which it was issued.

Sec.  655.56  Document retention requirements of H-2B employers.

    (a) Entities required to retain documents. All employers filing an 
Application for Temporary Employment Certification requesting H-2B 
workers are required to retain the documents and records proving 
compliance with 29 CFR part 503 and this subpart, including but not 
limited to those specified in paragraph (c) of this section.
    (b) Period of required retention. The employer must retain records 
and documents for 3 years from the date of certification of the 
Application for Temporary Employment Certification, or from the date of 
adjudication if the Application for Temporary Employment Certification 
is denied, or 3 years from the day the Department of Labor receives the 
letter of withdrawal provided in accordance with Sec.  655.62. For the 
purposes of this section, records and 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 of Labor 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;

[[Page 24127]]

    (2) Proof of recruitment efforts, as applicable, including:
    (i) Job order placement as specified in Sec.  655.16;
    (ii) Advertising as specified in Sec. Sec.  655.41 and 655.42;
    (iii) Contact with former U.S. workers as specified in Sec.  
655.43;
    (iv) Contact with bargaining representative(s), or a copy of the 
posting of the job opportunity, if applicable, as specified in Sec.  
655.45(a) or (b); and
    (v) Additional employer-conducted recruitment efforts as specified 
in Sec.  655.46;
    (3) Substantiation of the information submitted in the recruitment 
report prepared in accordance with Sec.  655.48, such as evidence of 
nonapplicability of contact with former workers as specified in Sec.  
655.43;
    (4) The final recruitment report and any supporting resumes and 
contact information as specified in Sec.  655.48;
    (5) Records of each worker's earnings, hours offered and worked, 
location(s) of work performed, and other information as specified in 
Sec.  655.20(i);
    (6) If appropriate, records of reimbursement of transportation and 
subsistence costs incurred by the workers, as specified in Sec.  
655.20(j).
    (7) Evidence of contact with U.S. workers who applied for the job 
opportunity in the Application for Temporary Employment Certification, 
including documents demonstrating that any rejections of U.S. workers 
were for lawful, job-related reasons, as specified in Sec.  655.20(r);
    (8) Evidence of contact with any former U.S. worker in the 
occupation at the place of employment in the Application for Temporary 
Employment Certification, including documents demonstrating that the 
U.S. worker had been offered the job opportunity in the Application for 
Temporary Employment Certification, as specified in Sec.  655.20(w), 
and that the U.S. worker either refused the job opportunity or was 
rejected only for lawful, job-related reasons, as specified in Sec.  
655.20(r);
    (9) The written contracts with agents or recruiters as specified in 
Sec. Sec.  655.8 and 655.9, and the list of the identities and 
locations of persons hired by or working for the agent or recruiter and 
these entities' agents or employees, as specified in Sec.  655.9;
    (10) Written notice provided to and informing OFLC that an H-2B 
worker or worker in corresponding employment has separated from 
employment before the end date of employment specified in the 
Application for Temporary Employment Certification, as specified in 
Sec.  655.20(y);
    (11) The H-2B Registration, job order and a copy of the Application 
for Temporary Employment Certification and the original signed Appendix 
B of the Application. If the Application for Temporary Employment 
Certification and H-2B Registration is electronically filed, a printed 
copy of each adjudicated Application for Temporary Employment 
Certification, including any modifications, amendments or extensions 
must be signed by the employer as directed by the CO and retained;
    (12) The H-2B Petition, including all accompanying documents; and
    (13) Any collective bargaining agreement(s), individual employment 
contract(s), or payroll records from the previous year necessary to 
substantiate any claim that certain incumbent workers are not included 
in corresponding employment, as specified in Sec.  655.5.
    (d) Availability of documents for enforcement purposes. An employer 
must make available to the Administrator, WHD within 72 hours following 
a request by the WHD the documents and records required under 29 CFR 
part 503 and this section so that the Administrator, WHD may copy, 
transcribe, or inspect them.

Sec.  655.57  Request for determination based on nonavailability of 
U.S. workers.

    (a) Standards for requests. If a temporary labor certification has 
been partially granted or denied, based on the CO's determination that 
qualified U.S. workers are available, and, on or after 21 calendar days 
before the date of need, some or all of those qualified U.S. workers 
are, in fact no longer available, the employer may request a new 
temporary labor certification determination from the CO. Prior to 
making a new determination the CO will promptly ascertain (which may be 
through the SWA or other sources of information on U.S. worker 
availability) whether specific qualified replacement U.S. workers are 
available or can be reasonably expected to be present at the employer's 
establishment within 72 hours from the date the employer's request was 
received. The CO will expeditiously, but in no case later than 72 hours 
after the time a complete request (including the signed statement 
included in paragraph (b) of this section) is received, make a 
determination on the request. An employer may appeal a denial of such a 
determination in accordance with procedures contained in Sec.  655.61.
    (b) Unavailability of U.S. workers. The employer's request for a 
new determination must be made directly to the CO by electronic mail or 
other appropriate means and must be accompanied by a signed statement 
confirming the employer's assertion. In addition, unless the employer 
has provided to the CO notification of abandonment or termination of 
employment as required by Sec.  655.20(y), the employer's signed 
statement must include the name and contact information of each U.S. 
worker who became unavailable and must supply the reason why the worker 
has become unavailable.
    (c) Notification of determination. If the CO determines that U.S. 
workers have become unavailable and cannot identify sufficient 
available U.S. workers who are qualified or who are likely to become 
available, the CO will grant the employer's request for a new 
determination. However, this does not preclude an employer from 
submitting subsequent requests for new determinations, if warranted, 
based on subsequent facts concerning purported nonavailability of U.S. 
workers or referred workers not being qualified because of lawful job-
related reasons.

Sec. Sec.  655.58-655.59   [Reserved]

Post Certification Activities

Sec.  655.60  Extensions.

    An employer may apply for extensions of the period of employment in 
the following circumstances. A request for extension must be related to 
weather conditions or other factors beyond the control of the employer 
(which may include unforeseeable changes in market conditions), and 
must be supported in writing, with 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. Except in extraordinary circumstances, 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. The employer may appeal a 
denial of a request for an extension by following the procedures in 
Sec.  655.61. The H-2B employer's assurances and obligations under the 
temporary labor certification will continue to apply during the 
extended period of employment. The employer must immediately provide to 
its workers a copy of any approved extension.

[[Page 24128]]

Sec.  655.61  Administrative review.

    (a) Request for review. Where authorized in this subpart, employers 
may request an administrative review before the BALCA of a 
determination by the CO. In such cases, the request for review:
    (1) Must be sent to the BALCA, with a copy simultaneously sent to 
the CO who issued the determination, within 10 business days from the 
date of determination;
    (2) Must clearly identify the particular determination for which 
review is sought;
    (3) Must set forth the particular grounds for the request;
    (4) Must include a copy of the CO's determination; and
    (5) May contain only legal argument and such evidence as was 
actually submitted to the CO before the date the CO's determination was 
issued.
    (b) Appeal file. Upon the receipt of a request for review, the CO 
will, within 7 business days, assemble and submit the Appeal File using 
means to ensure same day or next day delivery, to the BALCA, the 
employer, and the Associate Solicitor for Employment and Training Legal 
Services, Office of the Solicitor, U.S. Department of Labor.
    (c) Briefing schedule. Within 7 business days of receipt of the 
Appeal File, the counsel for the CO may submit, using means to ensure 
same day or next day delivery, a brief in support of the CO's decision.
    (d) Assignment. The Chief ALJ may designate a single member or a 
three member panel of the BALCA to consider a particular case.
    (e) Review. The BALCA must review the CO's determination only on 
the basis of the Appeal File, the request for review, and any legal 
briefs submitted and must:
    (1) Affirm the CO's determination; or
    (2) Reverse or modify the CO's determination; or
    (3) Remand to the CO for further action.
    (f) Decision. The BALCA should notify the employer, the CO, and 
counsel for the CO of its decision within 7 business days of the 
submission of the CO's brief or 10 business days after receipt of the 
Appeal File, whichever is later, using means to ensure same day or next 
day delivery.

Sec.  655.62  Withdrawal of an Application for Temporary Employment 
Certification.

    Employers may withdraw an Application for Temporary Employment 
Certification after it has been accepted and before it is adjudicated. 
The employer must request such withdrawal in writing.

Sec.  655.63  Public disclosure.

    The Department of Labor will maintain an electronic file accessible 
to the public with information on all employers applying for temporary 
nonagricultural labor certifications. The database will include such 
information as the number of workers requested, the date filed, the 
date decided, and the final disposition.

Sec.  655.64-655.69  [Reserved]

Integrity Measures

Sec.  655.70  Audits.

