Vol. 80 Wednesday, 

No. 82 April 29, 2015 

Part IV 

Department of Homeland Security 

8 CFR Part 214 

Department of Labor 

Employment and Training Administration 

20 CFR Part 655 

Wage and Hour Division 

29 CFR Part 503 

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

States; Interim Final Rule 

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24042 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Part 214 

[CIS No. 2563–15] 

RIN 1615–AC06 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Part 655 

Wage and Hour Division 

29 CFR Part 503 

RIN 1205–AB76 

Temporary Non-Agricultural 

Employment of H–2B Aliens in the 

United States 

AGENCY: U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security; Employment and 

Training Administration, and Wage and 

Hour Division, Labor. 

ACTION: Interim final rule; request for 

comments. 

SUMMARY: The Department of Homeland 

Security (DHS) and the Department of 

Labor (DOL) are jointly issuing 

regulations governing the certification of 

the employment of nonimmigrant 

workers in temporary or seasonal nonagricultural employment and the 

enforcement of the obligations 

applicable to employers of such 

nonimmigrant workers. This interim 

final rule establishes the process by 

which employers obtain a temporary 

labor certification from DOL for use in 

petitioning DHS to employ a 

nonimmigrant worker in H–2B status. 

We are also issuing regulations to 

provide for increased worker 

protections for both United States (U.S.) 

and foreign workers. DHS and DOL are 

issuing simultaneously with this rule a 

companion rule governing the 

methodology to set the prevailing wage 

in the H–2B program. 

DATES: This interim final rule is 

effective April 29, 2015. Interested 

persons are invited to submit written 

comments on this interim final rule on 

or before June 29, 2015. 

ADDRESSES: You may submit comments, 

identified by Regulatory Information 

Number (RIN) 1205–AB76, by any one 

of the following methods: 

• Federal e-Rulemaking Portal 

www.regulations.gov. Follow the Web 

site instructions for submitting 

comments. 

• Mail or Hand Delivery/Courier: 

Please submit all written comments 

(including disk and CD–ROM 

submissions) to Adele Gagliardi, 

Administrator, Office of Policy 

Development and Research, 

Employment and Training 

Administration, U.S. Department of 

Labor, 200 Constitution Avenue NW., 

Room N–5641, Washington, DC 20210. 

Please submit your comments by only 

one method. Comments received by 

means other than those listed above or 

received after the comment period has 

closed will not be reviewed. The 

Departments will post all comments 

received on http://www.regulations.gov 

without making any change to the 

comments, including any personal 

information provided. The http://

www.regulations.gov Web site is the 

Federal e-rulemaking portal and all 

comments posted there are available 

and accessible to the public. The 

Departments caution commenters not to 

include personal information such as 

Social Security Numbers, personal 

addresses, telephone numbers, and 

email addresses in their comments as 

such information will become viewable 

by the public on the http://

www.regulations.gov Web site. It is the 

commenter’s responsibility to safeguard 

his or her information. Comments 

submitted through http://

www.regulations.gov will not include 

the commenter’s email address unless 

the commenter chooses to include that 

information as part of his or her 

comment. 

Postal delivery in Washington, DC, 

may be delayed due to security 

concerns. Therefore, the Departments 

encourage the public to submit 

comments through the http://

www.regulations.gov Web site. 

Docket: For access to the docket to 

read background documents or 

comments received, go to the Federal 

eRulemaking portal at http://

www.regulations.gov. The Departments 

will also make all the comments 

received available for public inspection 

during normal business hours at the 

Employment and Training 

Administration (ETA) Office of Policy 

Development and Research at the above 

address. If you need assistance to review 

the comments, DOL will provide you 

with appropriate aids such as readers or 

print magnifiers. DOL will make copies 

of the rule available, upon request, in 

large print and as an electronic file on 

computer disk. DOL will consider 

providing the interim final rule in other 

formats upon request. To schedule an 

appointment to review the comments 

and/or obtain the rule in an alternate 

format, contact the ETA Office of Policy 

Development and Research at (202) 

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

number) or 1–877–889–5627 (TTY/

TDD). 

FOR FURTHER INFORMATION CONTACT: For 

further information on 8 CFR part 214, 

contact Steven W. Viger, Adjudications 

Officer (Policy), Office of Policy and 

Strategy, U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security, 20 Massachusetts 

NW., Washington, DC 20529–2060; 

Telephone (202) 272–1470 (this is not a 

toll-free number). 

For further information on 20 CFR 

part 655, subpart A, contact William W. 

Thompson, II, Acting Administrator, 

Office of Foreign Labor Certification, 

ETA, U.S. Department of Labor, 200 

Constitution Avenue NW., 

Room C–4312, Washington, DC 20210; 

Telephone (202) 693–3010 (this is not a 

toll-free number). Individuals with 

hearing or speech impairments may 

access the telephone number above via 

TTY by calling the toll-free Federal 

Information Relay Service at 1–800– 

877–8339. 

For further information on 29 CFR 

part 503, contact Mary Ziegler, Director, 

Division of Regulations, Legislation, and 

Interpretation, Wage and Hour Division, 

U.S. Department of Labor, 200 

Constitution Avenue NW., 

Room S–3510, Washington, DC 20210; 

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

toll-free number). Individuals with 

hearing or speech impairments may 

access the telephone number above via 

TTY by calling the toll-free Federal 

Information Relay Service at 1–800– 

877–8339. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

The Immigration and Nationality Act 

(INA) establishes the H–2B 

nonimmigrant classification for a nonagricultural temporary worker ‘‘having a 

residence in a foreign country which he 

has no intention of abandoning who is 

coming temporarily to the United States 

to perform . . . temporary [nonagricultural] service or labor if 

unemployed persons capable of 

performing such service or labor cannot 

be found in this country.’’ 8 U.S.C. 

