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[Federal Register Volume 76, Number 53 (Friday, March 18, 2011)]
[Proposed Rules]
[Pages 15130-15207]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-6152]

[[Page 15129]]

Vol. 76

Friday,

No. 53

March 18, 2011

Part IV

Department of Labor

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Employment and Training Administration

20 CFR Part 655

Wage and Hour Division 29 CFR Part 503

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

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

[[Page 15130]]

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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

Wage and Hour Division

29 CFR Part 503

RIN 1205-AB58

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

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

ACTION: Proposed rule; request for comments.

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

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

ADDRESSES: You may submit comments, identified by Regulatory 
Information Number (RIN) 1205-AB58, by any one of the following 
methods:
     Federal e-Rulemaking Portal www.regulations.gov. Follow 
the Web site instructions for submitting comments.
     Mail or Hand Delivery/Courier: Please submit all written 
comments (including disk and CD-ROM submissions) to Michael Jones, 
Acting Administrator, Office of Policy Development and Research, 
Employment and Training Administration, U.S. Department of Labor, 200 
Constitution Avenue NW., Room N-5641, Washington, DC 20210.
    Please submit your comments by only one method. Comments received 
by means other than those listed above or that are received after the 
comment period has closed will not be reviewed. The Department will 
post all comments received on http://www.regulations.gov without making 
any change to the comments, including any personal information 
provided. The http://www.regulations.gov Web site is the Federal e-
rulemaking portal and all comments posted there are available and 
accessible to the public. The Department cautions commenters not to 
include their personal information such as Social Security Numbers, 
personal addresses, telephone numbers, and e-mail addresses in their 
comments as such submitted information will become viewable by the 
public on the http://www.regulations.gov Web site. It is the 
commenter's responsibility to safeguard his or her information. 
Comments submitted through http://www.regulations.gov will not include 
the commenter's e-mail address unless the commenter chooses to include 
that information as part of his or her comment.
    Postal delivery in Washington, DC, may be delayed due to security 
concerns. Therefore, the Department encourages the public to submit 
comments through the http://www.regulations.gov Web site.
    Docket: For access to the docket to read background documents or 
comments received, go the Federal eRulemaking portal at http://www.regulations.gov. The Department will also make all the comments it 
receives available for public inspection during normal business hours 
at the Employment and Training Administration (ETA) Office of Policy 
Development and Research at the above address. If you need assistance 
to review the comments, the Department will provide you with 
appropriate aids such as readers or print magnifiers. The Department 
will make copies of the rule available, upon request, in large print 
and as an electronic file on computer disk. The Department will 
consider providing the proposed rule in other formats upon request. To 
schedule an appointment to review the comments and/or obtain the rule 
in an alternate format, contact the Office of Policy Development and 
Research at (202) 693-3700 (VOICE) (this is not a toll-free number) or 
1-877-889-5627 (TTY/TDD).

FOR FURTHER INFORMATION CONTACT: For further information on 20 CFR part 
655, subpart A, contact William L. Carlson, PhD, Administrator, Office 
of Foreign Labor Certification, ETA, U.S. Department of Labor, 200 
Constitution Avenue, NW., Room C-4312, Washington, DC 20210; Telephone 
(202) 693-3010 (this is not a toll-free number). Individuals with 
hearing or speech impairments may access the telephone number above via 
TTY by calling the toll-free Federal Information Relay Service at 1-
800-877-8339.
    For further information on 29 CFR part 503, contact Mary Ziegler, 
Director, Division of Regulations, Legislation, and Interpretation, 
Wage and Hour Division, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Room S-3510, Washington, DC 20210; Telephone (202) 693-
0406 (this is not a toll-free number). Individuals with hearing or 
speech impairments may access the telephone number above via TTY by 
calling the toll-free Federal Information Relay Service at 1-800-877-
8339.

SUPPLEMENTARY INFORMATION:

I. Revisions to 20 CFR Part 655 Subpart A

A. Statutory Standard and Current Department of Labor Regulations

    Section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act 
(INA or the Act) defines an H-2B worker as a nonimmigrant admitted to 
the U.S. on a temporary basis to perform temporary non-agricultural 
labor or services for which ``unemployed persons capable of performing 
such service or labor cannot be found in this country.'' 8 U.S.C. 
1101(a)(15)(H)(ii)(b). Section 214(c)(1) of the INA requires DHS to 
consult with appropriate agencies before approving an H-2B visa 
petition. 8 U.S.C. 1184(c)(1). The regulations for the U.S. Citizenship 
and Immigration Services (USCIS), the agency within DHS which 
adjudicates requests for H-2B status, require that an intending 
employer first apply for a temporary labor certification from the 
Secretary of Labor (the Secretary). That certification informs USCIS 
that U.S. workers capable of performing the services or labor are not 
available, and that the employment of the foreign worker(s) will not 
adversely affect the wages and working conditions of similarly employed 
U.S. workers. 8 CFR 214.2(h)(6). A certification from the Secretary 
currently is not required for H-2B employment on Guam, for which 
certification from the Governor of Guam is required. 8 CFR 
214.2(h)(6)(iii).
    The Department's regulations at 20 CFR part 655, Subpart A, ``Labor 
Certification Process for Temporary Employment in Occupations other 
than

[[Page 15131]]

Agriculture or Registered Nursing in the United States (H-2B 
Workers),'' govern the H-2B labor certification process, as well as the 
enforcement process to ensure U.S and H-2B workers are employed in 
compliance with H-2B labor certification requirements. Applications for 
labor certification are processed by the Office of Foreign Labor 
Certification (OFLC) in ETA, the agency to which the Secretary of Labor 
has delegated her responsibilities described in the USCIS H-2B 
regulations. Enforcement of the attestations made by employers in the 
course of submission of H-2B applications for labor certification is 
conducted by the Wage and Hour Division (WHD) within the Department of 
Labor, to which DHS on January 16, 2009 delegated enforcement authority 
granted to it by the INA. 8 U.S.C. 1184(c)(14)(B).
    Under the current regulations, an employer seeking to fill job 
opportunities through the H-2B program must demonstrate that it has a 
temporary need for the services or labor, as defined by one of four 
regulatory standards: (1) A one-time occurrence; (2) a seasonal need; 
(3) a peakload need; or (4) an intermittent need. 8 CFR 
214.2(h)(6)(ii)(B). Generally, that period of time will be limited to 1 
year or less but, in the case of a one-time occurrence, could last up 
to 3 years, consistent with the standard under DHS regulations at 8 CFR 
214.2(h)(6) as well as current Department regulations. See 20 CFR 
655.6(b).
    Before 2008, the Department's regulatory scheme was minimal; the 
process was governed primarily through program guidance issued by ETA, 
with enforcement by WHD only of independently applicable laws such as 
the Fair Labor Standards Act (FLSA). Before 2007, ETA processing was 
governed primarily by General Administration Letter No. 1-95, 60 FR 
7216, Feb. 7, 1995, which laid out the processing of applications, 
first at the State Workforce Agency (SWA), then at the Federal level. 
Applications were filed first with the SWA, allowing them to review the 
applications, oversee the conduct of recruitment of potential U.S. 
workers, review the results, and then forward the application to OFLC 
with a recommendation of whether to approve or deny the application. 
ETA issued Training and Employment Guidance Letter (TEGL) No. 21-06, 72 
FR 19961, Apr. 20, 2007, to replace the previous guidance for the 
processing of H-2B applications.
    In January 2005, DHS and the Department issued companion NPRMs to 
significantly revise each agency's H-2B processing procedures. 70 FR 
3984, Jan. 27, 2005; 70 FR 3993, Jan. 27, 2005. This set of proposed 
rules suggested an attestation-based approach to adjudication, sending 
applications directly to USCIS with enhanced enforcement by the 
Department. The two agencies received significant opposition to these 
proposals. The Department withdrew its proposed rule as a result of 
these comments. See http://www.reginfo.gov/public/do/eAgendaViewRule?ruleID=221117.
    In 2008, the Department again proposed regulations employing an 
attestation-based filing model. See 73 FR 29942, May 22, 2008. In this 
proposed model, SWAs no longer oversaw recruitment, instead allowing 
the employer to conduct its recruitment with no direct Federal or state 
oversight. This attestation-based model meant that OFLC could only 
review certain aspects of compliance with the regulations through post-
certification audits rather than through the recruitment process, 
although the recruitment process itself was not dissimilar and the 
employers were performing the same activities as they would be with a 
SWA's assistance and oversight. The proposed regulation also provided 
for enforcement by WHD through investigation and findings, leading to 
the imposition of civil money penalties and other actions. These 
regulations were proposed in light of (1) considerable workload 
increases for both the Department and the SWAs (an approximate 30 
percent increase in applications in Fiscal Year (FY) 2007 over those 
received in FY 2006, and a similar increase during the first half of FY 
2008); (2) limited appropriations funding for program-related 
operations, both at the Federal and SWA levels; and (3) frequent and 
increasing comments from the user community that the process was 
cumbersome, complicated, time-consuming, and inefficient. These 
proposed regulations were a substantial shift from the administration 
of the program which provided for greater SWA involvement in the 
application and recruitment process. The Department received 
substantial comment on the proposed rule, and issued a Final Rule on 
December 19, 2008 (the 2008 Final Rule), which became effective January 
18, 2009. See 73 FR 78020, Dec. 19, 2008.
    Under the current attestation-based processing model, before filing 
an application to seek H-2B workers, an employer must first recruit 
U.S. workers to ensure an adequate test of the labor market for the 
position. In addition, the employer must offer and subsequently pay 
throughout the period of employment a wage that is equal to or higher 
than the prevailing wage for the occupation in the area of intended 
employment; provide terms and conditions of employment that are not 
less favorable than those offered to the foreign worker(s); and contact 
any previously laid-off workers.
    One important change in the 2008 Final Rule was its inclusion of 
enforcement authority for the Department. Before 2008, the Department 
had no H-2B specific enforcement authority or process to ensure 
employer compliance with H-2B labor certifications. Congress vested DHS 
with that enforcement authority in 2005. See 8 U.S.C. 1184, as amended 
by the Emergency Supplemental Appropriations Act for Defense, the 
Global War on Terror, and Tsunami Relief of 2005, Public Law 109-13, 
119 Stat. 231. That legislation authorized DHS to delegate this 
enforcement authority to the Department and DHS subsequently made that 
delegation. The 2008 Final Rule instituted an H-2B regulatory 
enforcement regime based upon DHS's delegation.
    On August 30, 2010, the U.S. District Court for the Eastern 
District of Pennsylvania in Comit[eacute] de Apoyo a los Trabajadores 
Agricolas (CATA) v. Solis, Civil No. 2:09-cv-240-LP, 2010 WL 3431761 
(E.D. Pa. Aug. 30, 2010), invalidated various provisions of the 
Department's 2008 Final Rule and remanded the case to the Department to 
correct its errors. The court ruled that the Department had violated 
the Administrative Procedure Act when it did not adequately explain its 
reasoning for using skill levels as part of the H-2B prevailing wage 
determination process, and that it failed to consider comments relating 
to the choice of appropriate data sets in deciding to rely on 
Occupational Employment Statistics survey data rather than Davis Bacon 
Act and Service Contract Act wage data in setting the prevailing wage 
rates. The court ordered the Department to ``promulgate new rules 
concerning the calculation of the prevailing wage rate in the H-2B 
program that are in compliance with the Administrative Procedure Act no 
later than 120 days from the date of this order.'' CATA v. Solis, Civil 
No. 2:09-cv-240-LP, 2010 WL 3431761 (E.D. Pa. Aug. 30, 2010). The 
Department began a separate rulemaking process to address the 
prevailing wage calculation and, on January 19, 2011, finalized its new 
prevailing wage calculation methodology in Wage Methodology for the 
Temporary Non-agricultural Employment H-2B Program Final Rule, 76 FR 
3452 (Jan. 19, 2011). This NPRM does not address the matters in the 
Prevailing Wage Final Rule, and

[[Page 15132]]

commenters should not address those matters in this proceeding. 
However, commenters may wish to consider the content of that rule in 
fashioning their comments to the NPRM since the prevailing wage 
determination system set forth in the Prevailing Wage Final Rule will 
be applied to the final rule that results from this NPRM.
    Additionally, the court invalidated and vacated 20 CFR 655.22(k) 
insofar as that provision permits the clients of job contractors to 
hire H-2B workers without submitting an application to the Department. 
As a result, the Department no longer accepts H-2B labor certification 
applications filed solely by job contractors.
    Lastly, the court invalidated the following provisions on the 
ground that the Department did not provide a rational explanation of 
its policy choices: (1) 20 CFR 655.15(g) concerning the situations in 
which H-2B employers must contact unions as a potential source of 
labor; (2) the portion of 20 CFR 655.4 defining ``full time''; and (3) 
the portion of 20 CFR 655.4 defining ``job contractor'' to mean an 
entity that ``will not exercise any supervision or control in the 
performance of the services or labor to be performed other than hiring, 
paying, and firing the workers.'' In this NPRM, the Department is 
proposing a new provision at section 655.44 specifying when H-2B 
employers must contact unions as a potential source of labor and a new 
definition of ``full time'' at section 655.5 and 29 CFR 503.4 and is 
thereby proposing to abandon the particular union contact and full time 
provisions that were invalidated by the court. The Department is also 
proposing a slightly modified definition of job contractor based on the 
invalidated definition; however, the Department has provided an 
explanation in section 655.5 of the preamble which clarifies the 
rationale for the underlying definition and its modification.

B. The Need for Rulemaking

    The Department has determined for a variety of reasons that a new 
rulemaking effort is necessary for the H-2B program. The Department 
believes that the policy underpinnings of the 2008 Final Rule, e.g. 
streamlining the H-2B process to defer many determinations of program 
compliance until after an application has been adjudicated, do not 
provide an adequate level of protection for either U.S. or foreign 
workers. These protections are essential to meet the regulatory mandate 
to prevent adverse effect on wages and working conditions for U.S. 
workers and to ensure access to jobs for U.S. workers in order to 
satisfy the statutory requirement that certifications be granted only 
if no U.S. workers are available.
    First, there are insufficient worker protections in the current 
attestation-based model in which employers merely assert, and do not 
demonstrate, that they have performed an adequate test of the U.S. 
labor market and one which is in accordance with the regulations. 
Further, in the first year of the operation of the attestation-based 
system our experience indicates that employers are attesting to 
compliance with program obligations with which they have not complied, 
and that employers do not appear to be recruiting, hiring and paying 
U.S. workers, and in some cases the H-2B workers themselves, in 
accordance with established program requirements. Cases audited after 
certification by the OFLC in the 2 years since the adoption of an 
attestation-based program demonstrate a pattern of non-compliance or 
avoidance of demonstrating compliance. In the first round of audits 
conducted, which was primarily a random sample of cases, the Department 
found that 52 percent of employers that had attested to compliance with 
regulatory obligations were in fact not in compliance with those 
obligations. A second round demonstrated a higher level of compliance, 
but in total, the audited cases demonstrate a level of compliance of 
only 55 percent. The violations included evidence of both H-2B and U.S. 
workers being offered less than full-time work; misrepresentations as 
to the work time that was actually offered or the number of workers 
actually needed; workers being paid less than the prevailing wages; and 
U.S. workers being rejected for other than lawful, job-related reasons, 
such as not having a commercial driver's license when one is not 
required to perform the job. The identified violations come from 
different geographical sectors and relate to both new and experienced 
filers. The most disturbing evidence of non-compliance is, however, a 
lack of response from many of those audited--indicating anything from a 
company that does not exist (evidenced by returned mail) to an employer 
seeking to avoid liability by simply not informing the Department of 
its errors.
    There has also been increasing evidence in the H-2B program of 
violations rising to the criminal level. The Department has seen 
increasing evidence of employers and agents filing fraudulent 
applications--involving hundreds or thousands of requested employees--
for non-existent job opportunities. U.S. v. Broyles, 2:09-cr-00003-MSD-
TEM-23 (E.D. Va. 2010) (conspiracy to conspiracy to fraudulently obtain 
H-2B visas), U.S. v. Barbugli, 6:10-cr-00177-MSS-DAB, 6:10-mj-01089-
KRS, 6:10-cr-00180-MSS-GJK (C.D. Fl. 2010) (three family members guilty 
for operations involving a labor staffing company obtaining fraudulent 
H-2B visas through more than 11 subsidiary companies), and U.S. v. 
Manuel, 9:10-cr-80057-KAM (S.D. FL. 2010) (false statements and 
conspiring to hold approximately 39 Filipino nationals in forced 
service to work in H-2B status in country clubs and hotels in Southeast 
Florida) represent the most recent criminal actions involving H-2B 
applications filed for fraudulent job opportunities or containing false 
information at odds with the treatment actually received by the 
workers. Moreover, the General Accountability Office (GAO) released a 
report in September 2010 summarizing a review of ten concluded criminal 
and civil cases covering the previous 5 years involving H-2B employers 
and recruiters. These cases demonstrated violations of various labor 
laws or the settlement of alleged violations such as wage and/or 
overtime violations; charging of fees by employers; and the submission 
of fraudulent documentation to obtain visas and other government 
benefits. The Department cannot ignore this rise in successful criminal 
and civil prosecutions which demonstrate the abuse of the H-2 program; 
while the attestation-based model may not be a direct cause of the 
types of action resulting in these criminal charges, the model provides 
more of an opportunity for such actions to occur and remain undetected.
    The steps offered in this proposed rule cannot entirely eliminate 
the concerns the Department has with an attestation-based application 
model. The evidence of non-compliance under such a model is, however, 
sufficient in the Department's view to warrant steps to ensure that 
employers who comply in good faith can do so while those who have no 
intent to uphold their obligations have a decreased opportunity to 
defraud the program. In eliminating the attestation-based application 
model, the Department also increases the efficiency of the program, by 
ensuring applications with potential violations can be addressed before 
recruitment or certification, rather than requiring the more drastic 
potential for debarment after audit.
    In light of such non-compliance the Department has chosen to 
revisit the use of attestations, notwithstanding the use of post-
certification program integrity measures. Increased enforcement such as 
that proposed in this NPRM, although

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essential to a viable H-2B program, is not sufficient to ensure 
protection of workers in H-2B occupations who constitute a particularly 
vulnerable subgroup of the workforce. Rather, the most reliable method 
by which the Department can ensure compliance with the regulatory 
requirements is through the review of compliance through documentation 
provided to the Department in advance of the certification 
determination, rather than during the audit process. In addition to 
communicating to all the parties to the process the need to comply with 
those obligations, this review deters bad actors in the program from 
making false statements and also reinforces program requirements for 
those who are new to the program or unable to adequately discern their 
program obligations. To the extent that employers have incorrectly 
attested to compliance with program requirements through ignorance or 
misunderstanding of those requirements, the compliance-based model will 
identify those problems in the review of the application and offer the 
employer an opportunity to correct its error without penalty or delay 
in meeting its date of need.
    Although the Department still seeks to maintain an efficient 
system, it has in this new rule struck a balance between reducing 
processing times and protecting U.S. worker access to these job 
opportunities. The structured time frames for the processing of 
applications set forth in the proposed rule help the agency to strike 
that vital balance. We would emphasize that the return to the 
certification model which was used in the program for its entire 
history until January 2009, and which was recently reintroduced into 
the H-2A program, creates no significant additional burdens on 
employers. It does not change the nature of the obligations with which 
employers must comply, or the documentation that employers must 
maintain, but merely adjusts the timing and circumstances under which 
that documentation, the evidence of compliance with those obligations, 
must be produced for review. While this change produces no additional 
burden on employers, it will substantially enhance overall program 
integrity by allowing the Department to identify potential problematic 
applications at the earliest possible time. It is also much less 
onerous on employers to be required to amend a deficient or incomplete 
application before it is certified, than to subject the employer to the 
potential for back pay, civil money penalties or debarment if the 
deficiencies in the application are not identified until the job 
opportunity is gone.
    The Department, however, is aware that in certain instances, 
employers would prefer a continuation of an attestation-based 
application process. Using an attestation-based application, 
applications would be streamlined and employers may be able to obtain 
some cost savings from not being required to duplicate and send 
documentation demonstrating compliance along with the application. Many 
employers have indicated to the Department the preference for a 
streamlined application system, with more of an emphasis on enforcement 
for compliance on the back end. This is the model that was put into 
place in the 2008 Final Rule and has support of many employers.
    The Department remains concerned, however, whether its goals of 
ensuring compliance (both up-front compliance by those unfamiliar with 
program requirements and for those engaged in deliberate disregard for 
program obligations) can be met through increased program compliance 
assistance and post-certification enforcement. This is particularly 
true in a temporary worker program, where non-compliance would likely 
be identified through enforcement efforts well after the impacted H-2B 
workers have returned to their home country or the U.S. workers were 
already denied employment.
    While a compliance demonstration model remains the Department's 
preferred alternative and as such is reflected in the proposed 
regulatory text, the Department proposes dual consideration of an 
alternative retaining the current attestation-based application system. 
The Department is interested in receiving comments on the alternative 
of maintaining the current or some modification of the current 
attestation-based program design. Specifically, the Department is 
seeking comments on whether it should develop certain attestations 
which can be required of all employers (such as an attestation for 
certain kinds of recruitment), or for only certain program compliance 
requirements. In order to provide information to address the 
Department's concerns, comments on any attestation alternative should 
focus on the following:
    1. What kind of specific guidance could the Department provide that 
would benefit a first-time (or sporadic) employer in the H-2B program 
to avoid mistakes in making attestations of compliance with program 
obligations?
    2. What kind of guidance would benefit frequent users of the 
program with respect to repetitive errors in recruitment? What kind of 
guidance would be beneficial in avoiding errors in unique situations 
for these users?
    3. Could pre-certification audits augment a post-certification 
audit in an attestation-based program model? If not, how would you 
propose the Department obtain information in the absence of supervised 
activity in order to arrive at certification while ensuring compliance 
with program obligations?
    4. What additional sanctions could be taken against employers to 
ensure compliance with program requirements, given the potential for 
fraud in the H-2B program?
    5. What other kinds of actions could the Department take to prevent 
an H-2B employer from filing attestations that do not meet program 
requirements?
    Accordingly, in order to adequately protect U.S. and H-2B workers, 
the Department proposes the changes discussed below, including the 
proposal of a new 29 CFR part 503 to set forth WHD's investigative and 
enforcement roles. The Department is engaging in this new rulemaking to 
provide the public with notice and opportunity to comment on the H-2B 
program.
    The NPRM seeks to help employers meet legitimate short-term 
temporary labor needs where and when there are no available U.S. 
workers. Over the years as the program has evolved, stakeholders in 
diverse industries throughout the country repeatedly have expressed 
concerns that some employers were inappropriately using H-2B workers 
for job opportunities that were permanent, thereby denying U.S. workers 
the opportunity for long-term employment. These employers' actions are 
at the detriment of other employers with a legitimate temporary need 
that are ultimately denied access to the program due to the statutory 
limitation on available visas. By preventing employers with a long-term 
permanent need from participating in the H-2B program, the Department 
would provide employers with genuine unmet temporary needs with a 
greater opportunity to participate in the program. Similarly, the 
proposed requirement that employers provide a single date of need or 
start date for the workers ensures that employers with legitimate 
temporary needs will have a better chance of receiving available visas 
in years in which the demand exceeds the supply.
    The Department's proposal to bifurcate the current application 
process into a registration phase which addresses the employer's 
temporary need and an application phase which addresses the labor 
market test will enable the Department to prevent

[[Page 15134]]

employers without a legitimate temporary need from even filing an 
application. The current process where the adjudication of temporary 
need is concurrent with the evaluation of the labor market test often 
results in delays in processing employer applications for H-2B labor 
certifications. The Department believes that bifurcating this process 
will facilitate the timely processing of applications. This bifurcation 
allows the employers to conduct the labor market test closer to the 
date of need without the simultaneous adjudication of temporary need. 
Because the registration may be valid for up to 3 years, employers will 
be able to commence the process at the second phase without having to 
re-establish temporary need for the second and third years of 
registration, absent significant change in conditions, saving employer 
and public resources from re-adjudication of an obvious legitimate 
need. Additionally, removing employers without demonstrable temporary 
need from the application process further enables the Department and 
the SWAs to focus their limited resources on administering in a timely 
manner the labor market test. A registration process enables the 
Department to better serve the employers with legitimate temporary 
need, as well as the public by being able to focus on ensuring that 
U.S. workers are afforded full access to these job opportunities.
    As part of the Department's commitment to openness and public 
input, DOL reached out to stakeholders, including employers, labor 
unions, advocates and other Federal agencies to learn more about their 
experiences with the H-2B program and hear their views on how the 
program can be improved to meet temporary labor needs, while ensuring 
U.S. worker access to the job opportunities and providing sufficient 
worker protections to both U.S. and H-2B workers. These listening 
sessions included targeted immigration sessions at the full-day 
Stakeholder Forum convened by WHD in Washington, DC and attended by 
hundreds of representatives from business, labor and other 
stakeholders, as part of its annual strategic planning process. These 
meetings provided the Department with a wealth and diversity of 
experience and views that helped better inform the drafting process. 
The Department hopes that the interested parties review this proposal 
and continue to engage and provide feedback and comments that are 
essential to ensuring an effective and workable final rule.

II. Discussion of 20 CFR Part 655, Subpart A

A. Introductory Sections

1. Section 655.1 Scope and Purpose of Subpart A
    This proposed provision informs program users of the statutory 
basis and regulatory authority for the H-2B labor certification 
process. This provision describes the Department's role in receiving, 
reviewing, adjudicating, and upholding the integrity of an Application 
for Temporary Employment Certification.
2. Section 655.2 Authority of Agencies, Offices and Divisions in the 
Department of Labor
    The Department proposes in this provision to describe the authority 
of and division of activities related to the H-2B program among the 
Department's agencies. It discusses the authority of OFLC, the office 
within ETA that exercises the Secretary's responsibility for 
determining the availability of U.S. workers and whether the employment 
of H-2B nonimmigrant workers will adversely affect the wages and 
working conditions of similarly employed workers. It also discusses the 
authority of WHD, the agency responsible for investigation and 
enforcement of the terms and conditions of H-2B labor certifications, 
as delegated by the DHS.
3. Section 655.3 Territory of Guam
    As in the 2008 Final Rule, under the proposed rule, the granting of 
H-2B labor certifications and the enforcement of the H-2B visa program 
in Guam will continue to reside with the Governor of Guam, pursuant to 
DHS regulations. However, this regulation proposes that the 
determination of all prevailing wages should be housed in the 
Department, including those for Guam. The function determining a 
prevailing wage for construction workers on Guam has most recently been 
housed with USCIS, which consults with the Governor of Guam as to the 
admission of H-2B construction workers on Guam. 8 CFR 214.2(h)(6)(iii). 
DHS and the Department are in agreement that issuing prevailing wages 
for all workers, including construction workers, would more 
appropriately be performed by the Department, specifically by the OFLC, 
because OFLC already provides prevailing wage determinations for all 
other U.S. jurisdictions. The Department, therefore, is proposing that 
the process for obtaining a prevailing wage in proposed section 655.12 
also apply to H-2B job opportunities in Guam. Employment opportunities 
in Guam would, under the proposed rule, be subject to the same process 
and methodology for calculating prevailing wages as any other 
jurisdiction within the Department's purview.
4. Section 655.4 Special Procedures
    The proposed rule continues the Department's authority to 
establish, continue, revise, or revoke special procedures that 
establish variations for processing certain H-2B Applications for 
Temporary Employment Certification. These are situations where the 
Department recognizes that variations from the normal H-2B labor 
certification processes are necessary to permit access to the program 
for specific industries or occupations. These variations permit access 
to the program for those who would otherwise be unable to readily 
comply with the program's established processes, such as by allowing 
itinerary employment for reforestation employers and certain employers 
in the entertainment industry. Under the proposed rule, as with the 
2008 Final Rule, special procedures already in place on the effective 
date of the regulations will remain in force until otherwise modified 
or withdrawn by the Department.
5. Section 655.5 Definition of Terms
    Although the Department proposes a number of changes to the 
definitions section from the definitions contained in the 2008 Final 
Rule, many of the changes are to clarify meanings in minor ways that do 
not substantively change the meaning of the term. However, some 
substantive changes to definitions are also proposed.
    The Department proposes to add a reference to the definition of 
``agricultural labor or services'' from its own regulations governing 
H-2A temporary agricultural employment in order to assist in clarifying 
what non-agricultural employment is, by defining what it is not. The 
distinction between agricultural and non-agricultural employment is 
defined in part by the H-2A temporary agricultural regulations, drawn 
from the express authorization of the Department to define what 
constitutes agricultural labor or services. The Department is also 
offering a definition of ``non-agricultural labor or services'' as any 
type of employment that is not agricultural in nature.
    The Department proposes to add the definition of ``area of 
substantial unemployment'' to the H-2B program. As will be discussed 
more fully below, employers seeking H-2B workers in areas of 
substantial unemployment may

[[Page 15135]]

be subject to enhanced recruitment based on the Certifying Officer's 
(CO) discretion. Further discussions of how the Department has derived 
the definition of ``area of substantial unemployment'' can be found in 
ETA's Training and Employment Guidance Letter No. 1-08, Aug. 20, 2008.
    The Department proposes to amend the definition of an ``attorney'' 
to reflect the scope of activities attorneys can perform under the 
program.
    The Department proposes to amend the definition of ``Certifying 
Officer'' to clarify that the Administrator, OFLC is the National CO.
    The Department proposes to include the definition of 
``corresponding employment'' under these H-2B regulations to more 
accurately reflect the DHS regulatory requirement that, as a condition 
for approval of H-2B petitions the Secretary certify that the 
employment of the alien in such labor or services will not adversely 
affect the wages and working conditions of similarly employed U.S. 
workers. 8 CFR 214.2(h)(6). To ensure that U.S. workers are not 
adversely affected by the employment of H-2B workers, the Department 
proposes to require that employers provide to workers engaged in 
corresponding employment at least the same protections and benefits as 
those provided to H-2B workers (except for border crossing and visa 
fees which would not be applicable). Like the definition of 
corresponding employment in the H-2A program, ``corresponding 
employment'' is defined as the employment of workers who are not H-2B 
workers by an employer whose H-2B Application was approved by OFLC in 
any work included in the job order, or any work performed by the H-2B 
workers during the validity period of the job order. Workers in 
``corresponding employment'' may be either workers hired during the 
recruitment process on an H-2B job order or workers who already work 
for an employer who perform the same work as H-2B workers.
    Historically, there has been a recognition that U.S. workers should 
not be treated less favorably than temporary foreign workers. For 
example, a 1980 Senate Judiciary Report on Temporary Worker Programs 
stated that U.S. employers were required to offer domestic workers 
wages equal to foreign workers as a prerequisite for labor 
certification. See Congressional Research Service: ``Report to the 
Senate Committee on the Judiciary: Temporary Worker Programs: 
Background and Issues, 53 (1980).'' Current Sec.  655.22(a) reflects 
this principle, requiring that the terms and conditions of offered 
employment cannot be less favorable than those offered to H-2B workers. 
This provides for equal treatment of workers hired during the H-2B 
recruitment process. However, the current regulation does not encompass 
all workers who may be engaged in work performed by H-2B workers during 
the validity of the job order.
    Courts have consistently upheld the Department's interpretation 
that the wages and benefits offered or provided to H-2A agricultural 
workers must also be provided to domestic workers. See Farmer v. 
Employment Security Comm'n of N.C., 4 F.3d 1274, 1276, nn. 2, 3, 4 (4th 
Cir. 1993) (H-2A employers must make certain benefits available to all 
temporary agricultural laborers); see also Williams v. Usery, 531 F.2d 
305, 306 (5th Cir. 1976) (the Secretary's authority is limited to 
making an economic determination of what rate must be paid all workers 
to neutralize any adverse effect resulting from the influx of temporary 
foreign workers). Similarly, in the H-2B non-agricultural context, 
paying the prevailing wage rate to all workers protects against 
possible wage depression from the introduction of foreign workers.
    Further, under the current H-2B regulations, since employees hired 
during the current ten-day recruitment period in Sec.  655.15(e) are 
entitled to the same offered terms and conditions of employment as the 
foreign workers hired for those positions, a longtime employee earning 
less than the advertised wage would be entitled to quit his current 
employment and re-apply for the same job with the same employer to 
obtain the higher wage rate offered to H-2B workers and U.S. workers 
hired during that recruitment period. This would be disruptive for the 
employer and could create an additional administrative burden for the 
SWAs for any workers being referred through them. It also puts too high 
a premium on longtime employees understanding their rights under the 
regulations, and feeling secure enough--rare in low-wage employment--to 
quit a job with the expectation of being immediately rehired. Under 
this NPRM, longtime U.S. workers would be entitled to the wage rates 
paid to H-2B employees without having to quit their jobs and be 
rehired.
    The H-2B program must ensure that U.S. workers are not adversely 
affected by the presence of H-2B workers in the labor market. A primary 
means of providing this protection is to ensure that the jobs are 
available to U.S. workers under the same wages, benefits, and terms and 
conditions of employment provided to temporary foreign workers. The 
problem we seek to address with this aspect of corresponding employment 
are H-2B employers who place H-2B workers in occupations and/or at job 
sites outside the scope of the labor certification and in violation of 
the regulations, thereby bypassing many of the protections U.S. workers 
otherwise enjoy under the program, such as domestic recruitment 
requirements, wage protections, and the right to be employed if 
available and qualified. We invite comments that propose alternatives 
to including in the definition of corresponding employment U.S. workers 
employed in occupations which are beyond the scope of the labor 
certification but at job sites where H-2B workers are placed and that 
will still ensure that U.S. worker protections are not undermined.
    An employer employing H-2B workers and/or workers in corresponding 
employment under an Application for Temporary Employment Certification 
has agreed as part of the Application for Temporary Employment 
Certification that it will abide by the conditions in this section. The 
Department also invites members of the public to provide comments on 
whether and how each new proposed condition, including the application 
of transportation benefits, the three-quarter guarantee and the 
definition of full-time employment, should apply to H-2B workers and 
U.S. workers in corresponding employment.
    The Department proposes to retain the definition of ``employee'' 
from the 2008 Final Rule, with minor clarifying edits. This definition 
is based on the common law, as set forth in the Supreme Court's holding 
in Nationwide Mutual Insurance v. Darden, 503 U.S. 318, 322-324 (1992). 
The proposed clarifying edits would conform the definition to one used 
in most other Department-administered temporary foreign worker 
programs. To provide clarity, the Department proposes a definition of 
the term ``H-2B worker'' as an individual authorized to be in the 
United States to perform H-2B non-agricultural services or labor.
    The Department proposes to amend the definition of ``full time'' in 
the H-2B program to mean 35 or more hours per week. The proposed 
increase in the number of hours from 30 to 35 to constitute full-time 
employment conforms more closely to the available data on full-time 
employment. This will also provide greater clarity for employers than 
the current regulation, which defines full time to mean 30 hours or 
more per week with a vague exception for unidentified local or

[[Page 15136]]

industry standards. The proposal also restores the pre-2008 level of 35 
hours.
    The District Court in CATA v. Solis, Civil No. 2:09-cv-240-LP, 2010 
WL 3431761 (E.D. Pa. Aug. 30, 2010), invalidated the definition in the 
2008 H-2B Final Rule of full time as 30 hours a week, which was a 
change from the proposed definition of full time as 35 hours a week 
primarily because, in the court's view, the Department did not 
``consider[ ] the relevant factors and articulate[ ] a rational 
connection between the facts found and the choice made.'' CATA, 2010 WL 
3431761 at * 14 (quotation and citation omitted).
    In accord with the CATA decision, the Department believes that the 
regulatory definition of full-time work should be supported by 
empirical data. In response to these data, the Department's position 
regarding the definition of full time has evolved. Though the 2008 
Final Rule established a 30-hour work week as the standard for full 
time employment, the CATA court correctly pointed out that the 2008 
Final Rule contained no meaningful rationale for that determination. 
After reviewing available information, the Department now believes that 
a 35-hour work week is more representative of the actual needs of 
employers and expectations of workers. First, the most recent 
statistics available from BLS indicate that the average hours worked 
during a week, including both full and part time employment was 34.3 
hours during December 2010, \1\ and that the average weekly hours 
worked of workers who usually work full time is 42.4 hours. \2\ These 
statistics make clear that full time U.S. workers are employed for at 
least 35 hours per week. The last two years of experience under the 
current rule are consistent with the direction of BLS data. Though an 
exhaustive statistical analysis of hours requested is not feasible, it 
is clear that a substantial majority of H-2B employers recruit workers 
for 35 or more hours of work each week. All of the approximately 30 
investigations undertaken by the WHD since enforcement authority was 
transferred from DHS have identified work weeks of at least 35 hours 
(with some even indicating possible overtime). In addition, as noted in 
the preamble to the current H-2B regulations, landscapers--one of the 
largest groups of H-2B workers--typically work 35-hour weeks. See 73 FR 
78038 (Dec. 19, 2008). Defining a workweek as at least 35 hours is 
consistent with existing H-2A regulations, and it is closer to the 40 
hours per week standard used in the H-1B program. Furthermore, the use 
of the 35-hour week may increase the possibility of recruiting U.S. 
workers who may find the additional hours of work more attractive.
---------------------------------------------------------------------------

    \1\ Bureau of Labor Statistics, Employment Situation, Table B-2: 
Average weekly hours and overtime of all employees on private 
nonfarm payrolls by industry sector, seasonally adjusted, Dec. 2010. 
http://www.bls.gov/news.release/empsit.t18.htm.
    \2\ Bureau of Labor Statistics, Employment Situation, Table A-
24: Persons at work in agriculture and related and in nonagriculture 
industries by hours of work, Dec. 2010. http://www.bls.gov/web/empsit/spseea24.pdf.
---------------------------------------------------------------------------

    The Department anticipates that this change will not impose 
substantial cost on most employers. Since the data and experience 
referenced above indicated that a substantial majority of H-2B 
employers already employ workers for 35 hours or longer each week, the 
proposed rule will have no impact on a large proportion of the employer 
population. Furthermore, 66 percent of employers in FY2010 requested at 
least ten employees to work in the same occupation in the same area of 
intended employment, suggesting that some employers can avoid any 
adverse impact by requesting fewer workers and scheduling each to work 
several more hours per week. The Department seeks comments on costs to 
employers and other stakeholders of an increase from 30 to 35 hours per 
week.
    Alternatively, the Department considered proposing a 40-hour 
threshold. This level is more in line with what the U.S. labor market 
generally considers as full time. Forty hours is also reflective of 
data actually captured by the December 2010 BLS Current Population 
Survey (CPS) concluding that the average workweek of non-agricultural 
workers who usually work full time is 42.4 hours long.\3\ The 
Department is currently proposing 35 hours instead of 40 because 35 
hours is more consistent with the Department's historical practice for 
the H-2B program, and should therefore not pose difficulty for the 
regulated community. However, the Department welcomes comments 
regarding whether extending the definition of a full-time workweek to 
at least 40 hours is more protective of U.S. workers and whether it 
conforms better to employer standards and needs.
---------------------------------------------------------------------------

    \3\ Bureau of Labor Statistics, Employment Situation, Table A-
24: Persons at work in agriculture and related and in nonagriculture 
industries by hours of work, Dec. 2010. http://www.bls.gov/web/empsit/spseea24.pdf.
---------------------------------------------------------------------------

    The Department proposes to amend the definition of an ``H-2B 
petition'' to clarify that the petition includes the certified 
Application for Temporary Employment Certification and its attachments. 
This more closely reflects the Department of Homeland Security's 
current H-2B regulations, in which a certified Application for 
Temporary Employment Certification is required.
    In this NPRM, the Department proposes to amend the definition of a 
``job contractor.'' The U.S. District Court for the Eastern District of 
Pennsylvania in CATA v. Solis, Civil No. 2:09-cv-240-LP, 2010 WL 
3431761 (E.D. Pa. Aug. 30, 2010) invalidated the definition of ``job 
contractor'' under the 2008 Final Rule, concluding that the Department 
did not provide a rational explanation for its adoption of the language 
in the final rule that the job contractor ``will not exercise any 
supervision or control in the performance of the services or labor to 
be performed other than hiring, paying, and firing the workers.'' The 
court found the Department's explanation deficient because the 
Department stated that this language was to ``make clear that the job 
contractor, rather than the contractor's client, must control the work 
of the individual employee.'' However, as the court stated, this 
language ``did precisely the opposite--it clarified that it is the 
contractor's client who `must control the work of the individual 
employee.' The explanation is therefore not rationally connected to the 
change, which will accordingly be invalidated as arbitrary.''
    Accordingly, the Department would like to resolve any confusion and 
clarify that the phrase ``the job contractor will not exercise any 
supervision or control in the performance of the services or labor to 
be performed other than hiring, paying and firing the workers'' was 
intended to clarify that an employer meets the definition of job 
contractor where the job contractor's client, rather than the job 
contractor, exercises primary supervision or control over the work of 
the individual employee.
    The Department is proposing to amend the definition of job 
contractor to include the phrase ``substantial, direct day-to-day'' 
before ``supervision or control'' to clarify that an entity exercising 
some limited degree of supervision or control over the H-2B workers 
would still be considered a job contractor, while an entity exercising 
substantial, direct day-to-day supervision or control over the H-2B 
workers would not be considered a job contractor. This revised 
definition better reflects the activities of job contractors in the H-
2B program.
    The Department is not of the view that employers engaged in 
reforestation activities that have historically used the program will 
be impacted by this proposed action because their activities generally 
should not fall under the definition of a job contractor. Reforestation 
employers provide on site,

[[Page 15137]]

day-to-day supervision and direction of workers and are therefore not 
job contractors for the purposes of this proposed rule.
    The Department also proposes an amended definition of the ``offered 
wage.'' The amended definition makes clear the employer's obligation to 
pay all affected workers at least the highest of the prevailing wage, 
or the Federal, State, or local minimum wage.
    The Department proposes to revise the definition of ``strike.'' The 
term is used in the same way as in the Department's 2010 H-2A 
regulations. The proposed definition is broader than the current 
definition and includes any concerted work stoppage as a result of a 
labor dispute or any concerted interruption or slowdown of operation.
    The Department also proposes to define several terms not previously 
defined in the 2008 Final Rule. The Department intends by these new 
definitions to provide interested parties with an understanding of 
terms that are either new or are commonly used in the H-2B program. As 
discussed more fully later in this preamble, the Department is 
including a definition of ``H-2B Registration.'' See discussion of 
Sec.  655.11. Other terms have been proposed to provide program users 
with insight to better achieve program compliance, including ``job 
offer'' and ``job order.'' The Department proposes these definitions to 
ensure that employers understand the difference between the offer that 
is made to workers, which must contain all the material terms and 
conditions of the job, and the order that is the published document 
used by SWAs in the dissemination of the job opportunity.
    The Department is including a proposed definition of a ``Federal 
holiday'' to provide clarity for employers about which holidays are 
included for purposes of tracking timelines that are used in this 
regulation. The Department proposes to move several definitions to the 
definition section, such as the ``Administrator, OFLC,'' that have 
appeared in different sections in previous regulations to provide one 
place for the definition of those terms.
    The Department also proposes the removal of certain definitions 
that are obsolete in or inapplicable to the H-2B program. The terms 
``representative'' and ``eligible worker'' for example, are proposed to 
be eliminated, as they are no longer used.
6. Section 655.6 Temporary Need
    The Department proposes an interpretation of temporary need that is 
directly reflective of the DHS definition of that term and of the 
Department's experience in the H-2B program. The DHS regulations define 
temporary need as a need for a limited period of time, where the 
employer must ``establish that the need for the employee will end in 
the near, definable future.'' 8 CFR 214.2(h)(6)(ii)(B). The proposed 
interpretation is consistent with this approach.
    The Department proposes to exclude job contractors from being 
considered for participation in the H-2B program. Job contractors are 
defined in this regulation as entities that employ workers they supply 
to other entities and that are generally only engaged in the hiring, 
firing and payment of the workers they supply; they do not control the 
day-to-day performance of or directly supervise the services or labor 
of those workers. Furthermore, they have an ongoing business of 
supplying workers to other entities, even if that entity's need for the 
services is temporary. It is the Department's view that a job 
contractor's ongoing need is by its very nature permanent rather than 
temporary and therefore the job contractor does not qualify to 
participate in the program. The contractor may have many clients, each 
of whom has a temporary need, but the contractor's need for the 
employees it seeks to fulfill its contracts is ongoing and therefore of 
a potentially permanent duration. Accordingly, the contractor's need 
would not be temporary.
    This conclusion is consistent with the Board of Immigration 
Appeals' seminal decision in Matter of Artee, 18 I. & N. Dec 366, 
Interim Decision 2934, 1982 WL 190706 (BIA 1982). Matter of Artee 
established that a determination of temporary need rests on the nature 
of the underlying need for the duties of the position. The Board of 
Alien Labor Certification Appeals (BALCA) has recently further 
clarified the definition of temporary need in Matter of Caballero 
Contracting & Consulting LLC 2009-TLN-00015 (April 9, 2009), finding 
that ``the main point of Artee * * * is that a job contractor cannot 
use [solely] its client's needs to define the temporary nature of the 
job where focusing solely on the client's needs would misrepresent the 
reality of the application.'' BALCA, in Matter of Cajun Constructors, 
Inc. 2009-TLN-00096 (October 9, 2009), also decided that an employer 
that by the nature of its business works on a project until completion 
and then moves on to another, has a permanent rather than a temporary 
need. The Department concurs that a job contractor that provides 
workers to an employer on a temporary basis, but has an ongoing need 
for such workers, is an entity with a permanent and not a temporary 
need.
    As a result of the order issued by the U.S. District Court for the 
Eastern District of Pennsylvania in CATA v. Solis, Civil No. 2:09-cv-
240-LP, 2010 WL 3431761 (E.D. Pa. Aug. 30, 2010), the Department has 
stopped accepting labor certification applications submitted by job 
contractors. In the CATA decision, the court interpreted DHS' 
regulations to require every employer client of a ``job contractor'' as 
defined in the regulations at 20 CFR 655.4, to file a visa petition 
(and thus the underlying labor certification as well); therefore, 
requiring only job contractors to file a labor certification 
application would be contrary to DHS regulations. The proposal to 
eliminate job contractors altogether from the H-2B program, based on 
the determination that job contractors have a permanent need, 
effectively achieves the same result as the court's ruling in CATA 
since the Department has yet to receive a labor certification 
application from a job contractor that meets both the requirements of 
the CATA decision and the existing H-2B regulations.\4\
---------------------------------------------------------------------------

    \4\ While the CATA decision did not impose an outright 
prohibition on the participation of job contractors in the H-2B 
program, the Court left open the possibility that the Department may 
accept a labor certification application from a job contractor if 
its employer-client(s) also filed applications. However, the 
regulation at 20 CFR 655.20(e) only allows for one H-2B labor 
certification application to be filed for worksite(s) within one 
area of intended employment for each job opportunity with an 
employer. The H-2B regulations though recognize joint employment and 
do not prohibit the filing of a single labor certification by joint 
employers. Therefore, under the current regulations, a job 
contractor and its employer-client(s) could very well file a single 
application as joint employers and thus be in compliance with both 
the CATA decision (which prohibits allowing only the job contractor 
to file the application) and Sec.  655.20(e) (which prohibits the 
filing of multiple applications for a single job opportunity).
---------------------------------------------------------------------------

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

[[Page 15138]]

a permanent need for workers, it cannot transgress the temporary 
parameters of the program to permit employers with permanent job 
opportunities to apply for temporary workers. The Department recognizes 
that by taking this position, the result may be that some employers who 
have been clients of such job contractors, and who have not previously 
participated in the program, may now seek to do so. We encourage those 
employers to submit information to us about their changed circumstances 
as a result of this proposal, including the potential costs or savings 
that may result.
    DHS categorizes and defines temporary need into four 
classifications: Seasonal need; peakload need; intermittent need; and 
one-time occurrence. A one-time occurrence may be for a period of up to 
3 years. The other categories are limited to 1 year or less in 
duration.
    The Department proposes to define temporary need as less than 9 
months, except in the case of a one-time occurrence. The definition is 
in keeping with the DHS definition of temporary need, in which the 
``period of time will be one year or less, but in the case of a one-
time event could last up to 3 years.'' 8 CFR 214.2(h)(6)(ii)(B). The 
Department believes its proposed time period is an appropriate 
interpretation of the ``or less'' limitation contained in the DHS 
regulations, a limitation it has always previously applied in this 
program. This interpretation is necessary to ensure that the program is 
available only for employers with truly temporary or seasonal needs. 
The current approach that permits temporary certifications for periods 
up to 10 months encompasses job opportunities that the Department 
believes are permanent in nature and not consistent with Congressional 
intent to limit H-2B visas to employers with temporary or seasonal 
needs. If work is performed during all four seasons of the year, either 
it is not temporary or seasonal, consistent with statutory intent, or 
it is not the same work (for example, landscape workers who also 
perform snow removal duties) and thus would require separate 
applications. Employers that have recurring needs that are longer than 
9 months should not have access to the H-2B temporary worker program 
for those job opportunities.
    In addition, the Department's experience in administering the H-2B 
program indicates that some employers are not appropriately 
characterizing the nature of their peakload need, specifically where 
this need is based on a short-term, as opposed to seasonal, demand. 
Peakload need is based on ``seasonal or short-term demand'' for which 
the employer needs to supplement its normal workforce. 8 CFR 
214.2(h)(6)(ii)(A)(3). The Department is concerned that employers who 
cannot demonstrate a seasonal need mischaracterize a permanent need as 
a short-term temporary need, relying on a perceived short-term demand. 
Employers such as landscaping or construction companies frequently 
conduct year-round activities at a sustained level for the maximum 
allowable period of time for certification that would otherwise 
constitute a permanent need but for the two months when the H-2B 
workers return to their home countries. The slowdown in work is 
attributed more to the absence of H-2B workers, as opposed to an actual 
decrease in the demand for labor or services.
    The Department is seeking comments and ideas from the public on 
factors or criteria that the Department should consider in determining 
whether the employer has a genuine peakload need based on short-term 
demand. In particular, the Department seeks comments on whether the 
Department should restrict the definition of short-term demand to one 
that is the direct result of climatic, environmental or other natural 
conditions. The Department would also appreciate comments on other 
alternatives limiting short-term demand to a specific time period, such 
as 6 months.
7. Section 655.8 Requirements for Agents
    The Department has long accepted applications from agents acting on 
behalf of employers in the H-2B program. However, in administering the 
H-2B program, the Department has become concerned about the role of 
agents in the program, especially as to whether their presence and 
participation have contributed to problems with program compliance, 
such as the passing on of prohibited costs to employees. The Department 
invites the public to provide ideas and suggestions on the appropriate 
role of agents in the H-2B program. In particular, the Department seeks 
comments on whether the Department should continue to permit the 
representation of employers by agents in the H-2B program.
    Alternatively, if the Department were to continue to accept 
applications from agents, the Department seeks comments on any 
additional requirements that should be applied to agents to strengthen 
program integrity. At a minimum, the Department proposes to require 
agents to provide copies of current agreements defining the scope of 
their relationships with employers to demonstrate that a bona fide 
relationship exists between an agent and employer. Where the agent is 
required under MSPA to have a Certificate of Registration, the agent 
must also provide a current copy which identifies the specific farm 
labor contracting activities that the agent is authorized to perform.
8. Section 655.9 Disclosure of Foreign Worker Recruitment
    The Department proposes to require the employer and its attorney 
and/or agents to provide a copy of any agreements with a foreign labor 
contractor or recruiter whom it engages or plans to engage in the 
international recruitment of H-2B workers under an Application for 
Temporary Employment Certification. The disclosure of the terms and 
conditions of the agreement will assist the Department in determining 
whether the underlying transaction raises any program compliance 
concerns, including whether prohibited fees are being paid or passed on 
by the foreign labor contractor or recruiter. Additionally, information 
about the identity of the international recruiters will assist the 
Department in more appropriately directing its audits and 
investigations. By disclosing to the public the names of the foreign 
labor contractors and recruiters used by employers and their attorneys 
and/or agents participating in the H-2B program, the Department seeks 
to provide greater transparency regarding the H-2B worker recruitment 
process. In particular, the Department intends to use this list of 
foreign labor contractors and recruiters to facilitate information 
sharing between the Department and public, so that where the Department 
believes it is appropriate, it can more closely examine applications or 
certifications involving a particular labor contractor or recruiter 
identified by members of the public to have engaged in improper 
behavior.