    The CO may conduct audits of adjudicated temporary employment 
certification applications.
    (a) Discretion. The CO has the sole discretion to choose the 
applications selected for audit.
    (b) Audit letter. Where an application is selected for audit, the 
CO will send an audit letter to the employer and a copy, if 
appropriate, to the employer's attorney or agent. The audit letter 
will:
    (1) Specify the documentation that must be submitted by the 
employer;
    (2) Specify a date, no more than 30 calendar days from the date the 
audit letter is issued, by which the required documentation must be 
sent to the CO; and
    (3) Advise that failure to fully comply with the audit process may 
result:
    (i) In the requirement that the employer undergo the assisted 
recruitment procedures in Sec.  655.71 in future filings of H-2B 
temporary employment certification applications for a period of up to 2 
years, or
    (ii) In a revocation of the certification and/or debarment from the 
H-2B program and any other foreign labor certification program 
administered by the Department Labor.
    (c) Supplemental information request. During the course of the 
audit examination, the CO may request supplemental information and/or 
documentation from the employer in order to complete the audit. If 
circumstances warrant, the CO can issue one or more requests for 
supplemental information.
    (d) Potential referrals. In addition to measures in this subpart, 
the CO may decide to provide the audit findings and underlying 
documentation to DHS, WHD, or other appropriate enforcement agencies. 
The CO may refer any findings that an employer discouraged a qualified 
U.S. worker from applying, or failed to hire, discharged, or otherwise 
discriminated against a qualified U.S. worker to the Department of 
Justice, Civil Rights Division, Office of Special Counsel for Unfair 
Immigration Related Employment Practices.

Sec.  655.71  CO-ordered assisted recruitment.

    (a) Requirement of assisted recruitment. If, as a result of audit 
or 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 an application for temporary employment certification, and 
offer the employer an opportunity to request an administrative review. 
If administrative review is requested, the procedures in Sec.  655.61 
apply.
    (c) Assisted recruitment. The assisted recruitment process will be 
in addition to any recruitment required of the employer by Sec. Sec.  
655.41 through 655.46 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.

[[Page 24129]]

    (d) Failure to comply. If an employer materially fails to comply 
with requirements ordered by the CO under this section, the 
certification will be denied and the employer and/or its attorney or 
agent may be debarred under Sec.  655.73.

Sec.  655.72  Revocation.

    (a) Basis for DOL revocation. The Administrator, OFLC may revoke a 
temporary labor certification approved under this subpart, if the 
Administrator, OFLC finds:
    (1) The issuance of the temporary labor certification was not 
justified due to fraud or willful misrepresentation of a material fact 
in the application process, as defined in Sec.  655.73(d);
    (2) The employer substantially failed to comply with any of the 
terms or conditions of the approved temporary labor certification. A 
substantial failure is a willful failure to comply that constitutes a 
significant deviation from the terms and conditions of the approved 
certification and is further defined in Sec.  655.73(d) and (e);
    (3) The employer failed to cooperate with a DOL investigation or 
with a DOL official performing an investigation, inspection, audit 
(under Sec.  655.73), or law enforcement function under 29 CFR part 503 
or this subpart; or
    (4) The employer failed to comply with one or more sanctions or 
remedies imposed by WHD, or with one or more decisions or orders of the 
Secretary with the respect to the H-2B program.
    (b) DOL procedures for revocation--(1) Notice of Revocation. If the 
Administrator, OFLC makes a determination to revoke an employer's 
temporary labor certification, the Administrator, OFLC will send to the 
employer (and its attorney or agent, if applicable) a Notice of 
Revocation. The notice will contain a detailed statement of the grounds 
for the revocation and inform the employer of its right to submit 
rebuttal evidence or to appeal. If the employer does not file rebuttal 
evidence or an appeal within 10 business days from the date the Notice 
of Revocation is issued, the notice is the final agency action and will 
take effect immediately at the end of the 10-day period.
    (2) Rebuttal. If the employer timely submits rebuttal evidence, the 
Administrator, OFLC will inform the employer of the final determination 
on the revocation within 10 business days of receiving the rebuttal 
evidence. If the Administrator, OFLC determines that the certification 
should be revoked, the Administrator, OFLC will inform the employer of 
its right to appeal according to the procedures of Sec.  655.61. If the 
employer does not appeal the final determination, it will become the 
final agency action.
    (3) Appeal. An employer may appeal a Notice of Revocation, or a 
final determination of the Administrator, OFLC after the review of 
rebuttal evidence, according to the appeal procedures of Sec.  655.61. 
The ALJ's decision is the final agency action.
    (4) Stay. The timely filing of rebuttal evidence or an 
administrative appeal will stay the revocation pending the outcome of 
those proceedings.
    (5) Decision. If the temporary labor certification is revoked, the 
Administrator, OFLC will send a copy of the final agency action to DHS 
and the Department of State.
    (c) Employer's obligations in the event of revocation. If an 
employer's temporary labor certification is revoked, the employer is 
responsible for:
    (1) Reimbursement of actual inbound transportation and other 
expenses;
    (2) The workers' outbound transportation expenses;
    (3) Payment to the workers of the amount due under the three-
fourths guarantee; and
    (4) Any other wages, benefits, and working conditions due or owing 
to the workers under this subpart.

Sec.  655.73  Debarment.

    (a) Debarment of an employer. The Administrator, OFLC may not issue 
future labor certifications under this subpart to an employer or any 
successor in interest to that employer, subject to the time limits set 
forth in paragraph (c) of this section, if the Administrator, OFLC 
finds that the employer committed the following violations:
    (1) Willful misrepresentation of a material fact in its H-2B 
Registration, Application for Prevailing Wage Determination, 
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 Prevailing Wage Determination, 
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 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 Prevailing Wage 
Determination, Application for Temporary Employment Certification, or 
H-2B Petition, the factors that the Administrator, OFLC may consider 
include, but are not limited to, the following:
    (1) Previous history of violation(s) under the H-2B program;
    (2) The number of H-2B workers, workers in corresponding 
employment, or improperly rejected U.S. applicants who were and/or are 
affected by the violation(s);
    (3) The gravity of the violation(s);
    (4) The extent to which the violator achieved a financial gain due 
to the violation(s), or the potential financial loss or potential 
injury to the worker(s); and
    (5) Whether U.S. workers have been harmed by the violation.
    (f) Violations. Where the standards set forth in paragraphs (d) and 
(e) in this section are met, debarrable violations would include but 
would not be limited to one or more acts of commission or omission 
which involve:
    (1) Failure to pay or provide the required wages, benefits or 
working conditions to the employer's H-2B workers and/or workers in 
corresponding employment;
    (2) Failure, except for lawful, job-related reasons, to offer 
employment to qualified U.S. workers who applied for the job 
opportunity for which certification was sought;
    (3) Failure to comply with the employer's obligations to recruit 
U.S. workers;
    (4) Improper layoff or displacement of U.S. workers or workers in 
corresponding employment;

[[Page 24130]]

    (5) Failure to comply with one or more sanctions or remedies 
imposed by the Administrator, WHD for violation(s) of obligations under 
the job order or other H-2B obligations, or with one or more decisions 
or orders of the Secretary or a court under this subpart or 29 CFR part 
503;
    (6) Failure to comply with the Notice of Deficiency process under 
this subpart;
    (7) Failure to comply with the assisted recruitment process under 
this subpart;
    (8) Impeding an investigation of an employer under 29 CFR part 503 
or an audit under this subpart;
    (9) Employing an H-2B worker outside the area of intended 
employment, in an activity/activities not listed in the job order, or 
outside the validity period of employment of the job order, including 
any approved extension thereof;
    (10) A violation of the requirements of Sec.  655.20(o) or (p);
    (11) A violation of any of the provisions listed in Sec.  
655.20(r);
    (12) Any other act showing such flagrant disregard for the law that 
future compliance with program requirements cannot reasonably be 
expected;
    (13) Fraud involving the H-2B Registration, Application for 
Prevailing Wage Determination, 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) 
through (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 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 of Labor by, or on behalf 
of, the debarred party for the same period of time set forth in the 
final debarment decision.

Sec. Sec.  655.74-655.76  [Reserved]

Sec. Sec.  655.80-655.99  [Reserved]

Title 29--Labor

0
6. Revise part 503 to read as follows:

[[Page 24131]]

PART 503--ENFORCEMENT OF OBLIGATIONS FOR TEMPORARY NONIMMIGRANT 
NON-AGRICULTURAL WORKERS DESCRIBED IN 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 within the Department of Labor.
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); 8 U.S.C. 1184(c); 8 
CFR 214.2(h).

Subpart A--General Provisions

Sec.  503.0  Introduction.

    The regulations in this part cover the enforcement of all statutory 
and regulatory obligations, including requirements under 8 U.S.C. 
1184(c), section 214(c) of the INA and 20 CFR part 655, subpart A, 
applicable to the employment of H-2B workers in nonimmigrant status 
under the Immigration and Nationality Act (INA), 8 U.S.C. 
1101(a)(15)(H)(ii)(b), section 101(a)(15)(H)(ii)(b) of the INA, and 
workers in corresponding employment, including obligations to offer 
employment to eligible United States (U.S.) workers and to not lay off 
or displace U.S. workers in a manner prohibited by the regulations in 
this part or 20 CFR part 655, subpart A.

Sec.  503.1  Scope and purpose.