1101(a)(15)(H)(ii)(b), INA section 

101(a)(15)(H)(ii)(b). In accordance with 

the INA and as discussed in detail in 

this preamble, the Department of 

Homeland Security (DHS) consults with 

the Department of Labor (DOL) with 

respect to the H–2B program, and DOL 

provides advice on whether U.S. 

workers capable of performing the 

temporary services or labor are 

available. See 8 U.S.C. 1184(c)(1), INA 

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Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 24043 

section 214(c)(1) (providing for DHS to 

consult with ‘‘appropriate agencies of 

the government’’). Under DHS 

regulations, an H–2B petition for 

temporary employment must be 

accompanied by an approved temporary 

labor certification from DOL, which 

serves as DOL’s advice to DHS regarding 

whether a qualified U.S. worker is 

available to fill the petitioning H–2B 

employer’s job opportunity and whether 

a foreign worker’s employment in the 

job opportunity will adversely affect the 

wages or working conditions of 

similarly employed U.S. workers. See 8 

CFR 214.2(h)(6)(iii)(A) and (D). 

This interim final rule, which is 

virtually identical to the 2012 final rule 

that DOL developed following public 

notice and comment, improves DOL’s 

ability to determine whether it is 

appropriate to grant a temporary 

employment certification. For reasons 

described in further detail below, DOL 

never implemented the 2012 final rule; 

as a result, this rulemaking contains a 

number of improvements to the 

temporary employment certification 

process that was in place on March 4, 

2015. This interim final rule expands 

the ability of U.S. workers to become 

aware of the job opportunities in 

question and to apply for opportunities 

in which they are interested. For 

example, this interim final rule includes 

new recruitment and other requirements 

to broaden the dissemination of job offer 

information (such as by introducing the 

electronic job registry and the 

possibility of additional required 

contact with community-based 

organizations). The interim final rule 

also requires the job offer to remain 

open to U.S. workers until 21 days 

before the employer’s start date of need, 

which provides a longer application 

period that ends closer to the date of 

need than was previously required. The 

interim final rule also reverts back to the 

compliance-based certification model 

that had been used prior to the 2008 

final rule, rather than continuing to use 

the attestation model. Finally, the 

interim final rule also adopts an 

employer registration process that 

requires employers to demonstrate their 

temporary need for labor or services 

before they apply for a temporary labor 

certification, which expedites the 

certification process; additionally, the 

resulting registration may remain valid 

for up to three years, thereby shortening 

the employer’s certification process in 

future years. 

The interim final rule also provides a 

number of additional worker 

protections, such as increasing the 

number of hours per week required for 

full-time employment and requiring that 

U.S. workers in corresponding 

employment receive the same wages 

and benefits as the H–2B workers. It also 

requires that employers must guarantee 

employment for a total number of work 

hours equal to at least three-fourths of 

the workdays in specific periods for 

both H–2B workers and workers in 

corresponding employment. The interim 

final rule requires employers to pay visa 

and related fees of H–2B workers, and 

it requires employers to pay the 

inbound transportation and subsistence 

costs of workers who complete 50 

percent of the job order period and the 

outbound transportation and 

subsistence expenses of employees who 

complete the entire job order period. 

Finally, it prohibits employers from 

retaliating against employees for 

exercising rights under the H–2B 

program. 

The interim final rule also contains a 

number of provisions that will lead to 

increased transparency. It requires 

employers to disclose their use of 

foreign labor recruiters in the 

solicitation of workers; to provide 

workers with earnings statements, with 

hours worked and offered and 

deductions clearly specified; to provide 

workers with copies of the job order; 

and to display a poster describing 

employee rights and protections. The 

Departments believe that these 

procedures and additional worker 

protections will lead to an improved 

temporary employment certification 

process. 

Summing the present value of the 

costs associated with this rulemaking in 

Years 1–10 results in total discounted 

costs over 10 years of $9.24 million to 

$10.58 million (with 7 percent and 3 

percent discounting, respectively). 

TABLE 1—SUMMARY OF ESTIMATED COST AND TRANSFERS BY PROVISION

[Millions of dollars] 

Undiscounted Transfers and costs by year 

(in millions of dollars) 

Cost component Year 1 

costs 

Year 2–10 

costs 

Year 1–10 

costs 

Transfers 

Corresponding Workers’ Wages—Low ....................................................................................... $18.21 ............ $18.21 ............ $182.1 

Corresponding Workers’ Wages—High ....................................................................................... $54.62 ............ $54.62 ............ $546.2 

Transportation .............................................................................................................................. $55.19 ............ $55.19 ............ $551.9 

Subsistence ................................................................................................................................. $3.13 .............. $3.13 .............. $31.3 

Lodging ........................................................................................................................................ $1.87 .............. $1.87 .............. $18.66 

Visa and Border Crossing Fees .................................................................................................. $10.65 ............ $10.65 ............ $106.48 

Total Transfers—Low .................................................................................................................. $87.24 ............ $87.24 ............ $890.43 

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

Costs to Employers 

Additional Recruiting .................................................................................................................... $0.76 .............. $0.76 .............. $7.57 

Disclosure of Job Order ............................................................................................................... $0.23 .............. $0.23 .............. $2.34 

Read and Understand Rule ......................................................................................................... $0.98 .............. $0 ................... $0.98 

Document Retention .................................................................................................................... $0.27 .............. $0 ................... $0.27 

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

Total Costs to Employers ..................................................................................................... $2.25 .............. $1.01 .............. $11.30 

Costs to Government 

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

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24044 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

1Under section 1517 of title XV of the Homeland 

Security Act of 2002 (HSA), Public Law 107–296, 

116 Stat. 2135, any reference to the Attorney 

General in a provision of the INA describing 

functions that were transferred from the Attorney 

General or other Department of Justice official to 

DHS by the HSA ‘‘shall be deemed to refer to the 

Secretary’’ of Homeland Security. See 6 U.S.C. 557 

(2003) (codifying HSA, tit. XV, sec. 1517); 6 U.S.C. 

542 note; 8 U.S.C. 1551 note. 

2 DHS also publishes annually a list of countries 

whose nationals are eligible to participate in the H– 

2B visa program in the coming year. See 8 CFR 

214.2(h)(6)(i)(E); see also, e.g., 79 FR 3214 (Jan. 17, 

2014 notice of eligible country list). As part of its 

adjudication of H–2B petitions, USCIS must 

determine whether the alien beneficiary is a 

national of a country on the list; if not, USCIS must 

determine whether it is in the U.S. national interest 

for that alien to be a beneficiary of such petition. 