B. Prefiling Procedures

1. Section 655.11 Registration of H-2B Employers
    The Department proposes requiring all employers to participate in a 
registration process that will allow the Department to assess the 
employer's claim of temporary need for non-agricultural temporary 
foreign workers before the employer is permitted to file an Application 
for Temporary Employment Certification to employ H-

[[Page 15139]]

2B workers. As discussed more fully below, the Department intends to 
use this process to ensure, in a manner that will facilitate the 
adjudication of applications, that each employer that seeks to employ 
temporary foreign workers in the H-2B category has a real and 
justifiable temporary need.
    The Department proposes this registration step for a number of 
reasons. First, a registration process will streamline the adjudication 
of applications by ensuring an up-front determination of the employer's 
temporary need. The classification of an employer's need is a key issue 
in the current adjudicatory model, with significant resources employed 
in, and substantial frustration resulting from, the determination of 
whether an employer's need can be classified as temporary, and within 
that definition, whether it can be classified as a one-time, seasonal, 
intermittent, or peakload need. By requiring advance determination of 
the temporary need question, employers and workers seeking jobs can be 
assured of an application process that is closer in time to the dates 
of need and more focused on determining the availability of U.S. 
workers.
    Second, the registration process will ensure a more efficient 
process to repeat users of the program. A registration approval that 
may be issued for a period of up to 3 years will allow employers to 
concentrate on their recruitment efforts in later years, while allowing 
the Department to focus on first-time or infrequent users whose program 
knowledge may be lacking. Slight variances in employers' underlying 
need will also be tolerated while significant variances (for example, 
an increase in the number of requested H-2B positions of more than 20 
percent; a change of more than 14 days in the beginning or ending date 
of need; or a change in the nature of the job classification) will 
result in having to redetermine temporary need in accordance with Sec.  
655.11.
    Under the proposed rule, an employer must file an H-2B Registration 
no fewer than 120 and no more than 150 calendar days before the date of 
initial need for H-2B workers. The H-2B Registration must be 
accompanied by supporting documentation showing the number of positions 
the employer desires to fill in the first year of registration; the 
period of time for which the employer needs the workers; and that the 
employer's need for the services or labor is non-agricultural, 
temporary and justified as either a one-time occurrence, a seasonal 
need, a peakload need, or an intermittent need, as defined by DHS in 8 
CFR 214.2(h)(6)(ii)(B) and interpreted in Sec.  655.6. The employer is 
also required to sign the H-2B Registration, as is the employer's 
attorney or agent, if applicable.
    Under the proposed rule, upon receiving a non-transferrable H-2B 
Registration and the accompanying documentation, the CO will, at a 
minimum, review the request for completeness and makes a determination 
based on whether the job classification and duties are non-
agricultural; whether the employer's need for the services or labor to 
be performed is temporary in nature; whether the number of worker 
positions is justified; and whether the request represents a bona fide 
job opportunity.
    The Department's proposal requires the CO to send any notice or 
request related to an H-2B Registration that requires a response from 
the employer by means assuring next day delivery, and that the 
employer's response be sent by similar means by the due date specified 
by the CO. The Department acknowledges that in many cases electronic 
mail may be the fastest way to relay correspondence and other 
information, and it may elect to use that method of transmission in 
order to ensure the fastest delivery. The proposal also allows 
employers to elect to use that method of delivery in their responses.
    The proposed rule authorizes the CO to issue a Request for Further 
Information (RFI) if the CO determines the H-2B Registration cannot be 
approved as submitted. The CO may issue the RFI for a number of 
reasons, including but not limited to an incomplete or inaccurate ETA 
Form 9155; a job classification and duties that do not qualify as non-
agricultural; the failure to demonstrate temporary need; and/or 
positions that do not constitute bona fide job opportunities. The RFI 
will inform the employer why the H-2B Registration is not sufficient 
for the CO to grant the registration; direct the employer to submit 
supplemental information or documentation in response to the RFI within 
7 business days from the date of the RFI, and inform the employer that 
the CO will issue a Notice of Decision after reviewing the information 
submitted in response to the RFI. The RFI further informs the employer 
that a failure to comply with the RFI, including not providing all 
requested documentation within the specified timeframe, will result in 
a denial of the H-2B Registration. The proposed rule authorizes the CO 
to issue one or more additional RFIs before issuing a Notice of 
Decision on the employer's H-2B Registration, if needed.
    If the CO approves the H-2B Registration, the CO will send the 
decision to the employer, and a copy to the employer's attorney or 
agent, if applicable, notifying the employer that it is eligible to 
file an Application for Temporary Employment Certification to employ H-
2B workers in the occupational classification for the anticipated 
number of positions and period of need stated on the approved H-2B 
Registration. Under the Department's proposal, the CO is authorized to 
approve an H-2B Registration for a period of up to 3 consecutive years 
for that occupation and area of intended employment. If the CO denies 
the request, the decision informs the employer why the request was 
denied, offers the employer an opportunity to request administrative 
review under Sec.  655.61, and informs the employer that if it does not 
request administrative review within 10 business days, the denial of 
the H-2B Registration will be final.
    The Department proposes requiring all employers that file an H-2B 
Registration to retain any documents and records not otherwise 
submitted proving compliance with this subpart. An employer whose H-2B 
Registration is approved is required to retain all records for a period 
of 3 years from the final date of applicability of the H-2B 
Registration. An employer whose H-2B Registration is denied or 
withdrawn is also required to retain all records for 3 years, to be 
measured from the date of the final registration decision or withdrawal 
by the employer. The Department's regulatory mandate to ensure that 
qualified workers in the United States are not available and that the 
alien's employment will not adversely affect wages and working 
conditions of similarly employed U.S. workers serves as the basis for 
the Department's authority to require employers to retain records 
relating to their H-2B Registration, even if the employer's H-2B 
Registration is ultimately withdrawn or denied. While it is extremely 
unlikely that the Department would audit any employer who initiated 
activity but did not actually file an application, these records would 
be potentially invaluable to the Department in evaluating future H-2B 
Registrations filed by the employer as to whether the employer has a 
temporary need that meets the requirements of the H-2B program.
    For instance, in the first year, an employer files an H-2B 
Registration in which the employer claims it has a seasonal need with 
dates of need from

[[Page 15140]]

February to November. The Department grants the H-2B Registration, but 
the employer subsequently withdraws its H-2B Registration. In the 
second year, the same employer files an H-2B Registration for the 
identical job opportunity, except that its dates of need are now from 
April to December. Due to the changes in dates of need, the Department 
may have some concerns as to the legitimacy of the employer's temporary 
need and thus may request the employer to provide documentation of 
temporary need in support of both its previous and current year's H-2B 
Registration. Especially given that any burden that would be placed on 
an employer would be minimal \5\-- i.e., the employer merely would be 
required to retain documents for 3 years--making these records 
available to the Department clearly is worthwhile to uphold the 
integrity of the H-2B labor certification program and to ensure optimal 
employment opportunities for U.S. workers and no adverse effect on the 
wages and working conditions of U.S. workers.
---------------------------------------------------------------------------

    \5\ The EO 12866 analysis estimates the cost per employer to 
comply with document retention requirements to be not in excess of 
$21.99.
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2. Section 655.12 Use of Registration of H-2B Employers
    The Department proposes to permit an employer to file an 
Application for Temporary Employment Certification upon approval of its 
H-2B Registration, and for the duration of the registration's validity 
period, which may be up to 3 consecutive years from the date of 
issuance. The employer, however, may not use the same approved H-2B 
Registration to file an Application for Temporary Employment 
Certification if the employer's need for workers has increased by more 
than 20 percent (or 50 percent for employers requesting fewer than 10 
workers); if the beginning or ending date of need for the job 
opportunity has changed by more than 14 calendar days; if the nature of 
the job classification and/or duties has changed; and/or if the 
temporary nature of the employer's need for services or labor is no 
longer temporary. If these changes occur, the proposed rule requires 
the employer to file a new H-2B Registration. Limiting the use of the 
employer's approved H-2B Registration in this way ensures the integrity 
of the registration process by requiring employers to submit a new H-2B 
Registration when the employer's circumstances change significantly.
3. Section 655.10 Prevailing Wage
    The Department proposes a modified process for obtaining a 
prevailing wage. In order to provide clarity, the proposed rule 
simplifies how an employer requests prevailing wage determinations 
(PWD). Under the proposed rule employers must request PWDs from the 
NPWC before posting their job orders with the SWA and the PWD must be 
valid on the day the job orders are posted. Employers should continue 
to request a PWD in the H-2B program at least 60 days before the date 
on which the determination is needed.
    As discussed above, the determination of a prevailing wage has been 
the subject of another rulemaking, necessitated by the court's decision 
in CATA v. Solis, Civil No. 2:09-cv-240-LP, 2010 WL 3431761 (E.D. Pa. 
Aug. 30, 2010), which culminated in the publication of the Wage 
Methodology for the Temporary Non-agricultural Employment H-2B Program 
Final Rule, 76 FR 3452, Jan. 19, 2011. This NPRM does not address or 
seek to amend the prevailing wage methodology established under that 
final rule.
4. Section 655.13 Review of PWDs
    The Department proposes changes to the process for the review of 
PWDs for purposes of clarity and consistency. The proposed rule reduces 
the number of days within which the employer must request review of a 
PWD by the NPWC Director from 10 calendar days to 7 business days from 
the date of the PWD. The proposed rule revises the language of the 2008 
Final Rule to reflect that the NPWC Director will review 
determinations. For similar reasons, the proposed rule specifies that 
the employer has 10 business days from the date of the NPWC Director's 
final determination within which to request review by BALCA. No other 
substantive changes were made to this section.

C. Application for Temporary Employment Certification Filing Procedures

1. Section 655.15 Application Filing Requirements
    This provision sets out the basic requirements with which employers 
need to comply in order to file an Application for Temporary Employment 
Certification once they have an approved H-2B Registration. Under the 
proposed rule, the Department has returned to a post-filing recruitment 
model in order to ensure better and more thorough compliance by H-2B 
employers with program requirements. The Department's experience in 
administering the H-2B program since the implementation of the 2008 
Final Rule suggests that the lack of oversight by the Department and 
the SWAs during the pre-filing recruitment process has resulted in 
failures to comply with program requirements. The recruitment model 
described below will enhance coordination between OFLC and the SWAs, 
better serve the public by providing U.S. workers more access to 
available job opportunities, and assist the employer in obtaining the 
qualified personnel that it requires in a timelier manner. The proposed 
rule allows the Department to work more closely with the SWAs by 
requiring the employer to file the Application for Temporary Employment 
Certification and a copy of the job order with the Chicago NPC at the 
same time it files the job order with the SWA. The employer must submit 
this filing no more than 90 days and no fewer than 75 days before its 
date of need. The proposed process continues to employ the SWAs' 
significant knowledge of the local labor market, job requirements, and 
local prevailing practices by authorizing the SWA to review the 
contents of the job order for compliance and submit to the CO any 
deficiencies pursuant to Sec.  655.16. The Department continues to 
require employers to file separate applications when there are 
different dates of need for the same job opportunity within an area of 
intended employment. This prohibition against staggered entries based 
on a single date of need is intended to ensure that employers provide 
U.S. workers the maximum opportunity to consider the job opportunity 
and is consistent with USCIS policies. The Department recognizes that 
there may be industries whose participation in the H-2B program may be 
constrained as a result of this revised timeframe in years in which the 
statutory cap of 33,000 visas for the six-month intervals beginning 
October 1 and April 1 is at issue. However, this is largely a function 
of the statutory cap on the available visas over which the Department 
has no control.
    While the Department has begun efforts to establish an online 
format for the submission of an Application for Temporary Employment 
Certification, as such a system depends upon the resolution of issues 
in this rulemaking, it cannot be immediately implemented when a final 
rule becomes effective. Thus there will have to be a period during 
which paper submissions remain the means by which applications must be 
filed. Therefore, the Department proposes to continue to require filing 
of an Application for Temporary Employment Certification in a paper

[[Page 15141]]

format until such time as an electronic system can be fully 
implemented. The Department proposes to continue to use Form ETA 9142 
to collect the necessary information; however, the form's appendices 
will be slightly modified to reflect changes from the 2008 Final Rule 
(such as a change of tense to note pre-recruitment filing). As in the 
2008 Final Rule, the proposed rule requires the Application for 
Temporary Employment Certification to contain original signatures.
2. Section 655.16 Filing of the Job Order at the SWA
    The proposed rule requires the employer to submit the job order 
directly to the SWA at the same time as it files the Application for 
Temporary Employment Certification and a copy of the job order with the 
NPC, no more than 90 calendar days and no fewer than 75 calendar days 
before the employer's date of need. Ensuring that the recruitment of 
U.S. workers occurs closer in time to the actual job availability makes 
the recruitment more realistic and more likely to result in greater 
opportunities for U.S. workers. The proposed rule continues to use the 
SWAs' experience with the local labor market, job requirements, and 
prevailing practices by requiring the SWA to review the contents of the 
job order for compliance with Sec.  655.18 and notify the CO of any 
deficiencies within 4 business days of its receipt of the job order. 
The proposed rule differs from the 2008 Final Rule in that it prohibits 
the SWA from posting the job order before receiving a Notice of 
Acceptance from the CO directing it to do so. It is the Department's 
belief that the cooperative relationship between the CO and the SWA 
continues to ensure program integrity. Additionally, by requiring such 
concurrent filing and review, the CO can simultaneously address job 
order deficiencies identified by the NPC and the SWA in a single Notice 
of Deficiency before the employer conducts its recruitment. This 
coordination will ensure greater program integrity and efficiency.
    Upon placement of the job order in intra and interstate clearance, 
the SWA must keep the job order on its active file and continue to 
refer U.S. workers who apply (or on whose behalf an application is 
made) for the job opportunity until 3 days before the date of need, 
when it is assumed that the last H-2B worker has departed for the place 
of employment, unless informed otherwise by the employer, as provided 
in proposed Sec.  655.40. This ensures the job order is afforded 
maximum visibility for the most relevant period of time--the time 
during which workers are most likely to apply for an imminent job 
opening, and when employers are most in need of workers. This is a 
substantial change from the current practice of keeping the job order 
open only for a short time, but the Department believes the change will 
ensure that U.S. workers are apprised of the job opening and provided a 
meaningful opportunity to apply when they are most likely to do so and 
most likely to accept the offered employment.
3. Section 655.17 Emergency Situations
    Under the proposed rule, an employer may file an H-2B Registration 
and/or an Application for Temporary Employment Certification fewer than 
75 days before the start date where an employer has good and 
substantial cause and there is sufficient time for the employer to 
undertake an adequate test of the labor market. This is a change from 
the current regulations which do not allow for emergency filings. This 
affords employers flexibility while maintaining the integrity of the 
application and recruitment processes. To meet the good and substantial 
cause test, the employer must provide to the CO detailed information 
describing the reason(s) which led to the emergency request. Such cause 
may include the substantial loss of U.S. workers due to Acts of God or 
pandemic health issues, damage to facilities resulting from weather or 
other conditions, or new contracts that require earlier start dates. 
However, the CO's denial of an H-2B Registration in accordance with the 
procedures under Sec.  655.11 does not constitute good and substantial 
cause necessitating a waiver request.
4. Section 655.18 Content of the Job Order
    The job order is essential for providing U.S. workers sufficient 
information to make informed employment decisions. The Department 
proposes to require employers to inform applicants in the job order not 
only of the typical information provided in advertisements, but also of 
several key assurances and obligations to which the employer is 
committing to by filing an Application for Temporary Employment 
Certification for H-2B workers. The job order must also be provided to 
H-2B workers with its pertinent terms in a language the worker 
understands.
    a. Prohibition Against Preferential Treatment (Sec.  655.18(a)). 
Under the proposed rule, the employer is responsible for providing to 
U.S. workers at least the same level of benefits, wages, and working 
conditions that are being or will be offered or paid to H-2B workers, 
similar to the requirements under current Sec.  655.22(a). The 
additional requirement is that this guarantee must be set forth in the 
job order to be sure that all workers are aware of their rights.
    b. Bona Fide Job Requirements (Sec.  655.18(b)). The Department 
proposes to require that the job qualifications and requirements listed 
in the job order be bona fide and consistent with those required by 
employers that do not use H-2B workers for the same or comparable 
occupations in the same area of intended employment, consistent with 
the requirements in current Sec.  655.22(a). The intent of this 
provision is to prevent employers from artificially making the job 
opportunity unattractive to U.S. workers, thereby increasing the need 
for H-2B workers.
    c. Benefits, Wages, and Working Conditions Covered Under (Sec.  
655.18(c)-(g)). The Department proposes to require the employer to list 
all of the following benefits, wages, and working conditions in the job 
order: the rate of pay, frequency of pay, deductions that will be made, 
and that the job opportunity is full-time. These requirements are 
generally consistent with those required in current Sec.  655.17 and 
Sec.  655.22; where changes were made, they are discussed in the 
preamble to Sec.  655.20. These disclosures are critical to a potential 
applicant's decision whether to accept the opportunity.
    d. Three-Fourths Guarantee (Sec.  655.18(h)). The Department 
proposes to require that H-2B employers guarantee payment of wages for 
at least three-fourths of the contract period and proposes to require 
the employer to list this guarantee in the job order. Currently, there 
is no minimum number of hours that employers are required to provide to 
H-2B workers. The NPRM proposes to require that employers guarantee the 
worker employment for a total number of work hours equal to at least 
three-fourths of the workdays of each 4-week period, beginning with the 
first workday after the arrival of the worker at the place of 
employment or the advertised contractual date of need, whichever is 
later, and which ends on the expiration date specified in the job order 
or in any extensions. Again, awareness of this guarantee would be 
critical to a U.S. worker's ability to evaluate the job opportunity and 
thus influence the decision to accept the employer's job offer. These 
proposed requirements are similar to the three-fourths guarantee in the 
H-2A program; however, that program assesses the guarantee based upon 
the entire contract period rather than based upon 4-week

[[Page 15142]]

periods. Recent experience enforcing the H-2B regulations demonstrates 
that workers are often provided much less work than that promised in 
the job order and this occurrence has convinced the Department that 
this protection is necessary.
    e. Transportation and Visa Fees (Sec.  655.18(i)). The proposed 
rule requires the job order to disclose that the employer will provide, 
pay for, or fully reimburse the worker for inbound and outbound 
transportation and daily subsistence costs. This requirement applies to 
both U.S. workers who are not reasonably able to return to their 
residence within the same workday and H-2B workers when traveling to 
and from the employer's place of employment. Additionally, if 
applicable, the job order must disclose that the employer will provide 
daily transportation to the workers to the worksite. The job order also 
must disclose that the employer will reimburse the H-2B workers for 
visa and related fees.
    f. Employer-Provided Items (Sec.  655.18(j)). The proposed rule 
requires the job order to indicate that the employer will provide 
workers with all tools, supplies, and equipment needed to perform the 
job at no cost to the employee. This requirement, which is consistent 
with current Sec.  655.22(g) which requires all deductions to be 
reasonable, gives the workers additional protection against improper 
deductions from wages, and assures them that they will not be required 
to pay for items necessary to perform the job.
    g. Board, Lodging, or Facilities (Sec.  655.18(k)). While not 
required to offer such benefits, if the employer intends to provide H-
2B workers with room and board or other such facilities or offer 
assistance in securing such lodging, it must be disclosed in the job 
order and offered to all U.S. worker-applicants who cannot reasonably 
return to their residence within the same workday. This requirement is 
intended to ensure that the employer offers, to the extent practicable, 
the U.S. workers the same benefits, wages, and working conditions as 
those offered to the H-2B workers. If the employer intends to make a 
deduction from cash wages for the reasonable costs of board, lodging or 
other facilities, it must disclose that in the job order.
    Some employers qualify under existing special procedures to use a 
single Application for Temporary Employment Certification to recruit 
and employ itinerant workers in multiple areas of intended employment 
on the same job order. Consistent with case law interpreting the 
primary benefit principle under the Fair Labor Standards Act, in the 
situation where employees must move from one temporary work location to 
another, the employee's temporary housing while at a particular work 
location is primarily for the benefit of the employer. See Masters v. 
Maryland Management Co., 439 F.2d 1329 (4th Cir. 1974); Marshall v. 
DeBord, 1978 WL 1705 (E.D. Okla. 1978); Bailey v. Pilots' Association 
for the Bay and River Delaware, 406 F. Supp. 1302 (E.D. Pa. 1976). 
Similarly, the transportation required to move the employees from one 
work location to the next work location, as well as the daily 
transportation between the temporary housing and the worksite, is 
primarily for the employer's benefit. See 29 CFR 531.32(c); 29 CFR 
778.217(b)(3). Therefore, employers operating under the special 
procedures mechanism to employ itinerant workers will be required to 
pay for housing and transportation expenses that are primarily for the 
benefit of the employer, and the employer's job order will have to 
advise potential employees of this obligation.

D. Assurances and Obligations

1. Section 655.20 Assurances and Obligations of H-2B Employers
    Proposed Sec.  655.20 would replace current Sec.  655.22 and 
contains the employer obligations that WHD will enforce. The Department 
proposes to modify, expand, and clarify current requirements to ensure 
that an employer's need for H-2B workers is genuine because no 
qualified U.S. workers are available, and that the employment of H-2B 
workers will not adversely affect the wages and working conditions of 
U.S. workers. Requiring compliance with the following enhanced 
conditions of employment is the most effective way to meet these goals. 
As discussed in the preamble to Sec.  655.5, workers engaged in 
corresponding employment are entitled to the same protections and 
benefits provided to H-2B workers.
    a. Rate of Pay (Sec.  655.20(a)). Proposed Sec.  655.20(a) draws 
from several different provisions of existing Sec.  655.22. For 
example, the Department proposes to modify the current Sec.  655.22(e) 
on the employer's responsibility to pay the offered wage throughout the 
worker's authorized period of employment to include the requirement 
that the payment must be made ``free and clear.'' Further discussion of 
``free and clear'' appears below.
    The proposed section also adds a requirement that productivity 
standards that are a condition of job retention must be specified in 
the job order and must be no more than normally required by non-H-2B 
employers for the occupation in the area of intended employment. The 
Department maintains that imposition of productivity standards should 
be evaluated by the SWA prior to acceptance of the Application for 
Temporary Employment Certification in order to ensure that there is no 
adverse effect on the working conditions of similarly employed U.S. 
workers.
    The Department recognizes that some occupations for which H-2B 
workers are sought have traditionally been piece-rate jobs and the 
Application for Temporary Employment Certification allows an employer 
to compute pay on a piece-rate basis. The proposed section allows piece 
rates to serve as the basis for computing wages only if the piece rate 
paid is at least equal to the piece rate normally paid to workers 
performing the same activity in the area of intended employment. 
Consistent with current Sec.  655.22(g)(1), in every workweek the piece 
rate must result in wages at least equal to what the weekly earnings 
would have been had the worker's pay been computed based upon the 
offered hourly wage. If the piece rate earnings do not equal at least 
the required amount, this proposed paragraph requires that the employer 
supplement the worker's wages on a workweek basis to meet the offered 
wage. Finally, the proposal eliminates the current option of paying 
wages on a monthly basis.
    b. Wages Free and Clear and Deductions (Sec. Sec.  655.20(b) and 
655.20(c)). The Department's experience demonstrates that some 
employers may seek to reduce their wage liability by imposing 
unauthorized deductions on gross wages. The proposed obligations in 
paragraphs (b) and (c) of this section seek to ensure payment of the 
offered wage by requiring that wage payments be final, unconditional, 
and ``free and clear'' and by limiting deductions which reduce wages to 
below the required rate. Specifically, authorized deductions are 
limited to those: required by law; made under a court order; that are 
for the reasonable cost or fair value of board, lodging, or facilities 
furnished (only if disclosed in the job order); or that are amounts 
paid to third parties authorized by the employee or a collective 
bargaining agreement. Deductions for costs that are primarily for the 
benefit of the employer are never reasonable. Unauthorized or 
impermissible deductions include those not specified in the job order; 
``kick backs'' paid to the employer or employer representative; and 
amounts paid to third parties which

[[Page 15143]]

are unauthorized, unlawful, or from which the employer or its foreign 
labor contractor, recruiter, agent worker, or affiliated person 
benefits to the extent such deductions reduce the actual wage to below 
the required wage. The FLSA and 29 CFR part 531 provide appropriate 
guidance in determining the permissibility of deductions, as indicated 
in the proposed paragraph.
    c. Job Opportunity is Full-Time (Sec.  655.20(d)). In proposed 
Sec.  655.20(d), the Department redefines full-time employment as at 
least 35 hours per week, an increase from the current level of 30 
hours. A 35-hour workweek more accurately reflects the nature of full-
time work and strikes an appropriate balance between the employer's 
needs and the employment and income needs of both U.S. and foreign 
workers. Additionally, consistent with the FLSA, this NPRM adds the 
requirement that the workweek will be a fixed and regularly recurring 
period of 168 hours or seven consecutive 24-hour periods which may 
start on any day or hour of the day. Accordingly, wages would be 
computed based on this workweek. This requirement establishes a clear 
period for determining whether the employer has paid the required 
wages, which will aid in enforcement.
    d. Job Qualifications and Requirements (Sec.  655.20(e)). Proposed 
Sec.  655.20(e) clarifies the existing Sec.  655.22(h) by stating that 
each job qualification and requirement listed in the job order must be 
consistent with normal and accepted qualifications required by non-H-2B 
employers for similar occupations in the same area of intended 
employment. OFLC will determine what is normal and accepted during the 
pre-certification process. The proposed paragraph also allows the CO to 
require the employer to substantiate any job qualifications specified 
in the job order.
    e. Three-Fourths Guarantee (Sec.  655.20(f)). The Department has 
determined that the three-fourths guarantee required in the H-2A 
program provides protection that is necessary in the H-2B program as 
well. The guarantee has been required under the H-2A program since its 
inception in 1987; in the 2008 Final Rule, the Department defended the 
requirement: ``The Department believes the rule provides essential 
protection for both U.S. and H-2A workers, in that it ensures their 
commitment to a particular employer will result in real jobs that meet 
their reasonable expectations.'' 73 FR 77152 (Dec. 18, 2008).
    Recent experience in enforcing the H-2B regulations demonstrates 
that workers are often provided much less work than that promised in 
the job order, which has convinced the Department that this protection 
is necessary. For example, the Department's enforcement experience has 
revealed employers that stated on their H-2B applications that they 
would provide 40 hours of work per week when, in fact, their workers 
averaged far fewer hours of work. Indeed, in some weeks the workers did 
not work at all.
    In addition to the Department's recent experience enforcing the H-
2B regulations, the Department is aware of testimony involving cases in 
which unscrupulous employers which have obtained H-2B labor 
certification have overstated the period of need and/or the number of 
hours for which the workers are needed. For example, H-2B workers 
testified at a hearing before the Domestic Policy Subcommittee, House 
Committee on Oversight and Government Reform, on April 23, 2009 that 
there were several weeks in which they were offered no work; others 
testified that their actual weekly hours--and hence their weekly 
earnings--were less than half of the amount they had been promised in 
the job order. Daniel Angel Castellanos Contreras, a Peruvian engineer, 
was promised 60 hours per week at $10-$15 per hour. According to Mr. 
Contreras, ``The guarantee of 60 hours per week became an average of 
only 20 to 30 hours per week--sometimes less. With so little work at 
such low pay [$6.02 to $7. 79 per hour] it was impossible to even cover 
our expenses in New Orleans, let alone pay off the debt we incurred to 
come to work and save money to send home.'' \6\ Miguel Angel Jovel 
Lopez, a plumber and farmer from El Salvador, was recruited to do 
demolition work in Louisiana with a guaranteed minimum of 40 hours of 
work per week. Mr. Lopez testified, ``Instead of starting work, 
however, I was dropped off at an apartment and left for two weeks. Then 
I was told to attend a two week training course. I waited three more 
weeks before working for one day on a private home and then sitting for 
three more weeks.\7\ Testimony at the same hearing by three attorneys 
who represent H-2B workers stated that these witnesses' experiences 
were not aberrations but were typical. Hearing on The H-2B Guestworker 
Program and Improving the Department of Labor's Enforcement of the 
Rights of Guestworkers, 111th Cong. (Apr. 23, 2009).
---------------------------------------------------------------------------

    \6\ Testimony of Daniel Angel Castellanos Contreras before the 
House Committee on Oversight and Government Reform Domestic Policy 
Subcommittee, 2, (2009, Apr. 23) http://oversight.house.gov/images/stories/documents/20090423085101.pdf.
    \7\ Testimony of Miguel Angel Jovel Lopez before the House 
Committee on Oversight and Government Reform Domestic Policy 
Subcommittee, 2. (2009, Apr. 23) http://oversight.house.gov/images/stories/documents/20090423085606.pdf.
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    Furthermore, a 2010 report by the American University Washington 
College of Law International Human Rights Law Clinic and the Centro de 
los Derechos del Migrante, Inc. documented the prevalence of work 
shortages for women working on H-2B visas in the Maryland crab 
industry. The researchers found that ``[s]everal women interviewed 
spent days and weeks without work when crabs were scarce. During this 
time most continued to make rent payments, and struggled to send money 
to family back in Mexico.'' \8\
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    \8\ American University Washington College of Law International 
Human Rights Law Clinic and Centro de los Derechos del Migrante, 
Inc. Picked Apart: The Hidden Struggles of Migrant Worker Women In 
the Maryland Crab Industry.2, July 2010. http://www.wcl.american.edu/clinical/documents/20100714_auwcl_ihrlc_picked_apart.pdf?rd=1.
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    WHD enforcement experience from the H-2A program provides further 
evidence supporting the need to extend guaranteed minimum work 
protections to H-2B workers who in many ways are similarly situated to 
their H-2A counterparts. Though the three-fourths guarantee is already 
in place in the H-2A program, WHD has found employers substantially 
violating its provisions. For instance, as recently as January 2011, 
WHD assessed $1/3 million in back wages from a vegetable farm employer 
which failed to provide to 244 workers--148 of whom were U.S. workers--
at least 75 percent of the work hours promised. This case is currently 
in litigation.
    Few legal options exist for H-2B workers who feel their work 
contracts have been violated. An initial barrier to legal recourse is 
purely practical: H-2B workers are not eligible for services from 
federally-funded legal aid programs. As a result, most H-2B workers 
have no access to lawyers or information about their legal rights. 
Furthermore, the H-2B job order, which specifies the terms and 
conditions of employment, including work hours, may not be enforceable 
through private litigation. See Garcia v. Frog Island Seafood, Inc., 
644 F.Supp.2d 696, 716-18 (E.D.N.C. 2009) (holding H-2B job orders 
would not be treated as enforceable contracts). A guaranteed number of 
hours, enforceable by WHD, may well be the only protection H-2B workers 
have if employers misrepresent the amount of work the worker will 
actually be provided.

[[Page 15144]]

    In an effort to combat such abuses, Sec.  655.20(f) proposes to 
require a guaranteed offer of employment for a total number of work 
hours equal to at least three-fourths of the workdays of each 4-week 
period. The Department proposes to use successive 4-week periods to 
measure the three-fourths guarantee instead of measuring the three-
fourths guarantee over the course of the entire time period of need (as 
in the H-2A three-quarters guarantee), in order to ensure that work is 
offered during the entire time period certified by the Department. 
Four-week increments will aid the Department in enforcing the statutory 
and regulatory temporary need requirement. When employers file 
applications for H-2B certifications, they represent that they have a 
need for full-time temporary work during the entire time period for 
which they request certification from the Department. Using a 4-week 
period will prevent employers from requesting workers for nine months, 
for example, if they really only have a need for their services for 
seven months. Thus, a 4-week period will help to ensure that employers 
do not assert that they need workers throughout the winter months if 
the work cannot be conducted in such weather and there is little or no 
work for the workers to perform until spring. Using a 4-week period 
also prevents an employer from inappropriately stating, for example, 
that it needs workers until October 31st, if its season is over and 
there generally is little or no work after September 30th, in the hopes 
that the employees will simply leave the job before the end of the 
period so the employer will be relieved of its obligation to pay for 
their return transportation. When a worker accepts a job offer that 
promises full-time work for a set period of time and foregoes other 
opportunities to make that commitment, the worker has a right to be 
provided with the promised amount of work for the entire period for 
which work was promised. The hours are not fungible, and should not be 
provided primarily in the middle of the period of need in order to meet 
the three-fourths guarantee.
    These 4-week periods would begin the first workday after the 
worker's arrival at the place of employment or the advertised 
contractual first date of need, whichever is later, and would end on 
the expiration date specified in the job order or in any extensions. 
The Department believes that this guarantee will impose no burden on 
employers that have accurately stated their need for workers, even if 
the employer's calculation of the amount of available work is off by as 
much as 25 percent. Therefore, the three-fourths guarantee offers the 
appropriate level of protection for workers who are employed by 
unscrupulous employers, without any penalty or burden to compliant 
employers.
    The proposed system provides for a workday to be based on the 
workday hours stated in the employer's job order and require the 
guarantee in each 4-week period. The 4-week period would be based on 
the employer's workweek. If a worker arrives and starts work after the 
first day of the employer's workweek, resulting in a partial workweek, 
then the initial 4-week guarantee period could result in a period of as 
long as 4 weeks and 6 days. Similarly, the worker might cease 
employment before the end of a final 4-week period, resulting in a 
guarantee period as short as one workday. In such cases, the guarantee 
is increased for the initial period and decreased for the last period 
on a pro rata basis.
    Under the proposed guarantee, the employer would be required to pay 
the worker three-fourths of the wages the worker would have earned in 
any 4-week period if the employer had offered the worker the number of 
hours specified in the job offer. In contrast to the guarantee provided 
under the H-2A program, this proposal does not exclude hours offered on 
the worker's Sabbath and Federal holidays from the three-fourths 
guarantee requirement in recognition of the fact that many H-2B workers 
are employed in the hospitality industry that need those workers 
available during those times.
    The Department recognizes that workers may fail or refuse to work 
hours which have been offered by the employer. Consequently, the 
proposed section allows the employer to count any hours offered 
consistent with the job order that a worker freely and without coercion 
chooses not to work, up to the maximum number of daily hours on the job 
order, in the calculation of guaranteed hours. The proposed section 
also allows the employer to offer the worker more than the specified 
daily work hours, but the employer may not require the employee to work 
such hours or count them as offered if the employee chooses not to work 
the extra hours. However, the employer may include all hours actually 
worked when determining whether the guarantee has been met. 
Furthermore, as detailed in Sec.  503.16(g), the CO can terminate the 
employer's obligations under the guarantee in the event of fire, 
weather, or another Act of God that makes the fulfillment of the job 
order impossible.
    As indicated above, the purpose of the guarantee is to ensure that 
employers do not misuse the program by overstating their need for full-
time, temporary workers, such as by carelessly calculating the starting 
and ending dates of their temporary need, the hours of work needed per 
week, or the total number of workers required to do the work available. 
The Department believes that the guarantee will motivate employers to 
carefully consider the extent of their workforce needs before applying 
for certification, thus discouraging employers from applying for 
unnecessary workers or from promising work which may not exist. To the 
extent that employers more accurately describe the amount of work 
available and the periods during which work may be more or less 
available, it gives both U.S. and foreign workers a better chance to 
realistically evaluate the desirability of the offered job. Not only 
will this result in workers working most of the hours promised in the 
job order but it may also make the capped H-2B visas available to other 
employers whose businesses need to use H-2B workers. The three-fourths 
guarantee is a reasonable deterrent to such potential carelessness and 
a necessary protection for workers, while still providing employers 
with flexibility relating to the required hours, given that many common 
H-2B occupations involve work that can be affected by weather 
conditions.
    An hour guarantee is necessary to protect the integrity of the H-2B 
program and to protect the interests of both workers and employers in 
the H-2B program. At the same time, the Department invites the public 
to suggest alternative guarantee systems that may better serve those 
goals. In particular, the Department seeks comments on whether a 4-week 
increment is the best period of time for measuring the three-fourths 
guarantee or whether a shorter or longer time period would be more 
appropriate.
    f. Impossibility of Fulfillment (Sec.  655.20(g)). In proposed 
Sec.  655.20(g), the Department acknowledges that circumstances beyond 
the control of the employer or the worker, such as a natural disaster 
or a fire, might result in the need to terminate a worker's employment 
before the expiration date of a job order. Therefore, the new language 
in this paragraph allows employers to terminate a job order in certain 
circumstances when approved by the CO. In such an event, the employer 
would be required to meet the three-fourths guarantee discussed in 
paragraph (f) of this section based on the starting date listed in the 
job offer or

[[Page 15145]]

first workday after the arrival of the worker, whichever is later, and 
ending on the work termination date. The employer would also be 
required to attempt to transfer the H-2B worker (if permitted under the 
INA) or worker in corresponding employment to another comparable job. 
Absent such transfer, the employer would have to comply with the 
proposed transportation requirements in paragraph (j) of this section.
    g. Frequency of Pay (Sec.  655.20(h)). The proposed Sec.  655.20(h) 
adds the requirements that the employer indicate the frequency of pay 
in the job order and that workers be paid every 2 weeks or according to 
the prevailing practice in the area of intended employment, whichever 
is more frequent. Further, wages must be paid when due. Allowing the 
employer to pay less frequently than every 2 weeks and to not make 
timely payment of wages imposes an undue burden on workers who 
traditionally are paid low wages and live paycheck to paycheck.
    h. Earnings Statements (Sec.  655.20(i)). Proposed Sec.  655.20(i) 
adds requirements for the employer to maintain accurate records of 
worker earnings and provide the worker on or before each payday an 
appropriate earnings statement. This proposed paragraph also lists the 
information that the employer must include in such a statement. 
Providing such statements to employees will enhance program integrity 
because employees will have a timely and clear understanding of the 
basis for their pay, and such statements will provide the Department 
with additional information in any investigation or audit.
    i. Transportation and Visa Fees (Sec.  655.20(j)). The Department 
proposes changes relating to transportation and visa costs in Sec.  
655.20(j). The Department has determined that the cost of transporting 
workers from remote locations to the worksite is an expense that 
primarily benefits employers who choose to use the H-2B program and it 
is the Department's intention to ensure that the cost of transporting 
workers from remote locations to the worksite are not passed on to the 
employees.
    The NPRM would require an employer to provide, pay for, or 
reimburse the worker in the first workweek the cost of transportation 
and subsistence from the place from which the worker has come to the 
place of employment. Similarly, at the end of the employment, the NPRM 
would require the employer to provide or pay for the U.S. or foreign 
worker's return transportation and daily subsistence from the place of 
employment to the place in the worker's home country from which the 
worker departed to work for the employer, if the worker has no 
immediate subsequent approved H-2B employment. If the worker has been 
contracted to work for a subsequent and registered employer, the last 
H-2B employer to employ the worker would be required to provide or pay 
the U.S. or foreign worker's return transportation. Therefore, prior 
employers would not be obligated to pay for return transportation 
costs. Employers also would be required to pay or reimburse the worker 
for the H-2B worker's visa, visa processing, border crossing, and other 
related fees including those fees mandated by the government (but not 
for passport expenses or other charges primarily for the benefit of the 
workers).
    The proposed changes are consistent with the Department's 
interpretation of the FLSA, explained in Field Assistance Bulletin No. 
2009-2 (Aug 21, 2009), that H-2B workers' transportation and visa costs 
are primarily for the benefit of the employer. The employer benefits 
because it obtains foreign workers where the employer has certified 
that there are not sufficient able, willing and qualified U.S. workers 
available to perform the work. Transporting these workers from remote 
locations to the workplace is primarily for the benefit of the employer 
who has sought authority to bring in workers from foreign countries.
    The Bulletin explained that an employer must bear such expenses if 
shifting them to the employee would bring the employee's effective rate 
of pay below the FLSA minimum wage. H-2B employers covered by the FLSA 
must, therefore, pay such expenses to meet FLSA requirements. See 
Arriaga v. Florida Pacific Farms, LLC, 305 F.3d 1228 (11th Cir. 2002); 
but see Castellanos-Contreras v. Decatur Hotels, LLC,--F.3d, 2010 WL 
3816016 (5th Cir. 2010). Moreover, the current (and proposed) H-2B 
regulations specifically require employers to comply with all 
applicable Federal, State, and local employment-related laws.
    The Department's proposal would require the employer to pay these 
expenses if payment by the employee would bring the employee's rate of 
pay below the offered wage. The proposed requirement protects U.S. 
workers from adverse effect by protecting the integrity of the offered 
wage. Without these protections, the employer, who is obligated to pay 
the ``offered wage'' which is generally higher than the FLSA minimum 
wage, could take deductions from wages that could reduce the effective 
wage to the FLSA minimum.
    The following illustrates the benefits of this proposal. Under the 
current regulation the employer is not obligated to reimburse H-2B 
workers for inbound transportation, visa, visa processing, border 
crossing, and other related costs even though the Department has 
determined that under the FLSA these costs are primarily for the 
benefit of the employer. Further, the only restriction on deductions 
from pay are found in current 20 CFR 655.22(g)(1), which states,

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

    In this illustration, the employer, a landscaping contractor in 
Orange County, FL, provides a disclosure to the employee that the 
employer will advance the $800 \9\ for inbound transportation, visa, 
visa processing, and other related fees as well as the return 
transportation cost, and deduct the costs from the employee's paycheck 
until fully repaid. The employee, from Mexico, is hired to work for a 
landscaping company for 12 weeks and the Level 1 prevailing wage, as 
determined by OES, is $8.90 per hour. The employee works 40 hours and 
is entitled to be paid $356.00. Since the employer disclosed that he 
would advance the transportation costs and visa related fees and recoup 
those costs through deductions from the worker's pay, the worker is 
paid $290.00, the amount equivalent to the FLSA minimum wage for 40 
hours work. The worker would be paid $290 instead of $356.00 each of 
the subsequent 11 workweeks until the $800 is recouped by the employer. 
This is so even though the WHD has determined that the transportation 
and visa-related cost for H-2B workers is primarily for the benefit of 
the employer. Further, the Department has determined that in order to 
protect the labor market from the adverse effects on wages caused by 
the presence of temporary foreign workers in this labor market the 
minimum wage that must be paid by H-2B employers is $8.90. Without a 
provision requiring the employer to pay the transportation cost and 
visa-related fees the wage provisions of the H-2B program are severely 
compromised, providing an economic incentive for employers to hire 
foreign workers who

[[Page 15146]]

can be paid the FLSA wage instead of the ``offered wage'' in 
contravention of the Department's obligations to prevent adverse effect 
under the program.
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    \9\ The transportation cost is estimated to be $286 each way, 
$10.64 daily for subsistence, and $150 for visa fees. For a more 
detailed discussion of the estimated cost of transportation, see 
Section IV. Administrative Information, A. Executive Order 12866 of 
this preamble.
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    This NPRM also adds daily subsistence costs during inbound and 
outbound travel as an expense the employer is required to cover in 
addition to the actual transportation, consistent with a similar 
provision under the H-2A program. Because U.S. workers living far away 
from an area of intended employment may accept an H-2B job opportunity, 
the proposed rule provides the same treatment for U.S. workers who are 
unable to return to their residence each workday.
    Finally, the Department proposes that all employer-provided 
transportation--including transportation to and from the worksite, if 
provided--meet applicable safety, licensure, and insurance standards. 
Under this proposed rule, all transportation and subsistence costs 
covered by the employer (even costs not required by this section) must 
be disclosed in the job order.
    The proposed requirement that the employer pay inbound and outbound 
transportation, subsistence, visa, visa processing, border crossing, 
and related fees in this provision applies to H-2B workers, including 
those who have traveled to the place of employment but have not started 
work due to their displacement by a U.S. worker. See Proposed Sec.  
655.40 (U.S. worker recruitment period terminates on the third day 
preceding the employer's date of need or the date the last foreign 
worker departs for the employment, whichever is later). DHS regulations 
currently allow H-2B workers to enter the U.S. ten days before their 
employment start date. 8 CFR 214.2(h)(13)(i). Thus, there may be a gap 
in time between the time when an H-2B worker enters the country 
intending to work for the employer (up to 10 days before the date of 
need) and the time when the employer is no longer obligated to hire 
qualified U.S. workers for these job opportunities (three days before 
the employer's date of need or the date the last foreign worker 
departs, if later). Because employers have the ability to control the 
travel of H-2B workers from the point of visa issuance to the worksite, 
the Department expects that employers will delay the H-2B worker's 
departure date until the required recruitment period has ended. In the 
rare event that an H-2B worker enters the country before the U.S. 
worker recruitment period has ended and the position has been filled by 
a U.S. worker, the employer must reimburse the foreign worker for these 
costs and/or provide payment for the cost of return transportation at 
the time the worker presents for employment.
    j. Employer-Provided Items (Sec.  655.20(k)). The Department 
proposes to add a new requirement under Sec.  655.20(k), consistent 
with the requirement under the FLSA regulations at 29 CFR part 531, 
that the employer provide to the worker without charge all tools, 
supplies, and equipment necessary to perform the assigned duties. The 
employer may not shift to the employee the burden to account for damage 
to, loss of, or normal wear and tear of, such items. This proposed 
provision gives workers additional protections against improper 
deductions of the employer's business expenses from required wages.
    k. Disclosure of the Job Order and Notice of Worker Rights 
(Sec. Sec.  655.20(l) and 655.20(m)). Worker notification is a vital 
component of worker protection and program compliance. Proposed 
Sec. Sec.  655.20(l) and 655.20(m) would enhance worker notifications. 
Proposed Sec.  655.20(l) requires that the employer provide a copy of 
the job order to H-2B workers no later than the time of application for 
a visa and to workers in corresponding employment no later than the 
first day of work. The job order will contain information about the 
terms and conditions of employment and employer obligations as provided 
in proposed Sec.  655.18 and must be in a language understandable to 
the workers. Proposed Sec.  655.20(m) requires that the employer post a 
notice in English of worker rights and protections in a conspicuous 
location and post the notice in other appropriate languages if such 
translations are provided by the Department.
    l. No Unfair Treatment (Sec.  655.20(n)). Proposed Sec.  655.20(n) 
adds new language on nondiscrimination and nonretaliation protections 
which are basic to statutes that the Department enforces. Worker rights 
cannot be secured unless there is protection from all forms of 
intimidation or discrimination resulting from any person's attempt to 
report or correct perceived violations of H-2B provisions. As provided 
in proposed 29 CFR 503.20, make-whole relief is available for victims 
of discrimination and retaliation under this paragraph.
    m. Comply with the Prohibitions Against Employees Paying Fees 
(Sec.  655.20(o)). Proposed Sec.  655.20(o) amends current Sec.  
655.22(j) by expanding the list of persons who may not seek 
reimbursement from workers for any costs associated with obtaining H-2B 
employment certification or employment, and by repeating the new 
requirement in proposed Sec.  655.20(b) that wages must be paid free 
and clear. This paragraph also clarifies that H-2B employers or their 
agents may recoup costs that are the responsibility of, and primarily 
for, the benefit of the worker. Passport fees, currently included in 
Sec.  655.22(g)(2), are noted here as an example of a cost that is 
primarily for the benefit of the worker.
    n. Contracts with Third Parties to Comply with Prohibitions (Sec.  
655.20(p)). In Sec.  655.20(p), the Department proposes to amend 
current Sec.  655.22(g)(2) to require that an employer that engages any 
agent or recruiter must prohibit in a written contract the agent or 
recruiter from seeking or receiving payments from prospective 
employees. The contract must be made available to the CO, WHD or other 
Federal party, upon request. The Department also proposes to eliminate 
the reference to DHS regulations at 8 CFR 214.2(h)(5)(xi)(A) to avoid 
confusion in light of the proposed provisions concerning the employer 
responsibilities for transportation and visa costs in Sec.  655.20(j). 
Similarly, the current sentence allowing an employer to recover visa 
costs is removed, consistent with proposed Sec.  655.20(j)(2).
    o. Prohibition Against Preferential Treatment of H-2B Workers 
(Sec.  655.20(q)). Proposed Sec.  655.20(q) is similar to Sec.  
655.22(a) of the current rule, which prohibits employers from providing 
better terms and conditions of employment to H-2B workers than to U.S. 
workers. The language has been modified to reflect the change to a 
certification process from the current attestation-based process.
    p. Non-Discriminatory Hiring Practices, Recruitment Requirements, 
and Continuing Requirement to Hire U.S. Workers (Sec. Sec.  655.20(r), 
655.20(s), and 655.20(t)). The current regulations require that the 
employer recruit and hire qualified U.S. workers during a limited 10-
day period before filing the Application for Temporary Employment 
Certification. The Department firmly believes that this represents 
inadequate time and effort to ensure that there are no or insufficient 
qualified U.S. workers to fill the employer's temporary employment 
needs. To remedy this inadequacy, the Department proposes to extend the 
employer's recruitment and hiring obligations by making the changes in 
Sec. Sec.  655.20(r), 655.20(s), and 655.20(t), as described below.
    First, consistent with current Sec.  655.22(c), proposed Sec.  
655.20(r) reaffirms the Department's commitment to ensuring that U.S. 
workers have priority for H-2B job opportunities by stating that U.S. 
workers who apply must either be offered the job or rejected

[[Page 15147]]

only for lawful, job-related reasons, and by prohibiting 
discrimination. The proposal clarifies that this hiring obligation 
remains in effect throughout the period set forth in proposed paragraph 
(t).
    Second, proposed Sec.  655.20(s) requires that the employer conduct 
required recruitment as described in proposed Sec. Sec.  655.40-46.
    Last, proposed Sec.  655.20(t) extends the period during which the 
employer must hire qualified U.S. workers referred by the SWA or who 
respond to recruitment to 3 days before the date of need or the date 
the last H-2B worker departs for the workplace for the certified job 
opportunity, whichever is later.
    q. No strike or lockout (Sec.  655.20(u)). The Department proposes 
in Sec.  655.20(u) to modify the ``no strike or lockout'' language in 
the current regulations at Sec.  655.22(b) to enhance worker 
protections. Currently, requests for H-2B workers are not certified if 
the workers would be filling positions that are open due to a strike, 
lockout, or work stoppage. Under the proposed paragraph the CO would 
deny an H-2B certification if there is a strike or lockout at the 
worksite. Under the current regulation, an unscrupulous employer might 
be able to transfer U.S. workers to fill positions vacated by striking 
workers, thus employing H-2B workers in the positions those U.S. 
workers vacated.
    r. No Recent or Future Layoffs (Sec.  655.20(v)). Proposed Sec.  
655.20(v) modifies the dates of impermissible layoffs of U.S. workers 
currently described in Sec.  655.22(i). The period during which an H-2B 
employer must not lay off any similarly employed U.S. worker continues 
to begin 120 days before the date of need but would be extended from 
120 days after the date of need to the end of the certification period. 
The Department also proposes adding the requirement that H-2B workers 
must be laid off before any U.S. worker in corresponding employment. 
These restrictions are essential in order to further the purpose of 
protecting U.S. workers.
    s. Contact with Former U.S. Employees (Sec.  655.20(w)). Proposed 
Sec.  655.20(w) requires employers to contact former U.S. employees who 
worked with them within the last year, including any who were laid off 
within 120 days before the date of need. This expands the current 
requirement that employers contact only former employees who were laid 
off during the 120 days preceding the date of need and for an 
additional 120 days after date of need.
    t. Area of Intended Employment and Job Opportunity (Sec.  
655.20(x)). Proposed Sec.  655.20(x) modifies current Sec.  655.22(l) 
by additionally prohibiting the employer from placing a worker in a job 
opportunity not specified on the Application for Temporary Employment 
Certification. This clarifies that an H-2B worker is only permitted to 
work in the job and in the location that OFLC approves unless the 
employer obtains a new certification.
    u. Abandonment/Termination of Employment (Sec.  655.20(y)). In 
proposed Sec.  655.20(y), the Department addresses a worker's voluntary 
abandonment of a job or termination. This NPRM proposes retaining, in 
slightly amended form, current Sec.  655.22(f) by requiring written 
notification to the OFLC and to DHS when a worker separates from 
employment before the certified end date. DHS has published in its own 
regulations at 8 CFR 214.2(h)(6)(i)(F) and its instructions at 73 FR 
77816 (Dec. 19, 2008). Clarifications of how an employer in such 
circumstances must comply with proposed transportation and subsistence 
requirements under paragraph (j) and the three-fourths guarantee under 
paragraph (f) of this section are also added to proposed Sec.  
655.20(y). Specifically, the employer would be relieved of providing 
return transportation expenses if an employee voluntarily abandons 
employment, and the three-fourths guarantee period would end with the 
last full 4-week period before the separation if an employee either 
voluntarily abandons employment or is terminated for cause.
    v. Compliance with Applicable Laws (Sec.  655.20(z)). In proposed 
Sec.  655.20(z), the Department proposes to retain existing provisions 
in Sec.  655.22(d) with minor revisions and to add a provision 
prohibiting the employer from holding or confiscating workers' 
passports, visas, or other immigration documents in accordance with the 
William Wilberforce Trafficking Victims Protection Reauthorization Act 
of 2008.