    (a) Consultation standard. Section 214(c)(1) of the INA, 8 U.S.C. 
1184(c)(1), requires the Secretary of Homeland Security to consult with 
appropriate agencies before authorizing the classification of aliens as 
H-2B workers. Department of Homeland Security (DHS) regulations at 8 
CFR 214.2(h)(6)(iii)(D) recognize the Secretary of Labor as the 
appropriate authority with whom DHS consults regarding the H-2B 
program, and recognize the Secretary of Labor's authority in carrying 
out the Secretary of Labor's consultative function to issue regulations 
regarding the issuance of temporary labor certifications. 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. 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
    (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 for purposes of satisfying 
the consultation requirement in 8 U.S.C. 1184(c), INA section 214(c), 
has been delegated by the Secretary to ETA, an agency within the U.S. 
Department of Labor (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 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). Effective January 18, 
2009, DHS has delegated to the Secretary under 8 U.S.C. 1184(c)(14)(B), 
section 214(c)(14)(B) of the INA, certain investigatory and law 
enforcement functions to carry out the provisions under 8 U.S.C. 
1184(c), INA section 214(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), INA section 214(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 of Labor on or after April 29, 2015.

Sec.  503.2  Territory of Guam.

    This part does not apply to temporary employment in the Territory 
of Guam. The Department of Labor does not certify to DHS the temporary 
employment of nonimmigrant foreign

[[Page 24132]]

workers or enforce compliance with the provisions of the H-2B visa 
program in the Territory of Guam.

Sec.  503.3  Coordination among Governmental agencies.

    (a) Complaints received by ETA or any State Workforce Agency (SWA) 
regarding noncompliance with H-2B statutory or regulatory labor 
standards will be immediately forwarded to the appropriate WHD office 
for suitable action under the regulations in this part.
    (b) Information received in the course of processing registrations 
and applications, program integrity measures, or enforcement actions 
may be shared between OFLC and WHD or, where applicable to employer 
enforcement under the H-2B program, may be forwarded to other agencies 
as appropriate, including the Department of State (DOS) and DHS.
    (c) A specific violation for which debarment is sought will be 
cited in a single debarment proceeding. OFLC and the WHD will 
coordinate their activities to achieve this result. Copies of final 
debarment decisions will be forwarded to DHS promptly.

Sec.  503.4  Definition of terms.

    For purposes of this part:
    Act means the Immigration and Nationality Act or INA, as amended, 8 
U.S.C. 1101 et seq.
    Administrative Law Judge (ALJ) means a person within the 
Department's Office of Administrative Law Judges appointed under 5 
U.S.C. 3105.
    Administrator, Office of Foreign Labor Certification (OFLC) means 
the primary official of the Office of Foreign Labor Certification, ETA, 
or the Administrator's designee.
    Administrator, Wage and Hour Division (WHD) means the primary 
official of the WHD, or the Administrator's designee.
    Agent means:
    (1) 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 of Labor, 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 part 655, subpart B.
    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 9142B and the appropriate appendices).
    Application for Temporary Employment Certification means the Office 
of Management and Budget (OMB)-approved ETA Form 9142B 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 of Labor, 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 means:
    (1) 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 component agencies, including U.S. Citizenship and 
Immigration Services (USCIS).
    Employee means a person who is engaged to perform work for an

[[Page 24133]]

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 of Labor that 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 Form I-129 Petition for a Nonimmigrant 
Worker, with H Supplement, or successor form or supplement, and 
accompanying documentation required by DHS for employers seeking to 
employ foreign persons as H-2B nonimmigrant workers.
    H-2B Registration means the OMB-approved ETA Form 9155, submitted 
by an employer to register its intent to hire H-2B workers and to file 
an Application for Temporary Employment Certification.
    H-2B worker means any temporary foreign worker who is lawfully 
present in the U.S. and authorized by DHS to perform nonagricultural 
labor or services of a temporary or seasonal nature under 8 U.S.C. 
1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b).
    Job contractor means a person, association, firm, or a corporation 
that meets the definition of an employer and that contracts services or 
labor on a temporary basis to one or more employers, which is not an 
affiliate, branch or subsidiary of the job contractor and where the job 
contractor will not exercise substantial, direct day-to-day supervision 
and control in the performance of the services or labor to be performed 
other than hiring, paying and firing the workers.
    Job offer means the offer made by an employer or potential employer 
of H-2B workers to both U.S. and H-2B workers describing all the 
material terms and conditions of employment, including those relating 
to wages, working conditions, and other benefits.
    Job opportunity means one or more openings for full-time employment 
with the petitioning employer within a specified area(s) of intended 
employment for which the petitioning employer is seeking workers.
    Job order means the document containing the material terms and 
conditions of employment relating to wages, hours, working conditions, 
worksite and other benefits, including obligations and assurances under 
29 CFR part 655, subpart A and this subpart that is posted between and 
among the SWAs on their job clearance systems.
    Joint employment means that where two or more employers each have 
sufficient definitional indicia of being an employer to be considered 
the employer of a worker, those employers will be considered to jointly 
employ that worker. Each employer in a joint employment relationship to 
a worker is considered a joint employer of that worker.
    Layoff means any involuntary separation of one or more U.S. 
employees without cause.
    Metropolitan Statistical Area (MSA) means a geographic entity 
defined by OMB for use by Federal statistical agencies in collecting, 
tabulating, and publishing Federal statistics. A metro area contains a 
core urban area of 50,000 or more population, and a micro area contains 
an urban core of at least 10,000 (but fewer than 50,000) population. 
Each metro or micro area consists of one or more counties and includes 
the counties containing the core urban area, as well as any adjacent 
counties that have a high degree of social and economic integration (as 
measured by commuting to work) with the urban core.
    National Processing Center (NPC) means the office within OFLC which 
is charged with the adjudication of an Application for Temporary 
Employment Certification or other applications.
    Non-agricultural labor and services means any labor or services not 
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, including determinations related to an 
employer's request for H-2B Registration, Application for Prevailing 
Wage Determination, or Application for Temporary Employment 
Certification.
    Prevailing wage determination (PWD) means the prevailing wage for 
the position, as described in 20 CFR 655.10, that 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. 
Department of Homeland Security (DHS) or the Secretary of Homeland 
Security's designee.
    State Workforce Agency (SWA) means a State government agency that 
receives funds under the Wagner-Peyser Act (29 U.S.C. 49 et seq.) to 
administer the State's public labor exchange activities.
    Strike means a concerted stoppage of work by employees as a result 
of a labor dispute, or any concerted slowdown or other concerted 
interruption of operation (including stoppage by reason of the 
expiration of a collective bargaining agreement).
    Successor in interest means:
    (1) Where an employer has violated 20 CFR part 655, subpart A, or 
this part, and has ceased doing business or cannot be located for 
purposes of enforcement, a successor in interest to that employer may 
be held liable for the duties and obligations of the violating employer 
in certain circumstances. The following factors, as used under Title 
VII of the Civil Rights Act and the Vietnam Era Veterans' Readjustment 
Assistance Act,

[[Page 24134]]

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 United States, Alaska, 
Hawaii, the Commonwealth of Puerto Rico, Guam, the U.S. Virgin Islands, 
and the Commonwealth of the Northern Mariana Islands (CNMI).
    U.S. 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, section 207 of 
the INA, is granted asylum under 8 U.S.C. 1158, section 208 of the INA, 
or is an alien otherwise authorized under the immigration laws 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), section 274a(h)(3) of the INA) with respect to the 
employment in which the worker is engaging.
    Wage and Hour Division (WHD) means the agency within the Department 
of Labor with investigatory and law enforcement authority, as delegated 
from DHS, to carry out the provisions under 8 U.S.C. 1184(c), section 
214(c) of the INA.
    Wages mean all forms of cash remuneration to a worker by an 
employer in payment for personal services.

Sec.  503.5  Temporary need.

    (a) An employer seeking certification under 20 CFR part 655, 
subpart A, must establish that its need for non-agricultural services 
or labor is temporary, regardless of whether the underlying job is 
permanent or temporary.
    (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 regulations.

Sec.  503.6  Waiver of rights prohibited.

    A person may not seek to have an H-2B worker, a worker in 
corresponding employment, or any other person, including but not 
limited to a U.S. worker improperly rejected for employment or 
improperly laid off or displaced, waive or modify any rights conferred 
under 8 U.S.C. 1184(c), INA section 214(c), 20 CFR part 655, subpart A, 
or the regulations in this part. Any agreement by an employee 
purporting to waive or modify any rights given to said person under 
these provisions will be void as contrary to public policy except as 
follows:
    (a) Waivers or modifications of rights or obligations hereunder in 
favor of the Secretary will be valid for purposes of enforcement; and
    (b) Agreements in settlement of private litigation are permitted.

Sec.  503.7  Investigation authority of Secretary.

    (a) Authority of the Administrator, WHD. The Secretary of Homeland 
Security has delegated to the Secretary, under 8 U.S.C. 1184(c)(14)(B), 
INA section 214(c)(14)(B), authority to perform investigative and 
enforcement functions. Within the Department of Labor, 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), INA section 214(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), INA section 214(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 
receiving such a report will refer it to the appropriate office of WHD 
for the geographic area in which the reported violation is alleged to 
have occurred.