See 8 CFR 214.2(h)(6)(i)(E). 

TABLE 1—SUMMARY OF ESTIMATED COST AND TRANSFERS BY PROVISION—Continued 

[Millions of dollars] 

Undiscounted Transfers and costs by year 

(in millions of dollars) 

Cost component Year 1 

costs 

Year 2–10 

costs 

Year 1–10 

costs 

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

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

Total Costs & Transfers 

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

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

Total Transfers—Low .................................................................................................................. $89.04 ............ $89.04 ............ $890.43 

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

Total Costs ................................................................................................................................... $2.39 .............. $1.05 .............. $11.85 

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

TABLE 2—SUMMARY OF COSTS AND

TRANSFERS—SUM OF PRESENT

VALUES

Cost component 

Transfers 

and costs 

(millions of 

dollars) 

Year 1–10 

costs 

Present Value—7% Real Interest Rate 

Total Costs & Transfers—Low $678.42 

Total Costs & Transfers—High 952.04 

Total Transfers—Low ............... 669.18 

Total Transfers—High .............. 942.80 

Total Costs ............................... 9.24 

Present Value—3% Real Interest Rate 

Total Costs & Transfers—Low $792.92 

Total Costs & Transfers—High 1,112.81 

Total Transfers—Low ............... 782.34 

Total Transfers—High .............. 1,102.23 

Total Costs ............................... 10.58 

Note: Totals may not sum due to rounding. 

II. Background 

A. The Statutory and Regulatory 

Framework 

The INA establishes the H–2B 

nonimmigrant classification for a nonagricultural temporary worker ‘‘having a 

residence in a foreign country which he 

has no intention of abandoning who is 

coming temporarily to the United States 

to perform . . . temporary [nonagricultural] service or labor if 

unemployed persons capable of 

performing such service or labor cannot 

be found in this country.’’ 8 U.S.C. 

1101(a)(15)(H)(ii)(b), INA section 

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

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

importing employer (H–2B employer) to 

petition DHS for classification of the 

prospective temporary worker as an H– 

2B nonimmigrant.1 DHS must approve 

this petition before the beneficiary can 

be considered eligible for an H–2B visa 

or H–2B status. Finally, the INA 

requires that ‘‘[t]he question of 

importing any alien as [an H–2B] 

nonimmigrant . . . in any specific case 

or specific cases shall be determined by 

[DHS], after consultation with 

appropriate agencies of the Government, 

upon petition of the importing 

employer.’’ 8 U.S.C. 1184(c)(1), INA 

section 214(c)(1). 

Pursuant to the above-referenced 

authorities, DHS has promulgated 

regulations implementing the H–2B 

program. See, e.g., 73 FR 78104 (Dec. 19, 

2008). These regulations prescribe the 

conditions under which DHS may grant 

an employer’s petition to classify an 

alien as an H–2B worker. See 8 CFR 

214.2(h)(6). U.S. Citizenship and 

Immigration Services (USCIS) is the 

component agency within DHS that 

adjudicates H–2B petitions. Id. 

USCIS examines H–2B petitions for 

compliance with a range of statutory 

and regulatory requirements. For 

instance, USCIS will examine each 

petition to ensure, inter alia, (1) that the 

job opportunity in the employer’s 

petition is of a temporary nature, 8 CFR 

214.2(h)(1)(ii)(D), (6)(ii) and (6)(vi)(D); 

(2) that the beneficiary alien meets the 

educational, training, experience, or 

other requirements, if any, attendant to 

the job opportunity described in the 

petition, 8 CFR 214.2(h)(6)(vi)(C); (3) 

that there are sufficiently available H– 

2B visas in light of the applicable 

numerical limitation for H–2B visas, 8 

CFR 214.2(h)(8)(ii)(A); and (4) that the 

application is submitted consistent with 

strict requirements ensuring the 

integrity of the H–2B system, 8 CFR 

214.2(h)(6)(i)(B), (6)(i)(F).2

DHS has implemented the statutory 

protections attendant to the H–2B 

program, by regulation. See 8 CFR 

214.2(h)(6)(iii), (iv), and (v). In 

accordance with the statutory mandate 

at 8 U.S.C. 1184(c)(1), INA section 

214(c)(1), that DHS consult with 

‘‘appropriate agencies of the 

government’’ to determine eligibility for 

H–2B nonimmigrant status, DHS (and 

the former Immigration and 

Naturalization Service (‘‘legacy INS’’)) 

have long recognized that the most 

effective administration of the H–2B 

program requires consultation with DOL 

to advise whether U.S. workers capable 

of performing the temporary services or 

labor are available. See, e.g., Temporary 

Alien Workers Seeking Classification 

Under the Immigration and Nationality 

Act, 55 FR 2606, 2617 (Jan. 26, 1990) 

(‘‘The Service must seek advice from the 

Department of Labor under the H–2B 

classification because the statute 

requires a showing that unemployed 

U.S. workers are not available to 

perform the services before a petition 

can be approved. The Department of 

Labor is the appropriate agency of the 

Government to make such a labor 

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Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 24045 

3The regulation establishes a different procedure 

for the Territory of Guam, under which a 

petitioning employer must apply for a temporary 

labor certification with the Governor of Guam. 8 

CFR 214.2(h)(6)(iii)(A). 

4 DHS has required a temporary labor certification 

as a condition precedent to adjudication of an H– 

2B petition for temporary employment in the 

United States since 2008. 73 FR 78103. DOL, 

however, has promulgated regulations governing its 

adjudication of employer applications for 

temporary labor certification since 1968. See 33 FR 

7570 (May 22, 1968) (DOL final rule on certification 

of temporary foreign labor for industries other than 

agriculture and logging). Until 1986, there was a 

single H–2 temporary worker classification 

applicable to both temporary agricultural and nonagricultural workers. In 1986, Congress revised the 

INA to create two separate programs for agricultural 

(H–2A) and non-agricultural (H–2B) workers. See 

INA 101(a)(15)(H)(ii), 66 Stat. 163 (June 27, 1952); 

Immigration Reform and Control Act of 1986, Pub. 