E. Processing of an Application for Temporary Employment Certification

1. Section 655.30 Processing of an Application and Job Order
    Under the proposed rule, upon receipt of an Application for 
Temporary Employment Certification and copy of the job order, the CO at 
the NPC will promptly conduct a comprehensive review of all 
documentation submitted by the employer to verify employer compliance 
with program requirements. This process differs from the application 
processing model under the 2008 Final Rule where the CO initially 
reviews only attestations.
    An additional difference between the 2008 Final Rule and the 
proposed rule in the review of the Application for Temporary Employment 
Certification is that under the proposed rule, the CO's review of the 
Application for Temporary Employment Certification, in most cases,\10\ 
will no longer entail a determination of temporary need, i.e., whether 
the employer has established a need for the non-agricultural services 
or labor to be performed that is temporary in nature. Instead, under 
the proposed rule, this aspect of the CO's review will be limited to 
verifying that the employer previously submitted a request for and was 
granted H-2B Registration, and that the terms of the Application for 
Temporary Employment Certification have not significantly changed from 
those approved under the H-2B Registration.
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    \10\ As provided in the discussion of Sec.  655.11, each 
employer filing an Application for Temporary Employment 
Certification will be required under the proposed rule to establish 
temporary need through the registration process. However, in limited 
circumstances where the employer has applied for a temporary labor 
certification on an emergency basis under emergency procedures in 
Sec.  655.17 without an approved H-2B Registration, the CO may be 
required to also make a determination regarding temporary need.
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    The proposed rule also requires the use of next day delivery 
methods, including electronic mail, for any notice or request sent by 
the CO requiring a response from the employer and the employer's 
response to such a notice or request. This proposed section also 
communicates a long-standing program requirement that the employer's 
response to the CO's notice or request must be sent by the due date or 
the next business day if the due date falls on a Saturday, Sunday or a 
Federal holiday.
2. Section 655.31 Notice of Deficiency
    Under the proposed rule, the CO will be required to issue a formal 
Notice of Deficiency where the CO determines that the Application for 
Temporary Employment Certification and/or job order contain errors or 
inaccuracies, or fails to comply with applicable regulatory and program 
requirements. The proposed provision requires the CO to issue the 
Notice within 7 business days from the date on which the NPC receives 
the employer's Application for Temporary Employment Certification and 
job order. This timeline is designed to ensure that the SWA has 
sufficient time to conduct its own review of the job order and notify 
the CO within 4 business days of any deficiencies as provided in Sec.  
655.16, as well as the timely processing of an employer's

[[Page 15148]]

Application for Temporary Employment Certification.
    Once the CO issues a Notice of Deficiency to the employer, the CO 
will provide the SWA and the employer's attorney or agent, if 
applicable, a copy of the notice. The Notice of Deficiency will include 
the specific reason(s) why the Application for Temporary Employment 
Certification and/or job order is deficient, identify the type of 
modification necessary in order for the CO to issue a Notice of 
Acceptance, and provide the employer with an opportunity to submit a 
modified application and/or job order within 10 business days from the 
date of the Notice of Deficiency. The Notice will also inform the 
employer that it may, alternatively, request administrative review 
before an Administrative Law Judge (ALJ) within 10 business days of the 
date of the Notice of Deficiency and instruct the employer regarding 
how to file a request for such review in accordance with the 
administrative review provision under this subpart. Finally, the Notice 
of Deficiency will inform the employer that failing to timely submit a 
modified Application for Temporary Employment Certification and/or job 
order, or request administrative review will cause the CO to deny that 
employer's Application for Temporary Employment Certification.
    The Notice of Deficiency is similar to the Request for Information 
(RFI) process used by the CO under the 2008 Final Rule. The concurrent 
submission of the job order to the CO and the SWA will ensure the 
thorough examination of the employer's job requirements and enable 
employers to timely and effectively comply with all program 
requirements.
3. Section 655.32 Submission of a Modified Application or Job Order
    As previously stated, the CO will deny any Application for 
Temporary Employment Certification where the employer neither submits a 
modification nor requests a timely administrative review. A denial of 
an Application for Temporary Employment Certification for failure to 
timely submit a sufficiently responsive modification or request for 
review as prescribed above will be final and cannot be appealed. This 
proposal differs from the 2008 Final Rule, in which the CO has 
discretion to deny the employer's application or require supervised 
recruitment if the employer fails to comply with an RFI.
    In addition, the proposed rule requires the CO to deny an 
Application for Temporary Employment Certification and/or job order if 
the modification(s) made by the employer do not comply with the 
requirements for certification under Sec.  655.50. The proposed rule 
grants the employer the right to appeal the denial of the modified 
Application for Temporary Employment Certification and/or job order via 
the administrative review procedures set forth in Sec.  655.61 of this 
proposed rule.
    Under the proposed rule, if the CO accepts the modification(s) and 
issues a Notice of Acceptance, the CO will require the SWA to modify 
the job order in accordance with the accepted modification(s), as 
necessary. The Department proposes this explicit requirement to ensure 
the integrity of the simultaneous submission process and ensure that 
any material terms and conditions of employment and employer 
obligations contained in the job order correspond to the terms, 
conditions and obligations contained in an accepted Application for 
Temporary Employment Certification.
    In addition to requiring modification before the acceptance of an 
Application for Temporary Employment Certification, the Department 
proposes to permit the CO to require the employer to modify a job order 
at any time before the final determination to grant or deny the 
Application for Temporary Employment Certification if the CO determines 
that the offer of employment does not contain all the applicable 
minimum benefits, wages, and working conditions. Where the CO requires 
a later modification, the CO will update the electronic job registry to 
reflect the necessary modification(s) and direct the SWA(s) in 
possession of the job order to replace the job order in their active 
files with the modified job order. The employer also is required to 
disclose the modified job order to all workers who were recruited under 
the original job order or Application for Temporary Employment 
Certification. This requirement is also new in the proposed rule and is 
intended to ensure that U.S. workers have access to meaningful 
employment opportunities and that workers remain informed about the 
benefits, wages and working conditions offered by the employer.
4. Section 655.33 Notice of Acceptance
    Under the proposed rule, the Department requires the CO to issue a 
formal notice accepting the employer's application for processing. Upon 
accepting the Application for Temporary Employment Certification and 
job order, the CO will send a Notice of Acceptance to the employer (and 
the employer's attorney or agent, if applicable), with a copy to the 
SWA, within 7 business days from the CO's receipt of the Application 
for Temporary Employment Certification or modification, provided that 
the Application for Temporary Employment Certification and job order 
meet all the program and regulatory requirements.
    The Notice of Acceptance under the proposed rule will direct the 
employer to recruit U.S. workers in accordance with employer-conducted 
recruitment provisions in Sec. Sec.  655.40-655.47, as well as to 
conduct any additional recruitment in accordance with the CO's 
directions, consistent with Sec.  655.46. The Notice of Acceptance will 
advise the employer that it must conduct such recruitment of U.S. 
workers within 14 calendar days from the date of the notice and informs 
the employer that such employer-conducted recruitment is required in 
addition to SWA circulation of the job order in intrastate and 
interstate clearance under Sec.  655.16. The Notice of Acceptance also 
requires the employer to submit a written report of its recruitment 
efforts as specified in Sec.  655.48.
    The Notice of Acceptance directs the SWA: (1) To place the job 
order in intra- and interstate clearance, including (i) circulating the 
job order to the SWAs in all other States listed on the employer's 
Application for Temporary Employment Certification and job order, as 
anticipated worksites and (ii) to any States where the CO directs the 
SWA to circulate the job order; (2) to keep the job order on its active 
file and continue to refer U.S. workers to the employer until the end 
of the recruitment period defined in Sec.  655.40(c); and (3) to 
transmit the same instructions to all other SWAs to which it transmits 
the job order. Under the proposed rule, the Notice of Acceptance 
advises the employer of its obligation to notify all SWAs in possession 
of its job order if the last H-2B worker has not departed for the place 
of employment by the third day preceding the employer's date of need. 
This indicates to the SWA when to stop referring potential U.S. workers 
to the employer. In order to increase the exposure of U.S. workers to 
H-2B job opportunities, the Notice of Acceptance also requires the 
SWA(s) to circulate a copy of the job order to certain labor 
organizations, where the job classification is traditionally or 
customarily unionized, as described in greater detail in Sec.  655.44.
    The elements of the Notice of Acceptance described in the proposed 
rule reflect an enhanced process for the recruitment of U.S. workers. 
The Department expects these additional requirements will provide 
timely and meaningful notice of job opportunities

[[Page 15149]]

and thus increase the likelihood that U.S. workers will learn of and 
apply for the available job opportunities.
5. Section 655.34 Electronic Job Registry
    The Department proposes posting employers' H-2B job orders, 
including modifications and/or amendments approved by the CO, on an 
electronic job registry to disseminate the job opportunities to the 
widest audience possible. The electronic job registry was initially 
created to accommodate the posting of H-2A job orders, but the 
Department proposes to expand the registry to include H-2B job orders. 
The job orders will be posted by the CO on the job registry after 
acceptance of an Application for Temporary Employment Certification for 
the duration of the recruitment period, as provided in Sec.  655.40(c). 
Once the recruitment period has concluded, the job order will be 
maintained on the registry in inactive status so that the information 
is available for a variety of purposes. It is expected, for example, 
that the continued accessibility of inactive orders will increase the 
transparency of the H-2B process and provide information, for example, 
for those currently seeking such information from the Department 
through Freedom of Information Act (FOIA) requests.
    Posting job orders on the electronic job registry will serve as an 
effective, useable tool for alerting U.S. workers to jobs for which H-
2B workers are being recruited. The electronic job registry will be 
accessible to the public through the Department's resources, including 
its One-Stop Career Centers, as well as through a link to the job 
registry on the OFLC's Web site http://www.foreignlaborcert.doleta.gov/.
6. Section 655.35 Amendments to an Application or Job Order
    The Department proposes to permit an employer to request to amend 
its Application for Temporary Employment Certification and/or job order 
to increase the number of workers, to change the period of employment, 
or to make other changes to the application, before the CO makes a 
final determination to grant or deny an Application for Temporary 
Employment Certification. The Department's proposed rule would permit 
an employer to seek amendments to the application and/or job order only 
before certification, not after certification. These provisions are 
being proposed to provide clarity to employers and workers alike of the 
limitations on and processes for amending an application and the need 
to inform any U.S. workers already recruited of the changed job 
opportunity. The Department recognizes that employers can face changed 
circumstances from varying sources--from climactic conditions to 
cancelled contracts--and is providing some flexibility to assess and 
respond to such changes. At the same time, the Department proposes 
certain limitations to ensure that these job opportunities are not 
misrepresented as a result of such amendments.
    Specifically, under the proposed rule, the employer may request an 
amendment of the Application for Temporary Employment Certification 
and/or job order to increase the number of workers initially requested. 
However, the Department is limiting such amendments to increase the 
number of workers to no more than 20 percent (50 percent for employers 
requesting fewer than 10 workers), consistent with Sec.  655.11, that 
does not permit the use of an H-2B Registration in connection with the 
filing of an Application for Temporary Employment Certification if the 
number of workers required by the employer exceeds the number listed on 
the approved H-2B Registration by 20 percent.
    In addition, the proposed rule permits minor changes to the period 
of employment at any time before the CO's final determination. However, 
the Department advises that such amendments to the period of employment 
may not exceed 14 days and may not cause the total period to exceed a 
total of 9 months, except in the event of a demonstrated one-time 
occurrence. This limitation to 14 days is consistent with the 14-day 
period in Sec.  655.11 and is designed to ensure that the employer had 
a legitimate need before commencing the registration process and 
accurately estimated its date of need.
    The regulation proposes that the employer may request an amendment 
of the Application for Temporary Employment Certification or job order 
at any time before the CO's final determination. The CO will approve 
these changes if the CO determines the proposed amendment(s) are 
justified and will not negatively affect the CO's ability to make a 
timely labor certification determination, as required under Sec.  
655.50, including the ability to thoroughly test the labor market. 
Changes will not be approved which affect the underlying approval for 
the job registration.
    The proposed rule provides that the employer must request any 
amendment(s) to the Application for Temporary Employment Certification 
and/or job order in writing and that any such amendment(s) will not be 
effective until approved by the CO. Once the CO approves an amendment 
to the Application for Temporary Employment Certification or job order, 
the CO will to submit to the SWA any necessary change to the job order 
or the amended job order and update the electronic job registry to 
reflect the approved amendment(s).
    The Department's proposed rule allows amendments to the Application 
for Temporary Employment Certification and/or job order only before 
certification and does not permit the employer to request or the CO to 
amend a certified Application for Temporary Employment Certification. 
This provision strikes a balance between the employer's need for 
flexibility in the application process and the Department's intent to 
make a determination based on the employer's actual need.

F. Recruitment Requirements

1. Section 655.40 Employer-Conducted Recruitment
    Unlike the 2008 Final Rule, this proposal requires employers to 
conduct recruitment only after filing an Application for Temporary 
Employment Certification and receiving a Notice of Acceptance from the 
CO. The Department proposes this approach so that the employer must 
demonstrate rather than simply attest that there are not sufficient 
qualified U.S. workers who would be available to fill the job 
opportunities for which the employer seeks to hire H-2B workers.
    The Department proposes that the employer conduct such recruitment 
of U.S. workers within 14 calendar days from the date of the Notice of 
Acceptance, unless the CO provides different instructions to the 
employer in the Notice. This allows the employer time within which to 
initiate and complete required recruitment as well as ensures that U.S. 
workers are notified of job opportunities as they become available. The 
Department further proposes that the employer offer employment to all 
U.S. applicants who meet the requirements of the job opportunity and 
will be available to fill the positions.
    An employer is obligated to accept all qualified U.S. applicants 
referred for employment by the SWA until the third day preceding the 
employer's date of need or the date the last foreign worker departs for 
the employment, whichever is later. This timeframe increases the 
opportunity for U.S. workers to fill the available positions without 
unnecessarily burdening the employer.

[[Page 15150]]

Where applicable, the employer must inform the appropriate SWA(s) in 
writing of a later date of departure so that the SWA knows when to stop 
referring potential U.S. workers to the employer. Where the employer 
neglects to inform the SWA of the date of departure of its H-2B workers 
as required, the employer may be subject to debarment, and/or other 
remedies.
    The Department is considering whether employers must inform the 
Department not only of the date of the last departure, but also of the 
actual number of H-2B workers hired under the approved Application for 
Temporary Employment Certification. In addition, the Department is 
interested in knowing whether the H-2B workers were hired from a 
foreign country or were already present in the U.S. This will provide 
the Department and other Federal agencies with essential information on 
actual utilization of the program.
    Like the 2008 Final Rule, the proposed rule clarifies that 
employers are not required to conduct employment interviews. However, 
where the employer wishes to conduct interviews with U.S. workers, it 
must do so by telephone or at a location where workers can participate 
at little or no cost to the workers. This ensures that employers do not 
use the interview process to discourage U.S. workers from applying.
    Finally, the Department proposes to require the employer to list in 
its recruitment report filed in accordance with Sec.  655.48, the names 
of all U.S. applicants referred for employment, whether the applicant 
was accepted or rejected, and the reason why the applicant was 
rejected, if applicable.
2. Section 655.41 Advertising Requirements
    The employer's advertisements and recruitment activities are 
essential to providing U.S. workers with sufficient information to make 
informed employment decisions. In order to ensure a fair test of the 
labor market, the Department proposes to require that all employer 
advertisements contain terms and conditions of employment no less 
favorable than those offered to the H-2B workers and reflect, at a 
minimum, the terms and conditions in the job order.
    The remainder of this proposed section sets out the minimum content 
requirements for all advertisements. In addition to the requirements 
outlined in the 2008 Final Rule, the Department proposes to require 
that the advertisements include the assurances and obligations in the 
job order. These requirements include, but are not limited to: a 
statement referring to the three-fourths guarantee in Sec.  655.20(f); 
a statement that transportation and subsistence to and from the place 
from which the employee has come to work for the employer will be 
provided; a statement that work tools, supplies, and equipment will be 
provided to the worker without charge; and if applicable, a statement 
that the employer is providing daily transportation to and from the 
worksite. In addition, the Department proposes that an employer with 
multiple wage offers, such as one in an itinerant or other occupation 
for which special procedures apply, must list the range of applicable 
wage offers in its advertisements/recruitment. The inclusion of such 
information will ensure that employers disclose all pertinent wage 
information and that U.S. workers are adequately informed about the 
wage rate for each job opportunity.
    Sections 655.42 through 655.46 of the proposed rule outline the 
required recruitment steps. In addition to the involvement of the SWAs 
and the placement of two newspaper advertisements required under the 
2008 Final Rule, the Department proposes to require the employer 
contact former U.S. employees, contact labor organizations in 
traditionally unionized occupations and industries, and post the 
availability of the job opportunity at the place of anticipated 
employment. These additional requirements will increase the likelihood 
that U.S. workers will learn of and potentially apply for the available 
job opportunities.
    Additionally, many of these recruitment steps are aimed to increase 
the exposure of the job to the audience most likely to include, or to 
be able to locate, qualified workers--those closely associated to the 
job opportunity, either through direct contact with the employer (i.e., 
former workers) or through secondary contact (i.e., persons who hear 
about the job from current employees who see the posting notice at the 
worksite or from a community-based organization or a labor organization 
in the particular industry or occupation of the job opportunity). 
Employers using the H-2B program have consistently noted that U.S. 
workers do not seek out the jobs for which they must then seek foreign 
labor. Particularly in an economy in which the national unemployment 
rate has consistently exceeded 9 percent over the past two years, the 
Department assumes that some group of these available jobs would be 
taken by U.S. workers but for adequate notification of their existence. 
The concomitant downturn in the use of H-2B visas reflects the accuracy 
of the Department's assumption; even with recruitment far less than 
proposed by this NPRM, H-2B visa usage has been significantly 
decreased, as U.S. workers seek out these jobs.
3. Section 655.42 Newspaper Advertisements
    Newspapers remain an important means to recruit U.S. workers. The 
Department is seeking comments on alternative advertising media that 
will reach the greatest number of U.S. workers.
    The Department is continuing to require the employer to advertise 
in a newspaper of general circulation for the area of intended 
employment that is appropriate to the occupation and the workers likely 
to apply for the job opportunity. The employer's advertisements must 
run on 2 separate days, which may be consecutive, one of which must be 
a Sunday, unless the job opportunity is located in a rural area in 
which there is no newspaper with a Sunday edition. In such cases, the 
CO may permit the employer to substitute the Sunday advertisement with 
an advertisement in a newspaper with a regularly published daily 
edition that has the widest circulation in the area of intended 
employment. The Department further proposes to require that the content 
of each newspaper advertisement comply with the advertising 
requirements in Sec.  655.41. The employer will be required to maintain 
copies of the newspaper pages, tear sheets or other proof of 
publication for 3 years after final determination to grant or deny the 
Application for Temporary Employment Certification, consistent with 
document retention requirements under Sec.  655.56.
    The Department proposes to no longer allow the employer to replace 
one of the newspaper advertisements with an advertisement in a 
professional, trade, or ethnic newspaper. The Department has concluded 
that newspapers of general circulation are more likely to reach the 
broader audiences who are more apt to be interested in most H-2B job 
opportunities and thus would be more appropriate as a recruitment 
requirement for all employers. However, the Department recognizes that 
advertisements in professional, trade, or ethnic newspapers may be 
appropriate for some applications, depending for instance, on the 
particular occupation and area of employment. Accordingly, the 
Department is instead proposing to permit the CO to require the 
employer to advertise in such publication(s) as part of any required 
additional

[[Page 15151]]

employer-conducted recruitment under Sec.  655.46 of this subpart.
4. Section 655.43 Contact With Former U.S. Employees
    In this section, the Department proposes to require the employer to 
contact by mail or other effective means its former U.S. workers who 
were employed by the employer in the same occupation and the place of 
employment during the previous year to that listed in the Application 
for Temporary Employment Certification. This expands the 2008 Final 
Rule requirement beyond former U.S. workers that have been laid off 
within 120 days of the employer's date of need. Employers will not be 
required to contact those U.S. workers who were dismissed for cause or 
who abandoned the worksite prior to the completion of the last 
employment period. Each employer must provide its former U.S. employees 
a full disclosure of the terms and conditions of the job order, and 
solicit their return to the job. Employers will be required to maintain 
documentation to be submitted in the event of an audit or investigation 
sufficient to prove contact with its former employees consistent with 
document retention requirements under 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.)
    Since under the current regulations, most employers have a period 
of need of 10 months, the employer's former U.S. workers would be the 
same group of workers as those who were laid off at the end of work 
period. While the proposed requirement focuses on a longer period of 
time than the current requirement, it is unlikely that it will impose a 
significantly greater burden on employers. If an employer hires workers 
throughout the year to work for the period of its temporary need, it is 
unlikely that it will lay those workers off until the period of 
temporary need ends. Most, if not all workers who leave during the 
period of temporary need will have either quit or been terminated for 
cause, and the employer is not required to contact those workers. If 
for some reason, the employer did lay off some workers who were hired 
to work during the employer's period of temporary need, before the end 
of the period of need--e.g., additional workers who were hired for a 
period of peakload need within the longer period of temporary need, the 
Department believes that it would be most appropriate to give those 
workers the first opportunity to take the jobs. Generally, however, 
there will be little practical difference between the operation of the 
current regulation and the operation of the proposed regulation except 
perhaps for seasonal jobs. In a seasonal program, reaching back to 
contact former employees who were employed over a cycle of a full year 
would be the minimum amount of time necessary to capture all of the 
seasonal activities for which H-2B workers are sought. For example, an 
oceanfront resort employer hires workers at the start of its season in 
May and releases them in September. The employer then seeks H-2B 
workers the following March, more than 60 days before the usual date of 
need. Reaching that particular workforce requires the employer to reach 
back to the time those employees were hired--the previous May--to 
ensure that the group of employees most likely to return to the 
employment are given the opportunity to do so.
5. Section 655.44 Contact With Labor Organizations
    Where union representation is prevalent in the occupation or 
industry, the proposed rule would require the employer to formally 
contact the local union to inquire about the availability of qualified 
U.S. workers to fill the job opportunities for which the employer seeks 
to hire H-2B workers. The Department proposes to return to the long-
standing practice of the CO directing employers to seek union 
assistance to fill H-2B jobs, because unions have traditionally been 
recognized as a reliable source for referrals of U.S. workers. While 
the Department has significant experience with occupations and 
industries that are typically unionized, we seek in particular comment 
on the circumstances or criteria that would trigger an employer's 
obligation to contact the local union to seek U.S. workers.
    The employer must maintain documentation to be submitted in the 
event of an audit or investigation, consistent with document retention 
requirements under Sec.  655.56, demonstrating that it contacted the 
applicable organization and that the union either did or did not 
respond to the employer's request for referrals. Such documentation may 
consist of a copy of the letter sent to the organization and an 
attestation from the contacting employee of the employer documenting 
the lack of a response, or the contents of any response received. If 
the union did respond to the employer's request, the employer's 
recruitment report must also include the number and disposition of U.S. 
workers who were referred.
6. Section 655.45 Contact With Bargaining Representative and Posting 
Requirements and Other Contact Requirements
    The proposed rule requires all employers that are party to a CBA to 
provide written notice to the bargaining representative(s) of the 
employer's employees in the job classification in the area of intended 
employment. Where the employees in an occupation have a bargaining 
representative, the representative should be made aware of any job 
opportunities in that occupation. Seeking union assistance will help 
the employer in finding qualified U.S. workers who are available for 
the job opportunity for which the employer seeks to employ H-2B 
workers.
    The Department proposes requiring the employer to maintain 
documentation demonstrating compliance with this requirement, 
consistent with document retention requirements under Sec.  655.56. 
Additionally, the employer's recruitment report must confirm that the 
employer contacted the bargaining representative(s), including whether 
the organization referred qualified U.S. worker(s) and if so, how many 
workers were referred and their disposition.
    Where there is no bargaining representative(s) of the employer's 
employees, the proposed rule requires the employer to provide notice to 
the employer's employees of the job opportunities by posting their 
availability for at least 10 consecutive business days in at least 2 
conspicuous locations at the place(s) of anticipated employment, or in 
some other manner that provides reasonable notice. This requirement is 
new under the proposed rule, and is intended to ensure that each 
employer's existing U.S. workers receive timely notice of the job 
opportunities, therefore increasing the likelihood that those workers 
will apply for the available positions for the subsequent temporary 
period of need and that other U.S. workers, including former workers, 
will be more likely to learn of the job opportunities through word of 
mouth. The Department seeks comment on whether this requirement will 
maximize the number of U.S. workers who will be recruited to fill the 
vacancies for which H-2B workers are sought and other ways such 
notification may be effective.
    The Department is also proposing to have employers contact 
community-based organizations to be designated by the CO in the Notice 
of Acceptance, to disseminate the notice of the job

[[Page 15152]]

opportunity. Community-based organizations are an effective means of 
reaching out to domestic workers interested in specific occupations. 
The contact is to be performed when designated specifically by the CO, 
as appropriate to the job opportunity and the area of intended 
employment.
    The Department proposes to require that the employer to maintain 
documentation consistent with document retention requirements under 
Sec.  655.56, sufficient to prove compliance with this requirement. The 
documentation may consist of a copy of the posted notice and a 
statement identifying where and when the notice was posted.
7. Section 655.46 Additional Employer-Conducted Recruitment
    Where the CO determines that the employer-conducted recruitment, 
described in Sec. Sec.  655.42 through 655.45, is not sufficient to 
attract qualified U.S. workers who would be available to accept 
employment, the proposed rule authorizes the CO to require the employer 
to engage in additional recruitment activities. The Department believes 
that such additional recruitment may be necessary in such areas to 
ensure that unemployed U.S. workers, who may be capable of (and 
desirous of) performing the job duties, are afforded maximum access to 
those opportunities. The Department's intention in requiring additional 
recruitment including, where appropriate, in areas of substantial 
unemployment (ASU), is predicated on the belief that more recruitment 
will result in more opportunities for U.S. workers. Areas of 
substantial unemployment by their nature have a higher likelihood of 
worker availability; the Department's recognition of worker 
availability in these areas is a strong indicator that these open job 
opportunities may have a more receptive potential populations. This 
recruitment will be conducted in addition to and occur within the same 
time period as the circulation of the job order and other mandatory 
employer-conducted recruitment described above and would not by itself 
result in any delay in certification.
    The Department is not limiting additional recruitment only to job 
opportunities located in ASUs because additional recruitment might also 
be necessary where local employment patterns indicate a sudden increase 
in worker availability--e.g., a plant closure. The Department also is 
not making additional recruitment an absolute requirement, even in 
situations where the job opportunity is located in an ASU. This is 
essential to permit the Department to be able to determine the 
appropriate level of recruitment based on the specific situation. The 
Certifying Officers, with advice from the SWAs who are familiar with 
local employment patterns and real-time market conditions, are well-
positioned to judge where additional recruitment may or may not be 
required.
    For example, it may be reasonable to require additional recruitment 
for a job that requires little training or experience in an ASU, since 
a larger group of available workers would be qualified for the job. 
However, it may not be reasonable to require additional recruitment 
where the employer is unlikely to find qualified workers among the 
unemployed U.S. worker population, for example where the job is 
specialized and the local population is not known to have that 
expertise. The CO may have cause to require additional recruitment in 
other situations as well. This may depend upon area-specific 
conditions, natural disasters, or similar events that give rise to 
additional workers being available. For example, workers may be 
available as the result of a plant closure or change in a seasonal 
event. While the CO will not have time to review and determine a course 
of action in every single application, it is expected that the 
existence of such situations, known to the SWA and made known to the 
CO, would be used as factors in determining whether to impose such 
additional recruitment and what type of recruitment would best reach 
the population known to be available for H-2B job opportunities.
    The CO will describe in the Notice of Acceptance the types of 
additional recruitment efforts the employer will be required to 
undertake. Additional recruitment methods may include, but will not be 
limited to: additional print advertising; advertising on the employer's 
Web site or another Web site; contact with community-based 
organizations that have contact with potential worker populations; 
additional contact with labor unions; contact with faith-based 
organizations; and radio advertisements. In recognition of the 
invaluable SWA experience and expertise with local labor markets, the 
CO will consult with the SWA to determine the types of additional 
recruitment that may be appropriate for a particular job opportunity in 
the area of employment.
    The Department invites stakeholders and other interested members of 
the public to provide comments on these proposed additional recruitment 
methods, and provide the Department with examples of the types of 
recruitment typically conducted in specific industries, occupations, or 
job classifications. This information will assist the Department in 
developing appropriate additional recruitment sources and criteria.
    The Department is also proposing that the CO specify in the Notice 
of Acceptance the documentation or other supporting evidence the 
employer will be required to maintain as proof that the employer 
satisfied any additional recruitment requirements, consistent with 
document retention requirements under Sec.  655.56.
8. Section 655.47 Referrals of U.S. Workers
    The Department proposes to require SWAs to refer for employment 
individuals who have been informed of the details of the job 
opportunity and indicate that they are qualified and will be available 
for employment. Unlike under the 2008 Final Rule, which permitted 
potential applicants access to job order entries in each SWA's 
electronic system and self-referral to a specific job opportunity, SWA 
staff will provide all material terms and conditions contained in the 
job order to each applicant in order to ensure that the U.S. worker 
understands the job requirements and duties as well as the employer's 
obligations, including the additional worker protections proposed by 
this NPRM.
9. Section 655.48 Recruitment Report
    Consistent with the requirements of the 2008 Final Rule, the 
Department proposes to continue to require the employer to submit to 
the NPC a written, signed recruitment report. However, the Department 
proposes requiring the employer to send the recruitment report on a 
date specified by the CO in the Notice of Acceptance instead of at the 
time of filing the Application for Temporary Employment Certification. 
This change is in line with the proposed recruitment model under which 
the employer does not begin its recruitment until directed by the CO in 
the Notice of Acceptance.
    The remainder of this section sets out the information that the 
employer must include in the recruitment report. The Department 
proposes to require the employer to report on recruitment steps 
undertaken and their results. The proposed rule provides a detailed 
list of the specific information that must be included in the 
employer's recruitment report.
    The Department proposes to require the employer to update the 
recruitment report throughout the recruitment

[[Page 15153]]

period to ensure that the employer accounts for contact with each 
prospective U.S. worker. The employer does not need to submit the 
updated recruitment report but is required to retain it and make it 
available in the event of a post-certification audit, another Federal 
agency investigation, or upon request by DOL.

G. Labor Certification Determinations

1. Section 655.50 Determinations
    The Department proposes to retain the same requirements under this 
provision as provided in the 2008 Final Rule.
2. Section 655.51 Criteria for Certification
    The Department anticipates that the determination process for 
approving or denying each Application for Temporary Employment 
Certification will be simplified under the proposed rule through the 
pre-filing determination of temporary need. In the majority of cases, 
the Department's determination should rest on a finding that the 
employer has a valid H-2B Registration and has demonstrated full 
compliance with the requirements of this subpart. As under the 2008 
Final Rule, in ensuring that the employer met its recruitment 
obligations with respect to U.S. workers, the CO will treat as 
available all those individuals who were rejected by the employer for 
any reason other than a lawful, job-related reason. Additionally, the 
Department proposes to clarify that it will not grant certifications to 
employers that have failed to comply with final agency orders under the 
program.
3. Section 655.52 Approved Certification
    The Department proposes that the CO use next day delivery methods, 
and preferably, electronic mail, to send the Final Determination letter 
to the employer. The Department is doing so in an effort to expedite 
the transmittal of information and introduce efficiency and cost 
savings into the application determination process. The proposed rule 
provides that the CO will send the approved certification to the 
employer, with a copy to the employer's attorney or agent, if 
applicable. This is a departure from the 2008 Final Rule, which calls 
for the delivery of the original certification to the employer's 
attorney. The Department's proposed change in procedure is the result 
of years of OFLC program experience evidencing complications in the 
relationship between employers and their agents or attorneys. The 
Department does not intend to be involved in, or interfere with, the 
employer's relationship with its attorney or agent. However, the 
Department believes that because it is the employer that must attest to 
the assurances and obligations contained in the Application for 
Temporary Employment Certification and be ultimately responsible for 
upholding those assurances and obligations, the employer should receive 
and maintain the original approved certification.
4. Section 655.53 Denied Certification
    The proposed rule retains the general provisions for denying 
certifications from the 2008 Final Rule, except that the Department 
proposes that the CO will send the Final Determination letter by means 
guaranteeing next day delivery to the employer, with a copy to the 
employer's attorney or agent. Otherwise, the proposed rule continues to 
require the Final Determination letter to state the reason(s) that the 
certification was denied, cite the relevant regulatory provisions and/
or special procedures that govern, and provide the applicant with 
information sufficient to appeal the determination.
5. Section 655.54 Partial Certification
    The proposed rule retains the 2008 Final Rule provision explicitly 
providing that the CO may issue a partial certification, reducing 
either the period of need or the number of H-2B workers requested, or 
both. The proposed rule clarifies that the CO may reduce the number of 
workers certified by subtracting the number of qualified and available 
U.S. workers who have not been rejected for lawful job-related reasons 
from the total number of workers requested.
    The proposed rule also continues to permit the employer to request 
administrative review.
6. Section 655.55 Validity of Temporary Employment Certification
    The Department proposes to retain the provision that a temporary 
employment certification is only valid for the period specified. While 
the proposed rule continues to prohibit the employer from transferring 
the labor certification to another employer, the Department proposes to 
allow the employer to transfer the approved labor certification to a 
successor in interest in case of a merger or acquisition where the new 
employer is willing to continue to employ the workers certified and 
take on all of the legal obligations associated with the labor 
certification.
7. Section 655.56 Document Retention Requirements of H-2B Employers
    The Department proposes to add a section that delineates document 
retention requirements, including the period of time during which 
documents must be retained. Adding this section provides a single place 
in which to find all document retention requirements, thus eliminating 
the need to search for them in various sections of the regulatory text 
as currently necessary under the 2008 Final Rule.
    These document retention requirements apply to all employers filing 
an Application for Temporary Employment Certification, regardless of 
whether such applications have been certified, denied, or withdrawn. 
These records are invaluable to the Department in evaluating future 
applications filed by the employer as to whether it has demonstrated 
that no U.S. workers are available and that the alien's employment will 
not adversely affect wages and working conditions of similarly employed 
U.S. workers. In many such instances, the documents would allow the 
employer to demonstrate that it has met its obligations with respect to 
US workers that may have been recruited as well as other program 
requirements.

H. Post Certification Activities

    Proposed Sec. Sec.  655.60 through 655.63 concern actions an 
employer may take after an Application for Temporary Employment 
Certification has been adjudicated, including making a request for 
extension of certification, appealing a decision of the CO, and 
withdrawing an Application for Temporary Employment Certification. The 
Department also proposes to institute a new publicly-accessible 
electronic database of employers that have applied for H-2B 
certification that the Department will maintain.
1. Section 655.60 Extensions
    In this proposed section, the Department proposes to allow an 
employer to request an extension of the period of employment under 
limited circumstances involving weather conditions or other factors 
beyond the control of the employer. Under the proposed rule, there will 
be instances when an employer will have a reasonable need for an 
extension of the time period that was not foreseen at the time the 
employer originally filed the Application for Temporary Employment 
Certification. This provision will provide flexibility to the employer 
in the event of unforeseen circumstances while maintaining the 
integrity of the

[[Page 15154]]

certification and the preliminary determination of temporary need.
    The Department proposes that the employer would make its request to 
the CO in writing and would submit documentation showing that the 
extension is needed and that the employer could not have reasonably 
foreseen the need. Extensions would be available only to employers 
whose original certified period of employment is less than the maximum 
period allowable in this subpart and under DHS H-2B regulations. The 
extension may not result in a total work period exceeding 9 months 
under the proposed definition of temporary need for employers whose 
recurring need is seasonal, peakload, or intermittent, or 3 years for 
employers that have a one-time occurrence of temporary need, except in 
extraordinary circumstances. Extensions will only be granted if the 
employer demonstrates that the need for the extension arose from 
unforeseeable circumstances, such as weather conditions or other 
factors beyond the control of the employer (including unforeseen 
changes in market conditions).
    Upon receipt of the employer's request, the CO will inform the 
employer of its decision to grant or deny the request in writing. The 
employer may appeal the CO's denial of an extension under the 
administrative review provision of the proposed rule.
    The employer's assurances and obligations under the original 
approved temporary employment certification will continue to apply to 
workers recruited in connection with the Application for Temporary 
Employment Certification during the extended period of employment. The 
employer must meet its obligations which are based on the workers' 
partial or full completion of the extended work period.
    The Department proposes to require that the employer provide all 
its H-2B and corresponding U.S. workers a copy of the extension 
immediately upon approval. This requirement is intended to ensure that 
workers remain informed of all aspects of the job opportunity with the 
employer. Obtaining such an extension may require the employer to file 
an amended petition with USCIS to cover any additional periods of time 
granted.
2. Section 655.61 Administrative Review
    This proposed section sets forth the procedures for BALCA review of 
a decision of a CO. The substance of this section is the same as that 
in the 2008 Final Rule. However, the proposed section does not refer to 
the particular decision of the CO that may be appealed, such as the 
denial of the temporary labor certification. Rather, the proposed rule 
refers generally to the decisions of the CO that may be appealed, where 
authorized in this subpart. These decisions are identified in the 
sections of the rule that discuss the CO's authority and procedure for 
making that particular decision. Additionally, the proposed rule 
increases from 5 business days to 7 business days: The time in which 
the CO will assemble and submit the appeal file in Sec.  655.61(b); the 
time in which the CO may file 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. Section 655.62 Withdrawal of an Application for Temporary Employment 
Certification
    Under the proposed rule, an employer may withdraw an Application 
for Temporary Employment Certification before it is adjudicated.
4. Section 655.63 Public Disclosure
    This proposed section would codify the Department's practice of 
maintaining, apart from the electronic job registry, an electronic 
database accessible to the public containing information on all 
employers that apply for H-2B labor certifications. The database will 
continue to include information such as the number of workers the 
employer requests on an application, the date an application is filed, 
and the final disposition of an application. The continued 
accessibility of such information will increase the transparency of the 
H-2B program and process and provide information for those currently 
seeking such information from the Department through Freedom of 
Information Act (FOIA) requests.

I. Integrity Measures

    Proposed Sec. Sec.  655.70 through 655.73 have been grouped 
together under the heading Integrity Measures, describing those actions 
the Department proposes to take to ensure that an Application for 
Temporary Employment Certification filed with the Department in fact 
complies with the requirements of this subpart.
1. Section 655.70 Audits
    This section outlines the proposed process under which the 
Department will conduct audits of adjudicated applications. These 
provisions are similar to the 2008 Final Rule. The Department's 
regulatory mandate to ensure that qualified workers in the United 
States are not available and that the alien's employment will not 
adversely affect wages and working conditions of similarly employed 
U.S. workers serves as the basis for the Department's authority to 
audit adjudicated applications, even if the employer's application was 
ultimately withdrawn or denied. Adjudicated applications include those 
that have been certified, denied, or withdrawn after certification. 
There is real value in the Department's ability to audit those 
applications because they could be used to establish a record of 
employer compliance or non-compliance with program requirements and to 
better inform the Department in its determinations to investigate or 
debar an employer or its agent or attorney.
    Under the proposed rule, the OFLC has the discretion to choose 
which Application for Temporary Employment Certification will be 
audited. When an Application for Temporary Employment Certification is 
selected for audit, the proposed rule calls for the CO to send a letter 
to the employer and if appropriate, its attorney or agent, listing the 
documentation the employer must submit and the date by which the 
documentation must be sent to the CO.
    An employer's failure to comply with the audit process may result 
in the revocation of its certification or in debarment, under proposed 
Sec. Sec.  655.72 and 655.73, or require assisted recruitment in future 
filings of an Application for Temporary Employment Certification, as 
set forth in Sec.  655.71. The CO may provide any findings made or 
documents received in the course of the audit to DHS or other 
enforcement agencies, as well as WHD. The CO may also refer any 
findings that an employer discriminated against an eligible U.S. worker 
to the Department of Justice, Civil Rights Division, Office of Special 
Counsel for Unfair Immigration Related Employment Practices.
2. Section 655.71 CO-Ordered Assisted Recruitment
    The proposed rule permits the OFLC to determine that a violation 
that does not warrant debarment has occurred and, as a result, require 
the employer to participate in assisted recruitment. This provision 
will also assist those employers that due to either program 
inexperience or confusion, have made mistakes in their Application for 
Temporary Employment Certification that indicate a need for further 
assistance from the Department.
    Under this provision the CO will notify the employer (and its 
attorney or agent, if applicable) in writing of the requirement to 
participate in assisted

[[Page 15155]]

recruitment for any future filed Application for Temporary Employment 
Certification for a period of up to 2 years. The assisted recruitment 
will be at the discretion of the CO, determined upon the unique 
circumstances of the employer.
    The assisted recruitment may consist of, but is not limited to, 
requiring the employer to conduct additional recruitment, reviewing the 
employer's advertisements before posting and directing the employer 
where such advertisements are to be placed and for how long, requesting 
and reviewing copies of all advertisements after they have been posted, 
proof of contact with past U.S. workers, and proof of SWA referrals of 
U.S. workers. If an employer fails to comply with the requirements of 
this section, the employer's application will be denied and the 
employer may be debarred from future program participation.
    The Department invites stakeholders and other interested members of 
the public to provide comments and suggestions of industry specific 
recruitment and advertising sources to be used by the CO in 
administering assisted recruitment in the H-2B program under this 
section.
3. Section 655.72 Revocation
    The Department proposes to include a provision which would allow 
the Administrator, OFLC to revoke an approved H-2B temporary labor 
certification. Under the proposed section, the Administrator, OFLC may 
revoke certification if he/she finds that the issuance of the temporary 
employment certification was not justified due to fraud or willful 
misrepresentation of a material fact in the application process, as 
defined in proposed Sec.  655.73(d). The Administrator, OFLC may also 
revoke certification if he/she finds that the employer substantially 
failed to comply with any term or condition of the approved temporary 
employment certification, as further defined in proposed Sec.  
655.73(d) and (e). Last, the Administrator, OFLC may also revoke 
certification if he/she finds that the employer failed to cooperate 
with a DOL investigation or with a DOL official performing an 
investigation, inspection, audit, or law enforcement function, or that 
the employer failed to comply with one or more sanctions or remedies 
imposed by WHD, or with one or more decisions or orders of the 
Secretary, with respect to the H-2B program.
    The proposed procedures for revocation begin with the 
Administrator, OFLC sending the employer a Notice of Revocation. Upon 
receiving the Notice of Revocation, the employer has two options: it 
may submit rebuttal evidence to the CO or appeal the revocation under 
the procedures in proposed 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, the Administrator, OFLC will review it and 
inform the employer of his final determination on revocation within 10 
business days of receiving the rebuttal evidence. If the Administrator, 
OFLC determines that the certification should be revoked, the 
Administrator, OFLC will inform the employer of its right to appeal 
under proposed Sec.  655.61. The employer must file the appeal of the 
Administrator, OFLC's determination within 10 business days, or the 
Administrator, OFLC's decision becomes the final decision of the 
Secretary and will take effect immediately after the 10-day period.
    If the employer chooses to appeal either in lieu of submitting 
rebuttal evidence, or after the Administrator, OFLC makes a 
determination on the rebuttal evidence, the appeal will be conducted 
under the procedures contained in proposed 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 
labor certification is ultimately revoked, the Administrator, OFLC will 
notify DHS and the Department of State.
    Proposed Sec.  655.72(c) lists an employer's continuing obligations 
if the employer's H-2B certification is revoked. The obligations 
include reimbursement of actual inbound transportation, visa, and other 
expenses (if they have not been paid), the worker's outbound 
transportation expenses, payment to the worker of the amount due under 
the three-fourths guarantee as required by proposed Sec.  655.20(f), 
and any other wages, benefits, and working conditions due or owing to 
the worker under this subpart.
4. Section 655.73 Debarment
    The Department proposes to revise the existing debarment provision 
to strengthen the enforcement of H-2B labor certification requirements 
and to clarify the basis under which debarment may be applied. Proposed 
Sec.  655.73(a) states that the Administrator, OFLC may debar an 
employer if s/he finds that the employer: willfully misrepresented a 
material fact in its H-2B Registration, approved Application for 
Temporary Employment Certification, or H-2B Petition; substantially 
failed to meet any of the terms and conditions of H-2B Registration, 
approved Application for Temporary Employment Certification, or H-2B 
Petition; or willfully misrepresented a material fact to the Department 
of State during the visa application process. Proposed Sec.  655.73(a) 
defines a ``substantial failure'' to mean a willful failure to comply 
that constitutes a significant deviation from the terms and conditions 
of such documents. The Administrator, OFLC may not issue future labor 
certifications to an employer represented by an agent or attorney who 
the Administrator, OFLC finds has participated in an employer's 
substantial violation. The Department is proposing that the 
Administrator, OFLC may not debar an employer, attorney, or agent for 
less than 1 year or more than 5 years from the date of the Department's 
final debarment decision.
    Proposed Sec.  655.73(d) provides the standard for determining 
whether a violation was willful. Proposed Sec.  655.73(e) describes the 
factors that the Administrator, OFLC may consider in determining 
whether a violation constitutes a significant deviation from the terms 
and conditions of the H-2B Registration, approved Application for 
Temporary Employment Certification, or H-2B Petition.
    This list of factors is not exclusive, but it offers some guidance 
as to what the Administrator, OFLC generally considers when determining 
whether a violation would warrant debarment. The factors are the same 
factors used by WHD to determine whether a violation is significant 
under 29 CFR 503.19(c).
    Proposed Sec.  655.73(f) provides a comprehensive but not 
exhaustive list of violations that would meet the standards in 
Sec. Sec.  655.73(d)-(e) and therefore warrant debarment. The text of 
proposed Sec.  655.73(f) is a modified list of debarrable violations 
from the 2008 Final Rule. The most significant differences are that a 
single act, as opposed to a pattern or practice of such actions, would 
be sufficient to merit debarment and that the following violations 
would be considered debarrable:
     Improper layoff or displacement of U.S. workers or workers 
in corresponding employment at Sec.  655.73(f)(4);
     A violation of the requirements of Sec.  655.20(o) or (p) 
concerning fee shifting and related matters at Sec.  655.73(f)(10);
     A violation of any of the anti-discrimination provisions 
listed in 29 CFR 503.16 and Sec.  655.73(f)(11);

[[Page 15156]]

     Failure to comply with the assisted recruitment period; 
and
     A material misrepresentation of fact during the 
registration or application process.
    Although many of the debarrable violations in the 2008 Final Rule 
are described as ``significant failures,'' while many of the violations 
listed under proposed Sec.  655.73(f) are simply described as 
``failures,'' the Administrator, OFLC will consider whether all 
violations are sufficiently significant to warrant debarment based on 
the criteria in proposed Sec.  655.73(e) or meet the definition of 
willful at Sec.  655.73(d).
    The independent debarment authority of the WHD is a new feature of 
the proposed rule. See proposed 29 CFR 503.24 and the corresponding 
preamble. Because OFLC and WHD have concurrent debarment authority, 
some changes have been proposed to the OFLC debarment procedures to 
ensure that the procedures are consistent with the WHD debarment 
procedures. However, an important distinction between the OFLC and WHD 
debarment procedures is that the WHD debarment procedures do not 
provide for a 30-day rebuttal period because WHD debarments arise from 
investigations during which the employer has ample opportunity to 
submit any evidence and arguments in its favor.
    Proposed Sec.  655.73(g) describes the procedures that will be 
followed in the event of an OFLC debarment. These procedures are 
substantively the same as the debarment procedures contained in the 
2008 Final Rule, with the following exceptions:
    In Sec.  655.73(g)(2), the Department proposes that an employer be 
provided 30 calendar days from the date the Notice is issued to submit 
rebuttal evidence and that the Administrator, OFLC be provided 30 
calendar days from the date of receiving the rebuttal evidence to issue 
a final determination.
    In Sec.  655.73(g)(4), the Department proposes that the ALJ will 
prepare his or her decision following a debarment hearing within 60 
days after completion of the hearing and closing of the record. This 
time constraint is consistent with the proposed debarment hearing 
procedures of WHD.
    In Sec.  655.73(g)(6), the Department proposes to remove the 
language that provides that ``[i]f the [Administrative Review Board 
(ARB)] fails to provide a decision within 90 days from the notice 
granting the petition, the ALJ's decision will be the final decision of 
the Secretary.'' Given the serious consequences of debarment, the 
Department did not want to eliminate a party's appeal rights simply 
because the ARB failed to act in the time frame provided.
    Proposed Sec.  655.73(h) clarifies that while WHD and OFLC will 
have concurrent debarment jurisdiction, the two agencies will 
coordinate their activities so that a specific violation for which 
debarment is imposed will be cited in a single debarment proceeding.
    Last, proposed 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 the Department for the time period in the final 
debarment decision. Many employers, agents and attorneys participate in 
more than one foreign labor certification program administered by the 
Department. However, under the current regulation, a party that is 
debarred under the H-2B program may continue to file applications under 
the Department's other foreign labor programs. This proposal will allow 
the Department to refuse to accept applications filed by or on behalf 
of a debarred party under the H-2B program in any of the Department's 
foreign labor certification programs.