Sec.  503.8  Accuracy of information, statements, data.

    Information, statements, and data submitted in compliance with 8 
U.S.C. 1184(c), INA section 214(c), or the regulations in this part are 
subject to 18 U.S.C. 1001, which provides, with regard to statements or 
entries generally, that whoever, in any matter within the jurisdiction 
of any department or agency of the U.S., knowingly and willfully 
falsifies, conceals, or covers up a material fact by any trick, scheme, 
or device, or makes any false, fictitious, or fraudulent statements or 
representations, or makes or uses any false writing or document knowing 
the same to contain any false, fictitious, or fraudulent statement or 
entry, will be fined not more than $250,000 or imprisoned not more than 
5 years, or both.

Subpart B--Enforcement

Sec.  503.15  Enforcement.

    The investigation, inspection, and law enforcement functions that 
carry out the provisions of 8 U.S.C. 1184(c), INA section 214(c), 20 
CFR part 655, subpart A, or the regulations in this part pertain to the 
employment of any H-2B worker, any worker in corresponding employment, 
or any U.S. worker improperly rejected for employment or improperly 
laid off or displaced.

Sec.  503.16  Assurances and obligations of H-2B employers.

    An employer employing H-2B workers and/or workers in corresponding 
employment under an Application for Temporary Employment Certification 
has agreed as part of the Application for Temporary Employment 
Certification that it will abide by the following conditions with 
respect to its H-2B workers and any workers in corresponding 
employment:

[[Page 24135]]

    (a) Rate of pay. (1) The offered wage in the job order equals or 
exceeds the highest of the prevailing wage or Federal minimum wage, 
State minimum wage, or local minimum wage. The employer must pay at 
least the offered wage, free and clear, during the entire period of the 
Application for Temporary Employment Certification granted by OFLC.
    (2) The offered wage is not based on commissions, bonuses, or other 
incentives, including paying on a piece-rate basis, unless the employer 
guarantees a wage earned every workweek that equals or exceeds the 
offered wage.
    (3) If the employer requires one or more minimum productivity 
standards of workers as a condition of job retention, the standards 
must be specified in the job order and the employer must demonstrate 
that they are normal and usual for non-H-2B employers for the same 
occupation in the area of intended employment.
    (4) An employer that pays on a piece-rate basis must demonstrate 
that the piece rate is no less than the normal rate paid by non-H-2B 
employers to workers performing the same activity in the area of 
intended employment. The average hourly piece rate earnings must result 
in an amount at least equal to the offered wage. If the worker is paid 
on a piece rate basis and at the end of the workweek the piece rate 
does not result in average hourly piece rate earnings during the 
workweek at least equal to the amount the worker would have earned had 
the worker been paid at the offered hourly wage, then the employer must 
supplement the worker's pay at that time so that the worker's earnings 
are at least as much as the worker would have earned during the 
workweek if the worker had instead been paid at the offered hourly wage 
for each hour worked.
    (b) Wages free and clear. The payment requirements for wages in 
this section will be satisfied by the timely payment of such wages to 
the worker either in cash or negotiable instrument payable at par. The 
payment must be made finally and unconditionally and ``free and 
clear.'' The principles applied in determining whether deductions are 
reasonable and payments are received free and clear and the 
permissibility of deductions for payments to third persons are 
explained in more detail in 29 CFR part 531.
    (c) Deductions. The employer must make all deductions from the 
worker's paycheck required by law. The job order must specify all 
deductions not required by law which the employer will make from the 
worker's pay; any such deductions not disclosed in the job order are 
prohibited. The wage payment requirements of paragraph (b) of this 
section are not met where unauthorized deductions, rebates, or refunds 
reduce the wage payment made to the worker below the minimum amounts 
required by the offered wage or where the worker fails to receive such 
amounts free and clear because the worker ``kicks back'' directly or 
indirectly to the employer or to another person for the employer's 
benefit the whole or part of the wages delivered to the worker. 
Authorized deductions are limited to: those required by law, such as 
taxes payable by workers that are required to be withheld by the 
employer and amounts due workers which the employer is required by 
court order to pay to another; deductions for the reasonable cost or 
fair value of board, lodging, and facilities furnished; and deductions 
of amounts which are authorized to be paid to third persons for the 
worker's account and benefit through his or her voluntary assignment or 
order or which are authorized by a collective bargaining agreement with 
bona fide representatives of workers which covers the employer. 
Deductions for amounts paid to third persons for the worker's account 
and benefit which are not so authorized or are contrary to law or from 
which the employer, agent or recruiter, including any agents or 
employees of these entities, or any affiliated person derives any 
payment, rebate, commission, profit, or benefit directly or indirectly, 
may not be made if they reduce the actual wage paid to the worker below 
the offered wage indicated on the Application for Temporary Employment 
Certification.
    (d) Job opportunity is full-time. The job opportunity is a full-
time temporary position, consistent with Sec.  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 not be less favorable than the 
qualifications and requirements that the employer is imposing or will 
impose on H-2B workers. A qualification means a characteristic that is 
necessary to the individual's ability to perform the job in question. A 
requirement means a term or condition of employment which a worker is 
required to accept in order to obtain the job opportunity. The CO may 
require the employer to submit documentation to substantiate the 
appropriateness of any job qualification and/or requirement specified 
in the job order.
    (f) Three-fourths guarantee. (1) The employer must guarantee to 
offer the worker employment for a total number of work hours equal to 
at least three-fourths of the workdays in each 12-week period (each 6-
week period if the period of employment covered by the job order is 
less than 120 days) beginning with the first workday after the arrival 
of the worker at the place of employment or the advertised first date 
of need, whichever is later, and ending on the expiration date 
specified in the job order or in its extensions, if any. See the 
exception in paragraph (y) of this section.
    (2) For purposes of this paragraph (f) a workday means the number 
of hours in a workday as stated in the job order. The employer must 
offer a total number of hours of work to ensure the provision of 
sufficient work to reach the three-fourths guarantee in each 12-week 
period (each 6-week period if the period of employment covered by the 
job order is less than 120 days) during the work period specified in 
the job order, or during any modified job order period to which the 
worker and employer have mutually agreed and that has been approved by 
the CO.
    (3) In the event the worker begins working later than the specified 
beginning date the guarantee period begins with the first workday after 
the arrival of the worker at the place of employment, and continues 
until the last day during which the job order and all extensions 
thereof are in effect.
    (4) The 12-week periods (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

[[Page 24136]]

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 in the first 12-week period (12 weeks x 35 hours/week = 420 hours 
x 75 percent = 315), at least 315 hours in the second 12-week period, 
and at least 210 hours (8 weeks x 35 hours/week = 280 hours x 75 
percent = 210) in the final partial period. If the job order is for a 
16-week period (less than 120 days), during which the normal workdays 
and work hours for the workweek are specified as 5 days a week, 7 hours 
per day, the worker would have to be guaranteed employment for at least 
157.5 hours (6 weeks x 35 hours/week = 210 hours x 75 percent = 157.5) 
in the first 6-week period, at least 157.5 hours in the second 6-week 
period, and at least 105 hours (4 weeks x 35 hours/week = 140 hours x 
75 percent = 105) in the final partial period.
    (6) If the worker is paid on a piece rate basis, the employer must 
use the worker's average hourly piece rate earnings or the offered 
wage, whichever is higher, to calculate the amount due under the 
guarantee.
    (7) A worker may be offered more than the specified hours of work 
on a single workday. For purposes of meeting the guarantee, however, 
the worker will not be required to work for more than the number of 
hours specified in the job order for a workday. The employer, however, 
may count all hours actually worked in calculating whether the 
guarantee has been met. If during any 12-week period (6-week period if 
the period of employment covered by the job order is less than 120 
days) during the period of the job order the employer affords the U.S. 
or H-2B worker less employment than that required under paragraph 
(f)(1) of this section, the employer must pay such worker the amount 
the worker would have earned had the worker, in fact, worked for the 
guaranteed number of days. An employer has not met the work guarantee 
if the employer has merely offered work on three-fourths of the 
workdays in an 12-week period (or 6-week period, as appropriate) if 
each workday did not consist of a full number of hours of work time as 
specified in the job order.
    (8) Any hours the worker fails to work, up to a maximum of the 
number of hours specified in the job order for a workday, when the 
worker has been offered an opportunity to work in accordance with 
paragraph (f)(1) of this section, and all hours of work actually 
performed (including voluntary work over 8 hours in a workday), may be 
counted by the employer in calculating whether each 12-week period (or 
6-week period, as appropriate) of guaranteed employment has been met. 
An employer seeking to calculate whether the guaranteed number of hours 
has been met must maintain the payroll records in accordance with this 
part.
    (g) Impossibility of fulfillment. If, before the expiration date 
specified in the job order, the services of the worker are no longer 
required for reasons beyond the control of the employer due to fire, 
weather, or other Act of God, or similar unforeseeable man-made 
catastrophic event (such as an oil spill or controlled flooding) that 
is wholly outside the employer's control that makes the fulfillment of 
the job order impossible, the employer may terminate the job order with 
the approval of the CO. In the event of such termination of a job 
order, the employer must fulfill a three-fourths guarantee, as 
described in paragraph (f) of this section, for the time that has 
elapsed from the start date listed in the job order or the first 
workday after the arrival of the worker at the place of employment, 
whichever is later, to the time of its termination. The employer must 
make efforts to transfer the H-2B worker or worker in corresponding 
employment to other comparable employment acceptable to the worker and 
consistent with the INA, as applicable. If a transfer is not effected, 
the employer must return the worker, at the employer's expense, to the 
place from which the worker (disregarding intervening employment) came 
to work for the employer, or transport the worker to the worker's next 
certified H-2B employer, whichever the worker prefers.
    (h) Frequency of pay. The employer must state in the job order the 
frequency with which the worker will be paid, which must be at least 
every 2 weeks or according to the prevailing practice in the area of 
intended employment, whichever is more frequent. Employers must pay 
wages when due.
    (i) Earnings statements. (1) The employer must keep accurate and 
adequate records with respect to the workers' earnings, including but 
not limited to: records showing the nature, amount and location(s) of 
the work performed; the number of hours of work offered each day by the 
employer (broken out by hours offered both in accordance with and over 
and above the three-fourths guarantee in paragraph (f) of this 
section); the hours actually worked each day by the worker; if the 
number of hours worked by the worker is less than the number of hours 
offered, the reason(s) the worker did not work; the time the worker 
began and ended each workday; the rate of pay (both piece rate and 
hourly, if applicable); the worker's earnings per pay period; the 
worker's home address; and the amount of and reasons for any and all 
deductions taken from or additions made to the worker's wages.
    (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