L. 99–603, sec. 301, 100 Stat. 3359. Under the 1968 

final rule, DOL considered, ‘‘such matter[s] as the 

employer’s attempts to recruit workers and the 

appropriateness of the wages and working 

conditions offered.’’ 33 FR at 7571. 

market finding. The Service supports 

the process which the Department of 

Labor uses for testing the labor market 

and assuring that wages and working 

conditions of U.S. workers will not be 

adversely affected by employment of 

alien workers.’’). 

Accordingly, DHS regulations require 

that an H–2B petition for temporary 

employment in the United States must 

be accompanied by an approved 

temporary labor certification from DOL. 

8 CFR 214.2(h)(6)(iii)(A) and (iv)(A).3

The temporary labor certification serves 

as DOL’s advice to DHS with respect to 

whether a qualified U.S. worker is 

available to fill the petitioning H–2B 

employer’s job opportunity and whether 

a foreign worker’s employment in the 

job opportunity will adversely affect the 

wages or working conditions of 

similarly employed U.S. workers. See 8 

CFR 214.2(h)(6)(iii)(A) and (D). In 

addition, as part of DOL’s certification, 

DHS regulations require DOL to 

‘‘determine the prevailing wage 

applicable to an application for 

temporary labor certification in 

accordance with the Secretary of Labor’s 

regulation at 20 CFR 655.10.’’ 8 CFR 

214.2(h)(6)(iii)(D). 

DHS relies on DOL’s advice in this 

area, as DOL is the appropriate 

government agency with expertise in 

labor questions and historic and specific 

expertise in addressing labor protection 

questions related to the H–2B program. 

This advice helps DHS fulfill its 

statutory duty to determine, prior to 

approving an H–2B petition, that 

unemployed U.S. workers capable of 

performing the relevant service or labor 

cannot be found in the United States. 8 

U.S.C. 1101(a)(15)(H)(ii)(b), INA section 

101(a)(15)(H)(ii)(b); 8 U.S.C. 1184(c)(1), 

INA section 214(c)(1). DHS has therefore 

made DOL’s approval of a temporary 

labor certification a condition precedent 

to the acceptance of the H–2B petition. 

8 CFR 214.2(h)(6)(iii) and (vi). 

Following receipt of an approved DOL 

temporary labor certification and other 

required evidence, USCIS may 

adjudicate an employer’s complete H– 

2B petition. Id. 

Consistent with the above-referenced 

authorities, since at least 1968,4 DOL 

has established regulatory procedures to 

certify whether a qualified U.S. worker 

is available to fill the job opportunity 

described in the employer’s petition for 

a temporary nonagricultural worker, and 

whether a foreign worker’s employment 

in the job opportunity will adversely 

affect the wages or working conditions 

of similarly employed U.S. workers. See 

20 CFR part 655, subpart A. This 

interim final rule establishes the process 

by which employers obtain a temporary 

labor certification and the protections 

that apply to H–2B workers and 

corresponding workers. As part of 

DOL’s temporary labor certification 

process, which is a condition precedent 

for employers seeking to apply for H–2B 

workers under DHS regulations, 8 CFR 

214.2(h)(6)(iii)(D) and (iv), DOL sets the 

minimum wage that employers must 

offer and pay foreign workers admitted 

to the United States in H–2B 

nonimmigrant status. See 20 CFR 

655.10. The companion final wage rule 

issued simultaneously with this interim 

final rule establishes DOL’s 

methodology for setting the wage, 

consistent with the INA and existing 

DHS regulations. 

As discussed above, DHS has 

determined that the most effective 

implementation of the statutory labor 

protections in the H–2B program 

requires that DHS consult with DOL for 

its advice about matters with which 

DOL has unique expertise, particularly 

questions about testing the U.S. labor 

market and the methodology for setting 

the prevailing wage in the H–2B 

program. The most effective method for 

DOL to provide this consultation is by 

the agencies setting forth in regulations 

the standards that DOL will use to 

provide that advice. These rules set the 

standards by which employers 

demonstrate to DOL that they have 

tested the labor market and found no or 

insufficient numbers of qualified, 

available U.S. workers, and set the 

standards by which employers 

demonstrate to DOL that the offered 

employment does not adversely affect 

U.S. workers. By setting forth this 

structure in regulations, DHS and DOL 

ensure the provision of this advice by 

DOL is consistent, transparent, and 

provided in the form that is most useful 

to DHS. 

In addition, effective January 18, 

2009, pursuant to 8 U.S.C. 

1184(c)(14)(B), INA section 

214(c)(14)(B), DHS transferred to DOL 

its enforcement authority for the H–2B 

program. See, e.g., 8 CFR 214.2(h)(6)(ix) 

(stating that DOL may investigate 

employers to enforce compliance with 

the conditions of, among other things, 

an H–2B petition and a DOL-approved 

temporary labor certification). Under 

this authority, and after consultation 

with DHS, DOL established regulations 

governing enforcement of employer 

obligations and the terms and 

conditions of H–2B employment. 

Accordingly, this interim final rule sets 

forth enforcement provisions. 

As discussed in greater detail below, 

DOL’s authority to issue its own 

legislative rules to carry out its duties 

under the INA has been challenged in 

litigation. On April 1, 2013, the U.S. 

Court of Appeals for the Eleventh 

Circuit upheld a district court decision 

that granted a preliminary injunction 

against enforcement of the 2012 H–2B 

rule, 77 FR 10038, on the ground that 

the employers were likely to prevail on 

their allegation that DOL lacks H–2B 

rulemaking authority. Bayou Lawn & 

Landscape Servs. v. Sec’y of Labor, 713 

F.3d 1080 (11th Cir. 2013). As a result 

of the preliminary injunction in Bayou, 

DOL continued to operate the H–2B 

program under the predecessor 2008 

rule. On remand, the district court 

issued an order vacating the 2012 H–2B 

rule, and permanently enjoined DOL 

from enforcing the rule on the ground 

that DOL lacks rulemaking authority in 

the H–2B program. Bayou Lawn & 

Landscape Servs. v. Sec’y of Labor, No. 