Addition of 29 CFR Part 503

    Effective January 18, 2009, pursuant to INA section 214(c)(14)(B), 
DHS transferred to the Secretary enforcement authority for the 
provisions in section 214(c)(14)(A)(i) of the INA which govern 
petitions to admit H-2B workers. The 2008 Final Rule contains the 
regulatory provisions governing ETA's processing of the employer's 
Application for Temporary Employment Certification and the WHD's 
enforcement responsibilities in ensuring that the employer has not 
willfully misrepresented a material fact or substantially failed to 
meet a condition of such application.
    The Department has carefully reviewed the 2008 Final Rule and 
proposes substantive changes to both the certification and enforcement 
processes to enhance protection of U.S. and H-2B workers.
    This proposed rule would add a new part, 29 CFR part 503, to 
further define and clarify the protections for workers. This proposal 
and the proposed changes in 20 CFR part 655, subpart A add workers in 
corresponding employment to the protected worker group, impose 
additional recruitment obligations and employer obligations for laid 
off U.S. workers, and increase wage protections for H-2B workers and 
workers in corresponding employment. Additionally, the Department 
proposes to enhance the WHD's enforcement role in administrative 
proceedings following a WHD investigation.
    To ensure consistency and clear delineation of responsibilities 
between Department agencies implementing and enforcing H-2B provisions, 
this new part 503 has been written in close collaboration with ETA and 
is being published concurrently with ETA's proposals in 20 CFR part 
655, subpart A to amend the employer certification process.

A. General Provisions and Definitions

    Proposed Sec. Sec.  503.0 through 503.8 provide general background 
information about the H-2B program and its operation. Proposed 
Sec. Sec.  503.1 and 503.2 are similar to the current regulations at 20 
CFR 655.1 and 655.2. Proposed Sec.  503.3 describes how the Department 
will coordinate both internally and with other agencies.
1. Section 503.4 Definition of Terms
    Under this proposed section, definitions are identical to those 
contained in proposed 20 CFR part 655, Subpart A, except that this 
proposed section contains only those definitions that are applicable to 
this part. The preamble to 20 CFR part 655, subpart A contains the 
relevant discussion of those definitions.
2. Section 503.5 Temporary Need
    Under this proposed section, the provision of temporary need is 
identical to the requirements set forth in proposed 20 CFR 655.6.
3. Section 503.6 Waiver of Rights Prohibited
    The Department proposes to add new language that would prohibit any 
employer from seeking to have workers waive or modify any rights 
granted them under these regulations. This proposed paragraph would, 
with limited exceptions, void any agreement purporting to waive or 
modify such rights. This proposed language is consistent with similar 
prohibitions against waiver of rights under other laws, such as the 
Family and Medical Leave Act, see 29 CFR 825.220(d), and the H-2A 
program, see 29 CFR 501.5.
4. Section 503.7 Investigation Authority of Secretary
    The Department proposes to retain the current authority established 
under 20 CFR 655.50, affirming WHD's authority to investigate employer 
compliance with these regulations and WHD's obligation to protect the 
confidentiality of complainants. This proposed section

[[Page 15157]]

also discusses the reporting of violations.
5. Section 503.8 Accuracy of Information, Statements, Data
    Under this proposed section, making false representations to the 
government would make an entity subject to penalties, including a fine 
of up to $250,000 and/or up to 5 years in prison.

B. Enforcement Provisions

1. Section 503.15 Enforcement
    Under this proposed section, the type of workers entitled to 
protection by WHD enforcement is expanded to include workers in 
corresponding employment, including those hired outside the 10-day 
recruitment period as covered in the current rule. This is necessary to 
ensure that U.S. workers are not adversely affected by the employment 
of H-2B workers.
2. Section 503.16 Assurances and Obligations of H-2B Employers
    Under this section, the Department proposes requirements for 
employers seeking to participate in the H-2B program. These provisions 
are identical to those discussed in proposed 20 CFR 655.22, with the 
exception of an additional paragraph (aa), Cooperation with 
Investigators. In this proposed paragraph, the Department adds to the 
employer obligations the existing requirement in 20 CFR 655.50(c) that 
the employer cooperate in any administrative or enforcement 
proceedings. The provision states that the employer will cooperate with 
any employee of the Secretary exercising or attempting to exercise the 
authority delegated to the Department. Adding this provision to the 
list of employer obligations will facilitate enforcement if an employer 
fails to cooperate and this failure is determined to be a violation, 
consistent with the standards in Sec.  503.19. The requirements for 
employer cooperation are set forth more fully in Sec.  503.25.
    The preamble to 20 CFR part 655, subpart A contains the relevant 
discussion of the other assurances and obligations for employers 
participating in the H-2B program.
3. Section 503.17 Documentation Retention Requirements of H-2B 
Employers
    The NPRM proposes to consolidate in Sec.  503.17 the documentation 
retention requirements previously found throughout 20 CFR part 655, 
subpart A. This proposal requires the retention and availability of 
certain documentation demonstrating compliance with the program's 
requirements. Documents must be retained in hard copy for a period of 3 
years from the certification date if the Application for Temporary 
Employment Certification was approved, 3 years from the determination 
date if it was denied, or 3 years from the day the Department received 
the letter of withdrawal if it was withdrawn. The proposed rule 
contains several new document retention requirements.
    Under paragraph (c)(2)(iii) of this section, employers are required 
to retain evidence of contact with former U.S. workers as specified 
under proposed 20 CFR 655.43. Under paragraph (c)(2)(v) of this 
section, employers are required to retain a copy of the posting of the 
job opportunity in circumstances where there is no bargaining 
representative, as specified in proposed 20 CFR 655.45(b).
    Under paragraph (c)(2)(vi) of this section, employers are required 
to retain evidence of additional employer-conducted positive 
recruitment activities as specified in proposed 20 CFR 655.46.
    Paragraph (c)(11) of this section requires employers to retain the 
approved H-2B Petition, as defined under proposed Sec.  503.4, 
including all accompanying documents. Under paragraph (c)(5) of this 
section, employers are required to retain records of each worker's 
earnings, hours worked, and other information as specified under 
proposed Sec.  503.16(i).
    Paragraph (c)(7) of this section concerns proposed Sec.  503.16(w), 
which requires that employers contact and offer the H-2B job 
opportunity to former U.S. workers employed during the previous year in 
the occupation and at the place of employment, including those laid off 
within 120 days of the date of need. The employer must retain evidence 
of contact with each U.S. worker, documentation that each U.S. worker 
had been offered the job, and documentation that each U.S. worker who 
was not hired either turned down the offer or was rejected for legal 
reasons.
    Under paragraph (c)(8) of this section, employers are required to 
retain the written contract prohibiting a foreign labor contractor from 
receiving prohibited payments as specified in proposed Sec.  503.16(p). 
Under paragraph (c)(9) of this section, employers are required to 
retain the written notice informing OFLC that an H-2B worker or worker 
in corresponding employment has separated from employment before the 
end date specified in the approved Application for Temporary Employment 
Certification (see proposed Sec.  503.16(y)).
    Proposed paragraph (c)(10) of this section keeps the requirement 
currently found under 20 CFR 655.15(e) related to retaining a copy of 
the job order. The Department would also require employers to retain a 
copy of the H-2B Registration and Application for Temporary Employment 
Certification. The proposed rule retains the requirement currently in 
20 CFR 655.50(c) that employers make all records available within 72 
hours following notice from the Administrator, WHD.
    The Department believes it is important to require that such 
records be maintained and made available, as in other enforcement 
programs, so that in the event of an investigation the Department is 
able to determine compliance or, in the event of violations, the nature 
and extent of the violations. The Department believes that this 
proposed rule would not be burdensome to employers as this section does 
not require employers to create any new documents but simply to 
preserve those documents that are already required for applying for 
participation in the H-2B program.
4. Section 503.18 Validity of Temporary Employment Certification
    The Department proposes to include clarifying edits to the current 
20 CFR 655.34 (a) and (b), providing the time frame and scope for which 
an Application for Temporary Employment Certification is valid.
5. Section 503.19 Violations
    Under this proposed section, the Department specifies the 
violations it may cite as a result of an investigation. These 
violations are similar to those in 20 CFR 655.60, as they conform to 
the statutory provisions in 8 U.S.C. 1184(c)(14)(A). Specifically, 
proposed paragraph (a)(1) of this section retains the provision that 
the Department must determine whether a willful misrepresentation of a 
material fact occurred and specifies that such misrepresentation must 
have occurred on the H-2B Registration, the Application for Temporary 
Employment Certification, or the H-2B Petition. Similar to the current 
provisions at 20 CFR 655.60(b) and 655.65(d), proposed paragraph (a)(2) 
of this section specifies that the Department must determine whether 
the employer substantially failed to meet any of the conditions of the 
H-2B Registration, Application for Temporary Employment Certification, 
or H-2B Petition, and defines a ``substantial failure'' to mean a 
willful failure to comply that constitutes a significant deviation from 
the terms and conditions of such documents.

[[Page 15158]]

    Under proposed paragraph (a)(3) of this section, the Department 
clarifies that a willful misrepresentation of a material fact to 
Department of State during the visa application process is also 
considered to be a violation, similar to 20 CFR 655.60(c). This 
corrects an inadvertent drafting error in the 2008 Final Rule.
    Proposed paragraph (b) of this section sets out when a violation 
qualifies as willful. Proposed paragraph (c) of this section provides 
guidance on determining whether a failure to comply constitutes a 
significant deviation from the terms and conditions of the H-2B 
Registration, Application for Temporary Employment Certification, or H-
2B Petition, and provides a non-exhaustive list of factors that the 
Administrator, WHD may consider. The factors are the same factors used 
by OFLC to determine whether to initiate debarment under proposed 20 
CFR 655.73 and are similar to the factors used by WHD to determine the 
amount of CMPs to be assessed under proposed Sec.  503.23.
6. Section 503.20 Sanctions and Remedies--General
    The proposed rule addresses the Department's authority to pursue 
sanctions and remedies in response to an employer violation that meets 
the standards set forth in proposed Sec.  503.19, and identifies 
actions the Department can take if the Administrator, WHD determines 
that a violation has occurred. Most remedies available to WHD have not 
changed. They include, but are not limited to, payment of back wages, 
including recovery of prohibited fees paid or impermissible deductions; 
enforcement of the provisions of the job order; assessment of CMPs; 
make-whole relief for any person who has been discriminated against; 
and reinstatement and make-whole relief for any U.S. worker who has 
been improperly rejected for employment, laid off, or displaced. In 
addition, this NPRM would give WHD concurrent debarment authority with 
ETA to prohibit employers, attorneys and agents from participating in 
the H-2B program for certain substantial and willful violations. This 
new authority is addressed in detail in proposed Sec.  503.24 below. 
The minimum debarment period would be 1 year and the maximum would be 5 
years. Finally, the proposed rule specifies that the employer or, if 
applicable, the successor in interest, is liable for all the remedies 
as a result of a violation.
7. Section 503.21 Concurrent Actions
    Under this proposed section, the Department clarifies the different 
roles and responsibilities of OFLC and WHD, and notes that both 
agencies have concurrent jurisdiction to impose debarment. Section 
503.3(c) is intended to protect the employer from being debarred by 
both entities for a single violation.
8. Section 503.22 Representation of the Secretary
    The proposed rule identifies the Solicitor of Labor and authorized 
representatives as the parties who would represent WHD and the 
Secretary in all administrative hearings under 8 U.S.C. 1184(c)(14) and 
these proposed regulations.
9. Section 503.23 Civil Money Penalty Assessment
    The Department proposes to retain most of the language currently in 
20 CFR 655.65(b), (d) and (g) on CMP assessments and the maximum amount 
of penalties that may be assessed per violation, which remains 
unchanged at $10,000, the statutory limit under 8 U.S.C. 
1184(c)(14)(A). The assessment of the maximum penalties available would 
not be mandatory, but rather based on regulatory guidelines in proposed 
Sec.  503.23(e) and the facts of each individual case. Higher penalty 
amounts would be reserved for willful failures resulting in harm to 
U.S. workers. The Department believes that its authority to assess CMPs 
will help ensure that employers meet their obligations under the H-2B 
program.
    The NPRM also contains additional and clarifying language 
specifying the violations that are subject to CMP assessment if they 
meet the standards described in Sec.  503.19. The Department proposes 
to include the following provisions:
    Paragraph (a) of this section clarifies that WHD may find a 
separate violation for each failure to pay an individual worker 
properly or to honor the terms or conditions of a worker's employment;
    Paragraph (b) of this section proposes that employers that violate 
wage requirements are subject to CMPs and defines the amount of wage-
related penalties;
    Paragraph (c) of this section proposes that WHD may assess CMPs for 
employers that improperly terminate or fail to hire qualified U.S. 
workers and defines the amount of these penalties;
    Paragraph (d) of this section proposes that WHD may assess CMPs for 
any other violation that meets the standards described in Sec.  503.19; 
and
    Paragraph (e) of this section retains the language from 20 CFR 
655.65(g) regarding the factors that would influence the amount of CMPs 
the Department assesses. These factors continue to include, among 
others, the harm to U.S. workers; the number of H-2B workers, workers 
in corresponding employment, or improperly rejected U.S. applicants 
affected; the employer's commitment to future compliance; and whether 
the violation brought the employer financial gain.
10. Section 503.24 Debarment
    The NPRM proposes strengthening and streamlining the enforcement of 
the H-2B program's requirements by extending to WHD the authority 
already held by OFLC to debar H-2B employers. The independent debarment 
authority of WHD is a new feature of the proposed rule.
    Proposed Sec.  503.24(a) states that the Administrator, OFLC will 
not issue future labor certifications to an employer if the 
Administrator, WHD finds that the employer committed a violation that 
meets the standards of Sec.  503.19. Proposed Sec.  503.24 provides a 
comprehensive but not exhaustive list of violations that could warrant 
debarment where the standards set forth in Sec.  503.19 are met, and is 
similar to the list of debarrable violations from the 2008 Final Rule, 
at 20 CFR 655.31. The most significant differences are that the 
Department now proposes that a single act, as opposed to a pattern or 
practice of such actions, would be sufficient to merit debarment and 
that the following violations may be considered debarrable:
    Improper layoff or displacement of U.S. workers or workers in 
corresponding employment (Sec.  503.24(a)(iv));
    A violation of the requirements of Sec.  503.16(o) and (p) 
concerning prohibited fees (Sec.  503.24(a)(viii));
    A violation of any of the anti-discrimination provisions listed in 
Sec.  503.16(r) (Sec.  503.24(a)(ix)); and
    A willful misrepresentation of a material fact during the 
registration or application process.
    Proposed Sec.  503.24(b) provides that the Administrator, OFLC may 
not issue future labor certifications to an employer represented by an 
agent or attorney who the Administrator, WHD finds has participated in 
an employer's violation. The Department proposes in Sec.  503.24(c) 
that the Administrator, OFLC may not debar an employer, attorney, or 
agent for less than 1 year or more than 5 years from the date of the 
Department's final debarment decision.
    Proposed Sec.  503.24(d) describes the procedures that will be 
followed in the event of WHD debarment, cross-referencing the 
administrative proceedings provided in Subpart C.

[[Page 15159]]

    Proposed Sec.  503.24(e) clarifies that while WHD and OFLC will 
have concurrent debarment jurisdiction, the two agencies may coordinate 
their activities so that a specific violation for which debarment is 
imposed will be cited in a single debarment proceeding. Because OFLC 
and WHD would have concurrent debarment jurisdiction, some changes have 
been proposed to OFLC's debarment procedures (see proposed language at 
20 CFR 655.73 and the corresponding preamble) to ensure that OFLC's and 
WHD's debarment procedures are consistent with each other. However, an 
important distinction between the OFLC and WHD debarment procedures is 
that the WHD debarment procedures do not provide for a 30-day rebuttal 
period because WHD debarments arise from investigations during which 
the employer has ample opportunity to submit any evidence and arguments 
in its favor.
    Last, proposed Sec.  503.24(f) provides that an employer, agent, or 
attorney who is debarred by OFLC or WHD from the H-2B program will also 
be debarred from all other foreign labor programs administered by the 
Department for the same period of time set forth in the final debarment 
decision. Many employers, agents, and attorneys participate in more 
than one foreign labor certification program administered by the 
Department. However, under the current regulation, a party that is 
debarred under the H-2B program may continue to file applications under 
the Department's other foreign labor certification programs. This 
proposal will allow the Department to refuse to accept applications 
filed by or on behalf of a debarred party under the H-2B program in any 
of the Department's foreign labor certification programs.
11. Section 503.25 Failure To Cooperate With Investigators
    The proposed rule defines and expands the penalties for an 
employer's (or its agent's or attorney's) failure to cooperate with a 
WHD investigation. WHD's remedies for such a failure would include 
recommending revocation to OFLC of an employer's existing Application 
for Temporary Employment Certification, and/or debarring an employer 
from future certifications for up to 5 years, and/or assessing CMPs. 
The proposed debarment maximum of 5 years is an increase from the 
current maximum of 3 years.
12. Section 503.26 Civil Money Penalties--Payment and Collection
    The Department proposes to revise the language instructing 
employers how to submit payment of any CMPs owed. This section is 
administrative in nature and does not propose any substantive changes.

C. Administrative Proceedings

    The NPRM proposes generally to adopt the applicable administrative 
proceedings in current 20 CFR 655.70-655.80. The NPRM proposes few 
significant changes to the administrative proceedings from the 2008 
Final Rule. Many of the changes were made to bring clarity to the 
administrative proceedings that will govern H-2B hearings, and to 
achieve general consistency with the procedural requirements applicable 
to H-2A proceedings.
    In Sec.  503.50, the Department proposes that the ALJ will prepare 
a decision following a debarment hearing within 60 days after 
completion of the hearing and closing of the record. This time 
constraint is consistent with the newly-proposed debarment hearing 
procedures of the OFLC. In Sec.  503.55 the Department proposes to 
remove the language from the 2008 Final Rule, 20 CFR 
655.31(e)(5)(iii)(D), that provides that ``[i]f the ARB fails to 
provide a decision within 90 days from the notice granting the 
petition, the ALJ's decision will be the final decision of the 
Secretary.''
    In proposed Sec. Sec.  503.40, 503.41(a), 503.42(a), and 503.50(e), 
the term ``unpaid wages'' is replaced with the term ``monetary relief'' 
to reflect the fact that WHD may seek to recover other types of relief, 
such as if an employer requires an H-2B employee to pay his/her own 
visa fees and other related government-mandated fees.
    Section 503.43(c) proposes to change the number of days an employer 
has to request an administrative hearing from 15 calendar days after 
the determination to 30 calendar days after the date of the 
determination. Under Sec.  503.48(b) the NPRM proposes to change the 
time requirement for the ALJ to notify all parties of the date, time, 
and place of the hearing from 14 calendar days to 30 calendar days.

IV. Administrative Information

A. Executive Order 12866

    Under Executive Order (E.O.) 12866, the Department must determine 
whether a regulatory action is significant and, therefore, subject to 
the requirements of the E.O. and to review by the Office of Management 
and Budget (OMB). Section 3(f) of the E.O. defines an economically 
significant regulatory action as an action that is likely to result in 
a rule that: (1) Has an annual effect on the economy of $100 million or 
more, or adversely and materially affects a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local or tribal governments or communities (also 
referred to as economically significant); (2) creates serious 
inconsistency or otherwise interferes with an action taken or planned 
by another agency; (3) materially alters the budgetary impacts of 
entitlement grants, user fees, or loan programs, or the rights and 
obligations of recipients thereof; or (4) raises novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the E.O.
    The Department has determined that this NPRM is not an economically 
significant regulatory action under section 3(f)(1) of E.O. 12866. 
Regardless of whether the benefits of a rule exceed its costs, the rule 
is still considered economically insignificant under E.O. 12866. This 
regulation would not adversely affect the economy or any sector 
thereof, productivity, competition, jobs, the environment, or public 
health or safety in a material way. In fact, this NPRM is intended to 
provide employers with clear and consistent guidance on the 
requirements for participation in the H-2B worker program. The 
Department, however, has determined that this NPRM is a significant 
regulatory action under sec. 3(f)(4) of the E.O. and, accordingly, OMB 
has reviewed this NPRM.
1. Need for Regulation
    The Department has determined for a variety of reasons that a new 
rulemaking effort is necessary for the H-2B program. The Department 
believes that the policy underpinnings of the 2008 Final Rule, e.g. 
streamlining the H-2B process to defer many determinations of program 
compliance until after an application has been adjudicated, does not 
provide an adequate level of protection for either U.S. or foreign 
workers.
    The Department believes that there are insufficient worker 
protections in the current attestation-based model in which employers 
attest, but do not fully demonstrate, that they have performed an 
adequate test of the U.S. labor market. Even in the first year of the 
operation of the attestation-based system, it has come to the 
Department's attention that employers are attesting to compliance with 
program obligations with which they have not complied, and that 
employers are not recruiting U.S. workers in accordance with 
established

[[Page 15160]]

policies. The Department obtained this information in the processing 
and auditing of cases and in complaints from U.S. workers brought since 
the effective date of the 2008 Final Rule. The identified violations 
come from different geographical sectors and relate to both new and 
experienced filers. In light of such non-compliance, the Department has 
chosen to revisit the use of attestations, even with the use of post-
certification program integrity measures. We would emphasize that the 
return to the certification model which was used in the program for its 
entire history until January 2009, and which was recently reintroduced 
into the H-2A program, creates no significant additional burdens on 
employers. It does not change the nature of the obligations with which 
employers must comply, or the documentation that employers must 
maintain, but merely adjusts the timing and circumstances under which 
that documentation, the evidence of compliance with those obligations, 
must be produced. While this change produces no additional burden on 
employers, it will substantially enhance overall program integrity by 
allowing the Department to identify potential problematic applications 
at the earliest possible time. It is also much less onerous on 
employers to be required to amend a deficient or incomplete application 
before it is certified, than to subject the employer to the potential 
for back pay, civil money penalties or debarment, if the deficiencies 
in the application are not identified and the job opportunity was not 
properly made available to U.S. workers.
    For these reasons, discussed in more detail above, the Department 
is proposing the changes contained in the NPRM.
2. Alternatives
    The Department has considered a number of alternatives: (1) To 
propose the policy changes contained in this NPRM; (2) to take no 
action, that is, to leave the 2008 Final Rule intact; and (3) to 
propose a number of other options discussed in more detail below. We 
believe that this NPRM retains the best features of the 2008 Final Rule 
and proposes additional provisions to best achieve the Department's 
policy objectives, consistent with its mandate under the H-2B program. 
We request comments from the public on the best alternatives that would 
balance the needs of businesses with providing adequate protections to 
U.S. and H-2B workers. We are also interested in any available 
information regarding the number of U.S. workers that would benefit 
from increased opportunity for jobs.
    The Department considered alternatives to a number of program 
proposals. First, the Department considered another alternative to the 
definition of full-time work (40 hours instead of the proposed 35 
hours), as discussed in more detail in the preamble to proposed Sec.  
655.5.
    Second, this NPRM allows certain deductions from a worker's 
earnings for the provision of items that are primarily for the benefit 
of the H-2B employer, as long as they do not bring the worker's actual 
wages paid below the H-2B required wage level. This is a departure from 
the rule under the FLSA, which specifies the Federal minimum wage as 
the floor beneath which such deductions cannot lower a worker's wages 
paid. In drafting this NPRM, the Department considered using the 
Federal minimum wage as the floor, but believes that the H-2B offered 
wage provides a stronger protection for U.S. workers. These protections 
are essential to meet the regulatory mandate to prevent adverse effect 
on wages and working conditions for U.S. workers. Using the FLSA wage 
level would provide a disincentive to hire U.S. workers who earn a 
market-driven rate that is likely to be higher than the Federal 
minimum. This ultimately would contradict the Secretary's mandate under 
the H-2B program to protect the employment of U.S. workers and preserve 
their wages and working conditions. Therefore, the Department rejected 
this alternative because it does not achieve the policy objectives of 
the rule and undercuts the Secretary's fulfillment of her obligations 
under the program.
    Third, this NPRM introduces a three-fourths guarantee requirement 
modeled generally on that used in the H-2A program. The Department 
considered retaining the language of the H-2A requirement, under which 
employers must guarantee to offer the worker employment for a total 
number of work hours equal to at least three-fourths of the workdays of 
the total length of the contract. The Department rejected this 
alternative because, while this would provide workers with significant 
protection, it would not be sufficient to discourage the submission of 
imprecise dates of need and/or imprecise numbers of employees needed 
and would therefore fail to protect U.S. and H-2B workers from periods 
of unforeseen underemployment.
    The Department believes that the proposal, which calculates the 
hours of employment offered in 4-week periods, better ensures that 
workers' commitment to a particular employer will result in real jobs 
that meet their reasonable expectations. We do not believe the proposal 
will create any additional burden on employers who have accurately 
represented their period of need and number of employees needed, and 
will provide an additional incentive for applicants to correctly state 
all of their needs on the Application for Temporary Employment 
Certification.
    Finally, the Department considered omitting the proposed 
registrations of H-2B employers and instead retaining the current 
practice for the adjudication of the employer's temporary need and the 
labor market analysis to occur simultaneously. While this might be more 
advantageous for employers new to the program, it delays the vast 
majority of employers who are recurring users with relatively stable 
dates of need and who would benefit from separate adjudication of need 
and adequacy of recruitment. Moreover, all employers and potential 
workers benefit from a recruitment process close in time to the actual 
date of need which a registration process, by pre-determining temporary 
need, expressly permits. Therefore, the Department rejected the 
alternative of simultaneous adjudication because it undercuts the 
Secretary's fulfillment of her obligations under the program.
3. Economic Analysis
    The Department derives its estimates by comparing the baseline, 
that is, the program benefits and costs under the 2008 Final Rule, 
against the benefits and costs associated with the implementation of 
the provisions proposed in this NPRM. The benefits and costs of the 
provisions of this NPRM are estimated as incremental impacts relative 
to the baseline. Thus, benefits and costs attributable to the 2008 
Final Rule are not considered as benefits and costs of this NPRM. We 
explain how the actions of workers, employers, and government agencies 
resulting from the NPRM are linked to the expected benefits and costs.
    The Department sought to quantify and monetize the benefits and 
costs of this NPRM where feasible. Where we were unable to quantify 
benefits and costs--for example, due to data limitations--we describe 
them qualitatively. The analysis covers 10 years (2011 through 2020) to 
ensure it captures major benefits and costs that accrue over time.\11\ 
We have sought to present benefits and costs both

[[Page 15161]]

undiscounted and discounted at 7 percent and 3 percent.
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    \11\ For the purposes of the cost-benefit analysis, the 10-year 
period starts on October 1, 2010.
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    In addition, the Department provides an assessment of transfer 
payments associated with certain provisions of the proposed rule.\12\ 
Transfer payments, as defined by OMB Circular A-4, are payments from 
one group to another that do not affect total resources available to 
society. Transfer payments are associated with a distributional effect, 
but do not result in additional benefits or costs to society. The 
proposed rule would alter the transfer patterns and increase the 
transfers from employers to workers. The primary recipients of transfer 
payments reflected in this analysis are U.S. workers and H-2B workers. 
The primary payors of transfer payments reflected in this analysis are 
H-2B employers, and under the proposed rule, those employers who choose 
to participate are likely to be those that have the greatest need to 
access the H-2B program. When summarizing the benefits or costs of 
specific provisions of this proposed rule, we present the 10-year 
averages to reflect the typical annual effect.
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    \12\ The specific provisions associated with transfer payments 
are: Wages paid to corresponding U.S. workers, payments for 
transportation and subsistence to and from the place of employment, 
and visa-related fees.
---------------------------------------------------------------------------

    Several provisions of the proposed rule extend to workers in 
corresponding employment, defined in the proposed rule as those non-H-
2B workers who perform work for an H-2B employer, where such work is 
included in the job order that H-2B workers perform during the period 
of the job order and any other work performed by H-2B workers. 
Corresponding workers would be entitled to the same wages that the 
employer provides to H-2B workers, along with transportation and 
subsistence payments (for U.S. workers who cannot reasonably return to 
their residence each workday) and the disclosure of the job order. In 
addition, as a result of the enhanced recruiting proposed in this rule, 
including the new national job registry, certain costs may be avoided 
as employers are able to find U.S. workers in lieu of some H-2B 
workers. The Department believes that the costs associated with the 
employment of a U.S. worker would be relatively lower than the costs 
associated with the employment of an H-2B worker, as the costs of visa 
and border crossing fees will be avoided.
    We cannot identify data on the number of corresponding workers at 
work sites on which H-2B workers are requested or the current hourly 
wages of those workers. The Department does not collect data regarding 
what we have defined as corresponding employees, and therefore cannot 
identify the numbers of workers to whom the obligation would 
attach.\13\ Nor can the Department identify what such workers are 
currently being paid, and so cannot quantify what impacts, if any, the 
requirement to pay the prevailing wage would signify for such workers. 
Wages for such workers might not be changed because, on average, they 
likely earn the average wage for that particular occupation in that 
area of intended employment. However, the Department has been informed 
by employers that in many industries in which H-2B workers are sought, 
such as amusement and landscaping services, there are few if any 
corresponding employees--the very reason such employers seek H-2B 
workers to maintain an adequate workforce. The Department requests the 
public to propose possible sources of data or information on the number 
of corresponding workers at work sites for which H-2B workers are 
requested and the current hourly wages of those workers.
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    \13\ The Department does not require employers to signify on an 
H-2B Application for Temporary Employment Certification the number 
of employees that they employ in that occupation in that area of 
intended employment. Nor does the Department have such information 
from concluded investigations.
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    Employment in the H-2B program represents a very small fraction of 
the total employment in the U.S. economy, both overall and in the 
industries represented in the program. The H-2B program is capped at 
66,000 visas issued per year (33,000 of which are made available 
biannually), which represents approximately 0.05 percent of total 
nonfarm employment in the U.S. economy (130.9 million).\14\ According 
to H-2B program data for FY 2007-2009, the average annual numbers of H-
2B workers certified in the top five industries were as follows: 
Construction--30,242; Amusement, Gambling, and Recreation--14,041; 
Landscaping Services--78,027; Janitorial Services--30,902; and Food 
Services and Drinking Places--22,948. These employment numbers 
represent the following percentages of the total employment in each of 
these industries: Construction--0.4 percent (30,242/7,265,648); 
Amusement, Gambling, and Recreation--0.9 percent (14,041/1,506,120); 
Landscaping Services--13.2 percent (78,027/589,698); Janitorial 
Services--3.3 percent (30,902/933,245); and Food Services and Drinking 
Places--0.2 percent (22,948/9,617,597).\15\ These percentages decrease 
further when scaled to the actual number of entries permitted each 
year: Construction--0.2 percent (14,756/7,265,648); Amusement, 
Gambling, and Recreation--0.5 percent (6,851/1,506,120); Landscaping 
Services--6.5 percent (38,073/589,698); Janitorial Services--1.6 
percent (15,079/933,245); and Food Services and Drinking Places--0.1 
percent (11,197/9,617,597).\16\ As these data illustrate, the H-2B 
program represents a small fraction of the total employment even in 
each of the top five industries in which H-2B workers are found. As a 
result of the limited magnitude of the H-2B program, the Department 
believes that the proposed rule does not rise to the level of an 
economically significant regulatory action.
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    \14\ Source for total employment: ftp://ftp.bls.gov/pub/suppl/empsit.ceseeb1.txt.
    \15\ Source for total employment by industry: 2007 Economic 
Census.
    \16\ The number of visas available under the H-2B program is 
66,000, assuming no statutory increases in the number of visas 
available for entry in a given year. We also assume that half of all 
such workers (33,000) in any year stay at least one additional year, 
and half of those workers (16,500) will stay a third year, for a 
total of 115,500 H-2B workers in a given year. The scale factor was 
derived by dividing 115,500 by the total number of workers certified 
per year on average during FY 2007-2009 (236,706).
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4. Subject-by-Subject Analysis
    The Department's analysis below considers the expected impacts of 
the proposed NPRM provisions against the baseline (i.e., the 2008 Final 
Rule). Sections ``a'' through ``c'' below represent additional 
compensation for both H-2B and workers in corresponding employment 
including the application of H-2B wages to corresponding U.S. workers, 
transportation and subsistence to and from the place of employment, and 
payment of visa and border crossing fees. Sections ``d'' through ``g'' 
represent provisions aimed at expanding efforts to recruit U.S. 
workers. These provisions include an enhanced U.S. worker referral 
period, additional recruiting directed by the Certifying Officer (CO), 
contacting labor organizations, and an electronic job registry. 
Sections ``h'' through ``k'' represent provisions to enhance 
transparency and worker protections. These provisions include 
disclosure of the job order, enhancing worker protections through the 
elimination of attestation-based certifications, document retention, 
departure time notification, job posting requirements, and notice of 
worker rights. Section ``l'' is a proposed provision aimed at reducing 
the administrative burden on State Workforce Agencies (SWAs) by 
eliminating employment verification.

[[Page 15162]]

    For each of these subjects, the relevant benefits, costs, and 
transfers that may apply are discussed.\17\
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    \17\ For the purpose of this analysis, H-2B workers are 
considered temporary residents of the U.S.
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a. Application of H-2B Wages to Corresponding Workers
    The NPRM requires that workers in corresponding employment are paid 
the same wages as paid to foreign workers under the H-2B program. 
However, the Department cannot identify a reliable source of data to 
estimate the number of corresponding workers at work sites on which H-
2B workers are requested, nor can it identify the current hourly wages 
of those workers. Therefore, the Department cannot quantify the 
impacts, if any, associated with this provision. The Department 
requests the public to propose possible sources of data or information 
on the number of corresponding workers at work sites for which H-2B 
workers are requested and the current hourly wages of those workers.
    In standard economic models of labor supply and demand, any 
possible increase in wages paid to corresponding workers under this 
provision would result in a transfer from participating employers to 
corresponding workers. In addition, standard models show that the 
higher labor costs would lead to a reduction in the quantity of labor 
demanded. However, in a practical sense, the macroeconomic effect of 
reductions in the demand for corresponding workers is expected to be 
minimal. Because employers cannot replace U.S. workers laid off 120 
days before the date of need or through the period of certification 
with H-2B workers, the Department concludes that there would be no 
reduction in the employment of corresponding workers among 
participating employers. When employers supplement their usual 
workforce levels with H-2B workers, this hiring activity leaves the 
employment levels of similarly employed U.S. workers unaffected.
b. Transportation and Subsistence to and From the Place of Employment
Transfers
    The NPRM proposes to require H-2B employers to provide workers--
both H-2B workers and workers in corresponding employment who are 
unable to return to their permanent residences--with transportation and 
daily subsistence from the place from which the worker has come to work 
for the employer, whether in the U.S. or abroad, to the place of 
employment. The employer must also provide the worker with the cost of 
return transportation and daily subsistence from the worker's place of 
employment to the place from which the worker, disregarding intervening 
employment, departed to work for the employer. These impacts represent 
transfers from H-2B employers to workers because they represent 
distributional effects, not a change in society's resources.
    To estimate the transfer related to transportation, we first 
calculate the weighted average cost of transportation for the top ten 
countries of origin, by estimated number of certified H-2B workers who 
were new entrants.\18\ For workers from Mexico and Canada, we assume 
that they travel to and from the place of employment by bus. For the 
remainder of the H-2B workers, we assume air travel. We estimate the 
weighted average one-way travel cost per employee to be approximately 
$286 per H-2B worker.\19\ We estimate the roundtrip transportation 
costs by multiplying the weighted average one-way cost by two and by 
the annual number of H-2B workers entering the U.S. (66,000). The 
Department estimates average annual transfer of transportation 
expenditures to be approximately $37.8 million. We do not know to what 
extent employers are currently paying for this cost in order to secure 
these workers or because of their obligations under the Fair Labor 
Standards Act. To the extent that this is the case, this transportation 
transfer estimate is an upper-bound estimate.
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    \18\ The top 10 countries of origin and the number of certified 
H-2B workers during FY 2007-2009 were as follows: Mexico, 134,226; 
Jamaica, 17,068; Guatemala, 6,530; Philippines, 4,963; Romania, 
3,251, South Africa, 3,239; United Kingdom, 2,511; Canada, 2,371; 
Israel, 1,784; and Australia, 1,577. The H-2B visa program is capped 
at 66,000 new visas per year. To estimate the number of new entrants 
from each country, we scaled the total number of certified workers 
from each country by the total number of new visas allowed from FY 
2007 to FY 2009 (66,000 new visas x 3 years) divided by the total 
number of H-2B workers certified from FY 2007 to FY 2009.
    \19\ The one-way travel costs used for each country are as 
follows: Mexico, $179; Jamaica, $285; Guatemala, $484; Philippines, 
$973; Romania, $1,147; South Africa, $1,168; United Kingdom, $726; 
Canada, $165; Israel, $908; and Australia, $1,648. The 
transportation cost for Mexico is based on the cost of a bus trip 
from Mexico City, Mexico, to Ciudad Juarez, Mexico (source: http://www.ticketbus.com.mx) and a bus trip from El Paso, Texas, to St. 
Louis, Missouri (source: http://www.greyhound.com). The 
transportation cost for Canada is based on the cost of a bus trip 
from Ottawa, Ontario, to St. Louis, Missouri (source: http://www.greyhound.com). The airfare costs for the remaining countries 
are based on the cost of a flight from the capital city of the 
country in question to St. Louis, Missouri (source: http://www.kayak.com).
---------------------------------------------------------------------------

    We estimate the transfer related to subsistence payments by 
multiplying the annual number of H-2B workers entering the U.S. 
(66,000) by the subsistence per diem ($10.64), the weighted average 
one-way travel time for the top ten H-2B countries (1.055 days), and 
the number of one-way trips per worker (two).\20\ The Department 
estimates the average annual transfer induced by subsistence payments 
to be approximately $1.5 million.
---------------------------------------------------------------------------

    \20\ Source: 20 CFR 655. The one-way travel days applied to each 
country of origin is as follows: Mexico, 1; Jamaica, 1; Guatemala, 
1; Philippines, 2; Romania, 1, South Africa, 2; United Kingdom, 1; 
Canada, 1; Israel, 1; and Australia, 2.
---------------------------------------------------------------------------

    This provision applies not only to H-2B workers, but also to 
workers in corresponding employment on H-2B worksites who are recruited 
from a distance at which the workers cannot reasonably return to their 
residence within the same workday. We were unable to identify adequate 
data to estimate the number of corresponding workers and, thus, we are 
unable to quantify this transfer. DOL would appreciate public input 
that would help to quantify these costs.
c. Visa and Border Crossing Fees
    Under the 2008 Final Rule, visa-related fees--including fees 
required by the Department of State for scheduling and/or conducting an 
interview at the consular post--are permitted to be paid by the 
temporary worker. The NPRM, however, proposes to require visa fees to 
be paid by the employer. Requiring employers to bear the full cost of 
their decision to hire foreign workers is a necessary step toward 
preventing the exploitation of foreign workers with its concomitant 
adverse effect on U.S. workers. Government-mandated fees, such as visa-
related fees and border crossing fees, are integral to the employer's 
choice to use the H-2B program to bring temporary foreign workers into 
the U.S.
Transfers
    The reimbursement of visa application fees, fees for scheduling 
and/or conducting an interview at the consular post, and border 
crossing fees by employers is a transfer from employers to H-2B 
workers. The Department estimates the cost of visa fees by adding the 
cost per H-2B visa ($150) and the weighted average consular fee 
($27.15) \21\ and multiplying the resulting sum by the annual number

[[Page 15163]]

of H-2B workers entering the U.S. (66,000).\22\ The annual average 
transfer of visa-related fees from H-2B employers to H-2B workers is 
$11.7 million.
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    \21\ The top 10 countries of origin and the number of certified 
H-2B workers during FY 2007-2009 were as follows: Mexico, 134,226; 
Jamaica, 17,068; Guatemala, 6,530; Philippines, 4,963; Romania, 
3,251, South Africa, 3,239; United Kingdom, 2,511; Canada, 2,371; 
Israel, 1,784; and Australia, 1,577. We use these values to weight 
the country-specific consular fees to obtain the weighted average 
consular fee of $27.15.
    \22\ The visa fee of $150 went into effect on June 4, 2010. 
Source: http://www.state.gov/r/pa/prs/ps/2010/05/142155.htm.
---------------------------------------------------------------------------

d. Enhanced U.S. Worker Referral Period
    Under the NPRM, employers must continue to accept SWA referrals of 
qualified and available U.S. workers. Employers must hire any qualified 
U.S. worker referred up until the later of 3 days before the date of 
need or when the employer's last H-2B worker departs for the employer's 
place of business.
i. Benefits
    This NPRM proposes to increase the amount of time that employers 
must accept referrals for temporary non-agricultural opportunities from 
qualified U.S. workers. The NPRM also proposes to increase the types of 
recruitment to ensure that U.S. workers are provided with a more robust 
opportunity to have access to the job opportunities that are the 
subject of labor certification applications. These include a greater 
number of ads than is required under the current regulation; the 
posting of jobs on an electronic job registry; contact with union 
representation where the industry of job classification is 
traditionally unionized; notice to the current workforce or to current 
union members where one is in place in the workforce; and contact with 
the former U.S. workforce. The enhanced referral period expands the 
time during which jobs are available to U.S. workers. Therefore, taken 
along with the other provisions of the rule, it improves the 
information between employers and workers about available jobs, 
increasing the likelihood that U.S. workers can be hired for those 
jobs. As more U.S. workers are hired as a result of this NPRM, 
employers would avoid visa-related costs for H-2B positions that would 
now be filled with U.S. workers. H-2B employers would minimize 
additional costs of international recruitment.\23\ The Department is 
not able to quantify this effect, however, due to a lack of adequate 
data.
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    \23\ In this NPRM, cost savings are defined as costs that would 
be incurred under the 2008 Final Rule that will not be incurred as a 
result of this NPRM because its provisions increase the likelihood 
that U.S. workers will be hired for these jobs. Because the 
provisions of this NPRM could increase the cost of recruiting and 
transporting a foreign worker to the U.S. job site relative to a 
U.S. worker, these are avoided costs from the perspective of the 
employer.
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    These benefits also apply to sections ``e'' through ``g'' below, 
which discuss additional provisions aimed at improving the recruitment 
of U.S. workers.
ii. Costs
    The extension of the referral period proposed in this NPRM will 
likely result in more U.S. workers being interested in the jobs, which 
will require more SWA staff time to process additional referrals. The 
Department does not have estimates of the additional number of U.S. 
workers who will be interested in the jobs and, thus, is unable to 
estimate the costs associated with this provision.
iii. Transfers
    If more U.S. workers are hired as a result of the NPRM (because 
employers who previously applied for H-2B visas choose to hire U.S. 
workers rather than participate in the H-2B program, or because H-2B 
employers can attract more U.S. workers as a result of enhanced 
recruitment measures), those workers who were previously unemployed 
will no longer make claims for new or continued unemployment insurance 
benefits.\24\ Other things constant, we expect the States to experience 
a reduction in unemployment insurance expenditures as a consequence of 
more U.S. workers being hired. This reduction in unemployment insurance 
benefits will be passed on to employers to a certain extent. The 
Department, however, is not able to quantify these transfer payments 
due to an inability to estimate the likely increase in number of U.S. 
workers employed in jobs that would otherwise have been held by H-2B 
workers.
---------------------------------------------------------------------------

    \24\ Similarly, when U.S. workers shift from current employment 
to fill jobs with H-2B employers, additional workers from the pool 
of the unemployed will inevitably fill the vacant positions.
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    The Department believes that the costs associated with the 
employment of a U.S. worker will be lower than the costs associated 
with an H-2B worker, as the costs of transportation and subsistence 
will likely be reduced, if not avoided entirely. The cost of visa fees 
will be entirely avoided if U.S. workers are hired. We have not 
identified appropriate data to estimate any increase in the number of 
U.S. workers that might be hired as a result of the NPRM provisions.
e. Additional Recruiting Directed by the Certifying Officer
    Under the proposed rule, the employer may be directed by the CO to 
conduct additional recruitment where the CO has determined that there 
may be available and qualified U.S. workers, including where the job 
opportunity is located in an area of substantial unemployment. We 
estimate this cost by multiplying the number of employer applicants by 
the average cost of a newspaper advertisement ($25.09) and by our 
estimate that 50 percent of H-2B employers can be expected to be 
directed by the CO to conduct additional recruitment for a total annual 
average cost for additional job advertisement of approximately $0.06 
million.\25\
---------------------------------------------------------------------------

    \25\ To obtain the average cost of a newspaper advertisement, we 
averaged the advertisement rates for the following newspapers: the 
Augusta Chronicle, the Austin Chronicle, the Huntsville Times, the 
Los Alamos Monitor, the San Diego Union-Tribune, and the Advertiser 
Times (Detroit, Michigan). Other means of recruiting are possible 
under this NPRM (such as listings on Monster.com and Career 
Builder), but they may be more costly.
---------------------------------------------------------------------------

    We also add the labor cost to post the advertisement. We estimate 
this cost by multiplying the number of employer applicants by the 
estimated time required to post the advertisement (0.08 hours, or 5 
minutes), the scaled hourly compensation rate of an administrative 
assistant/executive secretary ($28.64),\26\ and our estimate that 50 
percent of H-2B employers can be expected to be directed by the CO to 
conduct additional recruiting for a total annual average labor cost of 
$0.01 million. Thus, we estimate the total average annual cost of CO-
directed recruiting at approximately $0.07 million.\27\
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    \26\ The hourly compensation rate for an administrative 
assistant/executive secretary is calculated by multiplying the 
hourly wage of $20.03 (as published by the Department's OES survey, 
O*NET Online) by 1.43 to account for private-sector employee 
benefits (Source: BLS). Thus, the loaded hourly compensation rate 
for an administrative assistant/executive secretary is $28.64.
    \27\ It is possible that there will be additional costs incurred 
by employers from interviewing additional applicants that are 
referred to H-2B employers by job advertisements. The Department 
does not have valid data on referrals resulting from job 
advertisements and, thus, is unable to quantify this impact.
---------------------------------------------------------------------------

f. Contacting Labor Organizations
    The NPRM proposes to require the employer to contact the local 
union to locate able, willing, and qualified U.S. workers when the 
employer seeks to hire for a position in an occupation or industry 
where union representation is prevalent. The employer must provide 
written notice of the job opportunity to the representative(s) of any 
of the employer's employees in the job classification and geographic 
area in which the work will be performed. This provision of the 
proposed rule expands the requirement from the baseline established by 
the 2008 Final Rule because it requires the employer to contact the 
local union if the job is

[[Page 15164]]

customarily unionized, even if there is no union or CBA with the 
employer.
    We estimate two components of the cost to contact labor 
organizations: labor and materials. We estimate the labor cost by 
multiplying the number of employer applicants by the scaled hourly 
labor compensation of an administrative assistant/executive secretary 
($28.64), the time needed to type, print, and mail out the letter (0.25 
hours, or 15 minutes), and the percent of workers in the relevant 
occupations that were represented by unions from 2007 to 2009 (12.3 
percent).\28\ We estimate the average annual labor costs of writing and 
mailing letters to be $0.01 million.
---------------------------------------------------------------------------

    \28\ Unionization data for the following occupations were used: 
Arts, entertainment, sports, and media; food preparation and serving 
related; building and grounds cleaning and maintenance; personal 
care and service; farming, fishing, and forestry; construction and 
extraction; and installation, maintenance, and repair. These 
occupational categories represent the majority of H-2B occupations. 
Source: http://www.bls.gov/webapps/legacy/cpslutab3.htm.
---------------------------------------------------------------------------

    The second cost component of contacting labor organizations is the 
material costs. We calculate this cost by summing the cost of a sheet 
of paper ($0.02), an envelope ($0.04), and postage ($0.44), and 
multiplying the resulting sum by the number of employer applicants and 
the percent of workers in the relevant occupations that were 
represented by unions from 2007 to 2009 (12.3 percent). We estimate the 
total average annual material cost to be less than $1,000.
    In total, the Department estimates the average annual cost of 
contacting labor organizations to be $0.01 million per year.
g. Electronic Job Registry
    Under the proposed rule, the Department will post and maintain 
employers' H-2B job orders, including modifications approved by the CO, 
in a national and publicly accessible electronic job registry. The job 
registry will serve as a public repository of H-2B job orders for the 
duration of the referral period. The job orders will be posted in the 
registry by the CO upon the acceptance of each submission. The posting 
of the job orders will not require any additional effort on the part of 
H-2B employers or SWAs.
i. Benefits
    The job registry will improve the visibility of H-2B jobs to U.S. 
workers. In conjunction with the longer referral period under the 
proposed rule, the job registry will expand the availability of 
information about these jobs to U.S. workers and, therefore, improve 
their employment opportunities. In addition, the establishment of a job 
registry will provide greater transparency with respect to the 
Department's administration of the H-2B program to the public, members 
of Congress, and other stakeholders. Transferring these job orders into 
electronic records for the job registry will result in an improved and 
more complete record of job opportunities for which H-2B workers are 
sought. Employers seeking temporary workers, in turn, will likely 
experience an increase in job applications from U.S. workers and would 
not need to incur additional expenses, including visa and border 
crossing fees, of hiring H-2B workers. The Department, however, is not 
able to estimate the increase in job applications resulting from the 
job registry and, thus, is unable to quantify this benefit.
ii. Costs
    The establishment of an electronic job registry in this NPRM 
represents an increased cost to the Department for maintaining the job 
registry.\29\ We estimate average annual costs of maintaining an 
electronic job registry to be approximately $0.5 million.\30\
---------------------------------------------------------------------------

    \29\ Our analysis accounts for the fact that the cost of 
development and implementation has been incurred by the electronic 
job registry developed for the H-2A Program.
    \30\ For registry maintenance activities, the Department assumes 
that 376 hours will be required for the following labor categories: 
Program Manager, Computer Systems Analyst II & III, Computer 
Programmer III & IV, Computer Programmer Manager, Data Architect, 
Web Designer, Database Analyst, Technical Writer II, Help Desk 
Support Analyst, and Production Support Manager. Finally, the 
Department uses the following loaded rates based on an Independent 
Government Cost Estimate (ICGE) produced by OFLC and inclusive of 
direct labor and overhead costs for each labor category: Program 
Manager, $138.34; Computer Systems Analyst II, $92.14; Computer 
Systems Analyst III, $109.84; Computer Programmer III, $89.63; 
Computer Programmer IV, $107.72; Computer Programmer Manager, 
$123.88; Data Architect, $104.99; Web Designer, $124.76; Database 
Analyst, $77.80; Technical Writer II, $84.81; Help Desk Support 
Analyst, $55.28; Production Support Manager, $125.76. The Department 
multiplies the assumed number of hours by the appropriate labor 
rates to obtain a first-year cost of $561,364 and a cost in 
subsequent years of $464,341. We average the costs over the 10-year 
analysis period to obtain an average annual cost of $474,044.
---------------------------------------------------------------------------

h. Disclosure of Job Order
    The NPRM proposes to require an employer to provide a copy of the 
job order to an H-2B worker outside of the U.S. no later than the time 
at which the worker applies for the visa, or to a worker in 
corresponding employment no later than on the day that work starts. The 
job order must be translated to a language understood by the worker. 
For an H-2B worker changing employment from an H-2B employer to a 
subsequent H-2B employer, the copy must be provided no later than the 
time the subsequent H-2B employer makes an offer of employment.
    We estimate two cost components for the disclosure of job orders: 
the cost of reproducing the document containing the terms and 
conditions of employment, and the cost of translation. We obtain the 
cost of reproducing the terms and conditions document by multiplying 
the number of H-2B workers (66,000) by the number of pages to be 
photocopied (3), the cost per photocopy ($0.12), and the percent of 
certified H-2B workers that are not involved in reforestation (88.3 
percent).\31\ The Department estimates average annual costs of 
reproducing the document containing the terms and conditions of 
employment to be approximately $0.02 million.
---------------------------------------------------------------------------