[[Page 24137]]

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 (l) 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 of Labor that 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 of Labor, 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), section 
214(c) of the INA, 20 CFR part 655, subpart A, or this part or any 
other regulation promulgated thereunder;
    (2) Instituted or caused to be instituted any proceeding under or 
related to 8 U.S.C. 1184(c), section 214(c) of the INA, 20 CFR part 
655, subpart A, or this part or any other regulation promulgated 
thereunder;
    (3) Testified or is about to testify in any proceeding under or 
related to 8 U.S.C. 1184(c), section 214(c) of the INA, 20 CFR part 
655, subpart A, or this part or any other 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), section 214(c) of the INA, 20 CFR part 655, subpart A, 
or this part or any other regulation promulgated thereunder; or
    (5) Exercised or asserted on behalf of himself or herself or others 
any right or protection afforded by 8 U.S.C. 1184(c), section 214(c) of 
the INA, 20 CFR part 655, subpart A, or this part or any other 
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 (o), 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 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'

[[Page 24138]]

fees, agent fees, application fees, or petition fees.''
    (q) Prohibition against preferential treatment of foreign workers. 
The employer's job offer must offer to U.S. workers no less than the 
same benefits, wages, and working conditions that the employer is 
offering, intends to offer, or will provide to H-2B workers. Job offers 
may not impose on U.S. workers any restrictions or obligations that 
will not be imposed on the employer's H-2B workers. This does not 
relieve the employer from providing to H-2B workers at least the 
minimum benefits, wages, and working conditions which must be offered 
to U.S. workers consistent with this section.
    (r) Non-discriminatory hiring practices. The job opportunity is, 
and through the period set forth in paragraph (t) of this section must 
continue to be, open to any qualified U.S. worker regardless of race, 
color, national origin, age, sex, religion, disability, or citizenship. 
Rejections of any U.S. workers who applied or apply for the job must 
only be for lawful, job-related reasons, and those not rejected on this 
basis have been or will be hired. In addition, the employer has and 
will continue to retain records of all hired workers and rejected 
applicants as required by Sec.  503.17.
    (s) Recruitment requirements. The employer must conduct all 
required recruitment activities, including any additional employer-
conducted recruitment activities as directed by the CO, and as 
specified in 20 CFR 655.40 through 655.46.
    (t) Continuing requirement to hire U.S. workers. The employer has 
and will continue to cooperate with the SWA by accepting referrals of 
all qualified U.S. workers who apply (or on whose behalf a job 
application is made) for the job opportunity, and must provide 
employment to any qualified U.S. worker who applies to the employer for 
the job opportunity, until 21 days before the date of need.
    (u) No strike or lockout. There is no strike or lockout at any of 
the employer's worksites within the area of intended employment for 
which the employer is requesting H-2B certification at the time the 
Application for Temporary Employment Certification is filed.
    (v) No recent or future layoffs. The employer has not laid off and 
will not lay off any similarly employed U.S. worker in the occupation 
that is the subject of the Application for Temporary Employment 
Certification in the area of intended employment within the period 
beginning 120 calendar days before the date of need through the end of 
the period of certification. A layoff for lawful, job-related reasons 
such as lack of work or the end of a season is permissible if all H-2B 
workers are laid off before any U.S. worker in corresponding 
employment.
    (w) Contact with former U.S. employees. The employer will contact 
(by mail or other effective means) its former U.S. workers, including 
those who have been laid off within 120 calendar days before the date 
of need (except those who were dismissed for cause or who abandoned the 
worksite), employed by the employer in the occupation at the place of 
employment during the previous year, disclose the terms of the job 
order, and solicit their return to the job.
    (x) Area of intended employment and job opportunity. The employer 
must not place any H-2B workers employed under the approved Application 
for Temporary Employment Certification outside the area of intended 
employment or in a job opportunity not listed on the approved 
Application for Temporary Employment Certification unless the employer 
has obtained a new approved Application for Temporary Employment 
Certification.
    (y) Abandonment/termination of employment. Upon the separation from 
employment of worker(s) employed under the Application for Temporary 
Employment Certification or workers in corresponding employment, if 
such separation occurs before the end date of the employment specified 
in the Application for Temporary Employment Certification, the employer 
must notify OFLC in writing of the separation from employment not later 
than 2 work days after such separation is discovered by the employer. 
In addition, the employer must notify DHS in writing (or any other 
method specified by the Department of Labor 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 (y), 
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. This includes compliance with 18 U.S.C. 
1592(a), with respect to prohibitions against employers, the employer's 
agents or their attorneys knowingly holding, destroying or confiscating 
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 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)(14)(B), section 214(c)(14)(B) of the INA.

Sec.  503.17  Document retention requirements of H-2B employers.

    (a) Entities required to retain documents. All employers filing an 
Application for Temporary Employment Certification requesting H-2B 
workers are required to retain the documents and records proving 
compliance with 20 CFR part 655, subpart A and this part, including but 
not limited to those specified in paragraph (c) of this section.
    (b) Period of required retention. The employer must retain records 
and documents for 3 years from the date of certification of the 
Application for Temporary Employment Certification or from the date of 
adjudication if the Application for Temporary Employment Certification 
is denied or 3 years from the day the Department of Labor receives the 
letter of withdrawal provided in accordance with 20 CFR 655.62.

[[Page 24139]]

    (c) Documents and records to be retained by all employer 
applicants. All employers filing an H-2B Registration and an 
Application for Temporary Employment Certification must retain the 
following documents and records and must provide the documents and 
records in the event of an audit or investigation:
    (1) Documents and records not previously submitted during the 
registration process that substantiate temporary need;
    (2) Proof of recruitment efforts, as applicable, including:
    (i) Job order placement as specified in 20 CFR 655.16;
    (ii) Advertising as specified in 20 CFR 655.41 and 655.42;
    (iii) Contact with former U.S. workers as specified in 20 CFR 
655.43;
    (iv) Contact with bargaining representative(s), copy of the posting 
of the job opportunity, and contact with community-based organizations, 
if applicable, as specified in 20 CFR 655.45(a), (b) and (c); and
    (v) Additional employer-conducted recruitment efforts as specified 
in 20 CFR 655.46;
    (3) Substantiation of the information submitted in the recruitment 
report prepared in accordance with 20 CFR 655.48, such as evidence of 
nonapplicability of contact with former workers as specified in 20 CFR 
655.43;
    (4) The final recruitment report and any supporting resumes and 
contact information as specified in 20 CFR 655.48;
    (5) Records of each worker's earnings, hours offered and worked, 
and other information as specified in Sec.  503.16(i);
    (6) If appropriate, records of reimbursement of transportation and 
subsistence costs incurred by the workers, as specified in Sec.  
503.16(j).
    (7) Evidence of contact with U.S. workers who applied for the job 
opportunity in the Application for Temporary Employment Certification, 
including documents demonstrating that any rejections of U.S. workers 
were for lawful, job-related reasons, as specified in Sec.  503.16(r);
    (8) Evidence of contact with any former U.S. worker in the 
occupation and the area of intended employment in the Application for 
Temporary Employment Certification, including documents demonstrating 
that the U.S. worker had been offered the job opportunity in the 
Application for Temporary Employment Certification, as specified in 
Sec.  503.16(w), and that the U.S. worker either refused the job 
opportunity or was rejected only for lawful, job-related reasons, as 
specified in Sec.  503.16(r);
    (9) The written contracts with agents or recruiters, as specified 
in 20 CFR 655.8 and 655.9, and the list of the identities and locations 
of persons hired by or working for the agent or recruiter and these 
entities' agents or employees, as specified in 20 CFR 655.9;
    (10) Written notice provided to and informing OFLC that an H-2B 
worker or worker in corresponding employment has separated from 
employment before the end date of employment specified in the 
Application for Temporary Employment Certification, as specified in 
Sec.  503.16(y);
    (11) The H-2B Registration, job order, and a copy of the 
Application for Temporary Employment Certification and the original 
signed Appendix B of the Application.
    (12) The approved H-2B Petition, including all accompanying 
documents; and
    (13) Any collective bargaining agreement(s), individual employment 
contract(s), or payroll records from the previous year necessary to 
substantiate any claim that certain incumbent workers are not included 
in corresponding employment, as specified in Sec.  503.4.
    (d) Availability of documents for enforcement purposes. An employer 
must make available to the Administrator, WHD within 72 hours following 
a request by the WHD the documents and records required under 20 CFR 
part 655, subpart A and this section so that the Administrator, WHD may 
copy, transcribe, or inspect them.