3:12–cv–183 (N.D. Fla. Dec. 18, 2014) 

(Bayou II). The Bayou II decision is 

currently on appeal to the Eleventh 

Circuit. On the other hand, on February 

5, 2014, the U.S. Court of Appeals for 

the Third Circuit held that ‘‘DOL has 

authority to promulgate rules 

concerning the temporary labor 

certification process in the context of 

the H–2B program, and that the 2011 

Wage Rule was validly promulgated 

pursuant to that authority.’’ La. Forestry 

Ass’n v. Perez, 745 F.3d 653, 669 (3d 

Cir. 2014) (emphasis added). 

To ensure that there can be no 

question about the authority for and 

validity of the regulations in this area, 

DHS and DOL (the Departments), 

together, are issuing this interim final 

rule. By proceeding together, the 

Departments affirm that this rule is fully 

consistent with the INA and 

implementing DHS regulations and is 

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24046 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

5Also in response to CATA I, which held that 

part of the methodology to set the prevailing wage 

was invalid because it was not adequately 

explained, 2010 WL 3431761 at *19, DOL issued 

separately a rule governing the methodology to set 

the H–2B prevailing wage. See Wage Methodology 

for the Temporary Non-agricultural Employment H– 

2B Program, on January 19, 2011, 76 FR 3452 (the 

2011 Wage Rule). Shortly before the 2011 Wage 

Rule came into effect, Congress issued an 

appropriations rider effectively barring 

implementation of the 2011 Wage Rule, and the 

same rider was issued in every appropriations 

enactment until January 2014. During the period 

DOL was unable to implement the 2011 Wage Rule, 

DOL extended the effective date of the 2011 Wage 

Rule so that it would not come into effect while the 

agency was without the appropriations necessary to 

implement it. DOL was never able to implement the 

2011 Wage Rule and continued to rely on the 2008 

Rule. Therefore, the court in 2013 vacated the 

problematic provision (20 CFR 655.10(b)(2)) and 

ordered the DOL to come into compliance in 30 

days. Comite de Apoyo a los Trabajadores Agricolas 

v. Solis, 933 F. Supp. 2d 700 (E.D. Pa. 2013) (CATA 

II). 

In response to the vacatur and 30-day compliance 

order in CATA II, and the Eleventh Circuit’s 

decision in Bayou Lawn & Landscape Servs., 

discussed supra, DOL and DHS promulgated an 

interim final rule, Wage Methodology for the 

Temporary Non-Agricultural Employment H–2B 

Program, part 2, 78 FR 24047 (Apr. 24, 2013) (2013 

IFR), which again revised the wage methodology. 

The Departments issued the 2013 IFR jointly to 

dispel questions that arose as a result of Bayou 

about the respective roles of the two agencies and 

the validity of DOL’s regulations as an appropriate 

way to implement the interagency consultation 

specified in section 214(c)(1) of the INA, 8 U.S.C. 

1184(c)(1). Finally, the U.S. Court of Appeals for the 

Third Circuit vacated on substantive and 

procedural APA grounds 20 CFR 655.10(f), which 

permitted employers to submit employer-conducted 

surveys. Comite de Apoyo a los Trabajadores 

Agricolas v. Perez, 774 F.3d 173, 191 (3d Cir. 2014) 

(CATA III). For a complete history of the regulations 

governing the methodology to set the prevailing 

wage in the H–2B program, see the companion rule 

published in this issue of the Federal Register, 

Wage Methodology for the Temporary NonAgricultural Employment H–2B Program (2015), 

which finalizes the 2013 IFR following public input 

on the proper H–2B wage methodology. 

6Employment and Training Administration, 

Announcements, http://www.foreignlabor

cert.doleta.gov (Mar. 4, 2015). 

7The court order in Perez did not vacate the 2013 

IFR, and the court’s judgment on DOL’s 

independent regulatory authority did not have a 

direct impact on the 2013 IFR, which was issued 

jointly by DOL and DHS. However, the 2013 IFR 

did only one thing: it made a single change to 

§ 655.10(b)(2) to eliminate the use of skill levels in 

setting wages based on the OES. The 2013 IFR left 

untouched all the other provisions in the 2008 wage 

methodology, and those provisions remained in full 

force and effect in the 2008 rule following the 

publication of the 2013 IFR. As a result, the Perez 

order vacated virtually all of § 655.10, except for 

§ 655.10(b)(2), which was promulgated in the 2013 

IFR. Thus, the vacatur eliminated DOL’s wage 

methodology (except for § 655.10(b)(2)) as well as 

the procedures for requesting and obtaining 

prevailing wages. Together with the vacatur of 

§ 655.10(f) in CATA III, this ruling left DOL without 

a complete methodology or any procedures to set 

prevailing wages in the H–2B program until the 

court’s stay. As explained infra, the Perez court has 

stayed its vacatur order until May 15, 2015, and at 

the expiration of the stay, DOL will once again be 

without a complete methodology or any procedures 

to set and issue the prevailing wage in the H–2B 

program. 

vital to DHS’s ability to faithfully 

implement the statutory labor 

protections attendant to the program. 

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

section 101(a)(15)(H)(ii)(b); 8 U.S.C. 

1184(c)(1), INA section 214(c)(1); 8 CFR 

214.2(h)(6)(iv). This interim final rule 

implements a key component of DHS’s 

determination that it must consult with 

DOL on the labor market questions 

relevant to its adjudication of H–2B 

petitions. This interim final rule also 

executes DHS’s and DOL’s 

determination that implementation of 

the consultative relationship may be 

established through regulations that 

determine the method by which DOL 

will provide the necessary advice to 

DHS. Finally, this interim final rule sets 

forth enforcement procedures and 

remedies pursuant to DHS’s delegation 

of enforcement authority to DOL. See 8 

U.S.C. 1184(c)(14)(B), INA section 

214(c)(14)(B); 8 CFR 214.2(h)(6)(ix). 