    \31\ The new cost of disclosure of job orders does not apply to 
reforestation employers because the Migrant and Seasonal 
Agricultural Worker Protection Act presently requires reforestation 
employers to make this disclosure. According to H-2B program data 
for FY 2000-FY2007, 88.3 percent of H-2B workers work in an industry 
other than reforestation.
---------------------------------------------------------------------------

    For the cost of translation, the Department assumes that an 
employer hires all of its H-2B workers from a country or set of 
countries that speak the same foreign language; thus, only one 
translation is necessary per employer needing translation. We obtain 
the cost of translation by multiplying the number of H-2B employers by 
the percent of H-2B workers who do not speak English (83.92 percent, 
for the top ten countries of origin), the number of pages of the terms 
and conditions (3), and the translation cost per page ($21.00).\32\ We 
estimate average annual translation costs of approximately $0.2 
million.
---------------------------------------------------------------------------

    \32\ The source of the percentage of H-2B workers who do not 
speak English is the ``Yearbook of Immigration Statistics'', 2007-
2009 (http://www.dhs.gov/xlibrary/assets/statistics/yearbook/). The 
source for the translation cost per page is http://www.languagescape.com.
---------------------------------------------------------------------------

i. Elimination of Attestation-Based Model
    The 2008 Final Rule used an attestation-based model: employers 
conducted the required recruitment in advance of application filing 
and, based on the results of that effort, applied for certification 
from the Department for a number of foreign workers to fill the 
remaining openings. Employers simply attested that they had undertaken 
the necessary activities and made the required assurances to workers. 
The Department has determined that there are insufficient worker 
protections in the attestation-based model. In

[[Page 15165]]

eliminating the attestation-based model, the NPRM shifts the 
recruitment process to after the application is filed so that employers 
have to demonstrate--and not merely attest--that they have performed an 
adequate test of the labor market. Therefore, the primary effect of 
eliminating the attestation based-model is a change in the timing of 
recruitment more so than a change in substantive requirements.
i. Benefits
    The return to a certification model in which employers demonstrate 
compliance with program obligations prior to certification will improve 
worker protections. Greater compliance will, in turn, provide improved 
administration of the program and conserve Government resources at both 
the State and Federal levels. It will also result in cost savings to 
employers, subjecting them to fewer requests for additional information 
and denials of applications and saving them both time and the expense 
of responding to such inquiries. It will also result in the intangible 
benefit of more H-2B visas being available to those employers who have 
conducted bona fide recruitment around an actual date of need. The 
Department, however, is not able to estimate the impacts resulting from 
the elimination of the attestation-based model and is unable to 
quantify these benefits.
ii. Costs
    The elimination of the attestation-based model will impose minimal 
costs on employers because they will only need to include additional 
information in their recruitment report, including information on 
additional recruitment conducted, means of posting, contact with former 
U.S. workers, and contact with labor organizations where the occupation 
is customarily unionized. We estimate two costs for the elimination of 
the attestation-based model: the material cost of reproducing and 
mailing the documents, and the labor cost to reproduce and mail the 
documents. To estimate the cost of reproducing and mailing the 
documents, we multiply the number of H-2B employers (3,966) by the 
additional number of pages that must be submitted (3) and the 
additional postage required to ship those pages ($0.17). We estimate 
this cost to be less than $0.01 million (or 3,966 x 3 x $0.17 = $2,023) 
per year. To estimate the labor cost of reproducing and mailing the 
documents, we multiply the number of H-2B employers (3,966) by the time 
needed to reproduce and mail the documents (0.08 hours, or 5 minutes) 
and the scaled hourly labor compensation of an administrative 
assistant/executive secretary ($28.64). We estimate this cost to be 
less than $0.01 million (or 3,966 x 0.08 x $28.64 = $9,087) per year.
j. Document Retention
    Under the NPRM, H-2B employers must retain documentation in 
addition to that required by the 2008 Final Rule. The Department 
assumes that each H-2B employer will purchase a filing cabinet ($21.99) 
in which to store the additional documents starting in the first year 
of the rule.\33\ To obtain the cost of storing documents, we multiply 
the number of H-2B employers by the cost per drawer for a total one-
time cost of $0.09 million.
---------------------------------------------------------------------------

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

k. Departure Time Determination
    The NPRM proposes to require employers to provide notice to the 
local SWA of the time at which the last H-2B worker departs for the 
place of employment, if the last worker has not departed by 3 days 
before the date of need. The cost of this provision is the sum of the 
time required for the employer to place a phone call to the H-2B 
workers' representative to verify when the last H-2B worker will depart 
for the place of employment, the cost of the long-distance phone call, 
the time required to prepare and mail a letter to the SWA (one call per 
employer), and the cost of paper, an envelope, and postage.
    To estimate the cost of placing the phone calls, we multiply the 
number of H-2B employers by the time needed to contact an H-2B worker 
representative (0.08 hours, or 5 minutes) and the scaled hourly 
compensation rate of an administrative assistant/executive secretary 
($28.64). To this product, we add the product of the number of H-2B 
employers and the average cost of a long distance phone call to the top 
10 countries ($3.23) to obtain total average annual costs of contacting 
H-2B workers equal to $0.02 million.\34\
---------------------------------------------------------------------------

    \34\ We collected long distance call charges from both AT&T and 
Verizon and averaged them. Source: http://www.wireless.att.com/learn/international/long-distance/in-the-us.jsp and http://www22.verizon.com/longdistance/business_east/plan_ttw_brates.jsp.
---------------------------------------------------------------------------

    Once the H-2B employer has determined when the last H-2B worker 
will depart his or her home, the employer must notify the local SWA in 
writing, but only if the last worker has not departed by three days 
prior to the date of need. The Department estimates the cost of 
preparing and mailing a letter to the SWA by summing the labor costs to 
prepare and mail a letter and the cost of paper, an envelope, and 
postage. We estimate the labor cost by multiplying the number of H-2B 
employers by the percentage of H-2B applicants that will be required 
under this provision to ensure the contact with the SWA (10 percent), 
the scaled hourly labor compensation of an administrative assistant/
executive secretary, and the sum of the time needed to draft the main 
content of a letter (0.25 hours, or 15 minutes) and the time needed to 
type the letter and prepare it for mailing (0.08 hours, or 5 minutes). 
This calculation yields average annual labor costs of $0.01 million.
    We estimate the material costs of contacting the SWA by multiplying 
the number of H-2B employers by the percentage of H-2B employers that 
we assume will be required to contact the SWA (10 percent) and by the 
sum of the cost of a sheet of paper ($0.02), the cost of an envelope 
($0.04), and the postage per envelope ($0.44). We estimate the total 
annual average material costs to be less than $1,000 per year.
    In total, the Department estimates the total average annual costs 
of departure time determination to be approximately $0.03 million per 
year.
l. Reduced SWA Administrative Burden by Eliminating Employment 
Verification
    Under this NPRM, SWAs will no longer be responsible for conducting 
employment eligibility verification activities. These activities 
include completion of Form I-9 and vetting of application documents by 
SWA personnel.
i. Benefits
    Under the 2008 Final Rule, SWAs are required to complete Form I-9 
for non-agricultural job orders, and inspect and verify the employment 
eligibility documents furnished by the applicants. Under this NPRM, 
SWAs will no longer be required to complete this process, resulting in 
cost savings. Due to a lack of data on the number of SWA referrals, we 
are not able to quantify this benefit.
m. Other
    During the first year that the rule would be in effect, employers 
would need to learn about the new processes and requirements. We 
estimate this cost by multiplying the number of H-2B employer 
applicants by the time required to read the new rule and any 
educational and outreach materials that explain the H-2B application 
process under the rule (3 hours) by the average compensation of a human 
resources

[[Page 15166]]

manager ($61.42).\35\ In the first year of the rule, this amounts to 
approximately $1.2 million in labor costs for an average annual cost of 
$0.12 million.
---------------------------------------------------------------------------

    \35\ The hourly compensation rate for a human resources manager 
is calculated by multiplying the hourly wage of $42.95 (as published 
by the Department's OES survey, O*NET Online) by 1.43 to account for 
private-sector employee benefits (Source: BLS). Thus, the loaded 
hourly compensation rate for a human resources manager is $61.42.
---------------------------------------------------------------------------

    The NPRM proposes to require employers to post the availability of 
the job opportunity in two conspicuous locations at the place of 
anticipated employment (where there is no union representative) for at 
least 10 consecutive days. This provision entails additional 
reproduction costs. To obtain the total cost incurred due to the job 
posting requirement, we multiply the number of employer applicants by 
the cost per photocopy ($0.12) and the number of postings per place of 
employment (2), which amounts to approximately $2,000 per year.
    In addition, the NPRM proposes to require employers to post and 
maintain in a conspicuous location at the place of employment, a poster 
provided by the Secretary which sets out the rights and protections for 
workers. Employers must post the poster in English and, to the extent 
necessary and as provided by the Secretary, foreign language(s) common 
to a significant portion of the workers if they are not fluent in 
English. To estimate the cost of producing workers' rights posters, we 
multiply the number of H-2B employers by the cost per poster ($0.12). 
In total, the cost of producing workers' rights posters is less than 
$1,000 per year.
5. Summary of Cost-Benefit Analysis
    Exhibit 1 presents a summary of the costs associated with this 
NPRM. Because of data limitations on the number of corresponding 
workers and U.S. workers expected to fill positions currently held by 
H-2B workers, the Department was not able to monetize any costs to the 
rule that would arise as a result of deadweight losses associated with 
higher employment costs under the proposed rule. However, because the 
size of the H-2B program is limited, the Department expects that any 
deadweight loss would be small. The monetized costs displayed are the 
yearly summations of the calculations described above.

                  Exhibit 1--Summary of Monetized Costs
------------------------------------------------------------------------
                                                         Monetized costs
                         Year                           ($millions/year)
------------------------------------------------------------------------
 1 2011...............................................              2.10
 2 2012...............................................              0.81
 3 2013...............................................              0.81
 4 2014...............................................              0.81
 5 2015...............................................              0.81
 6 2016...............................................              0.81
 7 2017...............................................              0.81
 8 2018...............................................              0.81
 9 2019...............................................              0.81
10 2020...............................................              0.81
------------------------------------------------------------------------
    Undiscounted total................................              9.35
                                                       -----------------
    Total with 7 percent discounting..................              6.42
                                                       -----------------
    Total with 3 percent discounting..................              7.89
------------------------------------------------------------------------
Totals may not sum due to rounding.

    The 10-year monetized costs of this NPRM range from $6.87 million 
to $8.04 million (with 7 percent and 3 percent discounting, 
respectively).
    Because the Department was not able to monetize any benefits for 
this NPRM due to the lack of adequate data, the monetized costs exceed 
the monetized benefits both at a 7 percent and a 3 percent discount 
rate.
    The Department did not identify data to provide monetary estimates 
of several important benefits to society, including increased 
employment opportunities for U.S. workers and enhancement of worker 
protections for U.S. and H-2B workers. These important benefits result 
from the following provisions of this NPRM: Transportation to and from 
the place of employment, payment of visa and border crossing fees, the 
enhanced U.S. worker referral period, additional recruiting directed by 
the CO, contacting labor organizations, the electronic job registry, 
and the job posting requirement.
    Because the enhanced referral period expands the time during which 
jobs are available to U.S. workers, it increases the likelihood that 
U.S. workers are hired for those jobs. In addition, the job registry 
will improve the visibility of H-2B jobs to U.S. workers. Thus, the job 
registry will benefit U.S. workers by expanding the period during which 
these jobs are available to U.S. workers and, therefore, improving 
their employment opportunities. In addition, the establishment of a job 
registry will provide greater transparency with respect to the 
Department's administration of the H-2B program to the public, members 
of Congress, and other stakeholders. These benefits, however, are 
difficult to quantify due to data limitations.
    Several unquantifiable benefits result in the form of cost savings. 
As more U.S. workers are hired as a result of this NPRM, employers will 
experience cost savings in the form of avoided visa and border crossing 
fees for H-2B positions that are now filled with U.S. workers. Under 
the 2008 Final Rule, SWAs are required to complete Form I-9 for non-
agricultural job orders, and inspect and verify the employment 
eligibility documents furnished by the applicants. Under this NPRM, 
SWAs will no longer be required to complete this process, resulting in 
cost savings to SWAs. We were not able to quantify these cost savings 
due to a lack of data regarding the number of I-9 verifications SWAs 
have been performing for H-2B referrals.
    The Department has concluded that after consideration of both the 
quantitative and qualitative impacts of this NPRM, the societal 
benefits of the rule justify the societal costs.

B. Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980, as amended (RFA), requires 
agencies to prepare regulatory flexibility analyses and make them 
available for public comment when proposing regulations that will have 
a significant economic impact on a substantial number of small 
entities. See 5 U.S.C. 603. If the rule is not expected to have a 
significant economic impact on a substantial number of small entities, 
the RFA allows an agency to certify such, in lieu of preparing an 
analysis. See 5 U.S.C. 605. For the reasons explained in this section, 
the Department believes this NPRM is not likely to impact a substantial 
number of small entities and, therefore, an Initial Regulatory 
Flexibility Analysis is not required by the RFA.
    However, in the interest of transparency and to provide a full 
opportunity for public comment, we have prepared the following Initial 
Regulatory Flexibility Analysis to assess the impact of this regulation 
on small entities, as defined by the applicable Small Business 
Administration (SBA) size standards. We specifically request comments 
on the following burden estimates, including the number of small 
entities affected by the requirements, and whether alternatives exist 
that will reduce the burden on small entities. The Chief Counsel for 
Advocacy of the Small Business Administration was notified of a draft 
of this rule upon submission of the rule to OMB under E.O. 12866, as 
amended, ``Regulatory Planning and Review''

[[Page 15167]]

(58 FR 51735, Oct. 4, 1993; 67 FR 9385, Feb. 28, 2002; 72 FR 2763, Jan. 
23, 2007).
    Because employers seeking to participate in the H-2B program are 
derived from virtually all segments of the economy and across 
industries, those participating businesses are a small portion of the 
national economy overall. A Guide for Government Agencies: How to 
Comply with the RFA, Small Business Administration, at 20 (``the 
substantiality of the number of businesses affected should be 
determined on an industry-specific basis and/or the number of small 
businesses overall''). Accordingly, the Department believes that the 
rule will not impact a substantial number of small entities in a 
particular industry or segment of the economy.
    Employment in the H-2B program represents a very small fraction of 
the total employment in the U.S. economy, both overall and in the 
industries represented in the H-2B program. The H-2B program is capped 
at 66,000 visas issued per year, which represents approximately 0.05 
percent of total nonfarm employment in the U.S. economy (130.9 
million).\36\ According to H-2B program data for FY 2007-2009, the 
average annual numbers of H-2B workers certified in the top five 
industries were as follows: Construction--30,242; Amusement, Gambling, 
and Recreation--14,041; Landscaping Services--78,027; Janitorial 
Services--30,902; and Food Services and Drinking Places--22,948. These 
employment numbers represent the following percentages of the total 
employment in each of these industries: Construction--0.4 percent 
(30,242/7,265,648); Amusement, Gambling, and Recreation--0.9 percent 
(14,041/1,506,120); Landscaping Services--13.2 percent (78,027/
589,698); Janitorial Services--3.3 percent (30,902/933,245); and Food 
Services and Drinking Places--0.2 percent (22,948/9,617,597).\37\ These 
percentages decrease further when scaled to the actual number of 
entries permitted each year: Construction--0.2 percent (14,756/
7,265,648); Amusement, Gambling, and Recreation--0.5 percent (6,851/
1,506,120); Landscaping Services--6.5 percent (38,073/589,698); 
Janitorial Services--1.6 percent (15,079/933,245); and Food Services 
and Drinking Places--0.1 percent (11,197/9,617,597).\38\ As these data 
illustrate, the H-2B program represents a small fraction of the total 
employment even in each of the top five industries in which H-2B 
workers are found.\39\
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    \36\ Source: ftp://ftp.bls.gov/pub/suppl/empsit.ceseeb1.txt.
    \37\ Source for total employment by industry: 2007 Economic 
Census.
    \38\ The number of visas available under the H-2B program is 
66,000, assuming no statutory increases in the number of visas 
available for entry in a given year. We also assume that half of all 
such workers (33,000) in any year stay at least one additional year, 
and half of those workers (16,500) will stay a third year, for a 
total of 115,500 H-2B workers in a given year. The scale factor was 
derived by dividing 115,500 by the total number of workers certified 
per year on average during FY 2007-2009 (236,706).
    \39\ H-2B workers are not the only workers affected by this 
NPRM. Rather, certain provisions of the NPRM also extend to workers 
in corresponding employment, as addressed in section 4 of this 
analysis. While including the number of workers in corresponding 
employment would produce a more accurate determination of the 
portion of total employment affected by the H-2B program, the 
Department has not identified a reliable source of data to estimate 
the number of workers in corresponding employment at work sites on 
which H-2B workers are requested.
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    1. Description of the reasons that action by the agency is being 
considered.
    As discussed in more detail earlier in this preamble, the 
Department has determined that a new rulemaking effort is necessary for 
the H-2B program because the policy underpinnings of the 2008 Final 
Rule, e.g., streamlining the H-2B process to defer determinations of 
program compliance until after an application has been adjudicated, do 
not provide an adequate level of protection for either U.S. or foreign 
workers. The proposed protections are essential to meet the regulatory 
mandate to prevent adverse effect on wages and working conditions for 
U.S. workers, including measures to ensure access to jobs for U.S. 
workers through enhanced recruitment in order to satisfy the statutory 
requirement that certifications be granted only if no U.S. workers are 
available.
    Additionally, the NPRM seeks to help employers meet legitimate 
short-term temporary labor needs where and when there are no available 
U.S. workers. Over the years as the program has evolved, stakeholders 
in diverse industries throughout the country repeatedly have expressed 
concerns that some employers were inappropriately using H-2B workers 
for job opportunities that were permanent, thereby denying U.S. workers 
the opportunity for long-term employment. These employers' actions are 
to the detriment of other employers with a legitimate temporary need 
that are ultimately denied access to the program due to the annual cap 
on available visas. By preventing employers with a long-term permanent 
need from participating in the H-2B program, the Department would 
provide employers with genuine unmet temporary needs with a greater 
opportunity to participate in the program.
    2. Succinct statement of the objectives of, and legal basis for, 
the proposed rule.
    The Department seeks to help employers meet their legitimate short-
term temporary labor needs where and when there are no available U.S. 
workers and to increase worker protections and strengthen program 
integrity under the H-2B labor certification program. The legal basis 
for the proposed rule is the Department's authority, as delegated from 
DHS under its regulations at 8 CFR 214.2(h)(6), to grant temporary 
labor certifications under the H-2B program.
    3. Description of, and where feasible, an estimate of the number of 
small entities to which the proposed rule will apply.
Definition of a Small Business
    A small entity is one that is independently owned and operated and 
that is not dominant in its field of operation. The definition of small 
business varies from industry to industry to properly reflect industry 
size differences. An agency must either use the SBA definition for a 
small entity or establish an alternative definition for the industry. 
The Department has conducted a small entity impact analysis on small 
businesses in the five industries with the largest number of H-2B 
workers and for which data were available, as mentioned above: 
Landscaping Services; Janitorial Services (includes housekeeping 
services); Food Services and Drinking Places; Amusement, Gambling, and 
Recreation; and Construction. These top five industries accounted for 
almost 75 percent of the total number of H-2B workers certified during 
FY 2007-2009.\40\
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    \40\ According to H-2B program data, the average annual number 
of firms (of all sizes) and H-2B workers certified for these 
industries during FY2007-2009 were as follows: Landscaping Services, 
Firms--2,754, Workers--78,027; Janitorial Services, Firms--788, 
Workers--30,902; Food Services and Drinking Places, Firms--851, 
Workers--22,948; Amusement, Gambling, and Recreation, Firms--227, 
Workers--14,041; and Construction, Firms--860, Workers--30,242.
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    One industry, Forest Services, made the initial top-five list but 
is not included in this analysis because the only data available for 
forestry also include various agriculture, fishing, and hunting 
activities. Relevant data for Forestry only were not available. The 
Department requests the public to propose possible sources of data or 
information on the revenues and average number of workers of a typical 
small Forestry firm so that the

[[Page 15168]]

Department can better account for any impacts on this industry.
    We have adopted the SBA small business size standard for each of 
the five industries, which is a firm with annual revenues equal to or 
less than the following: Landscaping Services, $7 million; Janitorial 
Services, $16.5 million; Food Services and Drinking Places, $7 million; 
Amusement, Gambling, and Recreation, $7 million; and Construction, 
$20.7 million.\41\
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    \41\ The SBA small business size standards for construction 
range from $7 million (land subdivision) to $33.5 million (general 
building and heavy construction). However, because employers 
representing all types of construction businesses may apply for 
certification to employ H-2B workers, the Department used an average 
of $20.7 million as the size standard for construction.
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    4. Description of the projected reporting, recordkeeping and other 
compliance.
    The Department has estimated the incremental costs for small 
businesses from the baseline. For this proposed rule, the baseline is 
the 2008 Final Rule.\42\ This analysis reflects the incremental cost of 
this rule as it adds to the requirements in the 2008 Final Rule. Using 
available data, we have estimated the costs of the payment of 
transportation and subsistence to workers, visa and border crossing 
fees, the disclosure of job orders, additional recruiting directed by 
the CO, the time required to read and review the Final Rule, contacting 
H-2B workers to determine their time of departure, contacting labor 
organizations, and other impacts.
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    \42\ The Department published a revised final rule modifying the 
methodology by which prevailing wage rates are calculated for the H-
2B program. 76 FR 3452, Jan. 10, 2011. However, because that final 
rule is limited to the prevailing wage rate issue, the baseline for 
this proposal remains the 2008 Final Rule with regard to the non-
prevailing wage rate issues in this NPRM.
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    Several provisions of the proposed rule extend to workers in 
``corresponding employment,'' defined in the NPRM as those non-H-2B 
workers who perform work included in the job order that H-2B workers 
perform during the period of the job order and any other work performed 
by H-2B workers. These provisions include the application of H-2B wages 
to workers in corresponding employment, the transportation and 
subsistence payments (for workers who cannot reasonably return to their 
residence each workday), and the disclosure of the job order.
    The Department receives an average of 8,717 applications annually 
(which is not necessarily the same as the number of applicants, because 
one employer may file more than one application) for the H-2B program, 
and the Department estimates that an average of 6,980 of those 
applications result in petitions for H-2B workers that are approved by 
DHS. Even if all 6,980 applications are filed by unique small entities, 
all of which were in the top 5 industries, the percentage of small 
entities authorized to employ temporary non-agricultural workers will 
be less than 1 percent of the total number of small entities in these 
industries.\43\ Based on this analysis, the Department estimates that 
the rule will impact less than 1 percent of the total number of small 
businesses. A detailed industry-by-industry analysis is provided below.
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    \43\ The total number of firms classified as small entities in 
these industries is as follows: Landscaping Services, 63,210; 
Janitorial Services, 45,495; Food Services and Drinking Places, 
293,373; Amusement, Gambling, and Recreation, 43,726; and 
Construction, 689,040.
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    To examine the impact of this proposed rule on small entities, the 
Department evaluates the impact of the incremental costs on a 
hypothetical small entity of average size, in terms of the total number 
of both U.S. and foreign workers, in each industry if it were to fill 
50 percent of its workforce with H-2B workers. There are no available 
data to estimate the breakdown of the workforce into U.S. and foreign 
workers. Based on Economic Census data, the total number of workers 
(including both U.S. and foreign workers) for this hypothetical small 
business is as follows: Landscaping Services, 2.3 workers; Janitorial 
Services, 11.3 workers; Food Services and Drinking Places, 6.3 workers; 
Amusement, Gambling, and Recreation, 5.0 workers; and Construction, 6.3 
workers.\44\
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    \44\ Source: 2002 County Business Patterns and 2002 Economic 
Census. These data do not distinguish between U.S. workers and 
foreign workers. Compare to data obtained from H-2B program data for 
FY 2007-2009, which indicated that the average annual number of 
firms (of all sizes) and H-2B workers certified for these industries 
during FY 2007-2009 were as follows: Landscaping Services, Firms--
2,754, Workers--78,027, an average of 28 workers per firm; 
Janitorial Services, Firms--788, Workers--30,902, an average of 39 
workers per firm; Food Services and Drinking Places, Firms--851, 
Workers--22,948, and average of 27 workers per firm; Amusement, 
Gambling, and Recreation, Firms--227, Workers--14,041, an average of 
62 workers per firm; and Construction, Firms--860, Workers--30,242, 
an average of 35 workers per firm.
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    Also using Economic Census data, we derived the annual revenues for 
small entities in each of the top five industries by multiplying the 
average number of workers by the average revenue per worker for each of 
the industries. The Department estimates that small businesses in the 
top five industries have the following annual revenues: Landscaping 
Services, $0.181 million; Janitorial Services, $0.336 million; Food 
Services and Drinking Places, $0.223 million; Amusement, Gambling, and 
Recreation, $0.209 million, and Construction, $0.884 million.
    The following sections present the impacts that this NPRM is 
estimated to have on a small business that chooses to hire H-2B 
workers: these include impacts on the application of H-2B wages to 
workers in corresponding employment, transportation and subsistence 
costs, visa-related and border crossing fees, disclosure of job orders, 
additional recruiting that may be directed by the CO, reading and 
reviewing the new processes and requirements, contacting labor 
organizations, and other impacts. Note that the costs estimated below 
are not costs to all small businesses or to the average small business 
in an industry. Most small businesses in the relevant industry do not 
hire H-2B workers and, therefore, incur no cost burden from the 
proposed rule. The costs estimated apply only to the relatively small 
number of firms that are expected to hire H-2B workers. In the 
estimates below, the hypothetical firm that chooses to hire H-2B 
workers is assumed to be of the average total employment and revenue 
size for small businesses in its industry.
a. Application of H-2B Wages to Workers in Corresponding Employment
    The NPRM requires that workers in corresponding employment are paid 
the same wages paid to foreign workers under the H-2B program. However, 
the Department has not identified a reliable source of data to estimate 
the number of workers in corresponding employment at work sites on 
which H-2B workers are requested, and thus, cannot identify the current 
hourly wages of those workers. Therefore, the Department cannot 
quantify the impacts, if any, associated with this provision. The 
Department requests the public to propose possible sources of data or 
information on the number of workers in corresponding employment at 
work sites for which H-2B workers are requested and the current hourly 
wages of those workers.
    The NPRM will result in additional opportunities for U.S. workers 
to obtain a job and is therefore expected to result in lower government 
expenditures on unemployment insurance benefit claims. The lower 
unemployment insurance benefits reduce government expenditures, and 
these cost reductions are passed on to employers as a whole to a 
certain extent. The Department, however, is not able to quantify these 
transfer payments with precision.

[[Page 15169]]

Difficulty in calculating these transfer payments arises primarily from 
uncertainty about the number of U.S. workers who will become employed 
as a result of this rule.
b. Transportation and Subsistence to and From the Place of Employment
    The NPRM proposes to require H-2B employers to provide workers--
both H-2B workers and workers in corresponding employment unable to 
return each day to their permanent residence--with transportation and 
daily subsistence from the place from which the worker has come to work 
for the employer, whether in the U.S. or abroad, to the place of 
employment. The employer must also provide the worker with the cost of 
return transportation and daily subsistence from the worker's place of 
employment to the place from which the worker, disregarding intervening 
employment, departed to work for the employer.
    To estimate the cost of transportation, we first calculate the 
weighted average cost of transportation for the top ten countries of 
origin, by the estimated number of certified H-2B workers who were new 
entrants.45 46 For workers from Mexico and Canada, we assume 
that they travel to and from the place of employment by bus. For the 
remainder of the H-2B workers, we assume air travel.
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    \45\ The H-2B visa program is capped at 66,000 new visas per 
year. To estimate the number of new entrants from each country, we 
scaled the total number of certified workers from each country by 
the total number of new visas allowed from FY 2007 to FY 2009 
(66,000 new visas x 3 years, or 198,000 workers) divided by the 
total number of workers from FY 2007 to FY 2009.
    \46\ The top 10 countries of origin by the number of certified 
H-2B workers who entered during FY 2007-2009 are as follows: Mexico, 
134,226; Jamaica, 17,068; Guatemala, 6,530; Philippines, 4,963; 
Romania, 3,251, South Africa, 3,239; United Kingdom, 2,511; Canada, 
2,371; Israel, 1,784; and Australia, 1,577.
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    We estimate the weighted average one-way travel cost per employee 
to be approximately $286 per H-2B worker.\47\ We estimate the roundtrip 
transportation costs by multiplying the weighted average one-way cost 
by two, by the number of H-2B workers per average small entity and the 
probability that the worker is a new entrant to the country (57 
percent).\48\ The total annual average roundtrip transportation costs 
incurred by the average small employer in the top five industries are 
as follows: Landscaping Services, $375.89 ($286 x 2 x 1.2 x 0.57); 
Janitorial Services, $1,846.74 ($286 x 2 x 5.7 x 0.57); Food Services 
and Drinking Places, $1,029.60 ($286 x 2 x 3.2 x 0.57); Amusement, 
Gambling, and Recreation, $817.14 ($286 x 2 x 2.5 x 0.57); and 
Construction, $1,029.60 ($286 x 2 x 3.2 x 0.57). We do not know to what 
extent employers are currently paying for this cost in order to secure 
these workers or because of their obligations under the Fair Labor 
Standards Act. To the extent that this is the case, these 
transportation cost estimates are upper-bound estimates.
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    \47\ The one-way travel costs used for each country are as 
follows: Mexico, $179; Jamaica, $285; Guatemala, $484; Philippines, 
$973; Romania, $1,147; South Africa, $1,168; United Kingdom, $726; 
Canada, $165; Israel, $908; and Australia, $1,648. The 
transportation cost for Mexico is based on the cost of a bus trip 
from Mexico City, Mexico, to Ciudad Juarez, Mexico (source: http://www.ticketbus.com.mx) and a bus trip from El Paso, Texas, to St. 
Louis, Missouri (source: http://www.greyhound.com). The 
transportation cost for Canada is based on the cost of a bus trip 
from Ottawa, Ontario, to St. Louis, Missouri (source: http://www.greyhound.com). The airfare costs for the remaining countries 
are based on the cost of a flight from the capital city of the 
country in question to St. Louis, Missouri (source: http://www.kayak.com).
    \48\ The H-2B program is capped at 66,000 new visas per year. We 
estimate the probability that the worker is a new entrant by 
dividing 66,000 by the total number of H-2B workers (115,500), which 
includes both new entrants and H-2B workers who entered in the 
previous 2 years. We assume that 33,000 of the 66,000 workers stay 
one additional year and 16,500 workers stay two additional years, 
for a total of 115,500 H-2B workers in any given year.
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    We estimate the per-worker cost of subsistence by multiplying the 
subsistence per diem ($10.64) by the weighted average one-way travel 
time for the top ten H-2B countries (1.055 days), the number of one-way 
trips (two), and the probability that the worker is a new entrant to 
the country (57 percent).\49\ We estimate the average annual cost of 
subsistence to be approximately $12.83 ($10.64 x 1.055 x 2 x 0.57) per 
H-2B worker.
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    \49\ Source: 20 CFR 655. The one-way travel days applied to each 
country of origin is as follows: Mexico, 1; Jamaica, 1; Guatemala, 
1; Philippines, 2; Romania, 1, South Africa, 2; United Kingdom, 1; 
Canada, 1; Israel, 1; and Australia, 2.
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    This provision applies not only to H-2B workers, but also to 
workers in corresponding employment on H-2B worksites who are recruited 
from a distance at which the workers cannot reasonably return to their 
residence within the same workday. We were unable to identify adequate 
data to estimate the number of corresponding workers and, thus, we are 
unable to quantify this impact.
c. Visa-Related and Border Crossing Fees
    Under the 2008 Final Rule, visa fees are permitted to be paid by 
the temporary worker. The NPRM, however, proposes to require visa fees 
to be paid by the employer. Requiring employers to bear the full cost 
of hiring foreign workers is a necessary step toward preventing the 
exploitation of foreign workers with its concomitant adverse effect on 
domestic workers.
    The Department estimates the cost of visa fees by adding the cost 
per H-2B visa ($150) and the weighted average consular fee ($27.15) 
\50\ by the average number of H-2B employees in small entities in each 
of the top five industries and the probability that the worker is a new 
entrant to the country (57 percent).\51\ The total annual average visa 
fee costs incurred by the average small employer in the top five 
industries are as follows: Landscaping Services, $121.17 ($177.15 x 1.2 
x 0.57); Janitorial Services, $575.56 ($177.15 x 5.7 x 0.57); Food 
Services and Drinking Places, $323.12 ($177.15 x 3.2 x 0.57); 
Amusement, Gambling, and Recreation, $252.44 ($177.15 x 2.5 x 0.57); 
and Construction, $323.12 ($177.15 x 3.2 x 0.57).\52\
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    \50\ The top 10 countries of origin and the number of certified 
H-2B workers during FY 2007-2009 were as follows: Mexico, 134,226; 
Jamaica, 17,068; Guatemala, 6,530; Philippines, 4,963; Romania, 
3,251, South Africa, 3,239; United Kingdom, 2,511; Canada, 2,371; 
Israel, 1,784; and Australia, 1,577. We use these values to weight 
the country-specific consular costs to obtain the weighted average 
consular fee of $27.15.
    \51\ The visa fee of $150 went into effect on June 4, 2010. 
Source: http://www.state.gov/r/pa/prs/ps/2010/05/142155.htm.
    \52\ Similar to the transportation and subsistence cost 
discussed in the previous section, this analysis accounts for the 
annual 66,000-person cap on the issuance of H-2B visas.
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d. Disclosure of Job Order
    The NPRM proposes to require an employer to provide a copy of the 
job order to an H-2B worker no later than the time at which the worker 
outside of the U.S. applies for the H-2B visa or to a worker in 
corresponding employment no later than on the day that work starts. The 
job order must be translated to a language understood by the worker. 
For an H-2B worker changing employment from an H-2B employer to a 
subsequent H-2B employer, the copy must be provided no later than the 
time the subsequent H-2B employer makes an offer of employment.
    We estimate two cost components of the disclosure of job orders: 
The cost of reproducing the document containing the terms and 
conditions of employment, and the cost of translation. We obtain the 
cost of reproducing the terms and conditions by multiplying the number 
of pages to be photocopied (3) by the cost per photocopy ($0.12) and 
the percent of certified H-2B workers that are not involved in 
reforestation

[[Page 15170]]

(88.3 percent).\53\ We estimate average annual reproduction costs per 
H-2B employee per small H-2B employer of $0.32 per year (3 x $0.12 x 
0.883). We then multiply this product by the average number of H-2B 
workers in the top five industries to obtain the following average 
annual costs per small employer: Landscaping Services, $0.37 ($0.32 x 
1.2); Janitorial Services, $1.80 ($0.32 x 5.7); Food Services and 
Drinking Places, $1.00 ($0.32 x 3.2); Amusement, Gambling, and 
Recreation, $0.79 ($0.32 x 2.5); and Construction, $1.00 ($0.32 x 3.2).
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    \53\ The requirement to disclose the job order does not result 
in a new cost to reforestation employers because the Migrant and 
Seasonal Agricultural Worker Protection Act presently requires 
reforestation employers to make this disclosure. According to H-2B 
program data for FY2000-FY2009, 88.3 percent of H-2B workers work in 
an industry other than reforestation.
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    For the cost of translation, the Department assumes that an 
employer hires all of its H-2B workers from a country or set of 
countries that speak the same foreign language; thus, only one 
translation is necessary per employer needing translation. Using DHS 
data, we determined that approximately 83.92 percent of H-2B workers 
from the top ten countries of origin do not speak English. We use this 
as a proxy for the probability that an H-2B employer will need to 
translate the job order. We obtain the cost of translation by 
multiplying the percent of H-2B workers who do not speak English 
(83.92) by the number of pages of the terms and conditions (3) and by 
the translation cost per page ($21.00).\54\ We estimate average annual 
translation costs of $52.87 per employer (0.8392 x 3 x $21.00).
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    \54\ The source of the percentage of H-2B workers who do not 
speak English is the ``Yearbook of Immigration Statistics'', 2007-
2009 (http://www.dhs.gov/xlibrary/assets/statistics/yearbook/). The 
source for the translation cost per page is http://www.languagescape.com.
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e. Additional Recruiting Directed by the Certifying Officer
    Under the proposed rule, the employer may be directed by the CO to 
conduct additional recruitment of the CO has determined that there may 
be available and qualified U.S. workers, including where the job 
opportunity is located in an area of substantial unemployment. There is 
no such provision in the 2008 Final Rule.
    We estimate this cost by multiplying the average cost of a 
newspaper advertisement ($25.09) by 0.5 based on our estimate that 50 
percent of H-2B employers can be expected to be directed by the CO to 
conduct additional recruitment for a total cost of $12.55 ($25.09 x 
0.50) per employer.\55\ We also add the labor cost to prepare the 
advertisement. The latter cost is calculated by multiplying the 
estimated time required to post the advertisement (0.08 hours, or 5 
minutes) by the scaled hourly compensation rate of an administrative 
assistant/executive secretary ($28.64) \56\ and our estimate that 50 
percent of H-2B employers can be expected to be directed by the CO to 
conduct additional recruiting for a total labor cost of $1.15 (0.08 x 
$28.64 x 0.50) per employer. Thus, the total annual cost of CO-directed 
recruiting is estimated to be $13.69 ($12.55 + $1.15) per employer.\57\
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    \55\ To obtain the average cost of a newspaper advertisement, we 
averaged the advertisement rates for the following newspapers: The 
Augusta Chronicle, the Austin Chronicle, the Huntsville Times, the 
Los Alamos Monitor, the San Diego Union-Tribune, and the Advertiser 
Times (Detroit, Michigan). Other means of recruiting are possible 
under this NPRM (such as listings on Monster.com and Career 
Builder), but they may be more costly, while other recruiting means 
(such as contacting community-based organizations) may be less 
costly.
    \56\ It is possible that there will be additional costs incurred 
by small employers due to interviewing additional applicants who are 
referred to H-2B employers by job advertisements. The Department 
does not have valid data on referrals resulting from job 
advertisements and, thus, is unable to quantify this impact.
    \57\ It is possible that there will be additional costs incurred 
by small employers due to interviewing additional applicants who are 
referred to H-2B employers by job advertisements. The Department 
does not have valid data on referrals resulting from job 
advertisements and, thus, is unable to quantify this impact.
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f. Reading and Reviewing the New Processes and Requirements
    During the first year that this rule would be in effect, employers 
would need to learn about the new processes and requirements. We 
estimate this cost for a hypothetical small entity which is interested 
in applying for H-2B workers by multiplying the time required to read 
the new rule and any educational and outreach materials that explain 
the H-2B application process under the rule by the average compensation 
of a human resources manager.\58\ In the first year of the rule, the 
Department estimates that the average small business participating in 
the program will spend approximately 3 hours of staff time to read and 
review the new processes and requirements, which amounts to 
approximately $184.26 ($61.42 x 3) in labor costs in the first 
year.\59\
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    \58\ The hourly compensation rate for a human resources manager 
is calculated by multiplying the hourly wage of $42.95 (as published 
by the Department's OES survey, O*NET Online) by 1.43 to account for 
private-sector employee benefits (Source: BLS). Thus, the loaded 
hourly compensation rate for a human resources manager is $61.42.
    \59\ The number of small businesses that will read and review 
the Final Rule is likely to include some that will not apply for the 
program. There are no available data to quantify this possible 
effect.
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g. Departure Time Determination
    The NPRM proposes to require employers to provide notice to the 
local SWA of the time at which the last H-2B worker departs for the 
place of employment, if the last worker has not departed by 3 days 
before the date of need. The cost of this provision is the sum of the 
time required to place a phone call by the employer to the H-2B 
workers' representative to verify when the last H-2B worker will depart 
for the place of employment, the cost of the long-distance phone call 
(one call per employer), the time required to prepare and mail a letter 
to the SWA, and the cost of paper, an envelope, and postage.
    To estimate the cost of placing the phone calls, we multiply the 
time needed to contact a representative of the H-2B workers (0.08 
hours, or 5 minutes) by the scaled hourly compensation rate; of an 
administrative assistant/executive secretary ($28.64), which totals 
$2.39 (0.08 x $28.64).\60\ To this product, we add the weighted average 
cost of a long distance phone call to the top 10 countries ($3.23) to 
obtain total average annual costs of contacting H-2B workers equal to 
$5.62 ($2.39 + $3.23).\61\
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    \60\ The hourly compensation rate for an administrative 
assistant/executive secretary is calculated by multiplying the 
hourly wage of $20.03 (as published by the Department's OES survey, 
O*NET Online) by 1.43 to account for private-sector employee 
benefits (Source: BLS). Thus, the loaded hourly compensation rate 
for an administrative assistant/executive secretary is $28.64.
    \61\ We collected long distance call charges from both AT&T and 
Verizon and averaged them. Source: htpp://www.wireless.att.com/
learn/international/long-distance/in-the-us.jsp and htpp://
www22.verizon.com/longdistance/business_east/plan_ttw_brates.jsp.
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    Once the H-2B employer has determined when the last H-2B worker 
will depart his or her home, if the last worker has not departed by 
three days before the date of need, the employer must notify the local 
SWA in writing. We estimate the cost of preparing and mailing a letter 
to the SWA by summing the labor costs to prepare and mail a letter and 
the cost of paper, an envelope, and postage.
    We estimate the labor cost by multiplying the scaled hourly labor 
compensation of an administrative assistant/executive secretary 
($28.64) by the percentage of H-2B applicants that will be required 
under this provision to ensure contact with the SWA (10 percent) and 
the sum of the time needed to draft the main content of a letter (0.25

[[Page 15171]]

hours, or 15 minutes), and the time needed to type the letter and 
prepare it for mailing (0.08 hours, or 5 minutes). This calculation 
yields average annual labor costs of $0.95 ($28.64 x 0.10 x (0.25 + 
0.08)). We estimate the material costs of contacting the SWA by 
multiplying the percentage of H-2B employer applicants that we assume 
will be requested to contact the SWA (10 percent) by the sum of the 
cost of a sheet of paper ($0.02), the cost of an envelope ($0.04), and 
the postage per envelope ($0.44). We estimate the total material costs 
at $0.05 (0.10 x ($0.02 + $0.04 + $0.44)) per letter.
    In total, the Department estimates the total average annual costs 
of departure time determination to be approximately $6.62 ($5.62 + 
$0.95 + $0.05) per year.
h. Contacting Labor Organizations
    The NPRM proposes to require the employer to contact the local 
union to locate able, willing, and qualified U.S. workers where union 
representation is prevalent in the occupation or where the position is 
currently governed by a collective bargaining agreement. The employer 
must provide written notice of the job opportunity to the 
representative(s) of any of the employer's employees in the job 
classification and geographic area in which the work will be performed. 
This provision of the proposed rule expands the requirement from the 
baseline established by the 2008 Final Rule because it requires the 
employer to contact the local union if the job is customarily unionized 
even if there is no union or CBA with the employer.
    We estimate two components of the cost to contact labor 
organizations: labor and materials. We estimate the labor cost by 
multiplying the scaled hourly labor compensation of an administrative 
assistant/executive secretary ($28.64) by the time needed to draft, 
type, print, and mail out the letter (0.25 hours, or 15 minutes, to 
draft, type, and print the letter, and 0.08 hours, or 5 minutes, to 
mail the letter) and the percent of workers in the relevant occupations 
that were represented by unions from 2007 to 2009 (12.3 percent).\62\ 
We estimate the annual average labor costs per letter to be $1.18 
($28.64 x (0.25 + 0.08) x 0.123).
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    \62\ Unionization data for the following occupations were used: 
Arts, entertainment, sports, and media; food preparation and serving 
related; building and grounds cleaning and maintenance; personal 
care and service; farming, fishing, and forestry; construction and 
extraction; and installation, maintenance, and repair. These 
occupational categories represent the majority of H-2B occupations. 
Source: http://www.bls.gov/webapps/legacy/cpslutab3.htm.
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    The second cost component we estimate is the material costs. We 
calculate this cost by summing the cost of a sheet of paper ($0.02), an 
envelope ($0.04), and postage ($0.44), and multiplying the resulting 
sum by the percent of workers in the relevant occupations that were 
represented by unions from 2007 to 2009 (12.3 percent). We estimate the 
total material costs at $0.06 (($0.02 + $0.04 + $0.44) x 0.123) per 
letter.
    In total, the Department estimates the cost of contacting labor 
organizations and bargaining representatives to be $1.24 ($1.18 + $ 
0.06) per employer.
i. Document Retention
    Under the NPRM, H-2B employers must retain documentation beyond 
that required by the 2008 Final Rule. The Department assumes that each 
H-2B employer will purchase a filing cabinet ($21.99) in which to store 
the additional documents starting in the first year of the rule.\63\
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    \63\ Source: http://www.staples.com.
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j. Elimination of Attestation-Based Model
    The 2008 Final Rule uses an attestation-based model: employers 
conduct the required recruitment in advance of application filing and, 
based on the results of that effort, apply for certification from the 
Department for a number of foreign workers to fill the remaining 
openings. Employers currently attest that they have undertaken the 
necessary activities and made the required assurances to workers. The 
Department has determined that there are insufficient worker 
protections in the attestation-based model. In eliminating the 
attestation based-model, the NPRM shifts the recruitment process to 
after the application is filed so that employers have to demonstrate--
and not merely attest--that they have performed an adequate test of the 
labor market. Therefore, the primary effect of eliminating the 
attestation based-model is a change in the timing of recruitment more 
so than a change in substantive requirements.
    The elimination of the attestation-based model will impose minimal 
costs on employers because they will only need to include additional 
information in their recruitment report, including information on 
additional recruitment conducted, means of posting, contact with former 
U.S. workers, and contact with labor organizations where the union 
representation is prevalent in the occupation. We estimate two costs 
for the elimination of the attestation-based model: The material cost 
to reproduce and mail the documents, and the labor cost to reproduce 
and mail the documents. To estimate the cost of reproducing and mailing 
the documents, we multiply the additional number of pages that must be 
submitted (3) by the additional postage required to ship those pages 
($0.17). We estimate this cost to be approximately $0.51 per employer. 
To estimate the labor cost of reproducing and mailing the documents, we 
multiply the time needed to reproduce and mail the documents (0.08 
hours, or 5 minutes) by the scaled hourly labor compensation of an 
administrative assistant/executive secretary ($28.64). We estimate this 
cost to be approximately $2.39 per employer.
k. Other
    The NPRM proposes to require employers to post the availability of 
the job opportunity in at least two conspicuous locations at the place 
of anticipated employment for at least 10 consecutive days. This 
provision entails additional reproduction costs. For the job posting 
requirement, the total cost to photocopy the additional job postings 
(two) is $0.24 per employer.
3. Total Cost Burden for Small Entities
    The Department's calculations indicate that for a hypothetical 
small entity in the top five industries that applies for one worker 
(representing the smallest of the small entities that hire H-2B 
workers), the total average annual cost of the NPRM is $539. The 
average annual costs for employers in the top five industries that hire 
the average number of employees for their respective industries are as 
follows: Landscaping Services, $614; Janitorial Services, $2,851; Food 
Services and Drinking Places, $1,608; Amusement, Gambling, and 
Recreation, $1,285, and Construction, $1,608.
    The proposed rule is not expected to have a significant economic 
impact on a hypothetical small entity that applied for enough workers 
to fill 50 percent of its workforce. To evaluate this impact, the 
Department calculates the total cost burden as a percent of revenue for 
each of the top five industries. The estimated revenues for small 
entities in the top five industries that hire one employee are as 
follows: Landscaping Services, $79,315; Janitorial Services, $29,839; 
Food Services and Drinking Places, $35,365; Amusement, Gambling, and 
Recreation, $41,644; and Construction, $140,306.\64\ The Department 
then

[[Page 15172]]

divides the total cost burden for small entities hiring one worker by 
the total estimated revenue for small entities in each of the top five 
industries. The total costs as a percent of revenues for the top five 
industries are as follows: Landscaping Services, 0.7 percent ($539/
$79,315); Janitorial Services, 1.8 percent ($539/$29,839); Food 
Services and Drinking Places, 1.5 percent ($539/$35,365); Amusement, 
Gambling, and Recreation, 1.3 percent ($539/$41,644); and Construction, 
0.4 percent ($539/$140,306).
---------------------------------------------------------------------------

    \64\ Source: 2002 County Business Patterns and 2002 Economic 
Census. http://www.census.gov/econ/susb/data/susb2002.html.
---------------------------------------------------------------------------

    To estimate the revenues for small entities hiring the average 
number of employees, the Department multiplies the average revenue per 
employee for small entities in the top five industries by the average 
number of employees per small entity. The estimated revenues for small 
entities in the top five industries that hire the average number of 
employees are as follows: Landscaping Services, $182,425 ($79,315 x 
2.3); Janitorial Services, $337,181 ($29,839 x 11.3); Food Services and 
Drinking Places, $222,800 ($35,365 x 6.3); Amusement, Gambling, and 
Recreation, $208,220 ($41,644 x 5); and Construction, $883,928 
($140,306 x 6.3). The total cost burden as a percent of revenue for 
small entities hiring the average number of workers in the top five 
industries are as follows: Landscaping Services, 0.3 percent ($614/
$182,425); Janitorial Services, 0.9 percent ($2,851/$337,181); Food 
Services and Drinking Places, 0.7 percent ($1,608/$222,800); Amusement, 
Gambling, and Recreation, 0.6 percent ($1,285/$208,220); and 
Construction, 0.2 percent ($1,608/$883,928).
    Moreover, the small entities that have historically applied for H-
2B workers represent very small proportions of all small businesses. 
The following are the percentages of firms that were certified for H-2B 
workers among all small U.S. businesses in their respective industries: 
Landscaping Services, 2.2 percent [(2,754 x 0.50)/63,210]; Janitorial 
Services, 0.9 percent [(788 x 0.50)/45,595]; Food Services and Drinking 
Places, 0.1 percent [(851 x 0.50)/293,373]; Amusement, Gambling, and 
Recreation, 0.3 percent [(227 x 0.50)/43,726], and Construction, 0.1 
percent [(860 x 0.50)/689,040].\65\ Due to the statutory annual cap on 
available visas, the percentage of small entities receiving H-2B visas, 
to which the full cost burden would apply, would be even lower.
---------------------------------------------------------------------------

    \65\ The source of the numerator (i.e., the number of certified 
H-2B employers) is H-2B program data for FY 2007-2009. The source of 
the denominator (i.e., the total number of U.S. businesses meeting 
the SBA small-size criteria) is the 2002 County Business Patterns 
and 2002 Economic Census. http://www.census.gov/econ/susb/data/susb2002.html. We multiply the numerator by 0.50 to reflect our 
assumption that 50 percent of H-2B employers are small businesses.
---------------------------------------------------------------------------

    Therefore, the Department believes that this proposed rule is 
expected to have a net direct cost impact on a very limited number of 
small non-agricultural employers above the baseline of the current 
costs incurred by the program as it is currently implemented under the 
2008 Final Rule. Accordingly, the proposed rule is not expected to 
impact a substantial number of small entities.
5. Identification of All Relevant Federal Rules That May Duplicate, 
Overlap or Conflict With the Proposed Rule
    The Department is not aware of any relevant Federal rules that 
duplicate, overlap of conflict with the proposed rule.
6. Alternatives Considered as Options for Small Businesses
    While we have concluded that this proposed regulation will not have 
a significant economic impact on a substantial number of small 
entities, we have made every effort to minimize the cost burden on the 
relatively small number of businesses that do use the program. The 
Department's mandate under the H-2B program is to set requirements for 
employers that wish to hire temporary foreign non-agricultural workers. 
Those requirements are designed to ensure that foreign workers are used 
only if qualified domestic workers are not available and that the 
hiring of H-2B workers will not adversely affect the wages and working 
conditions of similarly employed domestic workers. These regulations 
set those minimum standards. To create different and likely lower 
standards for one class of employers (e.g., small businesses) would 
essentially sanction the very adverse effect that the Department is 
compelled to prevent.
    The Department considered a number of alternatives: (1) To propose 
the policy changes contained in this NPRM; (2) to take no action, that 
is, to leave the 2008 Final Rule intact; and (3) to propose a number of 
other options discussed in more detail below. We believe that this NPRM 
retains the best features of the 2008 Final Rule and proposes 
additional provisions to best achieve the Department's policy 
objectives, consistent with its mandate under the H-2B program. We 
request comments from the public on the best alternatives that would 
balance the needs of small businesses with providing adequate 
protections to U.S. and H-2B workers. We are also interested in any 
available information about the number of U.S. workers that would 
benefit from increased opportunity for jobs.
    The Department considered alternatives to a number of program 
proposals. First, the Department considered defining full-time as 40 
hours a week instead of the proposed 35 hours a week, as discussed in 
more detail in the preamble to proposed Sec.  655.5. The Department 
concluded that defining full-time as 35 hours is more consistent with 
the Department's historical practice for the H-2B program, and should 
therefore not pose difficulty for the regulated community. Nevertheless 
the Department has asked for comments as to whether extending the 
definition of a full-time workweek to at least 40 hours is more 
protective of U.S. workers and whether it conforms better to employer 
standards and needs.
    Second, while the Department proposed to allow certain deductions 
from a worker's earnings for the provision of items that are primarily 
for the benefit of the H-2B employer, as long as they do not bring the 
worker's actual wages paid below the H-2B required wage level, the 
Department considered as an alternative using the rule under the FLSA, 
which specifies the Federal minimum wage as the floor beneath which 
such deductions cannot lower a worker's wages paid. The Department 
rejected this alternative because using the H-2B required wage level as 
the floor rather than the Federal minimum wage offers greater 
protection to U.S. workers from adverse effect by preserving the 
integrity of the offered wage. Otherwise, the employer, who is 
obligated to pay the ``offered wage'' which is generally higher than 
the FLSA minimum wage, could take deductions from wages that could 
reduce the effective wage to the FLSA minimum.
    Third, this NPRM introduces a three-fourths guarantee requirement 
modeled generally on that used in the H-2A program. The Department 
considered retaining the language of the H-2A requirement, under which 
employers must guarantee to offer the worker employment for a total 
number of work hours equal to at least three-fourths of the workdays of 
the total length of the contract. The Department rejected this 
alternative because, while this would provide workers with significant 
protection, it would not be sufficient to discourage the submission of 
imprecise dates of need and/or imprecise numbers of employees needed 
and would therefore fail to protect U.S. and H-2B workers from periods 
of unforeseen underemployment.
    The Department believes that the proposal, which calculates the 
hours of

[[Page 15173]]

employment offered in 4-week periods, better ensures that workers' 
commitment to a particular employer will result in real jobs that meet 
their reasonable expectations. We do not believe the proposal will 
create any additional burden on employers who have accurately 
represented their period of need and number of workers needed, and will 
provide an additional incentive for applicants to correctly state ALL 
OF their needs on the Application for Temporary Employment 
Certification.
    Finally, the Department considered not including a separate 
registration process under which H-2B employers first file a 
registration application with the Department. This registration 
process, as proposed, is intended to resolve the question of whether 
the employer's need is temporary before the employer is required to 
begin recruitment. The Department considered instead retaining the 
current practice for the adjudication of the employer's temporary need 
and the labor market analysis to occur simultaneously. While this might 
be more advantageous for employers new to the program, it delays the 
vast majority of employers who are recurring users with relatively 
stable dates of need and who would benefit from separate adjudication 
of need and adequacy of recruitment. Moreover, all employers and 
potential workers benefit from a recruitment process close in time to 
the actual date of need which a registration process, by pre-
determining temporary need, expressly permits. Therefore, the 
Department rejected the alternative of simultaneous adjudication 
because it undercuts the Secretary's fulfillment of her obligations 
under the program.
    Ultimately, the decision of an employer to apply for H-2B workers 
is a voluntary choice. That is, any individual employer can avoid the 
costs associated with the NPRM by not applying for H-2B workers.

C. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531) directs agencies to assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private 
sector. The proposed rule has no Federal mandate, which is defined in 2 
U.S.C. 658(6) to include either a ``Federal intergovernmental mandate'' 
or a ``Federal private sector mandate.'' A Federal mandate is any 
provision in a regulation that imposes an enforceable duty upon State, 
local, or tribal governments, or imposes a duty upon the private sector 
which is not voluntary. A decision by a private entity to obtain an H-
2B worker is purely voluntary and is, therefore, excluded from any 
reporting requirement under the Act.
    SWAs are mandated to perform certain activities for the Federal 
Government under the H-2B program, and receive grants to support the 
performance of these activities. Under the 2008 Final Rule the SWA role 
was changed to accommodate the attestation-based process. The current 
regulation requires SWAs to accept and place job orders into intra and 
interstate clearance, review referrals, and verify employment 
eligibility of the applicants who apply to the SWA to be referred to 
the job opportunity. Under the proposed rule the SWA would continue to 
play a significant and active role. The Department is proposing to 
continue the requirement that employers submit their job orders to the 
SWA having jurisdiction over the area of intended employment as is the 
case in the current regulation. In addition to providing the job order 
the Department proposes that the employer will provide a copy of the 
Application for Temporary Employment Certification to the SWA; however, 
this is simply a copy for disclosure purposes and would require no 
additional information collection or review activities by the SWA. The 
Department is also proposing to continue to require SWAs to place job 
orders into clearance, as well as provide employers with referrals 
received in connection with the job opportunity. The Department 
recognizes that based on the extended recruitment times and the 
possibility that the CO could require additional interstate recruitment 
under this proposed rule, SWAs may experience a slight increase in 
their workload. However, the Department is proposing to eliminate the 
employment verification responsibilities the SWA has under the current 
regulations. With the elimination of workload created by the employment 
verification requirement SWAs can now apply those resources to the 
additional recruitment requirements proposed under this rule.
    SWA activities under the H-2B program are currently funded by the 
Department through grants provided under the Wagner-Peyser Act. 29 
U.S.C. 49 et seq. The Department anticipates continuing funding under 
the Wagner-Peyser Act. As a result of this NPRM and the publication of 
a final regulation, the Department will analyze the amounts of such 
grants made available to each State to fund the activities of the SWAs.

D. Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)

    The Department has determined that this rulemaking does not impose 
a significant impact on a substantial number of small entities under 
the RFA; therefore, the Department is not required to produce any 
compliance guides for small entities as mandated by the SBREFA. The 
Department has similarly concluded that this proposed rule is not a 
major rule requiring review by the Congress under the SBREFA because it 
will not likely result in: (1) An annual effect on the economy of $100 
million or more; (2) a major increase in costs or prices for consumers, 
individual industries, Federal, State or local Government agencies, or 
geographic regions; or (3) significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
U.S.-based enterprises to compete with foreign-based enterprises in 
domestic or export markets.

E. Executive Order 13132--Federalism

    The Department has reviewed this proposed rule in accordance with 
E.O. 13132 regarding federalism and has determined that it does not 
have federalism implications. The proposed rule does not have 
substantial direct effects on States, on the relationship between the 
States, or on the distribution of power and responsibilities among the 
various levels of Government as described by E.O. 13132. Therefore, the 
Department has determined that this proposed rule will not have a 
sufficient federalism implication to warrant the preparation of a 
summary impact statement.

F. Executive Order 13175--Indian Tribal Governments

    This proposed rule was reviewed under the terms of E.O. 13175 and 
determined not to have tribal implications. The proposed rule does not 
have substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes. As a result, no tribal summary impact 
statement has been prepared.

G. Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act, enacted as part of the Omnibus Consolidated and Emergency 
Supplemental Appropriations Act of

[[Page 15174]]

1999 (Pub. L. 105-277, 112 Stat. 2681) requires the Department to 
assess the impact of this proposed rule on family well-being. A rule 
that is determined to have a negative effect on families must be 
supported with an adequate rationale.
    The Department has assessed this proposed rule and determines that 
it will not have a negative effect on families.

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

    The proposed rule is not subject to E.O. 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights, because it does not involve implementation of a policy with 
takings implications.

I. Executive Order 12988--Civil Justice

    The proposed rule has been drafted and reviewed in accordance with 
E.O. 12988, Civil Justice Reform, and will not unduly burden the 
Federal court system. The Department has developed the proposed rule to 
minimize litigation and provide a clear legal standard for affected 
conduct, and has reviewed the proposed rule carefully to eliminate 
drafting errors and ambiguities.

J. Plain Language

    The Department drafted this NPRM in plain language.

K. Paperwork Reduction Act

    As part of its continuing effort to reduce paperwork and respondent 
burden, the Department conducts a preclearance consultation program to 
provide the general public and Federal agencies with an opportunity to 
comment on proposed and continuing collections of information in 
accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 
3506(c)(2)(A)). This process helps to ensure that the public 
understands the Department's collection instructions; respondents 
provide requested data in the desired format; reporting burden (time 
and financial resources) is minimized; collection instruments are 
clearly understood; and the Department properly assesses the impact of 
collection requirements on respondents.
    The PRA requires all Federal agencies to analyze proposed 
regulations for potential time burdens on the regulated community 
created by provisions within the proposed regulations that require the 
submission of information. These information collection (IC) 
requirements must be submitted to OMB for approval. Persons are not 
required to respond to a collection of information unless it displays a 
currently valid OMB control number as required in 5 CFR 1320.11(l) or 
it is exempt from the PRA.
    The majority of the IC requirements for the current H-2B program 
are approved under OMB control number 1205-0466 (which includes ETA 
Form 9141 and ETA Form 9142). The Department is proposing to add a new 
IC to the same OMB control number, specifically, the ETA Form 9155. In 
addition, the IC for the ETA Form 9142 will need to be modified to 
account for new requirements under the proposed regulation.
    A number of the provisions under this proposed rule are exempt from 
a burden analysis. Below is a section-by-section analysis of the PRA 
burden. Any necessary adjustments to the burden calculations have been 
submitted to OMB for review under sec. 3507(d) of the PRA. For an 
additional explanation of how the Department calculated the burden 
hours and related costs, the PRA package for IC 1205-0466 may be 
obtained by contacting the PRA addressee shown below or at http://www.RegInfo.gov.
    PRA Addressee: Sherril Hurd, Office of Policy Development and 
Research, U.S. Department of Labor, Employment & Training 
Administration, 200 Constitution Avenue, NW., Room N-5641, Washington, 
DC 20210. Telephone: 202-693-3700 (this is not a toll-free number).
    Comments regarding the IC should be sent to (1) the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
Room 10235, New Executive Office Building, Washington, DC 20503; 
Attention: Desk Officer for the Employment and Training Administration; 
and a copy to (2) Office of Foreign Labor Certification, Room C-4312, 
200 Constitution Ave., NW., Washington, DC 20210 or fax: 202-693-2768. 
Comments to OMB may be submitted by using the Federal eRulemaking 
portal at http://www.regulations.gov (follow instructions for 
submission of comments) or by fax: 202-395-5806. OMB requests that 
comments be received within 60 days of publication of the Proposed Rule 
to ensure their consideration. Please note that comments submitted to 
OMB are a matter of public record.
    When submitting comments on the information collection, your 
comments should address one or more of the following four points:
     Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
     Evaluate the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used;
     Enhance the quality, utility, and clarity of the 
information to be collected; and
     Minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submissions of responses.
Summary
    The information collection is required by Title 8 CFR 214.2(h)(6) 
of the DHS regulations. Title 8 CFR 214.2(h)(6)(b)(iii)(A) and (iv)(A) 
require the Secretary to certify, among other things, that any foreign 
worker seeking to enter the U.S. for the purpose of performing certain 
temporary nonagricultural labor will not, by doing so, adversely affect 
wages and working conditions of U.S. workers similarly employed. The 
Secretary must also certify that qualified workers in the U.S. are not 
available for the job opportunity. Before any employer may petition for 
any temporary nonagricultural foreign workers, it must submit a request 
for certification to the Secretary containing the elements prescribed 
by the DHS regulations.
    This proposed rule is designed to obtain the necessary information 
for the Secretary to make an informed decision in meeting the 
Department's obligations. The information collected will be used, among 
other things: To inform U.S. workers of the job opportunity thereby 
testing the labor market; to determine whether or not the employer is 
offering the proper wage to all employees; to ensure that the employer 
(and its agent) is eligible to employ foreign workers under the H-2B 
program; to have written assurances from the employer of its intent to 
comply with program requirements; and to ensure program integrity.
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BILLING CODE 4510-FP-C

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Annual Hourly Burden
    In order to estimate the potential hourly burden of the information 
collection required to apply for a labor certification as described in 
this proposed rule, the Department relied upon program experience and 
program data from FY 2000-2009. Based on information on program usage 
from these years, the Department estimates that it will receive an 
average of 8,717 applications requesting approximately 236,706 foreign 
workers. This is a decrease from the 12,000 applications estimated in 
the previous submission used to calculate the original burden in 1205-
0466 and is in part due to the fluctuating U.S. economy over the years. 
Specifically, the methodology used to arrive at the current lower 
estimate includes periods in which the U.S. economy grew and periods in 
which the U.S. economy contracted.
---------------------------------------------------------------------------

    \66\ Obligation to respond to this information collection is 
mandatory (M), required for benefit (R), or voluntary (V).
    \67\ See 5 CFR 1320.3(c)(2).
    \68\ See 5 CFR 1320.3(b)(3); this is a normal function of SWAs.
    \69\ See 5 CFR 1320.3(b)(2).
    \70\ See 29 CFR 1602.14 (OMB 3046-0040); 29 CFR 1627.3(B)(3) 
(OMB 3046-0018); 29 CFR 1627.3(b)(3).
    \71\ See 5 CFR 1320.3(h)(6) & (9) and 5 CFR 1320.4(a)(2).
    \72\ See 5 CFR 1320.4(a)(2).
---------------------------------------------------------------------------

    For the number of appeals, modifications, requests for waivers of 
the filing time, extensions, and other program components requiring 
information collection under the PRA, the Department based its 
estimates on program experience in the current program and its other 
programs with similar procedures to determine annual hourly burdens 
described in the chart above.
    The total annual hourly burden for the IC in this NPRM is 94,187 
hours.
Monetized Hourly Burden
    Employers filing applications for temporary alien employment 
certification represent a wide variety of industries. Salaries for 
employers and/or their employees who perform the reporting and 
recordkeeping functions required by this regulation may range from 
several hundred dollars to several hundred thousand dollars, where the 
corporate executive office of a large company performs some or all of 
these functions itself. However, the Department recognizes that in most 
companies a Human Resources Manager will perform these activities. 
Therefore, in estimating employer staff time and costs, the Department 
used the hourly wage rate for a Human Resources Manager ($42.95), as 
published by the U.S. Department of Labor's Occupational Employment 
Statistics OnLine,\73\ and increased by a factor of 1.43 to account for 
employee benefits and other compensation for a total hourly cost of 
$61.42. Total annual respondent hour costs for the information 
collection is estimated as follows:
---------------------------------------------------------------------------

    \73\ Source: Bureau of Labor Statistics 2009 OES wage data for 
Washington, DC.

1205-0466 94,187 hours x $61.42 = $5,784,966
Cost Burden to Respondents
    The proposed rule does not alter any out-of-pocket expenses such as 
filing fees to participate in the program. There is also no capital 
investment required to participate.
    Affected Public: Farms, business or other for-profit; not-for-
profit institutions.
    Estimated Number of Respondents: 3,966.
    Estimated Number of Responses: 396,984.
    Frequency of Response: Annually; occasionally.
    Estimated Annual Burden Hours: 94,187.
    Estimated Annual Hourly Burden Cost: $5,784,966.
    Estimated Annual Cost Burden: $0.

List of Subjects

 20 CFR Part 655

    Administrative practice and procedure, Employment, Employment and 
training, Enforcement, Foreign workers, Forest and forest products, 
Fraud, Health professions, Immigration, Labor, Longshore and harbor 
work, Migrant workers, Nonimmigrant workers, Passports and visas, 
Penalties, Reporting and recordkeeping requirements, Unemployment, 
Wages, Working conditions.

29 CFR Part 503

    Administrative practice and procedure, Employment, Foreign Workers, 
Housing, Housing standards, Immigration, Labor, Nonimmigrant workers, 
Penalties, Transportation, Wages.

Title 20--Employees' Benefits

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

    1. The authority citation for part 655 continues to read as 
follows:

    Authority:  Section 655.0 issued under 8 U.S.C. 
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 1182(m), (n) and 
(t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); sec. 3(c)(1), 
Pub. L. 101-238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec. 
221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note); 
sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 
note); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; sec. 412(e), 
Pub. L. 105-277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d), 
Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L. 
109-423, 120 Stat. 2900; and 8 CFR 214.2(h)(4)(i).
    Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 
1184(c), and 1188; and 8 CFR 214.2(h).
    Subparts A and C issued under 8 CFR 214.2(h).
    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), 
and 1188; and 8 CFR 214.2(h).
    Subparts D and E authority repealed.
    Subparts F and G issued under 8 U.S.C. 1288(c) and (d); and sec. 
323(c), Pub. L. 103-206, 107 Stat. 2428.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and 
(b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Pub. 
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), 
Pub. L. 105-277, 112 Stat. 2681; and 8 CFR 214.2(h).
    Subparts J and K authority repealed.
    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).

    2. In subpart A, revise Sec. Sec.  655.1 through 655.6 to read as 
follows:

Subpart A--Labor Certification Process for Temporary Non-
Agricultural Employment in the United States (H-2B Workers)

Sec.
655.1 Scope and purpose of subpart A.
655.2 Authority of the agencies, offices, and divisions in the 
Department of Labor.
655.3 Territory of Guam.
655.4 Special procedures.
655.5 Definition of terms.
655.6 Temporary need.
* * * * *

Sec.  655.1  Scope and purpose of subpart A.

    The Immigration and Nationality Act (INA) at 8 U.S.C. 1184(c)(1) 
requires the Secretary of the Department of Homeland Security (DHS) to 
consult with appropriate agencies before authorizing the entry of H-2B 
workers. DHS regulations at 8 CFR 214.2(h)(6)(iv) provide that an 
employer's petition to employ nonimmigrant workers on H-2B visas for 
temporary non-agricultural employment in the United States (U.S.), 
except for Guam, must be accompanied by an approved temporary 
employment certification from the Secretary of Labor (Secretary).
    (a) Purpose. The temporary employment certification reflects a 
determination by the Secretary that:

[[Page 15177]]

    (1) There are not sufficient U.S. workers who are qualified and who 
will be available to perform the temporary services or labor for which 
an employer desires to import foreign workers, and that
    (2) The employment of the H-2B worker(s) will not adversely affect 
the wages and working conditions of U.S. workers similarly employed.
    (b) Scope. This subpart sets forth the procedures governing the 
labor certification process for the temporary employment of 
nonimmigrant foreign workers in the H-2B visa category, as defined in 8 
U.S.C. 1101(a)(15)(H)(ii)(b). It also establishes obligations with 
respect to the terms and conditions of the temporary employment 
certification with which H-2B employers must comply, as well as their 
obligations to H-2B workers and workers in corresponding employment. 
Additionally, this subpart sets forth integrity measures for ensuring 
employers' continued compliance with the terms and conditions of the 
temporary employment certification.

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 her authority to make 
determinations under this subpart, pursuant to 8 CFR 214.2(h)(6)(iv), 
to the Assistant Secretary for the Employment and Training 
Administration (ETA), who in turn has delegated that authority to OFLC. 
Determinations on an Application for Temporary Employment Certification 
in the H-2B program are made by the Administrator, OFLC who, in turn, 
may delegate this responsibility to designated staff members, e.g., a 
Certifying Officer (CO).
    (b) Authority of the Wage and Hour Division (WHD). Pursuant to its 
authority under the INA, 8 U.S.C. 1184(c)(14)(B), DHS has delegated to 
the Secretary certain investigatory and law enforcement functions with 
respect to terms and conditions of employment in the H-2B program. The 
Secretary has, in turn, delegated that authority to WHD. The 
regulations governing WHD investigation and enforcement functions, 
including those related to the enforcement of temporary employment 
certifications, issued under this subpart, may be found in 29 CFR part 
503.
    (c) Concurrent authority. OFLC and WHD have concurrent authority to 
impose a debarment remedy under Sec.  655.73 or under 29 CFR 503.24.

Sec.  655.3  Territory of Guam.

    Subpart A of this part does not apply to temporary employment in 
the Territory of Guam, except that an applicant seeking certification 
for a job opportunity on Guam must obtain a prevailing wage from the 
Department in accordance with Sec.  655.10 of this subpart. The 
Department of Labor (Department or DOL) does not certify to the United 
States Citizenship and Immigration Services (USCIS) of DHS the 
temporary employment of nonimmigrant foreign workers under H-2B visas, 
or enforce compliance with the provisions of the H-2B visa program, in 
the Territory of Guam. Under DHS regulations, administration of the H-
2B temporary employment certification program is undertaken by the 
Governor of Guam, or the Governor's designated representative.

Sec.  655.4  Special procedures.

    To provide for a limited degree of flexibility in carrying out the 
Secretary's responsibilities, the Administrator, OFLC has the authority 
to establish, continue, revise, or revoke special procedures in the 
form of variances for processing certain H-2B applications. Employers 
must demonstrate in writing to the Administrator, OFLC that special 
procedures are necessary. Before making determinations under this 
section, the Administrator, OFLC may consult with affected employers 
and worker representatives. Special procedures in place on the 
effective date of this regulation, including special procedures 
currently in effect for handling applications for tree planters and 
related reforestation workers, professional athletes, boilermakers 
coming to the U.S. on an emergency basis, and professional 
entertainers, will remain in force until modified or withdrawn by the 
Administrator, OFLC.

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 a legal entity or person who:
    (1)(i) Is authorized to act on behalf of an employer for temporary 
nonagricultural labor certification purposes;
    (ii) Is not itself an employer, or a joint employer, as defined in 
this subpart with respect to a specific application; and
    (iii) Is not an association or other organization of employers.
    (2) No agent who is under suspension, debarment, expulsion, 
disbarment or otherwise restricted from practice before any court, the 
Department, the Executive Office for Immigration Review under 8 CFR 
1003.101, or DHS under 8 CFR 292.3 may represent an employer under this 
subpart.
    Agricultural labor or services means those duties and occupations 
defined in subpart B of this part.
    Applicant means a U.S. worker who is applying for a job opportunity 
for which an employer has filed an Application for Temporary Employment 
Certification (Form ETA 9142 and the appropriate appendices).
    Application for Temporary Employment Certification means the Office 
of Management and Budget (OMB)-approved Form ETA 9142 and the 
appropriate appendices, a valid wage determination, as required by 
Sec.  655.12, and a subsequently-filed U.S. worker recruitment report, 
submitted by an employer to secure a temporary employment certification 
determination from DOL.
    Area of intended employment means the geographic area within normal 
commuting distance of the place (worksite address) of the job 
opportunity for which the certification is sought. There is no rigid 
measure of distance that constitutes a normal commuting distance or 
normal commuting area, because there may be widely varying factual 
circumstances among different areas (e.g., average commuting times, 
barriers to reaching the worksite, or quality of the regional 
transportation network). If the place of intended employment is within 
a Metropolitan Statistical Area (MSA), including a multistate MSA, any 
place within the MSA is deemed to be within normal commuting distance 
of the place of intended employment. The borders of MSAs are not 
controlling in the identification of the normal commuting area; a 
location outside of an MSA may be within normal commuting distance of a 
location that is inside (e.g., near the border of) the MSA.
    Area of substantial unemployment means a contiguous area with a 
population of at least 10,000 in which there is an average unemployment 
rate equal to or exceeding 6.5 percent for the 12 months preceding the 
determination of such areas made by the ETA.

[[Page 15178]]

    Attorney means any person who is a member in good standing of the 
bar of the highest court of any State, possession, territory, or 
commonwealth of the U.S., or the District of Columbia. No attorney who 
is under suspension, debarment, expulsion, disbarment, or otherwise 
restricted from practice before any court, the Department, the 
Executive Office for Immigration Review under 8 CFR 1003.101, or DHS 
under 8 CFR 292.3 may represent an employer under this subpart.
    Board of Alien Labor Certification Appeals (BALCA or Board) means 
the permanent Board established by part 656 of this chapter, chaired by 
the Chief Administrative Law Judge, and consisting of ALJs assigned to 
the Department and designated by the Chief ALJ to be members of BALCA. 
The Board is located in Washington, DC, and reviews and decides appeals 
in Washington, DC.
    Certifying Officer (CO) means an OFLC official designated by the 
Administrator, OFLC to make determinations on applications under the H-
2B program. The Administrator, OFLC is the National CO. Other COs may 
also be designated by the Administrator, OFLC to make the 
determinations required under this subpart.
    Chief Administrative Law Judge means the chief official of the 
Department's Office of Administrative Law Judges or the Chief 
Administrative Law Judge's designee.
    Corresponding employment means the employment of workers who are 
not H-2B workers by an employer that has an accepted H-2B Application 
for Temporary Employment Certification in any work included in the job 
order or in any work performed by the H-2B workers. To qualify as 
corresponding employment, the work must be performed during the period 
of the job order, including any approved extension thereof.
    Date of need means the first date the employer requires services of 
the H-2B workers as listed on the Application for Temporary Employment 
Certification.
    Department of Homeland Security (DHS) means the Federal Department 
having jurisdiction over certain immigration-related functions, acting 
through its agencies, including USCIS.
    Employee means a person who is engaged to perform work for an 
employer, as defined under the general common law. Some of the factors 
relevant to the determination of employee status include: The hiring 
party's right to control the manner and means by which the work is 
accomplished; the skill required to perform the work; the source of the 
instrumentalities and tools for accomplishing the work; the location of 
the work; the hiring party's discretion over when and how long to work; 
and whether the work is part of the regular business of the hiring 
party. Other applicable factors may be considered and no one factor is 
dispositive. The terms ``employee'' and ``worker'' are used 
interchangeably in this subpart.
    Employer means a person (including any individual, partnership, 
association, corporation, cooperative, firm, joint stock company, 
trust, or other organization with legal rights and duties) that:
    (1) Has a place of business (physical location) in the U.S. and a 
means by which it may be contacted for employment;
    (2) Has an employer relationship (such as the ability to hire, pay, 
fire, supervise or otherwise control the work of employees) with 
respect to an H-2B worker or a worker in corresponding employment; and
    (3) Possesses, for purposes of filing an Application for Temporary 
Employment Certification, a valid Federal Employer Identification 
Number (FEIN).
    Employment and Training Administration (ETA) means the agency 
within the Department which includes OFLC and has been delegated 
authority by the Secretary to fulfill the Secretary's mandate under the 
DHS regulations for the administration and adjudication of an 
Application for Temporary Employment Certification and related 
functions.
    Federal holiday means a legal public holiday as defined at 5 U.S.C. 
6103.
    Full time means 35 or more hours of work per week for the purposes 
of the H-2B program.
    H-2B Petition means the DHS Petition for a Nonimmigrant Worker 
form, or successor form, and accompanying documentation required by DHS 
for employers seeking to employ foreign persons as H-2B nonimmigrant 
workers. The H-2B Petition includes the approved Application for 
Temporary Employment Certification and the Final Determination letter.
    H-2B Registration means the OMB-approved Form ETA 9155, submitted 
by an employer to register its intent to hire H-2B workers and to file 
an Application for Temporary Employment Certification.
    H-2B worker means any temporary foreign worker who is lawfully 
present in the U.S. and authorized by DHS to perform nonagricultural 
labor or services of a temporary or seasonal nature under 8 U.S.C. 
1101(a)(15)(H)(ii)(b).
    Job contractor means a person, association, firm, or a corporation 
that meets the definition of an employer and that contracts services or 
labor on a temporary basis to one or more employers, which is not an 
affiliate, branch or subsidiary of the job contractor and where the job 
contractor will not exercise substantial, direct day-to-day supervision 
or control in the performance of the services or labor to be performed 
other than hiring, paying and firing the workers.
    Job offer means the offer made by an employer or potential employer 
of H-2B workers to both U.S. and H-2B workers describing all the 
material terms and conditions of employment, including those relating 
to wages, working conditions, and other benefits.
    Job opportunity means one or more openings for full-time employment 
with the petitioning employer within a specified area(s) of intended 
employment for which the petitioning employer is seeking workers.
    Job order means the document containing all the material terms and 
conditions of employment relating to wages, hours, working conditions, 
worksite and other benefits, including all obligations and assurances 
under 29 CFR part 503 and this subpart that is posted between and among 
the State Workforce Agencies (SWAs) on their inter- and intra-State job 
clearance systems.
    Joint employment means that where two or more employers each have 
sufficient definitional indicia of being an employer to be considered 
the employer of a worker, those employers will be considered to jointly 
employ that worker. Each employer in a joint employment relationship to 
a worker is considered a joint employer of that worker.
    Layoff means any involuntary separation of one or more U.S. 
employees without cause.
    Metropolitan Statistical Area (MSA) means a geographic entity 
defined by OMB for use by Federal statistical agencies in collecting, 
tabulating, and publishing Federal statistics. A metro area contains a 
core urban area of 50,000 or more population, and a micro area contains 
an urban core of at least 10,000 (but fewer than 50,000) population. 
Each metro or micro area consists of one or more counties and includes 
the counties containing the core urban area, as well as any adjacent 
counties that have a high degree of social and economic integration (as 
measured by commuting to work) with the urban core.
    National Prevailing Wage Center (NPWC) means that office within 
OFLC

[[Page 15179]]

from which employers, agents, or attorneys who wish to file an 
Application for Temporary Employment Certification receive a prevailing 
wage determination.
    NPWC Director means the OFLC official to whom the Administrator, 
OFLC has delegated authority to carry out certain NPWC operations and 
functions.
    National Processing Center (NPC) means the office within OFLC which 
is charged with the adjudication of an Application for Temporary 
Employment Certification or other applications. For purposes of this 
subpart, the NPC receiving a request for an H-2B Registration and an 
Application for Temporary Employment Certification will be the Chicago 
NPC whose address is published in the Federal Register.
    NPC Director means the OFLC official to whom the Administrator, 
OFLC has delegated authority for purposes of certain Chicago NPC 
operations and functions.
    Non-agricultural labor and services means any labor or services not 
considered to be agricultural labor or services as defined in subpart B 
of this part. It does not include the provision of services as members 
of the medical profession by graduates of medical schools.
    Occupational employment statistics (OES) survey means the program 
under the jurisdiction of the BLS that provides annual wage estimates 
for occupations at the State and MSA levels.
    Offered wage means the wage that equals or exceeds the highest of 
the prevailing wage or Federal, State, or local minimum wage.
    Office of Foreign Labor Certification (OFLC) means the 
organizational component of the ETA that provides national leadership 
and policy guidance and develops regulations to carry out the 
Secretary's responsibilities for the admission of foreign workers to 
the U.S. to perform work described in 8 U.S.C. 1101(a)(15)(H)(ii)(b).
    Prevailing wage determination (PWD) means the prevailing wage for 
the position, as described in Sec.  655.12, that is the subject of the 
Application for Temporary Employment Certification.
    Professional athlete is defined in 8 U.S.C. 1182(a)(5)(A)(iii)(II), 
and means an individual who is employed as an athlete by:
    (1) A team that is a member of an association of six or more 
professional sports teams whose total combined revenues exceed 
$10,000,000 per year, if the association governs the conduct of its 
members and regulates the contests and exhibitions in which its member 
teams regularly engage; or
    (2) Any minor league team that is affiliated with such an 
association.
    Secretary means the Secretary of Labor, the chief official of the 
U.S. Department of Labor, or the Secretary's designee.
    Secretary of Homeland Security means the chief official of the U.S. 
Department of Homeland Security or the Secretary of Homeland Security's 
designee.
    Secretary of State means the chief official of the U.S. Department 
of State or the Secretary of State's designee.
    State Workforce Agency (SWA) means a State government agency that 
receives funds under the Wagner-Peyser Act (29 U.S.C. 49 et seq.) to 
administer the State's public labor exchange activities.
    Strike means a concerted stoppage of work by employees as a result 
of a labor dispute, or any concerted slowdown or other concerted 
interruption of operation (including stoppage by reason of the 
expiration of a collective bargaining agreement).
    Successor in interest means
    (1) Where an employer has violated 29 CFR part 503, or this 
subpart, and has ceased doing business or cannot be located for 
purposes of enforcement, a successor in interest to that employer may 
be held liable for the duties and obligations of the violating employer 
in certain circumstances. The following factors, as used under Title 
VII of the Civil Rights Act and the Vietnam Era Veterans' Readjustment 
Assistance Act, may be considered in determining whether an employer is 
a successor in interest; no one factor is dispositive, but all of the 
circumstances will be considered as a whole:
    (i) Substantial continuity of the same business operations;
    (ii) Use of the same facilities;
    (iii) Continuity of the work force;
    (iv) Similarity of jobs and working conditions;
    (v) Similarity of supervisory personnel;
    (vi) Whether the former management or owner retains a direct or 
indirect interest in the new enterprise;
    (vii) Similarity in machinery, equipment, and production methods;
    (viii) Similarity of products and services; and
    (ix) The ability of the predecessor to provide relief.
    (2) For purposes of debarment only, the primary consideration will 
be the personal involvement of the firm's ownership, management, 
supervisors, and others associated with the firm in the violation(s) at 
issue.
    United States (U.S.) means the continental U.S., Alaska, Hawaii, 
the Commonwealth of Puerto Rico, and the territories of Guam, the U.S. 
Virgin Islands, and the Commonwealth of the Northern Mariana Islands 
(CNMI).
    United States Citizenship and Immigration Services (USCIS) means 
the Federal agency within DHS that makes the determination under the 
INA whether to grant petitions filed by employers seeking H-2B workers 
to perform temporary nonagricultural work in the U.S.
    United States worker (U.S. worker) means a worker who is:
    (1) A citizen or national of the U.S.;
    (2) An alien who is lawfully admitted for permanent residence in 
the U.S., is admitted as a refugee under 8 U.S.C. 1157, is granted 
asylum under 8 U.S.C. 1158, or is an immigrant otherwise authorized (by 
the INA or by DHS) to be employed in the U.S.; or
    (3) An individual who is not an unauthorized alien (as defined in 8 
U.S.C. 1324a(h)(3)) with respect to the employment in which the worker 
is engaging.
    Wage and Hour Division (WHD) means the agency within the Department 
with investigatory and law enforcement authority, as delegated from 
DHS, to carry out the provisions under 8 U.S.C. 1184(c).
    Wages mean all forms of cash remuneration to a worker by an 
employer in payment for personal services.

Sec.  655.6  Temporary need.

    (a) An employer seeking certification under this subpart must 
establish that its need for nonagricultural services or labor is 
temporary, regardless of whether the underlying job is permanent or 
temporary. 8 CFR 214.2(h)(6)(ii)(A). The need of a job contractor is 
inherently permanent in nature and the CO will deny a request for an H-
2B Registration or an Application for Temporary Employment 
Certification where the employer is a job contractor.
    (b) The employer's need is considered temporary if justified to the 
CO as one of the following: a one-time occurrence; a seasonal need; a 
peakload need; or an intermittent need, as defined by DHS. 8 CFR 
214.2(h)(6)(ii)(B). Except where the employer's need is based on a one-
time occurrence, the CO will deny a request for an H-2B Registration or 
an Application for Temporary Employment Certification where the 
employer has a need lasting more than 9 months.
    3. In subpart A, add Sec. Sec.  655.7 through 655.9 to read as 
follows:

[[Page 15180]]

Subpart A--Labor Certification Process for Temporary Non-
Agricultural Employment in the United States (H-2B Workers)

* * * * *
Sec.
655.7 Persons and entities authorized to file.
655.8 Requirements for agents.
655.9 Disclosure of foreign worker recruitment.
* * * * *

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 under 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.

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 international recruitment of H-2B 
workers under this Application for Temporary Employment Certification.
    (b) The Department will maintain a publicly available list of 
agents and recruiters who are party to such agreements.
    4a. In subpart A add an undesignated center heading before Sec.  
655.10 to read as follows:

Prefiling Procedures

    4b. In Sec.  655.10, revise paragraphs (a) and (c) through (g), and 
add paragraphs (h) and (i) to read as follows:

Sec.  655.10  Prevailing wage.

    (a) Offered wage. The employer must advertise the position to all 
potential workers at a wage at least equal to the prevailing wage 
obtained from the NPWC, or the Federal, State or local minimum wage, 
whichever is highest. The employer must offer and pay this wage (or 
higher) to both its H-2B workers and its workers in corresponding 
employment. The issuance of a PWD under this section does not permit an 
employer to pay a wage lower than the highest wage required by any 
applicable Federal, State or local law.
* * * * *
    (c) Request for PWD. (1) The employer must request a PWD from the 
NPWC before filing the job order with the SWA.
    (2) The PWD must be valid on the date the posting of the job order 
begins.
    (d) Multiple worksites. If the job opportunity involves multiple 
worksites within an area of intended employment and different 
prevailing wage rates exist for the opportunity within the area of 
intended employment, the prevailing wage is the highest applicable wage 
among all the worksites. The provisions of this paragraph do not apply 
to occupations that are covered under special procedures.
    (e) NPWC action. The NPWC will provide the PWD, indicate the 
source, and return the form with its endorsement to the employer.
    (f) Validity period. The NPWC must specify the validity period of 
the prevailing wage, which in no event may be more than 365 days and no 
less than 90 days from the date that the determination is issued.
    (g) Professional athletes. In computing the prevailing wage for a 
professional athlete when the job opportunity is covered by 
professional sports league rules or regulations, the wage set forth in 
those rules or regulations is considered the prevailing wage. See 8 
U.S.C. 1182(p)(2).
    (h) Retention of documentation. The employer must retain the PWD 
for 3 years from the date of issuance or the date of a final 
determination on the Application, whichever is later, and submit it to 
a CO if requested by a Notice of Deficiency, described in Sec.  655.31, 
or audit, as described in Sec.  655.70, or to a WHD representative 
during a WHD investigation.
    (i) Guam. The requirements of this paragraph shall apply to any 
request filed for an H-2B job opportunity on Guam.
    5. Revise Sec.  655.11 to read as follows:

Sec.  655.11  Registration of H-2B employers.

    All employers that desire to hire H-2B workers must establish their 
need for services or labor is temporary by filing an H-2B Registration 
with the NPC.
    (a) Registration filing. An employer must file an H-2B 
Registration. The H-2B Registration must be accompanied by 
documentation evidencing:
    (1) The number of positions that will be sought in the first year 
of registration;
    (2) The time period of need for the workers requested; and
    (3) That the nature of the employer's need for the services or 
labor to be performed is non-agricultural and temporary, and is 
justified as either a one-time occurrence, a seasonal need, a peakload 
need, or an intermittent need, as defined at 8 CFR 214.2(h)(6)(ii)(B) 
and Sec.  655.6.
    (b) Original signature. The H-2B Registration must bear the 
original signature of the employer (and that of the employer's attorney 
or agent if applicable).
    (c) Timeliness of registration filing. A completed request for an 
H-2B Registration must be received by no less than 120 calendar days 
and no more than 150 calendar days before the employer's date of need.
    (d) Temporary need. (1) The employer must establish that its need 
for nonagricultural services or labor is temporary, regardless of 
whether the underlying job is permanent or temporary. 8 CFR 
214.2(h)(6)(ii)(A).
    (2) The employer's need will be assessed in accordance with the 
definitions provided by the Secretary of DHS and as further defined in 
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 nonagricultural;
    (2) The employer's need for the services or labor to be performed 
is temporary in nature;
    (3) The number of worker positions and period of need are 
justified; and
    (4) The request represents a bona fide job opportunity.
    (f) Mailing and postmark requirements. Any notice or request 
pertaining to H-2B Registration sent by the CO to an employer requiring 
a response will be mailed using the provided address using methods to 
assure next day delivery, including electronic mail. The employer's 
response to such a notice or request must be mailed using methods to 
assure next day delivery, including electronic mail, and be sent by the 
due date specified by the CO or by the next

[[Page 15181]]

business day if the due date falls on a Saturday, Sunday or Federal 
holiday.
    (g) Request for information (RFI). If the CO determines the H-2B 
Registration cannot be approved, the CO will issue an RFI. Normally the 
RFI will be issued within 7 business days of the CO's receipt of the H-
2B Registration. The RFI will:
    (1) State the reason(s) why the H-2B Registration cannot be 
approved and what supplemental information or documentation is needed 
to correct the deficiencies;
    (2) Specify a date, no later than 7 business days from the date the 
RFI is issued, by which the supplemental information or documentation 
must be sent by the employer;
    (3) State that, upon receipt of a response to the RFI, the CO will 
review the H-2B Registration as well as any supplemental information 
and documentation and issue a Notice of Decision on the H-2B 
Registration. The CO may, at her discretion, issue one or more 
additional RFIs before issuing a Notice of Decision on the H-2B 
Registration; and
    (4) State that failure to comply with an RFI, including not 
responding in a timely manner or not providing all required 
documentation within the specified timeframe, will result in a denial 
of the H-2B Registration.
    (h) Notice of Decision. The CO will notify the employer in writing 
of the final decision on the H-2B Registration.
    (1) Approved H-2B Registration. If the H-2B Registration is 
approved, the CO will send a Notice of Decision to the employer, and a 
copy to the employer's attorney or agent, if applicable. The Notice of 
Decision will notify the employer that it is eligible to seek H-2B 
workers in the occupational classification for the anticipated number 
of positions and period of need stated on the approved H-2B 
Registration. The CO may approve the H-2B Registration for a period of 
up to 3 consecutive years.
    (2) Denied H-2B Registration. If the H-2B Registration is denied, 
the CO will send a Notice of Decision to the employer, and a copy to 
the employer's attorney or agent, if applicable. The Notice of Decision 
will:
    (i) State the reason(s) why the H-2B Registration is denied;
    (ii) Offer the employer an opportunity to request administrative 
review under Sec.  655.61; and
    (iii) State that if the employer does not request administrative 
review in writing within 10 business days from the date the Notice of 
Decision is issued, the denial is final and the Department will not 
further consider the H-2B Registration.
    (i) Retention of documents. All employers filing an H-2B 
Registration are required to retain any documents and records not 
otherwise submitted proving compliance with this subpart. Such records 
and documents must be retained for a period of 3 years from the final 
date of applicability of the H-2B Registration, if approved, or 3 years 
from the date the decision is issued if the H-2B Registration is denied 
or 3 years from the day the Department receives written notification 
from the employer withdrawing its pending H-2B Registration.
    6. In subpart A, add Sec. Sec.  655.12 and 655.13 to read as 
follows:

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 beginning or ending date of need for the job opportunity 
has changed by more than 14 days from the initial year;
    (3) The nature of the job classification and/or duties has 
materially changed; or
    (4) The temporary nature of the employer's need for services or 
labor to be performed has materially changed.
    (b) If any of the changes in paragraphs (a)(1) through (4) of this 
section apply, the employer must file a new H-2B Registration in 
accordance with Sec.  655.11.

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 may:
    (1) Affirm the PWD issued by the NPWC; or
    (2) Modify the PWD.
    (c) Request for review by BALCA. Any employer desiring review of 
the NPWC Director's decision on a PWD must make a written request for 
review of the determination by BALCA within 10 business days from the 
date the Final Determination letter is issued.
    (1) The request for review, statements, briefs, and other 
submissions of the parties and amicus curiae must contain only legal 
arguments and only the evidence that was within the record upon which 
the decision on the PWD was based.
    (2) The request for BALCA review must be in writing and addressed 
to the NPWC Director who made the final determination. Upon receipt of 
a request for BALCA review, the NPWC will prepare an appeal file and 
submit it to BALCA.
    (3) BALCA will handle appeals in accordance with Sec.  655.61.
    7. In subpart A, add an undesignated center heading above Sec.  
655.15 to read as follows:

Application for Temporary Employment Certification Filing Procedures

    8. Revise Sec.  655.15 to read as follows:

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 
(Form ETA 9142 and the appropriate appendices and valid PWD), a copy of 
the job order being submitted concurrently to the SWA serving the area 
of intended employment, as set forth in Sec.  655.16, and copies of all 
contracts and agreements with any agent or recruiter executed in 
connection with the job opportunities, as specified in Sec.  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

[[Page 15182]]

Certification and all required supporting documentation by U.S. Mail or 
private mail courier to the NPC. The Department may also require an 
Application for Temporary Employment Certification, at a future date, 
to be filed electronically in addition to or instead of by mail, notice 
of which will be published in the Federal Register.
    (d) Original signature. The Application for Temporary Employment 
Certification must bear the original signature of the employer (and 
that of the employer's authorized attorney or agent if the employer is 
so represented).
    (e) Requests for multiple positions. Certification of more than one 
position may be requested on the Application for Temporary Employment 
Certification as long as all H-2B workers will perform the same 
services or labor under the same terms and conditions, in the same 
occupation, in the same area of intended employment, and during the 
same period of employment.
    (f) Separate applications. Except as otherwise permitted under 
Sec.  655.4, a separate Application for Temporary Employment 
Certification must be filed for worksite(s) within one area of intended 
employment for each job opportunity with an employer for each period of 
employment. Except where otherwise permitted under 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.
    (g) One-time occurrence. Where a one-time occurrence lasts longer 
than 1 year, the CO will instruct the employer on any additional 
requirements with respect to the continuing validity of the labor 
market test or offered wage obligation.
    (h) Information dissemination. Information received in the course 
of processing a request for an H-2B Registration, an Application for 
Temporary Employment Certification or program integrity measures such 
as audits may be forwarded from OFLC to WHD, or any other Federal 
agency as appropriate, for investigative and/or enforcement purposes.
    9. Add Sec.  655.16 to read as follows:

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) 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 4 business days of receipt of the job order.
    (c) Intrastate and interstate clearance. Upon receipt of the Notice 
of Acceptance, the SWA must promptly place the job order in intrastate 
and interstate clearance.
    (d) Duration of job order posting and SWA referral of U.S. workers. 
Upon receipt of the Notice of Acceptance, any SWA in receipt of the 
employer's job order must keep the job order on its active file until 
the end of the recruitment period, as set forth in Sec.  655.40(c), and 
must refer to the employer in a manner consistent with Sec.  655.47 all 
U.S. workers who apply for the job opportunity or on whose behalf a job 
application is made.
    (e) Amendments to a job order. The employer may amend the job order 
at any time before the CO makes a final determination, in accordance 
with procedures set forth in Sec.  655.35.
    10. Revise Sec.  655.17 to read as follows:

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 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, unforeseen changes 
in market conditions, or pandemic health issues. A denial of a 
previously submitted H-2B Registration in accordance with the 
procedures set forth in 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 letter to the employer in accordance with Sec.  655.53.
    11. Add Sec.  655.18 to read as follows:

Sec.  655.18  Contents of the job order.