Sec.  503.18  Validity of temporary labor certification.

    (a) Validity period. A temporary labor certification is valid only 
for the period of time between the beginning and ending dates of 
employment, as approved on the Application for Temporary Employment 
Certification. The certification expires on the last day of authorized 
employment.
    (b) Scope of validity. A temporary labor certification is valid 
only for the number of H-2B positions, the area of intended employment, 
the job classification and specific services or labor to be performed, 
and the employer specified on the approved Application for Temporary 
Employment Certification. The temporary labor certification may not be 
transferred from one employer to another unless the employer to which 
it is transferred is a successor in interest to the employer to which 
it was issued.

Sec.  503.19  Violations.

    (a) Types of violations. Pursuant to the statutory provisions 
governing enforcement of the H-2B program, 8 U.S.C. 1184(c)(14), a 
violation exists under this part where the Administrator, WHD 
determines that there has been a:
    (1) Willful misrepresentation of a material fact on the H-2B 
Registration, Application for Prevailing Wage Determination, 
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 Prevailing Wage Determination, 
Application for Temporary Employment Certification, or H-2B Petition. A 
substantial failure is a willful failure to comply that constitutes a 
significant deviation from the terms and conditions of such documents; 
or
    (3) Willful misrepresentation of a material fact to the Department 
of State during the H-2B nonimmigrant 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 Prevailing Wage 
Determination, 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 the approved H-2B Registration, Application for 
Prevailing Wage

[[Page 24140]]

Determination, the employer's survey attestation (Form ETA-9165), 
Appendix B of the Application for Temporary Employment Certification, 
and H-2B Petition constitute the employer's representation that the 
statements on the forms are accurate and that it knows and accepts the 
obligations of the program.

Sec.  503.20  Sanctions and remedies--general.

    Whenever the Administrator, WHD determines that there has been a 
violation(s), as described in Sec.  503.19, such action will be taken 
and such proceedings instituted as deemed appropriate, including (but 
not limited to) the following:
    (a) Institute administrative proceedings, including for: the 
recovery of unpaid wages (including recovery of prohibited recruitment 
fees paid or impermissible deductions from pay, and recovery of wages 
due for improperly placing workers in areas of employment or in 
occupations other than those identified on the Application for 
Temporary Employment Certification and for which a prevailing wage was 
not obtained); the enforcement of provisions of the job order, 8 U.S.C. 
1184(c), 20 CFR part 655, subpart A, or the regulations in this part; 
the assessment of a civil money penalty; make whole relief for any 
person who has been discriminated against; reinstatement and make whole 
relief for any U.S. worker who has been improperly rejected for 
employment, laid off or displaced; or debarment for no less than 1 or 
no more than 5 years.
    (b) The remedies referenced in paragraph (a) of this section will 
be sought either directly from the employer, or from its successor in 
interest, or from the employer's agent or attorney, as appropriate.

Sec.  503.21  Concurrent actions within the Department of Labor.

    OFLC has primary responsibility to make all determinations 
regarding the issuance, denial, or revocation of a labor certification 
as described in Sec.  503.1(b) and in 20 CFR part 655, subpart A. The 
WHD has primary responsibility to make all determinations regarding the 
enforcement functions as described in Sec.  503.1(c). The taking of any 
one of the actions referred to above will not be a bar to the 
concurrent taking of any other action authorized by 8 U.S.C. 1184(c), 
20 CFR part 655, subpart A, or the regulations in this part. OFLC and 
the WHD have concurrent jurisdiction to impose a debarment remedy under 
20 CFR 655.73 or under Sec.  503.24.

Sec.  503.22  Representation of the Secretary.

    The Solicitor of Labor, through authorized representatives, will 
represent the Administrator, WHD and the Secretary in all 
administrative hearings under 8 U.S.C. 1184(c)(14) and the regulations 
in this part.

Sec.  503.23  Civil money penalty assessment.

    (a) A civil money penalty may be assessed by the Administrator, WHD 
for each violation that meets the standards described in Sec.  503.19. 
Each such violation involving the failure to pay an individual worker 
properly or to honor the terms or conditions of a worker's employment 
required by the H-2B Registration, Application for Prevailing Wage 
Determination, Application for Temporary Employment Certification, or 
H-2B Petition, constitutes a separate violation. Civil money penalty 
amounts for such violations are determined as set forth in paragraphs 
(b) to (e) of this section.
    (b) Upon determining that an employer has violated any provisions 
of Sec.  503.16 related to wages, impermissible deductions or 
prohibited fees and expenses, the Administrator, WHD may assess civil 
money penalties that are equal to the difference between the amount 
that should have been paid and the amount that actually was paid to 
such worker(s), not to exceed $10,000 per violation.
    (c) Upon determining that an employer has terminated by layoff or 
otherwise or has refused to employ any worker in violation of Sec.  
503.16(r), (t), or (v), within the periods described in those sections, 
the Administrator, WHD may assess civil money penalties that are equal 
to the wages that would have been earned but for the layoff or failure 
to hire, not to exceed $10,000 per violation. No civil money penalty 
will be assessed, however, if the employee refused the job opportunity, 
or was terminated for lawful, job-related reasons.
    (d) The Administrator, WHD may assess civil money penalties in an 
amount not to exceed $10,000 per violation for any other violation that 
meets the standards described in Sec.  503.19.
    (e) In determining the amount of the civil money penalty to be 
assessed under paragraph (d) of this section, the Administrator, WHD 
will consider the type of violation committed and other relevant 
factors. In determining the level of penalties to be assessed, the 
highest penalties will be reserved for willful failures to meet any of 
the conditions of the Application for Temporary Employment 
Certification and H-2B Petition that involve harm to U.S. workers. 
Other factors which may be considered include, but are not limited to, 
the following:
    (1) Previous history of violation(s) of 8 U.S.C. 1184(c), 20 CFR 
part 655, subpart A, or the regulations in this part;
    (2) The number of H-2B workers, workers in corresponding 
employment, or improperly rejected U.S. applicants who were and/or are 
affected by the violation(s);
    (3) The gravity of the violation(s);
    (4) Efforts made in good faith to comply with 8 U.S.C. 1184(c), 20 
CFR part 655, subpart A, and the regulations in this part;
    (5) Explanation from the person charged with the violation(s);
    (6) Commitment to future compliance, taking into account the public 
health, interest or safety; and
    (7) The extent to which the violator achieved a financial gain due 
to the violation, or the potential financial loss or potential injury 
to the workers.

Sec.  503.24  Debarment.