B. The 2008 Rule and the CATA 

Litigation 

In 2008, DOL issued regulations 

governing DOL’s role in the H–2B 

temporary worker program. Labor 

Certification Process and Enforcement 

for Temporary Employment in 

Occupations Other Than Agriculture or 

Registered Nursing in the United States 

(H–2B Workers), and Other Technical 

Changes, 73 FR 78020 (Dec. 19, 2008) 

(the 2008 rule). The 2008 rule 

established, among other things, the 

framework for DOL to receive, review 

and issue H–2B labor certifications. The 

2008 rule also established a 

methodology for determining the wage 

that a prospective H–2B employer must 

pay, the recruitment standards for 

testing the domestic labor market, and 

the mechanism for processing prevailing 

wage requests. Id. In addition, the 2008 

rule governed the enforcement process 

to make certain U.S. and H–2B workers 

are employed in compliance with H–2B 

labor certification requirements. 

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

Court for the Eastern District of 

Pennsylvania in Comite ́ de Apoyo a los 

Trabajadores Agricolas (CATA) v. Solis, 

No. 2:09–cv–240, 2010 WL 3431761 

(E.D. Pa. Aug. 30, 2010) (CATA I), 

invalidated various provisions of the 

2008 rule and remanded it to DOL. In 

response to CATA I, DOL’s 2012 H–2B 

rule, which was ultimately enjoined in 

Bayou, revised the particular provisions 

that were invalidated by the Court, 

including specifying when H–2B 

employers must contact unions as a 

potential source of labor, and providing 

a new definition of full-time and a 

modified definition of job 

contractor.5 See CATA I, 2010 WL 

3431761 at *26–27. 

C. The Perez Vacatur, Good Cause To 

Proceed Without Notice and Comment 

Rulemaking, and Request for Comments 

1. The Perez Vacatur and Its Impact on 

Program Operations 

On March 4, 2015, the U.S. District 

Court for the Northern District of 

Florida, which previously had vacated 

DOL’s 2012 H–2B rule and enjoined its 

enforcement in Bayou II, vacated the 

2008 rule and permanently enjoined 

DOL from enforcing it. Perez v. Perez, 

No. 14–cv–682 (N.D. Fla. Mar. 4, 2015). 

As in its decision in Bayou II vacating 

the 2012 H–2B rule, the court in Perez 

found that DOL lacked authority under 

the INA to independently issue 

legislative rules governing the H–2B 

program. Perez, slip op. at 6. Based on 

the vacatur order and the permanent 

injunction in Perez, DOL immediately 

ceased operating the H–2B program 

because it no longer has any existing 

regulation establishing the processes 

necessary to issue temporary labor 

certifications. Shortly after the court 

issued its decision, DOL posted a notice 

on its Web site informing the public that 

‘‘effective immediately, DOL can no 

longer accept or process requests for 

prevailing wage determinations or 

applications for labor certification in the 

H–2B program.’’ 6 As a result of the 

Perez vacatur order, DOL was unable to 

process any H–2B temporary 

employment certification applications 

or issue any H–2B certifications as 

advice to DHS, which effectively shut 

down the H–2B program for all 

employers filing new H–2B temporary 

employment certification applications 

with DOL. In addition, the Perez vacatur 

order eliminated the crucial regulatory 

provision that the ‘‘employer must 

request a prevailing wage determination 

from the NPC in accordance with the 

procedures established by this 

regulation’’ set out at 20 CFR 655.10(a), 

thus leaving DOL unable to process any 

prevailing wage requests or issue any 

prevailing wage determinations.7

At the time of the Perez vacatur order 

on March 4, 2015, DOL had pending 

over 400 requests to set the prevailing 

wage for an H–2B occupation, and 

almost 800 applications for H–2B 

temporary labor certification 

representing approximately 16,408 

workers. In order to minimize 

disruption to the H–2B program and to 

prevent economic dislocation to 

employers and employees in the 

industries that rely on H–2B foreign 

workers and to the general economy of 

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the areas in which those industries are 

located, on March 16, 2015, DOL filed 

an unopposed motion requesting a 

temporary stay of the Perez vacatur 

order. On March 18, 2015, the court 

entered an order temporarily staying the 

vacatur of the H–2B rule until and 

including April 15, 2015. On April 15, 

2015, at the request of proposed 

intervenors, the court entered a second 

order extending the temporary stay up 

to and including May 15, 2015. The 

court in Perez has requested briefing on 

several issues, including whether the 

plaintiff had standing to challenge the 

2008 rule. The court’s extension of the 

stay on April 15 occurred late in the 

day, after DOL had already initiated 

processes necessary to provide for an 

orderly cessation of the H–2B program 

and after DOL had already posted a 

notice to the regulated community on its 

Web site that the H–2B program would 

be closed again the next day. On April 

16, 2015, following the court’s stay 

extension, DOL immediately posted a 

new notice on its Web site that it would 

continue to operate the H–2B program 

and resume normal operations. 

DHS is charged with adjudicating 

petitions for a nonimmigrant worker 

(commonly referred to as Form I–129 

petitions or, in this rule, ‘‘H–2B 

petitions’’), filed by employers seeking 

to employ H–2B workers, but, as 

discussed earlier, Congress directed the 

agency to issue its decisions relating to 

H–2B petitions ‘‘after consultation with 

appropriate agencies of the 

Government.’’ 8 U.S.C. 1184(c)(1), INA 

section 214(c)(1). Legacy INS and now 

DHS have historically consulted with 

DOL on U.S. labor market conditions to 

determine whether to approve an 

employer’s petition to import H–2B 

workers. See 73 FR 78104, 78110 (DHS) 

(Dec. 19, 2008); 55 FR 2606, 2617 (INS) 

(Jan. 26, 1990). DOL plays a significant 

role in the H–2B program because DHS 

‘‘does not have the expertise needed to 

make any labor market determinations, 

independent of those already made by 

DOL.’’ 73 FR at 78110; see also 55 FR 

at 2626. Without consulting with DOL, 

DHS lacks the expertise to adequately 

make the statutorily mandated 

determination about the availability of 

United States workers to fill the 

proposed job opportunities in the 

employers’ Form I–129 petitions. See 8 

U.S.C. 1101(a)(15)(H)(ii)(b), INA section 

101(a)(15)(H)(ii)(b); 78 FR 24047, 24050 

(DHS–DOL) (Apr. 24, 2013). DHS 

regulations therefore require employers 

to obtain a temporary labor certification 

from DOL before filing a petition with 

DHS to import H–2B workers. See 8 CFR 

214.2(h)(6)(iii)(A), (C), (iv)(A). In 

addition, as part of DOL’s certification, 

DHS regulations require DOL to 

‘‘determine the prevailing wage 

applicable to an application for 

temporary labor certification in 

accordance with the Secretary of Labor’s 

regulation at 20 CFR 655.10.’’ 8 CFR 

214.2(h)(6)(iii)(D). 