    An employer must ensure that the job order contains the information 
about the job opportunity as required for the advertisements required 
in Sec.  655.41 and the following assurances:
    (a) Prohibition against preferential treatment. The employer's job 
order must offer to U.S. workers no less than the same benefits, wages, 
and working conditions that the employer is offering, intends to offer, 
or will provide to H-2B workers. Job offers may not impose on U.S. 
workers any restrictions or obligations that will not be imposed on the 
employer's H-2B workers. This

[[Page 15183]]

does not relieve the employer from providing to H-2B workers at least 
the minimum benefits, wages, and working conditions which must be 
offered to U.S. workers consistent with this section.
    (b) Bona fide job requirements. Each job qualification and 
requirement listed in the job order must be bona fide and consistent 
with the normal and accepted qualifications and requirements imposed by 
non-H-2B employers in the same occupation and area of intended 
employment. The employer's job qualifications and requirements imposed 
on U.S. workers must be no less favorable than the qualifications and 
requirements that the employer is imposing or will impose on H-2B 
workers.
    (c) Minimum benefits, wages, and working conditions. Every job 
order accompanying an Application for Temporary Employment 
Certification must include each of the minimum benefit, wage, and 
working condition provisions listed in paragraphs (d) through (k) of 
this section.
    (d) Rate of pay. The wage listed in the job order must equal or 
exceed the highest of the prevailing wage or the Federal, State, or 
local minimum wage.
    (e) Frequency of pay. The employer must state in the job order the 
frequency with which the worker will be paid, which must be at least 
every 2 weeks or according to the prevailing practice in the area of 
intended employment, whichever is more frequent.
    (f) Deductions. The job order must specify that the employer will 
make all deductions from the worker's paycheck required by law. The job 
order must specify all deductions not required by law which the 
employer will make from the worker's paycheck.
    (g) Job opportunity is full-time. The job order must clearly state 
that the job opportunity is a full-time temporary position, calculated 
to be at least 35 hours per workweek, and that the employer will use a 
single workweek as its standard for computing wages due.
    (h) Three-fourths guarantee. The job order must clearly state the 
applicability of the three-fourths guarantee, offering the worker 
employment for a total number of work hours equal to at least three-
fourths of the workdays of each 4-week period in accordance with Sec.  
655.20(f).
    (i) Transportation and visa fees. (1) The job order must detail how 
the worker will be provided with transportation and subsistence from 
the place from which the worker has come to work for the employer, 
whether in the U.S. or abroad, to the place of employment, consistent 
with Sec.  655.20(j)(1)(i), and that the employer will provide or pay 
for the worker's cost of return transportation and daily subsistence 
from the place of employment to the place from which the worker, 
disregarding intervening employment, departed to work for the employer, 
consistent with Sec.  655.20(j)(1)(ii). If applicable, the job order 
must state that the employer will provide the daily transportation to 
and from the worksite.
    (2) The job order must state that the employer will reimburse the 
worker in the first workweek for all visa, visa processing, border 
crossing, and other related fees including those mandated by the 
government incurred by the H-2B worker (but not for passport expenses 
or other charges primarily for the benefit of the worker).
    (j) Employer-provided items. The job order must specify that the 
employer must provide to the worker, without charge or deposit charge, 
all tools, supplies, and equipment required to perform the duties 
assigned, in accordance with Sec.  655.20(k).
    (k) Board, lodging, or facilities. If the employer provides the 
worker with the option of board, lodging, or other facilities or 
intends to assist workers to secure such lodging, such provision of 
board, lodging, or other facilities must be listed in the job order. If 
the employer intends to make any wage deductions related to such 
provision of board, lodging or other facilities, they must be disclosed 
in the job order.
    12. In subpart A, add an undesignated center heading before Sec.  
655.20 to read as follows:

Assurances and Obligations

    13. Revise Sec.  655.20 to read as follows:

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:
    (a) Rate of pay. (1) The offered wage set forth in the job order 
equals or exceeds the highest of the prevailing wage or Federal minimum 
wage, State minimum wage, or local minimum wage. The employer must pay 
at least the offered wage, free and clear, during the entire period of 
the Application for Temporary Employment Certification accepted by 
OFLC.
    (2) The offered wage is not based on commissions, bonuses, or other 
incentives, including paying on a 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 must be normal and usual for 
non-H-2B employers for the same occupation in the area of intended 
employment.
    (4) An employer that pays on a piece-rate basis must pay a piece 
rate that is no less than the normal rate for workers performing the 
same activity in the area of intended employment. The average hourly 
piece-rate earnings must result in an amount at least equal to the 
offered wage. If the worker is paid on a piece rate basis and at the 
end of the workweek the piece-rate does not result in average hourly 
piece-rate earnings during the workweek at least equal to the amount 
the worker would have earned had the worker been paid at the offered 
hourly rate, then the employer must supplement the worker's pay at that 
time so that the worker's earnings are at least as much as the worker 
would have earned during the workweek if the worker had instead been 
paid at the offered hourly wage rate for each hour worked.
    (b) Wages free and clear. The payment requirements for wages in 
this section will be satisfied by the timely payment of such wages to 
the worker either in cash or negotiable instrument payable at par. The 
payment must be made finally and unconditionally and ``free and 
clear.'' The principles applied in determining whether deductions are 
reasonable and payments are received free and clear and the 
permissibility of deductions for payments to third persons are 
explained in more detail in 29 CFR part 531.
    (c) Deductions. The employer must make all deductions from the 
worker's paycheck required by law. The job order must specify all 
deductions not required by law which the employer will make from the 
worker's pay. Deductions not disclosed in the job order are prohibited. 
The wage payment requirements of paragraph (b) of this section are not 
met where unauthorized deductions, rebates, or refunds reduce the wage 
payment made to the worker below the minimum amounts required by the 
offered wage or where the worker fails to receive such amounts free and 
clear because the worker ``kicks back'' directly or indirectly to the 
employer or to another person for the employer's benefit the whole or 
part of the wages delivered to the worker. Authorized deductions are 
limited to: Those

[[Page 15184]]

required by law, such as taxes payable by workers that are required to 
be withheld by the employer and amounts due workers which the employer 
is required by court order to pay to another; deductions for the 
reasonable cost or fair value of board, lodging, and facilities 
furnished; and deductions of amounts which are authorized to be paid to 
third persons for the worker's account and benefit through his or her 
voluntary assignment or order or which are authorized by a collective 
bargaining agreement with bona fide representatives of workers which 
covers the employer. Deductions for amounts paid to third persons for 
the worker's account and benefit which are not so authorized or are 
contrary to law or from which the employer, agent or recruiter, 
including any agents or workers, or any affiliated person derives any 
payment, rebate, commission, profit, or benefit directly or indirectly, 
may not be made if they reduce the actual wage paid to the worker below 
the offered wage indicated on the Application for Temporary Employment 
Certification.
    (d) Job opportunity is full time. The job opportunity is a full-
time temporary position, calculated to be at least 35 hours per 
workweek, and the employer will use a single workweek as its standard 
for computing wages due. An employee's workweek will be a fixed and 
regularly recurring period of 168 hours--seven consecutive 24-hour 
periods. It need not coincide with the calendar week but may begin on 
any day and at any hour of the day.
    (e) Job qualifications and requirements. Each job qualification and 
requirement listed in the job order must be bona fide and consistent 
with the normal and accepted qualifications and requirements imposed by 
non-H-2B employers in the same occupation and area of intended 
employment. The CO may require the employer to submit documentation to 
substantiate the appropriateness of any job qualification specified in 
the job order.
    (f) Three-fourths guarantee. (1) The employer must guarantee to 
offer the worker employment for a total number of work hours equal to 
at least three-fourths of the workdays in each 4-week period beginning 
with the first workday after the arrival of the worker at the place of 
employment or the advertised first date of need, whichever is later, 
and ending on the expiration date specified in the job order or in its 
extensions, if any.
    (2) For purposes of this paragraph a workday means the number of 
hours in a workday as stated in the job order. The employer must offer 
a total number of hours of work to ensure the provision of sufficient 
work to reach the three-fourths guarantee in each 4-week period during 
the work period specified in the job order, or during any modified job 
order period to which the worker and employer have mutually agreed and 
that has been approved by the CO.
    (3) In the event the worker begins working later than the specified 
beginning date the guarantee period begins with the first workday after 
the arrival of the worker at the place of employment, and continues 
until the last day during which the job order and all extensions 
thereof are in effect.
    (4) The 4-week periods to which the guarantee applies are based 
upon the workweek used by the employer for pay purposes. The first 4-
week period also includes any partial workweek, if the first workday 
after the worker's arrival at the place of employment is not the 
beginning of the employer's workweek, with the guaranteed number of 
hours increased on a pro rata basis (thus, the first period may include 
up to 4 weeks and 6 days). The final 4-week period includes any time 
remaining after the last full 4-week period ends, and thus may be as 
short as 1 day, with the guaranteed number of hours decreased on a pro 
rata basis.
    (5) Therefore, if, for example, a job order is for a 10-week 
period, during which a normal workweek is specified as 5 days a week, 8 
hours per day, the worker would have to be guaranteed employment for at 
least 120 hours (4 weeks x 40 hours/week = 160 hours x 75 percent = 
120) in the first 4-week period, at least 120 hours in the second 4-
week period, and at least 60 hours (2 weeks x 40 hours/week = 80 hours 
x 75 percent = 60) in the final partial period.
    (6) If the worker is paid on a piece rate basis, the employer must 
use the worker's average hourly piece rate earnings or the required 
hourly wage rate, whichever is higher, to calculate the amount due 
under the guarantee.
    (7) A worker may be offered more than the specified hours of work 
on a single workday. For purposes of meeting the guarantee, however, 
the worker will not be required to work for more than the number of 
hours specified in the job order for a workday. The employer, however, 
may count all hours actually worked in calculating whether the 
guarantee has been met. If during any 4-week period during the period 
of the job order the employer affords the U.S. or H-2B worker less 
employment than that required under paragraph (f)(1) of this section, 
the employer must pay such worker the amount the worker would have 
earned had the worker, in fact, worked for the guaranteed number of 
days. An employer has not met the work guarantee if the employer has 
merely offered work on three-fourths of the workdays in a 4-week period 
if each workday did not consist of a full number of hours of work time 
as specified in the job order.
    (8) Any hours the worker fails to work, up to a maximum of the 
number of hours specified in the job order for a workday, when the 
worker has been offered an opportunity to work in accordance with 
paragraph (f)(1) of this section, and all hours of work actually 
performed (including voluntary work over 8 hours in a workday), may be 
counted by the employer in calculating whether each 4-week period of 
guaranteed employment has been met. An employer seeking to calculate 
whether the guaranteed number of hours has been met must maintain the 
payroll records in accordance with this part.
    (g) Impossibility of fulfillment. If, before the expiration date 
specified in the job order, the services of the worker are no longer 
required for reasons beyond the control of the employer due to fire, 
weather, or other Act of God that makes the fulfillment of the job 
order impossible, the employer may terminate the job order with the 
approval of the CO. In the event of such termination of a job order, 
the employer must fulfill a three-fourths guarantee, as described in 
paragraph (f) of this section, for the time that has elapsed from the 
start date listed in the job order or the first workday after the 
arrival of the worker at the place of employment, whichever is later, 
to the time of its termination. The employer must make efforts to 
transfer the H-2B worker or worker in corresponding employment to other 
comparable employment acceptable to the worker and consistent with the 
INA, as applicable. If a transfer is not effected, the employer must 
return the worker, at the employer's expense, to the place from which 
the worker (disregarding intervening employment) came to work for the 
employer, or transport the worker to the worker's next certified H-2B 
employer, whichever the worker prefers.
    (h) Frequency of pay. The employer must state in the job order the 
frequency with which the worker will be paid, which must be at least 
every 2 weeks or according to the prevailing practice in the area of 
intended employment, whichever is more frequent. Employers must pay 
wages when due.
    (i) Earnings statements. (1) The employer must keep accurate and 
adequate records with respect to the workers' earnings, including but 
not limited to: Records showing the nature

[[Page 15185]]

and amount of the work performed; the number of hours of work offered 
each day by the employer (broken out by hours offered both in 
accordance with and over and above the three-fourths guarantee in 
paragraph (f) of this section); the hours actually worked each day by 
the worker; the time the worker began and ended each workday; the rate 
of pay (both piece rate and hourly, if applicable); the worker's 
earnings per pay period; the worker's home address; and the amount of 
and reasons for any and all deductions taken from the worker's wages.
    (2) The employer must furnish to the worker on or before each 
payday in one or more written statements the following information:
    (i) The worker's total earnings for each workweek in the pay 
period;
    (ii) The worker's hourly rate and/or piece rate of pay;
    (iii) For each workweek in the pay period the hours of employment 
offered to the worker (showing offers in accordance with the three-
fourths guarantee as determined in paragraph (f) of this section, 
separate from any hours offered over and above the guarantee);
    (iv) For each workweek in the pay period the hours actually worked 
by the worker;
    (v) An itemization of all deductions made from the worker's wages;
    (vi) If piece rates are used, the units produced daily;
    (vii) The beginning and ending dates of the pay period; and
    (viii) The employer's name, address and FEIN.
    (j) Transportation and visa fees. (1)(i) Transportation to the 
place of employment. The employer must provide the worker 
transportation and subsistence from the place from which the worker has 
come to work for the employer, whether in the U.S. or abroad, to the 
place of employment. The employer may arrange and pay for the 
transportation and subsistence directly, advance the reasonable cost of 
the transportation and subsistence to the worker before the worker's 
departure, or pay the worker in the first workweek for the reasonable 
costs incurred by the worker. When it is the prevailing practice of 
non-H-2B employers in the occupation in the area to do so or when the 
employer extends such benefits to similarly situated H-2B workers, the 
employer must advance the required transportation and subsistence costs 
(or otherwise provide them) to workers in corresponding employment who 
are traveling to the employer's worksite. The amount of the 
transportation payment must be no less (and is not required to be more) 
than the most economical and reasonable common carrier transportation 
charges for the distances involved. The amount of the daily subsistence 
must be at least the amount permitted in Sec.  655.173.
    (ii) Transportation from the place of employment. If the worker has 
no immediate subsequent H-2B employment, the employer must provide or 
pay at the time of departure for the worker's cost of return 
transportation and daily subsistence from the place of employment to 
the place from which the worker, disregarding intervening employment, 
departed to work for the employer. If the worker has contracted with a 
subsequent employer that has not agreed in the job order to provide or 
pay for the worker's transportation from the employer's worksite to 
such subsequent employer's worksite, the employer must provide or pay 
for that transportation and subsistence. If the worker has contracted 
with a subsequent employer that has agreed in the job order to provide 
or pay for the worker's transportation from the employer's worksite to 
such subsequent employer's worksite, the subsequent employer must 
provide or pay for such expenses.
    (iii) Employer-provided transportation. All employer-provided 
transportation must comply with all applicable Federal, State, or local 
laws and regulations and must provide, at a minimum, the same vehicle 
safety standards, driver licensure requirements, and vehicle insurance 
as required under 49 CFR parts 390, 393, and 396.
    (iv) Disclosure. All transportation and subsistence costs that the 
employer will pay must be disclosed in the job order.
    (2) The employer must pay or reimburse the worker in the first 
workweek for all visa, visa processing, border crossing, and other 
related fees including those mandated by the government-incurred by the 
H-2B worker, but not for passport expenses or other charges primarily 
for the benefit of the worker.
    (k) Employer-provided items. The employer must provide to the 
worker, without charge or deposit charge, all tools, supplies, and 
equipment required to perform the duties assigned.
    (l) Disclosure of job order. The employer must provide to an H-2B 
worker if outside of the United States no later than the time at which 
the worker applies for the visa, or to a worker in corresponding 
employment no later than on the day work commences, a copy of the job 
order including any subsequent modifications. For an H-2B worker 
changing employment from an H-2B employer to a subsequent H-2B 
employer, the copy must be provided no later than the time an offer of 
employment is made by the subsequent H-2B employer. The disclosure of 
all documents required by this paragraph must be provided in a language 
understood by the worker, as necessary or reasonable.
    (m) Notice of worker rights. The employer must post and maintain in 
a conspicuous location at the place of employment a poster provided by 
the Department which sets out the rights and protections for H-2B 
workers and workers in corresponding employment. The employer must post 
the poster in English. To the extent necessary, the employer must 
request and post additional posters, as made available by the 
Department, in any language common to a significant portion of the 
workers if they are not fluent in English.
    (n) No unfair treatment. The employer has not and will not 
intimidate, threaten, restrain, coerce, blacklist, discharge or in any 
manner discriminate against, and has not and will not cause any person 
to intimidate, threaten, restrain, coerce, blacklist, or in any manner 
discriminate against, any person who has:
    (1) Filed a complaint under or related to 8 U.S.C. 1184(c), 29 CFR 
part 503, or this Subpart, or any other Department regulation 
promulgated thereunder;
    (2) Instituted or caused to be instituted any proceeding under or 
related to 8 U.S.C. 1184(c), 29 CFR part 503, or this Subpart or any 
other Department regulation promulgated thereunder;
    (3) Testified or is about to testify in any proceeding under or 
related to 8 U.S.C. 1184(c), 29 CFR part 503, or this Subpart or any 
other Department regulation promulgated thereunder;
    (4) Consulted with an employee of a legal assistance program or an 
attorney on matters related to 8 U.S.C. 1184(c), 29 CFR part 503, or 
this Subpart or any other Department regulation promulgated thereunder; 
or
    (5) Exercised or asserted on behalf of himself/herself or others 
any right or protection afforded by 8 U.S.C. 1184(c), 29 CFR part 503, 
or this Subpart or any other Department regulation promulgated 
thereunder.
    (o) Comply with the prohibitions against employees paying fees. The 
employer and its attorney, agents, or employees have not sought or 
received payment of any kind from the worker for any activity related 
to obtaining H-2B employment certification or employment, including 
payment of the employer's attorney or agent fees, visa or other 
application and H-2B Petition fees, recruitment costs, or any fees

[[Page 15186]]

falsely attributed to obtaining the approved Application for Temporary 
Employment Certification. For purposes of this paragraph, payment 
includes, but is not limited to, monetary payments, wage concessions 
(including deductions from wages, salary, or benefits), kickbacks, 
bribes, tributes, in kind payments, and free labor. All wages must be 
paid free and clear. This provision does not prohibit employers or 
their agents from receiving reimbursement for costs that are the 
responsibility and primarily for the benefit of the worker, such as 
government-required passport fees.
    (p) Contracts with third parties to comply with prohibitions. The 
employer must contractually prohibit in writing any agent or recruiter 
(or any agent or employee of such agent or recruiter) whom the employer 
engages, either directly or indirectly, in international recruitment of 
H-2B workers to seek or receive payments or other compensation from 
prospective workers. This documentation must be made available upon 
request by the CO or another Federal party.
    (q) Prohibition against preferential treatment of foreign workers. 
The employer's job offer must offer to U.S. workers no less than the 
same benefits, wages, and working conditions that the employer is 
offering, intends to offer, or will provide to H-2B workers. Job offers 
may not impose on U.S. workers any restrictions or obligations that 
will not be imposed on the employer's H-2B workers. This does not 
relieve the employer from providing to H-2B workers at least the 
minimum benefits, wages, and working conditions which must be offered 
to U.S. workers consistent with this section.
    (r) Non-discriminatory hiring practices. The job opportunity is, 
and through the period set forth in paragraph (t) of this section must 
continue to be, open to any qualified U.S. worker regardless of race, 
color, national origin, age, sex, religion, disability, or citizenship. 
Rejections of any U.S. workers who applied or apply for the job must 
only be for lawful, 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 determined by the CO, and as 
specified in Sec. Sec.  655.40-.46.
    (t) Continuing requirement to hire U.S. workers. The employer has 
and will continue to cooperate with the SWA by accepting referrals of 
all eligible U.S. workers who apply (or on whose behalf a job 
application is made) for the job opportunity, and must provide 
employment to any qualified, eligible U.S. worker who applies to the 
employer for the job opportunity, until the later of the date the last 
H-2B worker departs for the job opportunity or 3 days before the date 
of need. If the last H-2B worker has not departed by 3 days before the 
date of need, the employer is required to immediately inform the SWA in 
writing and notify the SWA of the new departure date as soon as 
available.
    (u) No strike or lockout. There is no strike or lockout at the 
worksite for which the employer is requesting H-2B certification at the 
time the Application for Temporary Employment Certification is filed.
    (v) No recent or future layoffs. The employer has not laid off and 
will not lay off any similarly employed U.S. worker in the occupation 
that is the subject of the Application for Temporary Employment 
Certification in the area of intended employment within the period 
beginning 120 calendar days before the date of need through the end of 
the period of certification. A layoff for lawful, job-related reasons 
such as lack of work or the end of a season is permissible if all H-2B 
workers are laid off before any U.S. worker in corresponding 
employment.
    (w) Contact with former U.S. employees. The employer will contact 
by mail or other effective means all of its former U.S. workers (except 
those who were dismissed for cause or who abandoned the worksite) 
employed by the employer in the occupation at the place of employment 
during the previous year, disclose the terms of the job order, and 
solicit their return to the job. This includes, but is not limited to, 
those former U.S. workers who have been laid off within a period of 120 
days before the date of need.
    (x) Area of intended employment and job opportunity. The employer 
will not place any H-2B workers employed under the approved Application 
for Temporary Employment Certification outside the area of intended 
employment or in a job opportunity not listed on the approved 
Application for Temporary Employment Certification unless the employer 
has obtained a new approved Application for Temporary Employment 
Certification.
    (y) Abandonment/termination of employment. Upon the separation from 
employment of H-2B worker(s) employed under the Application for 
Temporary Employment Certification or workers in corresponding 
employment, if such separation occurs before the end date of the 
employment specified in the Application for Temporary Employment 
Certification, the employer must notify OFLC in writing of the 
separation from employment not later than 2 work days after such 
separation is discovered by the employer. In addition, the employer 
must notify DHS in writing (or any other method specified by DHS in the 
Federal Register or Code of Federal Regulations) of such separation of 
an H-2B worker. An abandonment or abscondment is deemed to begin after 
a worker fails to report for work at the regularly scheduled time for 5 
consecutive working days without the consent of the employer. If the 
separation is due to the voluntary abandonment of employment by the H-
2B worker or worker in corresponding employment, and the employer 
provides appropriate notification specified under this paragraph, the 
employer will not be responsible for providing or paying for the 
subsequent transportation and subsistence expenses of that worker under 
this section, and that worker is not entitled to the three-fourths 
guarantee described in paragraph (f) of this section. The employer's 
obligation to guarantee three-fourths of the work described in 
paragraph (f) ends with the last full 4-week period preceding the 
worker's voluntary abandonment or termination for cause.
    (z) Compliance with applicable laws. During the period of 
employment that is the subject of the Application for Temporary 
Employment Certification, the employer must comply with all applicable 
Federal, State and local employment-related laws and regulations, 
including health and safety laws. In compliance with such laws, 
including the William Wilberforce Trafficking Victims Protection 
Reauthorization Act of 2008, 18 U.S.C. 1592(a), the employer may not 
hold or confiscate workers' passports, visas, or other immigration 
documents.

Sec. Sec.  655.21-655.24  [Reserved]

    13. Remove and reserve Sec. Sec.  655.21-655.24.
    14. In subpart A, add an undesignated center heading before Sec.  
655.30 to read as follows:

Processing of an Application for Temporary Employment Certification

    15. In subpart A, revise Sec. Sec.  655.30 through 655.35 to read 
as follows:

[[Page 15187]]

Subpart A--Labor Certification Process for Temporary Non-
Agricultural Employment in the United States (H-2B Workers)

* * * * *
Sec.
655.30 Processing of an application and job order.
655.31 Notice of deficiency.
655.32 Submission of a modified application or job order.
655.33 Notice of acceptance.
655.34 Electronic job registry.
655.35 Amendments to an application or job order.
* * * * *

Sec.  655.30  Processing of an application and job order.

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

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 will:
    (1) State the reason(s) why the Application for Temporary 
Employment Certification or job order fails to meet the criteria for 
acceptance;
    (2) Offer the employer an opportunity to submit a modified 
Application for Temporary Employment Certification or job order within 
10 business days from the date of the Notice of Deficiency. The Notice 
will state the modification needed for the CO to issue a Notice of 
Acceptance;
    (3) Offer the employer an opportunity to request administrative 
review of the Notice of Deficiency before an ALJ under provisions set 
forth in 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 
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 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, at her discretion, issue one or more additional 
Notices of Deficiency before issuing a Notice of Decision. The 
employer's failure to comply with a Notice of Deficiency, including not 
responding in a timely manner or not providing all required 
documentation, will result in a denial of the Application.
    (b) Acceptance of a modified Application for Temporary Employment 
Certification or job order. If the CO accepts the modification(s) to 
the Application for Temporary Employment Certification and/or job 
order, the CO will issue a Notice of Acceptance. The CO will send a 
copy of the Notice of Acceptance to the SWA instructing it to make any 
necessary modifications to the not yet posted job order and, if 
applicable, to the employer's attorney or agent and follow the 
procedure set forth in Sec.  655.33.
    (c) Denial of a modified Application for Temporary Employment 
Certification or job order. If the CO does not accept the 
modification(s) to the Application for Temporary Employment 
Certification and/or job order, the CO will deny the Application for 
Temporary Employment Certification in accordance with the labor 
certification determination provisions in Sec.  655.50.
    (d) Appeal from denial of a modified Application for Temporary 
Employment Certification or job order. The procedures for appealing a 
denial of a modified Application for Temporary Employment Certification 
and/or job order are the same as for appealing the denial of a non-
modified Application for Temporary Employment Certification outlined in 
Sec.  655.61.
    (e) Post acceptance modifications. The CO may require modifications 
to the job order at any time before the final determination to grant or 
deny the Application for Temporary Employment Certification if the CO 
determines that the offer of employment does not contain all the 
minimum benefits, wages, and working condition provisions as set forth 
in Sec.  655.20. Such modifications must be made by the employer 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 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.  655.40-655.47, including any

[[Page 15188]]

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) Advise the employer that it must inform the SWA with which the 
employer has placed its job order in writing if the last H-2B worker 
has not departed for the place of employment by the third day preceding 
the employer's date of need, and that the employer must advise the SWA 
when the last H-2B worker has departed;
    (4) Direct the SWA to place the job order into intra and interstate 
clearance as set forth in 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;
    (5) 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;
    (6) Where the occupation or industry is traditionally or 
customarily unionized, direct the SWA to circulate a copy of the job 
order to the following labor organizations;
    (i) The central office of the State Federation of Labor in the 
State(s) in which work will be performed; and
    (ii) The office(s) of local union(s) representing employees in the 
same or substantially equivalent job classification in the area(s) in 
which work will be performed;
    (7) Advise the employer, as appropriate, that it must contact the 
appropriate community-based organization with notice of the job 
opportunity; and
    (8) Require the employer to submit a report of its recruitment 
efforts as specified in 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 promptly place for public examination a 
copy of the job order posted by the SWA on the Department's electronic 
job registry, including any amendments or required modifications 
approved by the CO.
    (b) Length of posting on electronic job registry. The Department 
will keep the job order posted on the electronic job registry until the 
end of the recruitment period, as set forth in Sec.  655.40(c).
    (c) Conclusion of active posting. Once the recruitment period has 
concluded, the SWA will inform the CO and the job order will be placed 
in inactive status on the electronic job registry.

Sec.  655.35  Amendments to an application or job order.

    The Application for Temporary Employment Certification and/or job 
order may be amended by the employer before the CO makes a final 
determination to grant or deny the Application for Temporary Employment 
Certification. All U.S. workers hired under the original job order must 
be immediately provided copies of any approved amendments.
    (a) Increases in number of workers. The employer may request to 
increase the number of workers noted in the initial Application for 
Temporary Employment Certification and listed on its job order by no 
more than 20 percent (50 percent for employers requesting fewer than 10 
workers). All requests for increasing the number of workers must be 
made in writing and will not be effective until approved by the CO. 
Upon acceptance of an amendment, the CO will submit to the SWA any 
necessary changes to the job order and update the electronic job 
registry.
    (b) Minor changes to the period of employment. The employer may 
request minor changes to the total period of employment listed on its 
initial Application for Temporary Employment Certification and job 
order, for a period of up to 14 days, but the period of employment may 
not exceed a total of 9 months, except in the event of a 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. Upon acceptance of an amendment, the CO will submit 
to the SWA any necessary changes to the job order and update the 
electronic job registry.
    (c) Other amendments to the Application for Temporary Employment 
Certification and job order. The employer may request other amendments 
to the Application for Temporary Employment Certification and job 
order. All such requests must be made in writing and will not be 
effective until approved by the CO. In considering whether to approve 
the request, the CO will determine whether the proposed amendment(s) 
are sufficiently justified and must take into account the effect of the 
changes on the underlying labor market test for the job opportunity. 
Upon acceptance of an amendment, the CO will submit to the SWA any 
necessary changes to the job order and update the electronic job 
registry.
    (d) Amendments after certification. The employer may not request an 
amendment to an Application for Temporary Employment Certification or 
job order and the CO may not amend an Application for Temporary 
Employment Certification after the CO has made a final determination to 
grant or deny the Application for Temporary Employment Certification.

Sec. Sec.  655.36-655.39  [Reserved]

    16. Add reserved Sec. Sec.  655.36-655.39.
    17. Add an undesignated center heading and Sec. Sec.  655.40 
through 655.48 to read as follows:

Subpart A--Labor Certification Process for Temporary Non-
Agricultural Employment in the United States (H-2B Workers)

* * * * *
Sec.

Post-Acceptance Requirements

655.40 Employer-conducted recruitment.
655.41 Advertising requirements.
655.42 Newspaper advertisements.
655.43 Contact with former U.S. employees.
655.44 Contact with labor organizations.
655.45 Contact with bargaining representative and posting and other 
contact requirements.
655.46 Additional employer-conducted recruitment.
655.47 Referrals of U.S. workers.
655.48 Recruitment report.
* * * * *

Post-Acceptance Requirements

Sec.  655.40  Employer-conducted recruitment.

    (a) Employer obligations. Employers must conduct recruitment of 
U.S. workers to ensure that there are not qualified workers who will be 
available for the positions listed in the Application for Temporary 
Employment Certification.
    (b) Employer-conducted recruitment period. Unless otherwise 
instructed by the CO, the employer must conduct the recruitment 
described in Sec. Sec.  655.41--655.47 within 14 calendar days from the 
date the Notice of Acceptance is issued. All employer-conducted 
recruitment must be completed before the employer submits the 
recruitment report as required in Sec.  655.48.
    (c) U.S. worker referrals. Employers must continue to accept 
referrals of all

[[Page 15189]]

U.S. applicants interested in the position until the later of the date 
the last H-2B worker departs for the job opportunity or 3 days before 
the date of need. If the last H-2B worker has not departed by 3 days 
before the date of need, the employer is required to immediately inform 
the SWA in writing and notify the SWA of the new departure date as soon 
as available.
    (d) Interviewing U.S. workers. Employers that wish to require 
interviews must conduct those interviews by phone or provide a 
procedure for the interviews to be conducted in the location where the 
worker is being recruited so that the worker incurs little or no cost. 
Employers cannot provide potential H-2B workers with more favorable 
treatment with respect to the requirement for, and conduct of, 
interviews.
    (e) Qualified and available U.S. workers. The employer must 
consider all U.S. applicants for the job opportunity. The employer must 
accept and hire any applicants who are qualified and who will be 
available.
    (f) Recruitment report. The employer must prepare a recruitment 
report that lists all applicants and whether they were accepted or 
rejected. This report must include all reasons why an applicant was 
rejected in accordance with Sec.  655.48.

Sec.  655.41  Advertising requirements.

    (a) All recruitment conducted under Sec.  655.40 must meet the 
requirements set forth in this section and must contain terms and 
conditions of employment that are not less favorable than those offered 
to the H-2B workers and reflect, at a minimum, those contained in the 
job order.
    (b) In addition to those terms and conditions contained in the job 
order, all advertising must contain the following information:
    (1) The employer's name and appropriate SWA contact information for 
applicants to inquire about the job opportunity or to send 
applications, indications of availability, and/or resumes directly to 
the SWA;
    (2) The geographic area of intended employment with enough 
specificity to apprise applicants of any travel requirements and where 
applicants will likely have to reside to perform the services or labor;
    (3) A description of the job opportunity for which certification is 
sought with sufficient information to apprise U.S. workers of the 
services or labor to be performed, including the duties, the minimum 
education and experience requirements, the work hours and days, and the 
anticipated start and end dates of the job opportunity;
    (4) A statement that the position is temporary and a statement of 
the total number of job openings the employer intends to fill;
    (5) If applicable, a statement that overtime will be available to 
the worker and the wage offer(s) for working any overtime hours;
    (6) If applicable, a statement indicating that on-the-job training 
will be provided to the worker;
    (7) The wage offer, or in the event that there are multiple wage 
offers (such as where an itinerary is authorized through special 
procedures for an employer), the range of applicable wage offers;
    (8) A statement that transportation and subsistence from the place 
where the worker has come to work for the employer to the place of 
employment will be provided;
    (9) If applicable, a statement that work tools, supplies, and 
equipment will be provided to the worker without charge;
    (10) If applicable, a statement that daily transportation to and 
from the worksite will be provided by the employer;
    (11) A statement summarizing the three-fourths guarantee as 
required by Sec.  655.20(f); and
    (12) A statement directing applicants to apply for the job 
opportunity at the nearest office of the SWA in the State in which the 
advertisement appeared.

Sec.  655.42  Newspaper advertisements.

    (a) The employer must place an advertisement (in a language other 
than English, where the CO determines appropriate) on 2 separate days, 
which may be consecutive, one of which must be a Sunday (except as 
provided in paragraph (b) of this section), in a newspaper of general 
circulation serving the area of intended employment and appropriate to 
the occupation and the workers likely to apply for the job opportunity.
    (b) If the job opportunity is located in a rural area that does not 
have a newspaper with a Sunday edition, the CO may direct the employer, 
in place of a Sunday edition, to advertise in the regularly published 
daily edition with the widest circulation in the area of intended 
employment.
    (c) The newspaper advertisements must satisfy the requirements in 
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.

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

Sec.  655.44  Contact with labor organizations.

    Where the occupation or industry is customarily unionized, the 
employer must contact the local union in writing to seek U.S. workers 
who are qualified and who will be available. The employer must maintain 
documentation in accordance with Sec.  655.56 demonstrating that such 
organization(s) were contacted and whether the organization(s) referred 
qualified U.S. workers, including the number of referrals, or were non-
responsive to the employer's requests.

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

    (a) If there is a bargaining representative for any of the 
employer's employees in the occupation and area of intended employment, 
the employer must provide written notice of the job opportunity, by 
providing a copy of the Application for Temporary Employment 
Certification and the job order, and maintain documentation that it was 
sent to the bargaining representative(s). An employer governed by this 
paragraph must include information in its recruitment report that 
confirms that the bargaining representative(s) was contacted and 
notified of the position openings and whether the organization referred 
qualified U.S. worker(s), including the number of referrals, or was 
non-responsive to the employer's requests.
    (b) If there is no bargaining representative, the employer must 
post the availability of the job opportunity in at least 2 conspicuous 
locations at the place(s) of anticipated employment or in some other 
manner that provides reasonable notification to all employees in the 
job classification and area in

[[Page 15190]]

which the work will be performed by the H-2B workers. The notice must 
meet the requirements under Sec.  655.41 and be posted for at least 10 
consecutive business days. The employer must maintain a copy of the 
posted notice and identify where and when it was posted in accordance 
with 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 the designated community-based organization. An employer 
governed by this paragraph must include information in its recruitment 
report that confirms that the community-based organization was 
contacted and notified of the position openings and whether the 
organization referred qualified U.S. worker(s), including the number of 
referrals, or was non-responsive to the employer's requests.

Sec.  655.46  Additional employer-conducted recruitment.

    (a) Requirement to conduct additional recruitment. The employer may 
be instructed by the CO to conduct additional recruitment. Such 
recruitment may be required at the discretion of the CO where the CO 
has determined that there may be U.S. workers who are qualified and who 
will be available for the work, including but not limited to where the 
job opportunity is located in an area of substantial unemployment.
    (b) Nature of the additional employer-conducted recruitment. The CO 
will describe the precise number and nature of the additional 
recruitment efforts. Additional recruitment may include, but will not 
be limited to, posting on the employer's Web site or another Web site, 
contact with community-based organizations, contact with State One-Stop 
Career Centers, and other print advertising, such as using a 
professional, trade or ethnic publication where such a publication is 
appropriate for the occupation and the workers likely to apply for the 
job opportunity.
    (c) Proof of the additional 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 
have indicated, by accepting referral to the job opportunity that they 
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 written recruitment report. The recruitment 
report must be mailed by a date specified by the CO in the Notice of 
Acceptance and contain the following information:
    (1) The name of each recruitment activity or source (e.g., job 
order and the name of the newspaper);
    (2) The name and contact information of each U.S. worker who 
applied or was referred to the job opportunity up to the date of the 
preparation of the recruitment report, and the disposition of each 
worker's application. The employer must clearly indicate whether the 
job opportunity was offered to the U.S. worker and whether the U.S. 
worker accepted or declined;
    (3) Confirmation that former U.S. employees were contacted, if 
applicable, and by what means;
    (4) Confirmation that labor organizations were contacted, if 
applicable, and by what means. Such documentation must demonstrate that 
the organization was contacted and notified of the job openings and 
whether the organization referred qualified U.S. worker(s), including 
the number of referrals, or was non-responsive to the employer's 
requests;
    (5) Confirmation that the bargaining representative was contacted, 
if applicable, and by what means or that the employer posted the 
availability of the job opportunity to all employees;
    (6) Confirmation that the community-based organization designated 
by the CO was contacted, if applicable;
    (7) If applicable, confirmation that additional recruitment was 
conducted as directed by the CO; and
    (8) If applicable, for each U.S. worker who applied for the 
position but was not hired, the lawful job-related reason(s) for not 
hiring the U.S. worker.
    (b) Duty to update recruitment report. The employer must continue 
to update the recruitment report throughout the recruitment period. The 
updated report need not be submitted to the Department, but must be 
made available in the event of a post-certification audit or upon 
request by DOL.

Sec.  655.49  [Reserved]

    18. Add reserved Sec.  655.49.
    19. Add an undesignated center heading before Sec.  655.50 to read 
as follows:

Labor Certification Determinations

    20. Revise Sec.  655.50 to read as follows:

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 classification. If the Administrator, OFLC 
directs that certain types of temporary employment certification 
applications or a specific Application for Temporary Employment 
Certification under the H-2B nonimmigrant classification be handled by 
the OFLC's National Office, the Director of the NPC will refer such 
applications to the Administrator, OFLC.
    (b) Determination. Except as otherwise provided in this paragraph, 
the CO will make a determination either to grant, partially grant, or 
deny the Application for Temporary Employment Certification. The CO 
will grant the application only if the employer has met all the 
requirements of this subpart, including the criteria for certification 
in 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 benefits, 
wages, and working conditions of similarly employed U.S. workers.
    21. In subpart A, add Sec. Sec.  655.51 through 655.56 to read as 
follows:

Subpart A--Labor Certification Process for Temporary Non-
Agricultural Employment in the United States (H-2B Workers)

* * * * *
Sec.
655.51 Criteria for certification.
655.52 Approved certification.
655.53 Denied certification.
655.54 Partial certification.
655.55 Validity of temporary employment certification.
655.56 Document retention requirements of H-2B employers.
* * * * *

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 of this program.

[[Page 15191]]

    (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) Certifications will not be granted to employers that have 
failed to comply with one or more sanctions or remedies imposed by 
final agency actions under the H-2B program.

Sec.  655.52  Approved certification.

    If temporary employment certification is granted, the CO will send 
the approved Application for Temporary Employment Certification and a 
Final Determination letter to the employer by means normally assuring 
next day delivery, including electronic mail, and a copy, if 
appropriate, to the employer's attorney or agent.

Sec.  655.53  Denied certification.

    If temporary employment certification is denied, the CO will send 
the Final Determination letter to the employer by means normally 
assuring next day delivery and a copy, if appropriate, to the 
employer's attorney or agent. The Final Determination letter will:
    (a) State the reason(s) certification is denied, citing the 
relevant regulatory standards and/or special procedures;
    (b) Offer the employer an opportunity to request administrative 
review of the denial under 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 will not further consider 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 referred U.S. worker 
who is qualified and who will be available at the time and place needed 
and has not been rejected for lawful job-related reasons, to perform 
the services or labor. If a partial labor certification is issued, the 
CO will amend the Application for Temporary Employment Certification 
and then return it to the employer with a Final Determination letter, 
with a copy to the employer's attorney or agent, if applicable. The 
Final Determination letter will:
    (a) State the reason(s) why either the period of need and/or the 
number of H-2B workers requested has been reduced, citing the relevant 
regulatory standards and/or special procedures;
    (b) If applicable, address the availability of U.S. workers in the 
occupation;
    (c) Offer the employer an opportunity to request administrative 
review of the partial certification under 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 will not further consider that Application for 
Temporary Employment Certification.

Sec.  655.55  Validity of temporary employment certification.

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

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 receives the letter of 
withdrawal provided in accordance with Sec.  655.62.
    (c) Documents and records to be retained by all applicants. All 
employers filing an H-2B Registration and an Application for Temporary 
Employment Certification must retain the following documents and 
records and must provide the documents and records in the event of an 
audit or investigation:
    (1) Documents and records not previously submitted during the 
registration process that substantiate temporary need;
    (2) Proof of recruitment efforts, as applicable, including:
    (i) Job order placement as specified in 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 labor organizations, if applicable, as specified 
in Sec.  655.44;
    (v) Contact with bargaining representative(s), or copy of the 
posting of the job opportunity, if applicable, as specified in Sec.  
655.45(a) or (b); and
    (vi) 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, 
and other information as specified in Sec.  655.20(i);
    (6) Evidence of contact with U.S. workers who applied for the job 
opportunity in the Application for Temporary Employment Certification, 
including documents demonstrating that any rejections of U.S. workers 
were for lawful, job-related reasons, as specified in Sec.  655.20(r);
    (7) Evidence of contact with any former U.S. worker in the 
occupation and the area of intended employment in the Application for 
Temporary Employment Certification, including documents demonstrating 
that the U.S. worker had been offered the job opportunity in the 
Application for Temporary Employment Certification, as specified 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);
    (8) The written contracts with agents or recruiters, including the 
written contract prohibiting an agent or recruiter from receiving 
payments, as specified in Sec.  655.20(p);

[[Page 15192]]

    (9) Written notice provided to and informing OFLC that an H-2B 
worker or worker in corresponding employment has separated from 
employment before the end date of employment specified in the 
Application for Temporary Employment Certification, as specified in 
Sec.  655.20(y);
    (10) The H-2B Registration, job order and a copy of the Application 
for Temporary Employment Certification; and
    (11) The H-2B Petition, including all accompanying documents.
    (d) Availability of documents for enforcement purposes. An employer 
must make available to the Administrator, OFLC within 72 hours 
following a request by the OFLC the documents and records required 
under 29 CFR part 503 and this section so that the Administrator, OFLC 
may copy, transcribe, or inspect them.

Sec. Sec.  655.57--655.59  [Reserved]

    22. Add reserved Sec. Sec.  655.57-655.59.
    23. Add an undesignated center heading before Sec.  655.60 to read 
as follows:

Post Certification Activities

    24. Revise Sec.  655.60 to read as follows:

Sec.  655.60  Extensions.

    An employer may apply for extensions of the period of employment in 
the following circumstances. Extensions are available only to employers 
whose approved period of employment, as listed on the Application for 
Temporary Employment Certification, does not exceed the maximum period 
of temporary need for a seasonal need, a peakload need, an intermittent 
need, or a one-time occurrence, in accordance with Sec.  655.6, and DHS 
regulations at 8 CFR 214.2(h)(6)(ii)(B). Such requests must be related 
to weather conditions or other factors beyond the control of the 
employer (which may include unforeseen changes in market conditions), 
and must be supported in writing, with documentation showing why the 
extension is needed and that the need could not have been reasonably 
foreseen by the employer. The CO will notify the employer of the 
decision in writing. The CO will not grant an extension where the total 
work period under that Application for Temporary Employment 
Certification and the authorized extension would exceed 9 months for 
employers whose temporary need is seasonal, peakload, or intermittent, 
or 3 years for employers that have a one-time occurrence of temporary 
need, except in extraordinary circumstances. The employer may appeal a 
denial of a request for an extension by following the procedures in 
Sec.  655.61. The H-2B employer's assurances and obligations under the 
temporary employment certification will continue to apply with respect 
to the workers recruited in connection with the Application for 
Temporary Employment Certification during the extended period of 
employment. For purposes of the assurances and obligations that are 
based on the workers' partial or full completion of the work period 
specified in the job order, the employer must continue to meet its 
obligations based on the extended work period listed in the approved 
Application for Temporary Employment Certification. The employer must 
immediately provide to its workers a copy of any approved extension.
    25. In subpart A, add Sec. Sec.  655.61 through 655.63 to read as 
follows:

Subpart A--Labor Certification Process for Temporary Non-
Agricultural Employment in the United States (H-2B Workers)

* * * * *
Sec.
655.61 Administrative review.
655.62 Withdrawal of an Application for Temporary Employment 
Certification.
655.63 Public disclosure.
* * * * *

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

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.

Sec.  655.63  Public disclosure.

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

Sec.  655.64  [Reserved]

    26. Add reserved Sec.  655.64.

Sec.  655.65  [Removed and Reserved]

    27. Remove and reserve Sec.  655.65.

Sec. Sec.  655.66-655.69  [Reserved]

    28. Add reserved Sec. Sec.  655.66 through 655.69.
    29. Add an undesignated center heading before Sec.  655.70 to read 
as follows:

Integrity Measures

    30. In subpart A, revise Sec. Sec.  655.70 through 655.73 to read 
as follows:

Subpart A--Labor Certification Process for Temporary Non-
Agricultural Employment in the United States (H-2B Workers)

* * * * *

[[Page 15193]]

Sec.
655.70 Audits.
655.71 CO-ordered assisted recruitment.
655.72 Revocation.
655.73 Debarment.
* * * * *

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 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.
    (c) Supplemental information request. During the course of the 
audit examination, the CO may request supplemental information and/or 
documentation from the employer in order to complete the audit. If 
circumstances warrant, the CO can issue one or more requests for 
additional supplemental information.
    (d) Potential referrals. In addition to measures in this subpart, 
the CO may decide to provide the audit findings and underlying 
documentation to DHS, WHD, or other appropriate enforcement agencies. 
The CO will refer any findings that an employer discouraged an eligible 
U.S. worker from applying, or failed to hire, discharged, or otherwise 
discriminated against an eligible U.S. worker, to the Department of 
Justice, Civil Rights Division, Office of Special Counsel for Unfair 
Immigration Related Employment Practices.

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 a temporary employment certification, and offer the employer 
an opportunity to request an administrative review. If administrative 
review is requested, the procedures in Sec.  655.6l apply.
    (c) Assisted recruitment. The assisted recruitment process will be 
in addition to any recruitment required of the employer by Sec. Sec.  
655.41-.47 and may consist of, but is not limited to, one or more of 
the following:
    (1) Requiring the employer to submit a draft advertisement to the 
CO for review and approval at the time of filing the Application for 
Temporary Employment Certification;
    (2) Designating the sources where the employer must recruit for 
U.S. workers, including newspapers and other publications, and 
directing the employer to place the advertisement(s) in such sources;
    (3) Extending the length of the placement of the advertisement and/
or job order;
    (4) Requiring the employer to notify the CO and the SWA in writing 
when the advertisement(s) are placed;
    (5) Requiring an employer to perform any additional assisted 
recruitment directed by the CO;
    (6) Requiring the employer to provide proof of the publication of 
all advertisements as directed by the CO, in addition to providing a 
copy of the job order;
    (7) Requiring the employer to provide proof of all SWA referrals 
made in response to the job order;
    (8) Requiring the employer to submit any proof of contact with all 
referrals and past U.S. workers; and/or
    (9) Upon request, requiring the employer to provide any additional 
documentation verifying it conducted the assisted recruitment as 
directed by the CO.
    (d) Failure to comply. If an employer fails to comply with 
requirements ordered by the CO under this section, the certification 
will be denied and the employer and/or its attorney or agent may be 
debarred under Sec.  655.73.

Sec.  655.72  Revocation.

    (a) Basis for DOL revocation. The Administrator, OFLC may revoke a 
temporary employment certification approved under this subpart, if the 
Administrator, OFLC finds:
    (1) The issuance of the temporary employment certification was not 
justified due to fraud or willful misrepresentation of a material fact 
in the application process, as defined in Sec.  655.73(d);
    (2) The employer substantially failed to comply with any of the 
terms or conditions of the approved temporary employment certification. 
A substantial failure is a willful failure to comply that constitutes a 
significant deviation from the terms and conditions of the approved 
certification and is further defined in Sec. 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 employment certification, the Administrator, OFLC will send 
to the employer (and its attorney or agent) a Notice of Revocation. The 
notice will contain a detailed statement of the grounds for the 
revocation and inform the employer of its right to submit rebuttal 
evidence or to appeal. If the employer does not file rebuttal evidence 
or an appeal within 10 business days from the date the Notice of 
Revocation is issued, the notice is the final agency action and will 
take effect immediately at the end of the 10-day period.
    (2) Rebuttal. If the employer timely submits rebuttal evidence, the 
Administrator, OFLC will inform the employer of the final determination 
on the revocation within 10 business days of receiving the rebuttal 
evidence. If the Administrator, OFLC determines that the certification 
should be revoked, the Administrator, OFLC will inform the employer of 
its right to appeal according to the procedures of 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

[[Page 15194]]

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 employment certification is revoked, 
the Administrator, OFLC will send a copy of the final agency action to 
DHS and the Department of State (DOS).
    (c) Employer's obligations in the event of revocation. If an 
employer's temporary employment certification is revoked, the employer 
is responsible for:
    (1) Reimbursement of actual inbound transportation and other 
expenses;
    (2) The workers' outbound transportation expenses;
    (3) Payment to the workers of the amount due under the three-
fourths guarantee; and
    (4) Any other wages, benefits, and working conditions due or owing 
to the workers under this subpart.

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 Temporary Employment Certification, or H-
2B Petition;
    (2) Substantial failure to meet any of the terms and conditions of 
its H-2B Registration, Application for Temporary Employment 
Certification, or H-2B Petition. A substantial failure is a willful 
failure to comply that constitutes a significant deviation from the 
terms and conditions of such documents; or
    (3) Willful misrepresentation of a material fact to the Department 
of State during the visa application process.
    (b) Debarment of an agent or attorney. If the Administrator, OFLC 
finds, under this section, that an attorney or agent participated in an 
employer's violation, the Administrator, OFLC may not issue future 
labor certifications to an employer represented by such agent or 
attorney, subject to the time limits set forth in paragraph (c) of this 
section.
    (c) Period of debarment. Debarment under this subpart may not be 
for less than 1 year or more than 5 years from the date of the final 
agency decision.
    (d) Determining whether a violation is willful. A willful 
misrepresentation of a material fact or a willful failure to meet the 
required terms and conditions occurs when the employer, attorney, or 
agent knows a statement is false or that the conduct is in violation, 
or shows reckless disregard for the truthfulness of its representation 
or for whether its conduct satisfies the required conditions.
    (e) Determining whether a violation is significant. In determining 
whether a violation is a significant deviation from the terms and 
conditions of the H-2B Registration, Application for Temporary 
Employment Certification, or H-2B Petition, the factors that the 
Administrator, OFLC may consider include, but are not limited to, the 
following:
    (1) Previous history of violation(s) under the H-2B program;
    (2) The number of H-2B workers, workers in corresponding 
employment, or improperly rejected U.S. applicants who were and/or are 
affected by the violation(s);
    (3) The gravity of the violation(s);
    (4) The extent to which the violator achieved a financial gain due 
to the violation(s), or the potential financial loss or potential 
injury to the worker(s); and
    (5) Whether U.S. workers have been harmed by the violation.
    (f) Violations. Where the standards set forth in paragraphs (d) and 
(e) in this section are met, debarrable violations would include but 
would not be limited to:
    (1) Failure to pay or provide the required wages, benefits or 
working conditions to the employer's H-2B workers and/or workers in 
corresponding employment;
    (2) Failure, except for lawful, 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 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 29 CFR 
503.16(r);
    (12) A single heinous act showing such flagrant disregard for the 
law that future compliance with program requirements cannot reasonably 
be expected;
    (13) Fraud involving the H-2B Registration, Application for 
Temporary Employment Certification or the H-2B Petition; or
    (14) A material misrepresentation of fact during the registration 
or application process.
    (g) Debarment procedure--(1) Notice of Debarment. If the 
Administrator, OFLC makes a determination to debar an employer, 
attorney, or agent, the Administrator, OFLC will send the party a 
Notice of Debarment. The Notice will state the reason for the debarment 
finding, including a detailed explanation of the grounds for and the 
duration of the debarment and inform the party subject to the Notice of 
its right to submit rebuttal evidence or to request a debarment 
hearing. If the party does not file rebuttal evidence or request a 
hearing within 30 calendar days of the date of the Notice of Debarment, 
the Notice is the final agency action and the debarment will take 
effect at the end of the 30-day period. The timely filing of any 
rebuttal evidence or a request for a hearing stays the debarment 
pending the outcome of the appeal as provided in paragraphs (g)(2)-(6) 
of this section.
    (2) Rebuttal. The party who received the Notice of Debarment may 
choose to submit evidence to rebut the grounds stated in the Notice 
within 30 calendar days of the date the Notice is issued. If rebuttal 
evidence is timely filed, the Administrator, OFLC will issue a final 
determination on the debarment within 30 calendar days of receiving the 
rebuttal evidence. If the Administrator, OFLC determines that the party 
should be debarred, the Administrator, OFLC will inform the party of 
its right to request a debarment hearing according to the procedures in 
this section. The party must request a hearing within 30 calendar days 
after the date of the Administrator, OFLC's final determination, or the 
Administrator

[[Page 15195]]

OFLC's determination will be the final agency order and the debarment 
will take effect at the end of the 30-day period.
    (3) Hearing. The recipient of a Notice of Debarment seeking to 
challenge the debarment must request a debarment hearing within 30 
calendar days of the date of a Notice of Debarment or the date of a 
final determination of the Administrator, OFLC after review of rebuttal 
evidence submitted under paragraph (g)(2) of this section. To obtain a 
debarment hearing, the recipient must, within 30 days of the date of 
the Notice or the final determination, file a written request with the 
Chief Administrative Law Judge, United States Department of Labor, 800 
K Street, NW., Suite 400-N, Washington, DC 20001-8002, and 
simultaneously serve a copy on the Administrator, OFLC. The debarment 
will take effect 30 calendar days from the date the Notice of Debarment 
or final determination is issued, unless a request for review is timely 
filed. Within 10 business days of receipt of the request for a hearing, 
the Administrator, OFLC will send a certified copy of the ETA case file 
to the Chief ALJ by means normally assuring next day delivery. The 
Chief ALJ will immediately assign an ALJ to conduct the hearing. The 
procedures in 29 CFR part 18 apply to such hearings, except that the 
request for a hearing will not be considered to be a complaint to which 
an answer is required.
    (4) Decision. After the hearing, the ALJ must affirm, reverse, or 
modify the Administrator, OFLC's determination. The ALJ will prepare 
the decision within 60 calendar days after completion of the hearing 
and closing of the record. The ALJ's decision will be provided to the 
parties to the debarment hearing by means normally assuring next day 
delivery. The ALJ's decision is the final agency action, unless either 
party, within 30 calendar days of the ALJ's decision, seeks review of 
the decision with the Administrative Review Board (ARB).
    (5) Review by the ARB. (i) Any party wishing review of the decision 
of an ALJ must, within 30 calendar days of the decision of the ALJ, 
petition the ARB to review the decision. Copies of the petition must be 
served on all parties and on the ALJ. The ARB will decide whether to 
accept the petition within 30 calendar days of receipt. If the ARB 
declines to accept the petition, or if the ARB does not issue a notice 
accepting a petition within 30 calendar days after the receipt of a 
timely filing of the petition, the decision of the ALJ is the final 
agency action. If a petition for review is accepted, the decision of 
the ALJ will be stayed unless and until the ARB issues an order 
affirming the decision. The ARB must serve notice of its decision to 
accept or not to accept the petition upon the ALJ and upon all parties 
to the proceeding.
    (ii) Upon receipt of the ARB's notice to accept the petition, the 
Office of Administrative Law Judges will promptly forward a copy of the 
complete hearing record to the ARB.
    (iii) Where the ARB has determined to review the decision and 
order, the ARB will notify each party of the issue(s) raised, the form 
in which submissions must be made (e.g., briefs or oral argument), and 
the time within which the presentation must be submitted.
    (6) ARB Decision. The ARB's final decision must be issued within 90 
calendar days from the notice granting the petition and served upon all 
parties and the ALJ.
    (h) Concurrent debarment jurisdiction. OFLC and the WHD have 
concurrent jurisdiction to debar under this section or under 29 CFR 
503.24. When considering debarment, OFLC and the WHD will coordinate 
their activities. A specific violation for which debarment is imposed 
will be cited in a single debarment proceeding. Copies of final 
debarment decisions will be forwarded to DHS and DOS promptly.
    (i) Debarment from other foreign labor programs. Upon debarment 
under this subpart or 29 CFR 503.24, the debarred party will be 
disqualified from filing any labor certification applications or labor 
condition applications with the Department by, or on behalf of, the 
debarred party for the same period of time set forth in the final 
debarment decision.