    (a) Debarment of an employer. The Administrator, OFLC may not issue 
future labor certifications under 20 CFR part 655, subpart A to an 
employer or any successor in interest to that employer, subject to the 
time limits set forth in paragraph (c) of this section, if the 
Administrator, WHD finds that the employer committed a violation that 
meets the standards of Sec.  503.19. Where these standards are met, 
debarrable violations would include but not be limited to one or more 
acts of commission or omission which involve:
    (1) Failure to pay or provide the required wages, benefits, or 
working conditions to the employer's H-2B workers and/or workers in 
corresponding employment;
    (2) Failure, except for lawful, job-related reasons, to offer 
employment to qualified U.S. workers who applied for the job 
opportunity for which certification was sought;
    (3) Failure to comply with the employer's obligations to recruit 
U.S. workers;
    (4) Improper layoff or displacement of U.S. workers or workers in 
corresponding employment;
    (5) Failure to comply with one or more sanctions or remedies 
imposed by the Administrator, WHD for violation(s) of obligations under 
the job order or other H-2B obligations, or with one or more decisions 
or orders of the Secretary or a court under 20 CFR part 655, subpart A 
or this part;
    (6) Impeding an investigation of an employer under this part;
    (7) Employing an H-2B worker outside the area of intended

[[Page 24141]]

employment, in an activity/activities not listed in the job order, or 
outside the validity period of employment of the job order, including 
any approved extension thereof;
    (8) A violation of the requirements of Sec.  503.16(o) or (p);
    (9) A violation of any of the provisions listed in Sec.  503.16(r);
    (10) Any other act showing such flagrant disregard for the law that 
future compliance with program requirements cannot reasonably be 
expected;
    (11) Fraud involving the H-2B Registration, Application for 
Prevailing Wage Determination, Application for Temporary Employment 
Certification, or H-2B Petition; or
    (12) A material misrepresentation of fact during the registration 
or application process.
    (b) Debarment of an agent or attorney. If the Administrator, WHD 
finds, under this section, that an agent or attorney committed a 
violation as described in paragraph (a) of this section or participated 
in an employer's violation, the Administrator, OFLC may not issue 
future labor certifications to an employer represented by such agent or 
attorney, subject to the time limits set forth in paragraph (c) of this 
section.
    (c) Period of debarment. Debarment under this subpart may not be 
for less than 1 year or more than 5 years from the date of the final 
agency decision.
    (d) Debarment procedure. If the Administrator, WHD makes a 
determination to debar an employer, attorney, or agent, the 
Administrator, WHD will send the party a Notice of Debarment. The 
notice will state the reason for the debarment finding, including a 
detailed explanation of the grounds for and the duration of the 
debarment and inform the party subject to the notice of its right to 
request a debarment hearing and the timeframe under which such rights 
must be exercised under Sec.  503.43. If the party does not request a 
hearing within 30 calendar days of the date of the Notice of Debarment, 
the notice is the final agency action and the debarment will take 
effect at the end of the 30-day period. The timely filing of an 
administrative appeal stays the debarment pending the outcome of the 
appeal as provided in Sec.  503.43(e).
    (e) Concurrent debarment jurisdiction. OFLC and the WHD have 
concurrent jurisdiction debar under 20 CFR 655.73 or under this part. 
When considering debarment, OFLC and the WHD will coordinate their 
activities. A specific violation for which debarment is imposed will be 
cited in a single debarment proceeding. Copies of final debarment 
decisions will be forwarded to DHS and DOS promptly.
    (f) Debarment from other labor certification programs. Upon 
debarment under this part or 20 CFR 655.73, the debarred party will be 
disqualified from filing any labor certification applications or labor 
condition applications with the Department of Labor by, or on behalf 
of, the debarred party for the same period of time set forth in the 
final debarment decision.

Sec.  503.25  Failure to cooperate with investigators.

    (a) No person will interfere or refuse to cooperate with any 
employee of the Secretary who is exercising or attempting to exercise 
the Department's investigative or enforcement authority under 8 U.S.C. 
1184(c). Federal statutes prohibiting persons from interfering with a 
Federal officer in the course of official duties are found at 18 U.S.C. 
111 and 18 U.S.C. 114.
    (b) Where an employer (or employer's agent or attorney) interferes 
or does not cooperate with an investigation concerning the employment 
of an H-2B worker or a worker in corresponding employment, or a U.S. 
worker who has been improperly rejected for employment or improperly 
laid off or displaced, WHD may make such information available to OFLC 
and may recommend that OFLC revoke the existing certification that is 
the basis for the employment of the H-2B workers giving rise to the 
investigation. In addition, WHD may take such action as appropriate 
where the failure to cooperate meets the standards in Sec.  503.19, 
including initiating proceedings for the debarment of the employer from 
future certification for up to 5 years, and/or assessing civil money 
penalties against any person who has failed to cooperate with a WHD 
investigation. The taking of any one action will not bar the taking of 
any additional action.

Sec.  503.26  Civil money penalties--payment and collection.

    Where a civil money penalty is assessed in a final order by the 
Administrator, WHD, by an ALJ, or by the ARB, the amount of the penalty 
must be received by the Administrator, WHD within 30 calendar days of 
the date of the final order. The person assessed the penalty will remit 
the amount ordered to the Administrator, WHD by certified check or by 
money order, made payable to the Wage and Hour Division, United States 
Department of Labor. The remittance will be delivered or mailed to the 
WHD Regional Office for the area in which the violations occurred.

Subpart C--Administrative Proceedings

Sec.  503.40  Applicability of procedures and rules.

    (a) 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 provisions 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.
    (b) With respect to determinations as listed in paragraph (a) 
involving provisions under 8 U.S.C. 1184(c), the procedures and rules 
contained in this subpart will apply regardless of the date of 
violation.

Procedures Related to Hearing

Sec.  503.41  Administrator, WHD's determination.

    (a) Whenever the Administrator, WHD decides to assess a civil money 
penalty, to debar, or to impose other appropriate administrative 
remedies, including for the recovery of monetary relief, the party 
against which such action is taken will be notified in writing of such 
determination.
    (b) The Administrator, WHD's determination will be served on the 
party by personal service or by certified mail at the party's last 
known address. Where service by certified mail is not accepted by the 
party, the Administrator may exercise discretion to serve the 
determination by regular mail.

Sec.  503.42  Contents of notice of determination.

    The notice of determination required by Sec.  503.41 will:
    (a) Set forth the determination of the Administrator, WHD, 
including:
    (1) The amount of any monetary relief due; or
    (2) Other appropriate administrative remedies; or
    (3) The amount of any civil money penalty assessment; or
    (4) Whether debarment is sought and the term; and
    (5) The reason or reasons for such determination.
    (b) Set forth the right to request a hearing on such determination;
    (c) Inform the recipient(s) of the notice that in the absence of a 
timely request for a hearing, received by the Chief ALJ within 30 
calendar days of the date of the determination, the

[[Page 24142]]

determination of the Administrator, WHD will become final and not 
appealable;
    (d) Set forth the time and method for requesting a hearing, and the 
related procedures for doing so, as set forth in Sec.  503.43, and give 
the addresses of the Chief ALJ (with whom the request must be filed) 
and the representative(s) of the Solicitor of Labor (upon whom copies 
of the request must be served); and
    (e) Where appropriate, inform the recipient(s) of the notice that 
the Administrator, WHD will notify OFLC and DHS of the occurrence of a 
violation by the employer.

Sec.  503.43  Request for hearing.

    (a) Any party desiring review of a determination issued under Sec.  
503.41, including judicial review, must make a request for such an 
administrative hearing in writing to the Chief ALJ at the address 
stated in the notice of determination. In such a proceeding, the 
Administrator will be the plaintiff, and the party will be the 
respondent. If such a request for an administrative hearing is timely 
filed, the Administrator, WHD's determination will be inoperative 
unless and until the case is dismissed or the ALJ issues an order 
affirming the decision.
    (b) No particular form is prescribed for any request for hearing 
permitted by this section. However, any such request will:
    (1) Be dated;
    (2) Be typewritten or legibly written;
    (3) Specify the issue or issues stated in the notice of 
determination giving rise to such request;
    (4) State the specific reason or reasons why the party believes 
such determination is in error;
    (5) Be signed by the party making the request or by the agent or 
attorney of such party; and
    (6) Include the address at which such party or agent or attorney 
desires to receive further communications relating thereto.
    (c) The request for such hearing must be received by the Chief ALJ, 
at the address stated in the Administrator, WHD's notice of 
determination, no later than 30 calendar days after the date of the 
determination. A party which fails to meet this 30-day deadline for 
requesting a hearing may thereafter participate in the proceedings only 
by consent of the ALJ.
    (d) The request may be filed in person, by facsimile transmission, 
by certified or regular mail, or by courier service within the time set 
forth in paragraph (c) of this section. For the requesting party's 
protection, if the request is by mail, it should be by certified mail. 
If the request is by facsimile transmission, the original of the 
request, signed by the party or its attorney or agent, must be filed 
within 25 days.
    (e) The determination will take effect on the start date identified 
in the written notice of determination, unless an administrative appeal 
is properly filed. The timely filing of an administrative appeal stays 
the determination pending the outcome of the appeal proceedings.
    (f) Copies of the request for a hearing will be sent by the party 
or attorney or agent to the WHD official who issued the notice of 
determination on behalf of the Administrator, WHD, and to the 
representative(s) of the Solicitor of Labor identified in the notice of 
determination.

Rules of Practice

Sec.  503.44  General.

    (a) Except as specifically provided in the regulations in this part 
and to the extent they do not conflict with the provisions of this 
part, the Rules of Practice and Procedure for Administrative Hearings 
Before the Office of Administrative Law Judges established by the 
Secretary at 29 CFR part 18 will apply to administrative proceedings 
described in this part.
    (b) As provided in the Administrative Procedure Act, 5 U.S.C. 556, 
any oral or documentary evidence may be received in proceedings under 
this part. The Federal Rules of Evidence and subpart B of the Rules of 
Practice and Procedure for Administrative Hearings Before the Office of 
Administrative Law Judges (29 CFR part 18, subpart B) will not apply, 
but principles designed to ensure production of relevant and probative 
evidence will guide the admission of evidence. The ALJ may exclude 
evidence which is immaterial, irrelevant, or unduly repetitive.