DOL has fulfilled its consultative role 

in the H–2B program through the use of 

legislative rules to structure its advice to 

legacy INS and now DHS for several 

decades. See 33 FR 7570–71 (DOL) (May 

22, 1968); 73 FR 78,020 (DOL) (Dec. 19, 

2008). Before DOL issued the 2008 rule, 

it supplemented its regulations with 

guidance documents that set substantive 

standards for wages and recruitment 

and structured the manner in which the 

agency processed applications for H–2B 

labor certification. See 73 FR at 78021– 

22. One district court has held that 

DOL’s pre-2008 H–2B guidance 

document was a legislative rule that 

determined the rights and obligations of 

employers and employees, and DOL’s 

failure to issue the guidance through the 

notice and comment process was a 

procedural violation of the APA. As a 

result, the court invalidated the 

guidance. See CATA I, 2010 WL 

3431761, at *19, 25. Similarly, the U.S. 

Court of Appeals for the D.C. Circuit has 

held that DOL violated the procedural 

requirements of the APA when it 

established requirements that ‘‘set the 

bar for what employers must do to 

obtain approval’’ of the H–2A labor 

certification application, including wage 

and housing requirements, in guidance 

documents. Mendoza v. Perez, 754 F.3d 

1002, 1024 (D.C. Cir. 2014) (setting 

substantive standards for labor 

certification in the H–2A program 

requires legislative rules subject to the 

APA’s notice and comment procedural 

requirements). The APA therefore 

prohibits DOL from setting substantive 

standards for the H–2B program through 

the use of guidance documents that 

have not gone through notice-andcomment rulemaking. As a result, if and 

when the temporary stay concludes, 

without this interim final rule, DOL will 

not be able to provide employers with 

temporary labor certifications necessary 

to allow importation of foreign workers 

under the H–2B program because DOL 

may not rely on subregulatory guidance 

standards, and has no prior rule to 

reinstate. Accordingly, DOL would 

again be forced to cease H–2B program 

operations, thus prohibiting DOL from 

processing temporary employment 

certification applications and prevailing 

wage requests, unless a rule was in 

place. 

As with the two weeks in March 2015, 

the Departments are again facing the 

prospect of experiencing another 

program hiatus if and when the 

temporary stay expires on or before May 

15, 2015. DOL’s 2008 rule is the only 

comprehensive mechanism in place for 

DOL to provide advice to DHS because 

the 2008 rule sets the framework, 

procedures, and applicable standards 

for receiving, reviewing, and issuing H– 

2B prevailing wages and temporary 

labor certifications. The 2008 rule sets 

the recruitment standards for testing the 

domestic labor market and provides the 

rules for processing prevailing wage 

requests. DHS is precluded by its own 

regulations from accepting any H–2B 

petition without a temporary labor 

certification from DOL. See 8 CFR 

214.2(h)(6)(iii)(C). Moreover, without 

advice from DOL, DHS lacks the 

capability to test the domestic labor 

market or determine whether there are 

available U.S. workers to fill the 

employer’s job opportunity. As a result, 

if and when the stay concludes as 

currently scheduled on or before May 

15, 2015, the vacatur of DOL’s 2008 rule 

will require DOL to once again cease 

operating the H–2B program, and DOL 

will again be unable to process 

employers’ requests for temporary 

employment certification applications 

until the agencies can put in place a 

new mechanism for fulfilling the 

statutory directive to ensure that the 

importation of foreign workers will not 

harm the domestic labor market. See 8 

U.S.C. 1101(a)(15)(H)(ii)(b), INA section 

101(a)(15)(H)(ii)(b). Moreover, if the 

temporary stay is lifted, the vacatur of 

DOL’s 2008 rule will void the 

enforcement regime by which DOL has 

carried out its statutorily-delegated 

enforcement authority. See 8 U.S.C. 

1184(c)(14)(B), INA section 

214(c)(14)(B). 

2. Good Cause To Proceed Without 

Notice and Comment and With an 

Immediate Effective Date 

The APA authorizes agencies to issue 

a rule without notice and comment 

upon a showing of good cause. 5 U.S.C. 

553(b)(B). The APA’s good cause 

exception to public participation 

applies upon a finding that those 

procedures are ‘‘impracticable, 

unnecessary, or contrary to the public 

interest.’’ 5 U.S.C. 553(b)(B). Although 

the term is not defined in the APA, the 

accompanying Senate report described 

‘‘impracticable’’ as ‘‘a situation in which 

the due and required execution of the 

agency functions would be unavoidably 

prevented by its undertaking public 

rule-making proceedings.’’ S. Rep. No. 

752, 79th Cong., 1st Sess. 200 (1945). 

The ‘‘ ‘[p]ublic interest’ supplements 

. . . ‘impracticable’ [and] requires that 

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8Moreover, there may be petitions on behalf of 

H–2B workers who are exempt from, or have 

already been counted toward, the H–2B visa cap. 

These petitions will be affected if employers of 

these cap-exempt workers are unable to apply for 

temporary employment certifications. 

public rule-making procedures shall not 

prevent an agency from operating.’’ Id. 

Under the APA’s ‘‘good cause’’ 

exception to notice and comment, an 

agency can take steps to minimize 

discontinuity in its program after the 

court has vacated a rule. Mid-Tex Elec. 

Coop. v. FERC, 822 F.2d 1123, 1131–34 

(D.C. Cir. 1987) (upholding good cause 

to issue a post-remand interim rule); see 

also Shell Oil Co. v. EPA, 950 F.2d 741, 

752 (D.C. Cir. 1991) (observing that 

where the agency had a regulatory void 

as the result of a vacatur of its rule, it 

should consider issuing an interim rule 

under the good cause exception because 

of the disruptions posed by 

discontinuity in the regulations); Action 

on Smoking and Health v. Civil 

Aeronautics Bd., 713 F.2d 795, 800 (D.C. 