Sec. Sec.  655.74-655.81  [Removed and Reserved]

    31. In subpart A, remove Sec. Sec.  655.74 through 655.81.

Sec. Sec.  655.82-655.99  [Reserved]

    32. Add reserved Sec. Sec.  655.82 through 655.99.

TITLE 29

    33. Add part 503 to read as follows:

PART 503--ENFORCEMENT OF OBLIGATIONS FOR TEMPORARY NONIMMIGRANT 
NON-AGRICULTURAL WORKERS ADMITTED UNDER SECTION 214(c)(1) OF THE 
IMMIGRATION AND NATIONALITY ACT

Subpart A--General Provisions
Sec.
503.0 Introduction.
503.1 Scope and purpose.
503.2 Territory of Guam.
503.3 Coordination among Governmental agencies.
503.4 Definition of terms.
503.5 Temporary need.
503.6 Waiver of rights prohibited.
503.7 Investigation authority of Secretary.
503.8 Accuracy of information, statements, data.
Subpart B--Enforcement
503.15 Enforcement.
503.16 Assurances and obligations of H-2B employers.
503.17 Documentation retention requirements of H-2B employers.
503.18 Validity of temporary employment certification.
503.19 Violations.
503.20 Sanctions and remedies--general.
503.21 Concurrent actions.
503.22 Representation of the Secretary.
503.23 Civil money penalty assessment.
503.24 Debarment.
503.25 Failure to cooperate with investigators.
503.26 Civil money penalties--payment and collection.
Subpart C--Administrative Proceedings
503.40 Applicability of procedures and rules.

Procedures Related to Hearing

503.41 Administrator, WHD's determination.
503.42 Contents of notice of determination.
503.43 Request for hearing.

Rules of Practice

503.44 General.
503.45 Service of pleadings.
503.46 Commencement of proceeding.
503.47 Caption of proceeding.
503.48 Conduct of proceeding.

Procedures Before Administrative Law Judge

503.49 Consent findings and order.

Post-Hearing Procedures

503.50 Decision and order of Administrative Law Judge.

Review of Administrative Law Judge's Decision

503.51 Procedures for initiating and undertaking review.
503.52 Responsibility of the Office of Administrative Law Judges 
(OALJ).
503.53 Additional information, if required.
503.54 Submission of documents to the Administrative Review Board.
503.55 Final decision of the Administrative Review Board.

Record

503.56 Retention of official record.

    Authority:  Section 503 is issued under 8 U.S.C. 
1101(a)(15)(H)(ii)(b) and 1184(c), and 8 CFR 214.2(h).

Subpart A--General Provisions

Sec.  503.0  Introduction.

    These regulations cover the enforcement of all statutory and 
regulatory obligations, including

[[Page 15196]]

requirements under 8 U.S.C. 1184(c) and 20 CFR part 655, subpart A, 
applicable to the employment of H-2B workers admitted under the 
Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(15)(H)(ii)(b), 
and workers in corresponding employment, including obligations to offer 
employment to eligible United States (U.S.) workers and to not lay off 
or displace U.S. workers in a manner prohibited by these regulations or 
20 CFR part 655, subpart A.

Sec.  503.1  Scope and purpose.

    (a) Statutory standard. 8 U.S.C. 1184(c)(1) requires the Secretary 
of the Department of Homeland Security (DHS) to consult with 
appropriate agencies before authorizing the entry of H-2B workers. DHS 
regulations 8 CFR 214.2(h)(6)(iv) provide that a petition to bring 
nonimmigrant workers on H-2B visas into the U.S. for temporary 
nonagricultural employment may not be approved by the Secretary of 
Homeland Security unless the petitioner has applied for and received a 
temporary employment certification from the U.S. Secretary of Labor 
(Secretary). The temporary employment certification reflects a 
determination by the Secretary that:
    (1) There are not sufficient U.S. workers who are qualified and 
will be available at the time and place needed to perform the labor or 
services involved in the petition; and
    (2) The employment of the foreign worker will not adversely affect 
the wages and working conditions of U.S. workers similarly employed.
    (b) Role of the Employment and Training Administration (ETA). The 
issuance and denial of labor certifications under 8 U.S.C. 1184(c) has 
been delegated by the Secretary to ETA, an agency within the U.S. 
Department of Labor (the Department or DOL), which in turn has 
delegated that authority to the Office of Foreign Labor Certification 
(OFLC). In general, matters concerning the obligations of an H-2B 
employer related to the temporary employment certification process are 
administered by OFLC, including obligations and assurances made by 
employers, overseeing employer recruitment, and assuring program 
integrity. The regulations pertaining to the issuance, denial, and 
revocation of labor certification for temporary foreign workers by the 
OFLC are found in 20 CFR part 655, subpart A.
    (c) Role of the Wage and Hour Division (WHD). DHS, effective 
January 18, 2009, under section 214(c)(14)(B) of the INA, 8 U.S.C. 
1184(c)(14)(B), has delegated to the Secretary certain investigatory 
and law enforcement functions to carry out the provisions under 8 
U.S.C. 1184(c). The Secretary has delegated these functions to the WHD. 
In general, matters concerning the rights of H-2B workers and workers 
in corresponding employment under this part and the employer's 
obligations are enforced by the WHD, including whether employment was 
offered to U.S. workers as required under 20 CFR part 655, subpart A, 
or whether U.S. workers were laid off or displaced in violation of 
program requirements. The WHD has the responsibility to carry out 
investigations, inspections, and law enforcement functions and in 
appropriate instances to impose penalties, to debar from future 
certifications, to recommend revocation of existing certifications, and 
to seek remedies for violations, including recovery of unpaid wages and 
reinstatement of improperly laid off or displaced U.S. workers.
    (d) Effect of regulations. The enforcement functions carried out by 
the WHD under 8 U.S.C. 1184(c), 20 CFR part 655, subpart A, and these 
regulations apply to the employment of any H-2B worker and any worker 
in corresponding employment as the result of an Application for 
Temporary Employment Certification filed with the Department on or 
after the effective date of these regulations.

Sec.  503.2  Territory of Guam.

    This part does not apply to temporary employment in the Territory 
of Guam. The Department does not certify to the United States 
Citizenship and Immigration Services (USCIS) of DHS the temporary 
employment of nonimmigrant foreign workers under H-2B visas, or enforce 
compliance with the provisions of the H-2B visa program in the 
Territory of Guam. Under DHS regulations, 8 CFR 214.2(h)(6)(v), 
administration of the H-2B temporary employment certification program 
is undertaken by the Governor of Guam, or the Governor's designated 
representative.

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 these regulations.
    (b) Information received in the course of processing registrations 
and applications, program integrity measures, or enforcement actions 
may be shared between OFLC and WHD or, where applicable to employer 
enforcement under the H-2B program, may be forwarded to other agencies 
as appropriate, including the Department of State (DOS) and DHS.
    (c) A specific violation for which debarment is sought will be 
cited in a single debarment proceeding. OFLC and the WHD will 
coordinate their activities to achieve this result. Copies of final 
debarment decisions will be forwarded to DHS promptly.

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 a legal entity or person who:
    (1)(i) Is authorized to act on behalf of an employer for temporary 
nonagricultural labor certification purposes;
    (ii) Is not itself an employer, or a joint employer, as defined in 
this part with respect to a specific application; and
    (iii) Is not an association or other organization of employers.
    (2) No agent who is under suspension, debarment, expulsion, 
disbarment, or otherwise restricted from practice before any court, the 
Department, the Executive Office for Immigration Review under 8 CFR 
1003.101, or DHS under 8 CFR 292.3 may represent an employer under this 
part.
    Agricultural labor or services means those duties and occupations 
defined in 20 CFR 655.100.
    Applicant means a U.S. worker who is applying for a job opportunity 
for which an employer has filed an Application for Temporary Employment 
Certification (Form ETA 9142 and the appropriate appendices).
    Application for Temporary Employment Certification means the Office 
of Management and Budget (OMB)-approved Form ETA 9142 and the 
appropriate appendices, a valid wage determination, as required by 
Sec.  655.12, and a subsequently-filed U.S. worker recruitment report, 
submitted by an employer to secure a temporary employment certification 
determination from DOL.

[[Page 15197]]

    Area of intended employment means the geographic area within normal 
commuting distance of the place (worksite address) of the job 
opportunity for which the certification is sought. There is no rigid 
measure of distance that constitutes a normal commuting distance or 
normal commuting area, because there may be widely varying factual 
circumstances among different areas (e.g., average commuting times, 
barriers to reaching the worksite, or quality of the regional 
transportation network). If the place of intended employment is within 
a Metropolitan Statistical Area (MSA), including a multistate MSA, any 
place within the MSA is deemed to be within normal commuting distance 
of the place of intended employment. The borders of MSAs are not 
controlling in the identification of the normal commuting area; a 
location outside of an MSA may be within normal commuting distance of a 
location that is inside (e.g., near the border of) the MSA.
    Attorney means any person who is a member in good standing of the 
bar of the highest court of any State, possession, territory, or 
commonwealth of the U.S., or the District of Columbia. No attorney who 
is under suspension, debarment, expulsion, disbarment, or otherwise 
restricted from practice before any court, the Department, the 
Executive Office for Immigration Review under 8 CFR 1003.101, or DHS 
under 8 CFR 292.3 may represent an employer under this part.
    Certifying Officer (CO) means an OFLC official designated by the 
Administrator, OFLC to make determinations on applications under the H-
2B program. The Administrator, OFLC is the National CO. Other COs may 
also be designated by the Administrator, OFLC to make the 
determinations required under 20 CFR part 655, subpart A.
    Chief Administrative Law Judge means the chief official of the 
Department's Office of Administrative Law Judges or the Chief 
Administrative Law Judge's designee.
    Corresponding employment means the employment of workers who are 
not H-2B workers by an employer that has an accepted H-2B Application 
for Temporary Employment Certification in any work included in the job 
order or in any work performed by the H-2B workers. To qualify as 
corresponding employment, the work must be performed during the period 
of the job order, including any approved extension thereof.
    Date of need means the first date the employer requires services of 
the H-2B workers as listed on the application.
    Department of Homeland Security (DHS) means the Federal Department 
having jurisdiction over certain immigration-related functions, acting 
through its agencies, including USCIS.
    Employee means a person who is engaged to perform work for an 
employer, as defined under the general common law. Some of the factors 
relevant to the determination of employee status include: the hiring 
party's right to control the manner and means by which the work is 
accomplished; the skill required to perform the work; the source of the 
instrumentalities and tools for accomplishing the work; the location of 
the work; the hiring party's discretion over when and how long to work; 
and whether the work is part of the regular business of the hiring 
party. Other applicable factors may be considered and no one factor is 
dispositive. The terms ``employee'' and ``worker'' are used 
interchangeably in this part.
    Employer means a person (including any individual, partnership, 
association, corporation, cooperative, firm, joint stock company, 
trust, or other organization with legal rights and duties) that:
    (1) Has a place of business (physical location) in the U.S. and a 
means by which it may be contacted for employment;
    (2) Has an employer relationship (such as the ability to hire, pay, 
fire, supervise or otherwise control the work of employees) with 
respect to an H-2B worker or a worker in corresponding employment; and
    (3) Possesses, for purposes of filing an Application for Temporary 
Employment Certification, a valid Federal Employer Identification 
Number (FEIN).
    Employment and Training Administration (ETA) means the agency 
within the Department which includes OFLC and has been delegated 
authority by the Secretary to fulfill the Secretary's mandate under the 
DHS regulations for the administration and adjudication of an 
Application for Temporary Employment Certification and related 
functions.
    Federal holiday means a legal public holiday as defined at 5 U.S.C. 
6103.
    Full time means 35 or more hours of work per week for the purpose 
of the H-2B program.
    H-2B Petition means the DHS Petition for a Nonimmigrant Worker 
form, or successor form, and accompanying documentation required by DHS 
for employers seeking to employ foreign persons as H-2B nonimmigrant 
workers. The H-2B Petition includes the approved Application for 
Temporary Employment Certification and the Final Determination letter.
    H-2B Registration means the OMB-approved Form ETA 9155, submitted 
by an employer to register its intent to hire H-2B workers and to file 
an Application for Temporary Employment Certification.
    H-2B worker means any temporary foreign worker who is lawfully 
present in the U.S. and authorized by DHS to perform nonagricultural 
labor or services of a temporary or seasonal nature under 8 U.S.C. 
1101(a)(15)(H)(ii)(b).
    Job contractor means a person, association, firm, or a corporation 
that meets the definition of an employer and that contracts services or 
labor on a temporary basis to one or more employers, which is not an 
affiliate, branch or subsidiary of the job contractor and where the job 
contractor will not exercise substantial, direct day-to-day supervision 
or control in the performance of the services or labor to be performed 
other than hiring, paying and firing the workers.
    Job offer means the offer made by an employer or potential employer 
of H-2B workers to both U.S. and H-2B workers describing all the 
material terms and conditions of employment, including those relating 
to wages, working conditions, and other benefits.
    Job opportunity means one or more openings for full-time employment 
with the petitioning employer within a specified area(s) of intended 
employment for which the petitioning employer is seeking workers.
    Job order means the document containing all the material terms and 
conditions of employment relating to wages, hours, working conditions, 
worksite and other benefits, including all obligations and assurances 
under 20 CFR part 655 and this part that is posted between and among 
the State Workforce Agencies (SWAs) on their inter- and intra-State job 
clearance systems.
    Joint employment means that where two or more employers each have 
sufficient definitional indicia of being an employer to be considered 
the employer of a worker, those employers will be considered to jointly 
employ that worker. Each employer in a joint employment relationship to 
a worker is considered a joint employer of that worker.
    Layoff means any involuntary separation of one or more U.S. 
employees without cause.
    Metropolitan Statistical Area (MSA) means a geographic entity 
defined by OMB for use by Federal statistical agencies in collecting, 
tabulating, and publishing Federal statistics. A metro

[[Page 15198]]

area contains a core urban area of 50,000 or more population, and a 
micro area contains an urban core of at least 10,000 (but fewer than 
50,000) population. Each metro or micro area consists of one or more 
counties and includes the counties containing the core urban area, as 
well as any adjacent counties that have a high degree of social and 
economic integration (as measured by commuting to work) with the urban 
core.
    National Processing Center (NPC) means the office within OFLC which 
is charged with the adjudication of an Application for Temporary 
Employment Certification or other applications.
    Non-agricultural labor and services means any labor or services not 
considered to be agricultural labor or services as defined in subpart B 
of this part. It does not include the provision of services as members 
of the medical profession by graduates of medical schools.
    Occupational employment statistics (OES) survey means the program 
under the jurisdiction of the BLS that provides annual wage estimates 
for occupations at the State and MSA levels.
    Offered wage means the wage that equals or exceeds the highest of 
the prevailing wage or Federal, State, or local minimum wage.
    Office of Foreign Labor Certification (OFLC) means the 
organizational component of the ETA that provides national leadership 
and policy guidance and develops regulations to carry out the 
Secretary's responsibilities for the admission of foreign workers to 
the U.S. to perform work described in 8 U.S.C. 1101(a)(15)(H)(ii)(b).
    Prevailing wage determination (PWD) means the prevailing wage for 
the position, as described in 20 CFR 655.12, which is the subject of 
the Application for Temporary Employment Certification.
    Professional athlete is defined in 8 U.S.C. 1182(a)(5)(A)(iii)(II), 
and means an individual who is employed as an athlete by:
    (1) A team that is a member of an association of six or more 
professional sports teams whose total combined revenues exceed 
$10,000,000 per year, if the association governs the conduct of its 
members and regulates the contests and exhibitions in which its member 
teams regularly engage; or
    (2) Any minor league team that is affiliated with such an 
association.
    Secretary means the Secretary of Labor, the chief official of the 
U.S. Department of Labor, or the Secretary's designee.
    Secretary of Homeland Security means the chief official of the U.S. 
Department of Homeland Security or the Secretary of Homeland Security's 
designee.
    Secretary of State means the chief official of the U.S. Department 
of State or the Secretary of State's designee.
    State Workforce Agency (SWA) means a State government agency that 
receives funds under the Wagner-Peyser Act (29 U.S.C. 49 et seq.) to 
administer the State's public labor exchange activities.
    Strike means a concerted stoppage of work by employees as a result 
of a labor dispute, or any concerted slowdown or other concerted 
interruption of operation (including stoppage by reason of the 
expiration of a collective bargaining agreement).
    Successor in interest means
    (1) Where an employer has violated 20 CFR part 655, Subpart A or 
this part, and has ceased doing business or cannot be located for 
purposes of enforcement, a successor in interest to that employer may 
be held liable for the duties and obligations of the violating employer 
in certain circumstances. The following factors, as used under Title 
VII of the Civil Rights Act and the Vietnam Era Veterans' Readjustment 
Assistance Act, may be considered in determining whether an employer is 
a successor in interest; no one factor is dispositive, but all of the 
circumstances will be considered as a whole:
    (i) Substantial continuity of the same business operations;
    (ii) Use of the same facilities;
    (iii) Continuity of the work force;
    (iv) Similarity of jobs and working conditions;
    (v) Similarity of supervisory personnel;
    (vi) Whether the former management or owner retains a direct or 
indirect interest in the new enterprise;
    (vii) Similarity in machinery, equipment, and production methods;
    (viii) Similarity of products and services; and
    (ix) The ability of the predecessor to provide relief.
    (2) For purposes of debarment only, the primary consideration will 
be the personal involvement of the firm's ownership, management, 
supervisors, and others associated with the firm in the violation(s) at 
issue.
    United States (U.S.) means the continental U.S., Alaska, Hawaii, 
the Commonwealth of Puerto Rico, and the territories of Guam, the U.S. 
Virgin Islands, and the Commonwealth of the Northern Mariana Islands 
(CNMI).
    United States Citizenship and Immigration Services (USCIS) means 
the Federal agency within DHS that makes the determination under the 
INA whether to grant petitions filed by employers seeking H-2B workers 
to perform temporary nonagricultural work in the U.S.
    United States worker (U.S. worker) means a worker who is:
    (1) A citizen or national of the U.S.;
    (2) An alien who is lawfully admitted for permanent residence in 
the U.S., is admitted as a refugee under 8 U.S.C. 1157, is granted 
asylum under 8 U.S.C. 1158, or is an immigrant otherwise authorized (by 
the INA or by DHS) to be employed in the U.S.; or
    (3) An individual who is not an unauthorized alien (as defined in 8 
U.S.C. 1324a(h)(3)) with respect to the employment in which the worker 
is engaging.
    Wage and Hour Division (WHD) means the agency within the Department 
with investigatory and law enforcement authority, as delegated from 
DHS, to carry out the provisions under 8 U.S.C. 1184(c).
    Wages mean all forms of cash remuneration to a worker by an 
employer in payment for personal services.

Sec.  503.5  Temporary need.

    (a) An employer seeking certification under 20 CFR part 655, 
subpart A must establish that its need for nonagricultural services or 
labor is temporary, regardless of whether the underlying job is 
permanent or temporary. 8 CFR 214.2(h)(6)(ii)(A). The need of a job 
contractor is inherently permanent in nature and the CO will deny a 
request for an H-2B Registration or an Application for Temporary 
Employment Certification where the employer is a job contractor.
    (b) The employer's need is considered temporary if justified to the 
CO as one of the following: a one-time occurrence; a seasonal need; a 
peakload need; or an intermittent need, as defined by DHS. 8 CFR 
214.2(h)(6)(ii)(B). Except where the employer's need is based on a 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.

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), 20 CFR part 655, subpart A, or these 
regulations. Any agreement by an employee purporting to waive or modify 
any rights given to said person under

[[Page 15199]]

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 DHS has 
delegated to the Secretary, under 8 U.S.C. 1184(c)(14)(B), the 
authority to perform all investigative and enforcement functions under 
8 U.S.C. 1101, 1103(a)(6), and 1184(c). The Administrator, WHD will 
perform all such functions.
    (b) Conduct of investigations. The Secretary, through the WHD, may 
investigate to determine compliance with obligations under 8 U.S.C. 
1184(c), 20 CFR part 655, subpart A, or these regulations, either under 
a complaint or otherwise, as may be appropriate. In connection with 
such an investigation, WHD may enter and inspect any premises, land, 
property, worksite, vehicles, structure, facility, place and records 
(and make transcriptions, photographs, scans, videos, photocopies, or 
use any other means to record the content of the records or preserve 
images of places or objects), question any person, or gather any 
information, in whatever form, as may be appropriate.
    (c) Confidential investigation. The WHD will conduct investigations 
in a manner that protects the confidentiality of any complainant or 
other person who provides information to the Secretary in good faith.
    (d) Report of violations. Any person may report a violation of the 
obligations imposed by 8 U.S.C. 1184(c), 20 CFR part 655, subpart A, or 
these regulations to the Secretary by advising any local office of the 
SWA, ETA, WHD or any other authorized representative of the Secretary. 
The office or person receiving such a report will refer it to the 
appropriate office of WHD for the geographic area in which the reported 
violation is alleged to have occurred.

Sec.  503.8  Accuracy of information, statements, data.

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

Subpart B--Enforcement

Sec.  503.15  Enforcement.

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

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

[[Page 15200]]

workers, or any affiliated person derives any payment, rebate, 
commission, profit, or benefit directly or indirectly, may not be made 
if they reduce the actual wage paid to the worker below the offered 
wage indicated on the Application for Temporary Employment 
Certification.
    (d) Job opportunity is full time. The job opportunity is a full-
time temporary position, calculated to be at least 35 hours per 
workweek, and the employer must use a single workweek as its standard 
for computing wages due. An employee's workweek must be a fixed and 
regularly recurring period of 168 hours--seven consecutive 24-hour 
periods. It need not coincide with the calendar week but may begin on 
any day and at any hour of the day.
    (e) Job qualifications and requirements. Each job qualification and 
requirement listed in the job order must be bona fide and consistent 
with the normal and accepted qualifications and requirements imposed by 
non-H-2B employers in the same occupation and area of intended 
employment. The CO may require the employer to submit documentation to 
substantiate the appropriateness of any job qualification specified in 
the job order.
    (f) Three-fourths guarantee. (1) The employer must guarantee to 
offer the worker employment for a total number of work hours equal to 
at least three-fourths of the workdays in each 4-week period beginning 
with the first workday after the arrival of the worker at the place of 
employment or the advertised first date of need, whichever is later, 
and ending on the expiration date specified in the job order or in its 
extensions, if any.
    (2) For purposes of this paragraph a workday means the number of 
hours in a workday as stated in the job order. The employer must offer 
a total number of hours of work to ensure the provision of sufficient 
work to reach the three-fourths guarantee in each 4-week period during 
the work period specified in the job order, or during any modified job 
order period to which the worker and employer have mutually agreed and 
that has been approved by the CO.
    (3) In the event the worker begins working later than the specified 
beginning date the guarantee period begins with the first workday after 
the arrival of the worker at the place of employment, and continues 
until the last day during which the job order and all extensions 
thereof are in effect.
    (4) The 4-week periods to which the guarantee applies are based 
upon the workweek used by the employer for pay purposes. The first 4-
week period also includes any partial workweek, if the first workday 
after the worker's arrival at the place of employment is not the 
beginning of the employer's workweek, with the guaranteed number of 
hours increased on a pro rata basis (thus, the first period may include 
up to 4 weeks and 6 days). The final 4-week period includes any time 
remaining after the last full 4-week period ends, and thus may be as 
short as 1 day, with the guaranteed number of hours decreased on a pro 
rata basis.
    (5) Therefore, if, for example, a job order is for a 10-week 
period, during which a normal workweek is specified as 5 days a week, 8 
hours per day, the worker would have to be guaranteed employment for at 
least 120 hours (4 weeks x 40 hours/week = 160 hours x 75 percent = 
120) in the first 4-week period, at least 120 hours in the second 4-
week period, and at least 60 hours (2 weeks x 40 hours/week = 80 hours 
x 75 percent = 60) in the final partial period.
    (6) If the worker is paid on a piece rate basis, the employer must 
use the worker's average hourly piece rate earnings or the required 
hourly wage rate, whichever is higher, to calculate the amount due 
under the guarantee.
    (7) A worker may be offered more than the specified hours of work 
on a single workday. For purposes of meeting the guarantee, however, 
the worker will not be required to work for more than the number of 
hours specified in the job order for a workday. The employer, however, 
may count all hours actually worked in calculating whether the 
guarantee has been met. If during any 4-week period during the period 
of the job order the employer affords the U.S. or H-2B worker less 
employment than that required under paragraph (f)(1) of this section, 
the employer must pay such worker the amount the worker would have 
earned had the worker, in fact, worked for the guaranteed number of 
days. An employer has not met the work guarantee if the employer has 
merely offered work on three-fourths of the workdays in a 4-week period 
if each workday did not consist of a full number of hours of work time 
as specified in the job order.
    (8) Any hours the worker fails to work, up to a maximum of the 
number of hours specified in the job order for a workday, when the 
worker has been offered an opportunity to work in accordance with 
paragraph (f)(1) of this section, and all hours of work actually 
performed (including voluntary work over 8 hours in a workday), may be 
counted by the employer in calculating whether each 4-week period of 
guaranteed employment has been met. An employer seeking to calculate 
whether the guaranteed number of hours has been met must maintain the 
payroll records in accordance with this part.
    (g) Impossibility of fulfillment. If, before the expiration date 
specified in the job order, the services of the worker are no longer 
required for reasons beyond the control of the employer due to fire, 
weather, or other Act of God that makes the fulfillment of the job 
order impossible, the employer may terminate the job order with the 
approval of the CO. In the event of such termination of a job order, 
the employer must fulfill a three-fourths guarantee, as described in 
paragraph (f) of this section, for the time that has elapsed from the 
start date listed in the job order or the first workday after the 
arrival of the worker at the place of employment, whichever is later, 
to the time of its termination. The employer must make efforts to 
transfer the H-2B worker or worker in corresponding employment to other 
comparable employment acceptable to the worker and consistent with the 
INA, as applicable. If a transfer is not effected, the employer must 
return the worker, at the employer's expense, to the place from which 
the worker (disregarding intervening employment) came to work for the 
employer, or transport the worker to the worker's next certified H-2B 
employer, whichever the worker prefers.
    (h) Frequency of pay. The employer must state in the job order the 
frequency with which the worker will be paid, which must be at least 
every 2 weeks or according to the prevailing practice in the area of 
intended employment, whichever is more frequent. Employers must pay 
wages when due.
    (i) Earnings statements. (1) The employer must keep accurate and 
adequate records with respect to the workers' earnings, including but 
not limited to: records showing the nature and amount of the work 
performed; the number of hours of work offered each day by the employer 
(broken out by hours offered both in accordance with and over and above 
the three-fourths guarantee in paragraph (f) of this section); the 
hours actually worked each day by the worker; the time the worker began 
and ended each workday; the rate of pay (both piece rate and hourly, if 
applicable); the worker's earnings per pay period; the worker's home 
address; and the amount of and reasons for any and all deductions taken 
from the worker's wages.
    (2) The employer must furnish to the worker on or before each 
payday in one or more written statements the following information:
    (i) The worker's total earnings for each workweek in the pay 
period;

[[Page 15201]]

    (ii) The worker's hourly rate and/or piece rate of pay;
    (iii) For each workweek in the pay period the hours of employment 
offered to the worker (showing offers in accordance with the three-
fourths guarantee as determined in paragraph (f) of this section, 
separate from any hours offered over and above the guarantee);
    (iv) For each workweek in the pay period the hours actually worked 
by the worker;
    (v) An itemization of all deductions made from the worker's wages;
    (vi) If piece rates are used, the units produced daily;
    (vii) The beginning and ending dates of the pay period; and
    (viii) The employer's name, address and FEIN.
    (j) Transportation and visa fees. (1)(i) Transportation to the 
place of employment. The employer must provide the worker 
transportation and subsistence from the place from which the worker has 
come to work for the employer, whether in the U.S. or abroad, to the 
place of employment. The employer may arrange and pay for the 
transportation and subsistence directly, advance the reasonable cost of 
the transportation and subsistence to the worker before the worker's 
departure, or pay the worker in the first workweek for the reasonable 
costs incurred by the worker. When it is the prevailing practice of 
non-H-2B employers in the occupation in the area to do so or when the 
employer extends such benefits to similarly situated H-2B workers, the 
employer must advance the required transportation and subsistence costs 
(or otherwise provide them) to workers in corresponding employment who 
are traveling to the employer's worksite. The amount of the 
transportation payment must be no less (and is not required to be more) 
than the most economical and reasonable common carrier transportation 
charges for the distances involved. The amount of the daily subsistence 
must be at least the amount permitted in 20 CFR 655.173.
    (ii) Transportation from the place of employment. If the worker has 
no immediate subsequent H-2B employment, the employer must provide or 
pay at the time of departure for the worker's cost of return 
transportation and daily subsistence from the place of employment to 
the place from which the worker, disregarding intervening employment, 
departed to work for the employer. If the worker has contracted with a 
subsequent employer that has not agreed in the job order to provide or 
pay for the worker's transportation from the employer's worksite to 
such subsequent employer's worksite, the employer must provide or pay 
for that transportation and subsistence. If the worker has contracted 
with a subsequent employer that has agreed in the job order to provide 
or pay for the worker's transportation from the employer's worksite to 
such subsequent employer's worksite, the subsequent employer must 
provide or pay for such expenses.
    (iii) Employer-provided transportation. All employer-provided 
transportation must comply with all applicable Federal, State, or local 
laws and regulations and must provide, at a minimum, the same vehicle 
safety standards, driver licensure requirements, and vehicle insurance 
as required under 49 CFR parts 390, 393, and 396.
    (iv) Disclosure. All transportation and subsistence costs that the 
employer will pay must be disclosed in the job order.
    (2) The employer must pay or reimburse the worker in the first 
workweek for all visa, visa processing, border crossing, and other 
related fees including those mandated by the government incurred by the 
H-2B worker, but not for passport expenses or other charges primarily 
for the benefit of the worker.
    (k) Employer-provided items. The employer must provide to the 
worker, without charge or deposit charge, all tools, supplies, and 
equipment required to perform the duties assigned.
    (l) Disclosure of job order. The employer must provide to an H-2B 
worker outside of the United States no later than the time at which the 
worker applies for the visa, or to a worker in corresponding employment 
no later than on the day work commences, a copy of the job order 
including any subsequent modifications. For an H-2B worker changing 
employment from an H-2B employer to a subsequent H-2B employer, the 
copy must be provided no later than the time an offer of employment is 
made by the subsequent H-2B employer. The disclosure of all documents 
required by this paragraph must be provided in a language understood by 
the worker, as necessary or reasonable.
    (m) Notice of worker rights. The employer must post and maintain in 
a conspicuous location at the place of employment a poster provided by 
the Department which sets out the rights and protections for H-2B 
workers and workers in corresponding employment. The employer must post 
the poster in English. To the extent necessary, the employer must 
request and post additional posters, as made available by the 
Department, in any language common to a significant portion of the 
workers if they are not fluent in English.
    (n) No unfair treatment. The employer has not and will not 
intimidate, threaten, restrain, coerce, blacklist, discharge or in any 
manner discriminate against, and has not and will not cause any person 
to intimidate, threaten, restrain, coerce, blacklist, or in any manner 
discriminate against, any person who has:
    (1) Filed a complaint under or related to 8 U.S.C. 1184(c), 20 CFR 
part 655, subpart A, or this part or any other Department regulation 
promulgated thereunder;
    (2) Instituted or caused to be instituted any proceeding under or 
related to 8 U.S.C. 1184(c), 20 CFR part 655, subpart A, or this part 
or any other Department regulation promulgated thereunder;
    (3) Testified or is about to testify in any proceeding under or 
related to 8 U.S.C. 1184(c), 20 CFR part 655, subpart A, or this part 
or any other Department regulation promulgated thereunder;
    (4) Consulted with an employee of a legal assistance program or an 
attorney on matters related to 8 U.S.C. 1184(c), 20 CFR part 655, 
subpart A, or this part or any other Department regulation promulgated 
thereunder; or
    (5) Exercised or asserted on behalf of himself/herself or others 
any right or protection afforded by 8 U.S.C. 1184(c), 20 CFR part 655, 
subpart A, or this part or any other Department regulation promulgated 
thereunder.
    (o) Comply with the prohibitions against employees paying fees. The 
employer and its attorney, agents, or employees have not sought or 
received payment of any kind from the worker for any activity related 
to obtaining H-2B employment certification or employment, including 
payment of the employer's attorney or agent fees, application and H-2B 
Petition fees, recruitment costs, or any fees falsely attributed to 
obtaining the approved Application for Temporary Employment 
Certification. For purposes of this paragraph, payment includes, but is 
not limited to, monetary payments, wage concessions (including 
deductions from wages, salary, or benefits), kickbacks, bribes, 
tributes, in kind payments, and free labor. All wages must be paid free 
and clear. This provision does not prohibit employers or their agents 
from receiving reimbursement for costs that are the responsibility and 
primarily for the benefit of the worker, such as government-required 
passport fees.
    (p) Contracts with third parties to comply with prohibitions. The 
employer must contractually prohibit in writing any agent or recruiter 
(or any agent or

[[Page 15202]]

employee of such agent or recruiter) whom the employer engages, either 
directly or indirectly, in international recruitment of H-2B workers to 
seek or receive payments or other compensation from prospective 
workers. This documentation must be made available upon request by the 
CO or another Federal party.
    (q) Prohibition against preferential treatment of foreign workers. 
The employer's job offer must offer to U.S. workers no less than the 
same benefits, wages, and working conditions that the employer is 
offering, intends to offer, or will provide to H-2B workers. Job offers 
may not impose on U.S. workers any restrictions or obligations that 
will not be imposed on the employer's H-2B workers. This does not 
relieve the employer from providing to H-2B workers at least the 
minimum benefits, wages, and working conditions which must be offered 
to U.S. workers consistent with this section.
    (r) Non-discriminatory hiring practices. The job opportunity is, 
and through the period set forth in paragraph (t) of this section must 
continue to be, open to any qualified U.S. worker regardless of race, 
color, national origin, age, sex, religion, disability, or citizenship. 
Rejections of any U.S. workers who applied or apply for the job must 
only be for lawful, 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 
recruitment activities, including any additional employer-conducted 
recruitment activities as determined by the CO, and as specified in 20 
CFR 655.40-.46.
    (t) Continuing requirement to hire U.S. workers. The employer has 
and will continue to cooperate with the SWA by accepting referrals of 
all eligible U.S. workers who apply (or on whose behalf a job 
application is made) for the job opportunity, and must provide 
employment to any qualified, eligible U.S. worker who applies to the 
employer for the job opportunity, until the later of the date the last 
H-2B worker departs for the job opportunity or 3 days before the date 
of need. If the last H-2B worker has not departed by 3 days before the 
date of need, the employer is required to immediately inform the SWA in 
writing and notify the SWA of the new departure date as soon as 
available.
    (u) No strike or lockout. There is no strike or lockout at the 
worksite for which the employer is requesting H-2B certification at the 
time the Application for Temporary Employment Certification is filed.
    (v) No recent or future layoffs. The employer has not laid off and 
will not lay off any similarly employed U.S. worker in the occupation 
that is the subject of the Application for Temporary Employment 
Certification in the area of intended employment within the period 
beginning 120 calendar days before the date of need through the end of 
the period of certification. A layoff for lawful, job-related reasons 
such as lack of work or the end of a season is permissible if all H-2B 
workers are laid off before any U.S. worker in corresponding 
employment.
    (w) Contact with former U.S. employees. The employer must contact 
by mail or other effective means all of its former U.S. workers (except 
those who were dismissed for cause or who abandoned the worksite) 
employed by the employer in the occupation at the place of employment 
during the previous year, disclose the terms of the job order, and 
solicit their return to the job. This includes, but is not limited to, 
those former U.S. workers who have been laid off within a period of 120 
days before the date of need.
    (x) Area of intended employment and job opportunity. The employer 
must not place any H-2B workers employed under the approved Application 
for Temporary Employment Certification outside the area of intended 
employment or in a job opportunity not listed on the approved 
Application for Temporary Employment Certification unless the employer 
has obtained a new approved Application for Temporary Employment 
Certification.
    (y) Abandonment/termination of employment. Upon the separation from 
employment of worker(s) employed under the Application for Temporary 
Employment Certification or workers in corresponding employment, if 
such separation occurs before the end date of the employment specified 
in the Application for Temporary Employment Certification, the employer 
must notify OFLC in writing of the separation from employment not later 
than 2 work days after such separation is discovered by the employer. 
In addition, the employer must notify DHS in writing (or any other 
method specified by the Department or DHS in the Federal Register or 
the Code of Federal Regulations) of such separation of an H-2B worker. 
An abandonment or abscondment is deemed to begin after a worker fails 
to report for work at the regularly scheduled time for 5 consecutive 
working days without the consent of the employer. If the separation is 
due to the voluntary abandonment of employment by the H-2B worker or 
worker in corresponding employment, and the employer provides 
appropriate notification specified under this paragraph, the employer 
will not be responsible for providing or paying for the subsequent 
transportation and subsistence expenses of that worker under this 
section, and that worker is not entitled to the three-fourths guarantee 
described in paragraph (f) of this section. The employer's obligation 
to guarantee three-fourths of the work described in paragraph (f) ends 
with the last full 4-week period preceding the worker's voluntary 
abandonment or termination for cause.
    (z) Compliance with applicable laws. During the period of 
employment that is the subject of the Application for Temporary 
Employment Certification, the employer must comply with all applicable 
Federal, State and local employment-related laws and regulations, 
including health and safety laws. In compliance with such laws, 
including the William Wilberforce Trafficking Victims Protection 
Reauthorization Act of 2008, 18 U.S.C. 1592(a), the employer may not 
hold or confiscate workers' passports, visas, or other immigration 
documents.
    (aa) Cooperation with investigators. The employer must cooperate 
with any employee of the Secretary who is exercising or attempting to 
exercise the Department's authority pursuant to 8 U.S.C. 1184(c).

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 receives the letter of 
withdrawal provided in accordance with 20 CFR 655.62.
    (c) Documents and records to be retained by all applicants. All 
employers filing an H-2B Registration and an Application for Temporary 
Employment Certification must retain the following documents and 
records

[[Page 15203]]

and must provide the documents and records in the event of an audit or 
investigation:
    (1) Documents and records not previously submitted during the 
registration process that substantiate temporary need;
    (2) Proof of recruitment efforts, as applicable, including:
    (i) Job order placement as specified in 20 CFR 655.16;
    (ii) Advertising as specified in 20 CFR 655.41 and 655.42;
    (iii) Contact with former U.S. workers as specified in 20 CFR 
655.43;
    (iv) Contact with labor organizations, if applicable, as specified 
in 20 CFR 655.44;
    (v) Contact with bargaining representative(s), copy of the posting 
of the job opportunity, and contact with community-based organizations, 
if applicable, as specified in 20 CFR 655.45(a), (b) and (c); and
    (vi) Additional employer-conducted recruitment efforts as specified 
in 20 CFR 655.46;
    (3) Substantiation of the information submitted in the recruitment 
report prepared in accordance with 20 CFR 655.48, such as evidence of 
nonapplicability of contact with former workers as specified in 20 CFR 
655.43;
    (4) The final recruitment report and any supporting resumes and 
contact information as specified in 20 CFR 655.48;
    (5) Records of each worker's earnings, hours offered and worked, 
and other information as specified in Sec.  503.16(i);
    (6) Evidence of contact with U.S. workers who applied for the job 
opportunity in the Application for Temporary Employment Certification, 
including documents demonstrating that any rejections of U.S. workers 
were for lawful, job-related reasons, as specified in Sec.  503.16(r);
    (7) Evidence of contact with any former U.S. worker in the 
occupation and the area of intended employment in the Application for 
Temporary Employment Certification, including documents demonstrating 
that the U.S. worker had been offered the job opportunity in the 
Application for Temporary Employment Certification, as specified in 
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);
    (8) The written contracts with agents or recruiters, including the 
written contract prohibiting an agent or recruiter from receiving 
payments, as specified in Sec.  503.16(p);
    (9) Written notice provided to and informing OFLC that an H-2B 
worker or worker in corresponding employment has separated from 
employment before the end date of employment specified in the 
Application for Temporary Employment Certification, as specified in 
Sec.  503.16(y);
    (10) The H-2B Registration, job order, and the Application for 
Temporary Employment Certification; and
    (11) The approved H-2B Petition, including all accompanying 
documents.
    (d) Availability of documents for enforcement purposes. An employer 
must make available to the Administrator, WHD within 72 hours following 
a request by the WHD the documents and records required under 20 CFR 
part 655, Subpart A and this section so that the Administrator, WHD may 
copy, transcribe, or inspect them.

Sec.  503.18  Validity of temporary employment certification.

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

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), a 
violation exists under this part where the Administrator, WHD, through 
investigation, determines that there has been a:
    (1) Willful misrepresentation of a material fact on the H-2B 
Registration, Application for Temporary Employment Certification, or H-
2B Petition;
    (2) Substantial failure to meet any of the terms and conditions of 
the H-2B Registration, Application for Temporary Employment 
Certification, or H-2B Petition. A substantial failure is a willful 
failure to comply that constitutes a significant deviation from the 
terms and conditions of such documents; or
    (3) Willful misrepresentation of a material fact to the Department 
of State during the visa application process.
    (b) Determining whether a violation is willful. A willful 
misrepresentation of a material fact or a willful failure to meet the 
required terms and conditions occurs when the employer, attorney, or 
agent knows its statement is false or that its conduct is in violation, 
or shows reckless disregard for the truthfulness of its representation 
or for whether its conduct satisfies the required conditions.
    (c) Determining whether a violation is significant. In determining 
whether a violation is a significant deviation from the terms and 
conditions of the H-2B Registration, Application for Temporary 
Employment Certification, or H-2B Petition, the factors that the 
Administrator, WHD may consider include, but are not limited to, the 
following:
    (1) Previous history of violation(s) under the H-2B program;
    (2) The number of H-2B workers, workers in corresponding 
employment, or U.S. workers who were and/or are affected by the 
violation(s);
    (3) The gravity of the violation(s);
    (4) The extent to which the violator achieved a financial gain due 
to the violation(s), or the potential financial loss or potential 
injury to the worker(s); and
    (5) Whether U.S. workers have been harmed by the violation.
    (d) Employer acceptance of obligations. The provisions of this part 
become applicable upon the date that the employer's Application for 
Temporary Employment Certification is accepted. The employer's 
submission of and signature on the approved H-2B Registration, Appendix 
B of the Application for Temporary Employment Certification, and H-2B 
Petition constitute the employer's representation that the statements 
on the forms are accurate and that it knows and accepts the obligations 
of the program.

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

[[Page 15204]]

or in occupations other than those identified on the Application for 
Temporary Employment Certification and for which a prevailing wage was 
not obtained); the enforcement of provisions of the job order, 8 U.S.C. 
1184(c), 20 CFR part 655, subpart A, or these regulations; the 
assessment of a civil money penalty; make whole relief for any person 
who has been discriminated against; reinstatement and make whole relief 
for any U.S. worker who has been improperly rejected for employment, 
laid off or displaced; or debarment for no less than 1 or no more than 
5 years.
    (b) The remedies referenced in paragraph (a) of this section will 
be sought either directly from the employer, or from its successor in 
interest, as appropriate.

Sec.  503.21  Concurrent actions.

    OFLC has primary responsibility to make all determinations 
regarding the issuance, denial, or revocation of a labor certification 
as described in 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 these regulations. 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 these 
regulations.

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

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:
    (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 
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) A single heinous act showing such flagrant disregard for the 
law that future compliance with program requirements cannot reasonably 
be expected;
    (11) Fraud involving the H-2B Registration, Application for 
Temporary Employment Certification, or H-2B Petition; or
    (12) A material misrepresentation of fact during the registration 
or application process.
    (b) Debarment of an agent or attorney. If the Administrator, WHD 
finds, under this section, that an agent or attorney participated in an 
employer's violation, the Administrator, OFLC may not issue future 
labor certifications to an employer represented by such agent or 
attorney, subject to the time limits set forth in paragraph (c) of this 
section.

[[Page 15205]]

    (c) Period of debarment. Debarment under this subpart may not be 
for less than 1 year or more than 5 years from the date of the final 
agency decision.
    (d) Debarment procedure--(1) Notice of Debarment. If the 
Administrator, WHD makes a determination to debar an employer, 
attorney, or agent, the Administrator, WHD will send the party a Notice 
of Debarment. The Notice will state the reason for the debarment 
finding, including a detailed explanation of the grounds for and the 
duration of the debarment and inform the party subject to the Notice of 
its right to request a debarment hearing and the timeframe under which 
such rights must be exercised under 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).
    (2) [Reserved]
    (e) Concurrent debarment jurisdiction. OFLC and the WHD have 
concurrent jurisdiction debar under 20 CFR 655.73 or under this part. 
When considering debarment, OFLC and the WHD will coordinate their 
activities. A specific violation for which debarment is imposed will be 
cited in a single debarment proceeding. Copies of final debarment 
decisions will be forwarded to DHS and DOS promptly.
    (f) Debarment from other labor certification programs. Upon 
debarment under this part or 20 CFR 655.73, the debarred party will be 
disqualified from filing any labor certification applications or labor 
condition applications with the Department by, or on behalf of, the 
debarred party for the same period of time set forth in the final 
debarment decision.

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.

    The procedures and rules contained herein prescribe the 
administrative appeal process that will be applied with respect to a 
determination to assess civil money penalties, to debar, to enforce 
provisions of the job order or obligations under 8 U.S.C. 1184(c), 20 
CFR part 655, subpart A, or these regulations, or to the collection of 
monetary relief due as a result of any violation.

Procedures Related to Hearing

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 employer 
against which such action is taken will be notified in writing of such 
determination.
    (b) The Administrator, WHD's determination will be served on the 
employer by personal service or by certified mail at the employer's 
last known address. Where service by certified mail is not accepted by 
the employer, the Administrator may exercise discretion to serve the 
determination by regular mail.

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 employer that in the absence of a timely request for 
a hearing, received by the Chief Administrative Law Judge (Chief ALJ) 
within 30 calendar days of the date of the determination, the 
determination of the Administrator, WHD will become final and not 
appealable;
    (d) Set forth the time and method for requesting a hearing, and the 
related procedures for doing so, as set forth in 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 employer 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) An employer 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 employer will be the 
respondent. If such a request for an administrative hearing is timely 
filed, the Administrator, WHD's determination will be inoperative 
unless and until the case is dismissed or the Administrative Law Judge 
(ALJ) issues an order affirming the decision.
    (b) No particular form is prescribed for any request for hearing 
permitted by this section. However, any such request will:
    (1) Be dated;

[[Page 15206]]

    (2) Be typewritten or legibly written;
    (3) Specify the issue or issues stated in the notice of 
determination giving rise to such request;
    (4) State the specific reason or reasons why the employer believes 
such determination is in error;
    (5) Be signed by the employer making the request or by the agent or 
attorney of such employer; and
    (6) Include the address at which such employer or agent or attorney 
desires to receive further communications relating thereto.
    (c) The request for such hearing must be received by the Chief ALJ, 
at the address stated in the Administrator, WHD's notice of 
determination, no later than 30 calendar days after the date of the 
determination. An employer which fails to meet this 30-day deadline for 
requesting a hearing may thereafter participate in the proceedings only 
by consent of the ALJ.
    (d) The request may be filed in person, by facsimile transmission, 
by certified or regular mail, or by courier service within the time set 
forth in paragraph (c) of this section. For the requesting employer's 
protection, if the request is by mail, it should be by certified mail. 
If the request is by facsimile transmission, the original of the 
request, signed by the employer or its attorney or agent, must be filed 
within 25 days.
    (e) The determination will take effect on the start date identified 
in the written notice of determination, unless an administrative appeal 
is properly filed. The timely filing of an administrative appeal stays 
the determination pending the outcome of the appeal proceedings.
    (f) Copies of the request for a hearing will be sent by the 
employer or attorney or agent to the WHD official who issued the notice 
of determination on behalf of the Administrator, WHD, and to the 
representative(s) of the Solicitor of Labor identified in the notice of 
determination.

Rules of Practice

Sec.  503.44  General.

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

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 these regulations 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) and these regulations will be captioned in the name of the 
person requesting such hearing, and will be styled as follows:

In the Matter of ----, 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 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.

[[Page 15207]]

    (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 employer filed a 
timely appeal under 20 CFR 655.13 the final wage determination 
resulting from that process. Under no circumstances will the ALJ 
determine the validity of the wage determination or require submission 
into evidence or disclosure of source data or the names of 
establishments contacted in developing the survey which is the basis 
for the PWD.
    (d) The decision will be served on all parties.
    (e) The decision concerning civil money penalties, debarment, 
monetary relief, and/or other administrative remedies, when served by 
the ALJ will constitute the final agency order unless the 
Administrative Review Board (ARB), as provided for in 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, etc.); 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.

Record

Sec.  503.56  Retention of official record.

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

    Signed in Washington, this 11th day of March 2011.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
Nancy Leppink,
Deputy Administrator, Wage and Hour Division.
[FR Doc. 2011-6152 Filed 3-17-11; 8:45 am]
BILLING CODE 4510-FP-P
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