Sec.  503.45  Service of pleadings.

    (a) Under this part, a party may serve any pleading or document by 
regular mail. Service on a party is complete upon mailing to the last 
known address. No additional time for filing or response is authorized 
where service is by mail. In the interest of expeditious proceedings, 
the ALJ may direct the parties to serve pleadings or documents by a 
method other than regular mail.
    (b) Two copies of all pleadings and other documents in any ALJ 
proceeding must be served on the attorneys for the Administrator, WHD. 
One copy must be served on the Associate Solicitor, Division of Fair 
Labor Standards, Office of the Solicitor, U.S. Department of Labor, 200 
Constitution Avenue NW., Room N-2716, Washington, DC 20210, and one 
copy must be served on the attorney representing the Administrator in 
the proceeding.
    (c) Time will be computed beginning with the day following service 
and includes the last day of the period unless it is a Saturday, 
Sunday, or Federally-observed holiday, in which case the time period 
includes the next business day.

Sec.  503.46  Commencement of proceeding.

    Each administrative proceeding permitted under 8 U.S.C. 1184(c)(14) 
and the regulations in this part will be commenced upon receipt of a 
timely request for hearing filed in accordance with Sec.  503.43.

Sec.  503.47  Caption of proceeding.

    (a) Each administrative proceeding instituted under 8 U.S.C. 
1184(c)(14), INA section 214(c)(14) and the regulations in this part 
will be captioned in the name of the person requesting such hearing, 
and will be styled as follows:
    In the Matter of __________, Respondent.
    (b) For the purposes of such administrative proceedings the 
Administrator, WHD will be identified as plaintiff and the person 
requesting such hearing will be named as respondent.

Sec.  503.48  Conduct of proceeding.

    (a) Upon receipt of a timely request for a hearing filed under and 
in accordance with Sec.  503.43, the Chief ALJ will promptly appoint an 
ALJ to hear the case.
    (b) The ALJ will notify all parties of the date, time and place of 
the hearing. Parties will be given at least 30 calendar days' notice of 
such hearing.
    (c) The ALJ may prescribe a schedule by which the parties are 
permitted to file a prehearing brief or other written statement of fact 
or law. Any such brief or statement must be served upon each other 
party. Post-hearing briefs will not be permitted except at the request 
of the ALJ. When permitted, any such brief must be limited to the issue 
or issues specified by the ALJ, will be due within the time prescribed 
by the ALJ, and must be served on each other party.

Procedures Before Administrative Law Judge

Sec.  503.49  Consent findings and order.

    (a) General. At any time after the commencement of a proceeding 
under this part, but before the reception of evidence in any such 
proceeding, a party may move to defer the receipt of any evidence for a 
reasonable time to

[[Page 24143]]

permit negotiation of an agreement containing consent findings and an 
order disposing of the whole or any part of the proceeding. The 
allowance of such deferment and the duration thereof will be at the 
discretion of the ALJ, after consideration of the nature of the 
proceeding, the requirements of the public interest, the 
representations of the parties, and the probability of an agreement 
being reached which will result in a just disposition of the issues 
involved.
    (b) Content. Any agreement containing consent findings and an order 
disposing of a proceeding or any part thereof will also provide:
    (1) That the order will have the same force and effect as an order 
made after full hearing;
    (2) That the entire record on which any order may be based will 
consist solely of the notice of administrative determination (or 
amended notice, if one is filed), and the agreement;
    (3) A waiver of any further procedural steps before the ALJ; and
    (4) A waiver of any right to challenge or contest the validity of 
the findings and order entered into in accordance with the agreement.
    (c) Submission. On or before the expiration of the time granted for 
negotiations, the parties or their attorney or agent may:
    (1) Submit the proposed agreement for consideration by the ALJ; or
    (2) Inform the ALJ that agreement cannot be reached.
    (d) Disposition. In the event an agreement containing consent 
findings and an order is submitted within the time allowed therefore, 
the ALJ, within 30 days thereafter, will, if satisfied with its form 
and substance, accept such agreement by issuing a decision based upon 
the agreed findings.

Post-Hearing Procedures

Sec.  503.50  Decision and order of Administrative Law Judge.

    (a) The ALJ will prepare, within 60 days after completion of the 
hearing and closing of the record, a decision on the issues referred by 
the Administrator, WHD.
    (b) The decision of the ALJ will include a statement of the 
findings and conclusions, with reasons and basis therefore, upon each 
material issue presented on the record. The decision will also include 
an appropriate order which may affirm, deny, reverse, or modify, in 
whole or in part, the determination of the Administrator, WHD. The 
reason or reasons for such order will be stated in the decision.
    (c) In the event that the Administrator, WHD assesses back wages 
for wage violation(s) of Sec.  503.16 based upon a PWD obtained by the 
Administrator from OFLC during the investigation and the ALJ determines 
that the Administrator's request was not warranted, the ALJ will remand 
the matter to the Administrator for further proceedings on the 
Administrator's determination. If there is no such determination and 
remand by the ALJ, the ALJ will accept as final and accurate the wage 
determination obtained from OFLC or, in the event the party filed a 
timely appeal under 20 CFR 655.13 the final wage determination 
resulting from that process. Under no circumstances will the ALJ 
determine the validity of the wage determination or require submission 
into evidence or disclosure of source data or the names of 
establishments contacted in developing the survey which is the basis 
for the PWD.
    (d) The decision will be served on all parties.
    (e) The decision concerning civil money penalties, debarment, 
monetary relief, and/or other administrative remedies, when served by 
the ALJ will constitute the final agency order unless the ARB, as 
provided for in Sec.  503.51, determines to review the decision.

Review of Administrative Law Judge's Decision

Sec.  503.51  Procedures for initiating and undertaking review.

    (a) A respondent, the WHD, or any other party wishing review, 
including judicial review, of the decision of an ALJ will, within 30 
days of the decision of the ALJ, petition the ARB to review the 
decision. Copies of the petition will be served on all parties and on 
the ALJ.
    (b) No particular form is prescribed for any petition for the ARB's 
review permitted by this part. However, any such petition will:
    (1) Be dated;
    (2) Be typewritten or legibly written;
    (3) Specify the issue or issues stated in the ALJ decision and 
order giving rise to such petition;
    (4) State the specific reason or reasons why the party petitioning 
for review believes such decision and order are in error;
    (5) Be signed by the party filing the petition or by an authorized 
representative of such party;
    (6) Include the address at which such party or authorized 
representative desires to receive further communications relating 
thereto; and
    (7) Include as an attachment the ALJ's decision and order, and any 
other record documents which would assist the ARB in determining 
whether review is warranted.
    (c) If the ARB does not issue a notice accepting a petition for 
review of the decision within 30 days after receipt of a timely filing 
of the petition, or within 30 days of the date of the decision if no 
petition has been received, the decision of the ALJ will be deemed the 
final agency action.
    (d) Whenever the ARB, either on the ARB's own motion or by 
acceptance of a party's petition, determines to review the decision of 
an ALJ, a notice of the same will be served upon the ALJ and upon all 
parties to the proceeding.

Sec.  503.52  Responsibility of the Office of Administrative Law Judges 
(OALJ).

    Upon receipt of the ARB's notice under Sec.  503.51, the OALJ will 
promptly forward a copy of the complete hearing record to the ARB.

Sec.  503.53  Additional information, if required.

    Where the ARB has determined to review such decision and order, the 
ARB will notify the parties of:
    (a) The issue or issues raised;
    (b) The form in which submissions will be made (i.e., briefs, oral 
argument); and
    (c) The time within which such presentation will be submitted.

Sec.  503.54  Submission of documents to the Administrative Review 
Board.

    All documents submitted to the ARB will be filed with the 
Administrative Review Board, U.S. Department of Labor, 200 Constitution 
Avenue NW., Room S-5220, Washington, DC 20210. An original and two 
copies of all documents must be filed. Documents are not deemed filed 
with the ARB until actually received by the ARB. All documents, 
including documents filed by mail, must be received by the ARB either 
on or before the due date. Copies of all documents filed with the ARB 
must be served upon all other parties involved in the proceeding.

Sec.  503.55  Final decision of the Administrative Review Board.

    The ARB's final decision will be issued within 90 days from the 
notice granting the petition and served upon all parties and the ALJ.

[[Page 24144]]

Record

Sec.  503.56  Retention of official record.

    The official record of every completed administrative hearing 
provided by the regulations in this part will be maintained and filed 
under the custody and control of the Chief ALJ, or, where the case has 
been the subject of administrative review, the ARB.

    Signed: at Washington, DC this 22nd of April 2015.
Thomas E. Perez,
Secretary of Labor.
    Signed: at Washington, DC this 22nd of April 2015.
Jeh Charles Johnson,
Secretary of Homeland Security.
[FR Doc. 2015-09694 Filed 4-28-15; 8:45 am]
 BILLING CODE 4510-FP-P; 4510-27-P; 9111-97-P
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