Cir. 1983) (same). Moreover, courts find 

‘‘good cause’’ under the APA when an 

agency is moving expeditiously to 

eliminate uncertainty or confusion that, 

left to linger, could cause tangible harm 

or hardship to the agency, the program, 

program users, or other members of the 

public. See, e.g., Mid-Tex, 822 F.2d at 

1133–34 (agency had good cause to 

promote continuity and prevent 

‘‘irremedial financial consequences’’ 

and ‘‘regulatory confusion’’); Nat’l Fed’n 

of Fed. Employees v. Devine, 671 F.2d 

607, 609, 611 (D.C. Cir. 1982) (agency 

had good cause based on emergency 

circumstances, including uncertainty 

created by pending litigation about 

significant aspects of the program, and 

potential harm to agency, to program, 

and to regulated community); Am. Fed’n 

of Gov’t Emp., AFL–CIO v. Block, 655 

F.2d 1153, 1157 (D.C. Cir. 1981) (agency 

had good cause where absence of 

immediate guidance from agency would 

have forced reliance upon antiquated 

guidelines, causing confusion among 

field administrators and economic harm 

and disruption to industry and 

consumers); Woods Psychiatric Inst. v. 

United States, 20 Cl. Ct. 324, 333 (1990), 

aff’d, 925 F.2d 1454 (Fed. Cir. 1991) 

(agency had good cause when program 

would continue to suffer administrative 

difficulties that had previously resulted 

in litigation and might continue to 

result in litigation due to uncertainty 

and confusion over scope of benefits, 

program standards, and eligibility 

requirements). Based on these legal 

standards and for the reasons set forth 

below, the Departments conclude that it 

is impracticable and contrary to the 

public interest to issue this rule under 

the APA’s standard notice and comment 

procedures. DOL and those employers 

and employees who are involved in the 

H–2B program have already experienced 

one regulatory lapse and anticipate 

another, which provides a sound 

foundation for the Departments’ good 

cause to proceed without notice and 

comment. Moreover, even in the 

absence of another regulatory lapse, 

confusion and disarray will persist in 

the H–2B program as a result of 

uncertainty about the rules governing 

the program, which includes ambiguity 

about DOL’s ability to enforce 

protections afforded to U.S. and foreign 

workers, and this provides further good 

cause to proceed with this interim final 

rule without notice and public 

comment. 

As an initial matter, DOL has already 

had to cease operating the H–2B 

program for two weeks in March 2015, 

and faces this prospect again at the 

expiration of the stay on or before May 

15, 2015. Given the expectation of 

another regulatory void, were the 

Departments to follow the standard APA 

procedures, resumption of the H–2B 

program would be substantially delayed 

by the Departments’ issuance of a notice 

of proposed rulemaking and request for 

comment, the time-consuming process 

involved in analyzing and responding to 

comments, and the publication of a final 

rule. Despite the fact that the statutory 

cap on H–2B visas has been reached for 

FY 2015, employers would normally 

now start the process for applying for 

temporary employment certifications for 

FY 2016 by: Filing requests for 

Prevailing Wage Determinations 

(PWDs); performing the required 

recruitment of U.S. workers; and 

submitting applications for temporary 

employment certification. In the 

absence of a rule, employers would not 

be able to take such actions.8 Therefore, 

DHS and DOL must act swiftly to enable 

the agencies to meet their statutory 

obligations under the INA and to 

prevent further economic dislocation to 

employers and employees in 

anticipation of another regulatory void 

that will occur upon resumption of the 

Perez vacatur order. 

Moreover, the on-again-off-again 

nature of H–2B program operations has 

created substantial confusion, 

uncertainty and disarray for the 

agencies and the regulated community. 

The original vacatur order in Perez 

effectively required the agency to 

immediately cease operation of the H– 

2B program, leaving unresolved 

hundreds of time-sensitive pending 

applications for prevailing wages and 

certifications. Two weeks later, 

following the court’s stay of the vacatur 

and upon resumption of the H–2B 

program, those cases pending on the 

date of the vacatur created a backlog of 

applications, while, at the same time, 

employers began filing new applications 

for prevailing wages and certifications. 

DOL worked diligently and quickly to 

address the backlog and simultaneously 

keep up with new applications. Then, 

facing the expiration of the stay on April 

15, 2015, DOL once again prepared to 

cease H–2B operations, which included 

posting a notice to the regulated 

community on its Web site that day 

announcing another closure, which was 

then obviated at the last minute by the 

court’s extension of the stay late in the 

day on April 15. The next day, DOL 

announced that despite its earlier 

announcement, it would continue to 

operate the H–2B program as a result of 

the stay extension. These circumstances, 

which are beyond the Departments’ 

ability to control, have resulted in 

substantial disorder and upheaval for 

the Departments, as well as employers 

and employees involved in the H–2B 

program. 

This uncertainty and confusion is 

particularly applicable to DOL’s ability 

to enforce rights and obligations under 

the H–2B program. Even if the 

temporary stay were to continue beyond 

May 15 or the court in Perez dismisses 

the case (for example, finding that the 

plaintiff lacked standing), it is necessary 

to dispense with notice and comment to 

ensure that DOL has the continued 

ability to take enforcement actions to 

protect H–2B and U.S. workers. As 

discussed above, employers have 

challenged DOL’s independent 

regulatory authority in the H–2B 

program, and courts have issued 

decisions both affirming and 

repudiating that authority. Compare La. 

Forestry Ass’n v. Perez, 745 F.3d at 669, 

Bayou, 713 F.3d at 1084, and Perez, at 

slip op. at 6. As a result, one circuit has 

already found that DOL lacked 

independent regulatory authority to 

issue DOL’s 2012 H–2B rule, and a 

district court has ruled similarly with 

respect to the 2008 rule, which DOL 

relied on to fill the regulatory void 

created in 2012. Based on these adverse 

precedents, the 2008 rule—the only 

vehicle under which DOL can presently 

administer and enforce the H–2B 

program—will remain vulnerable to 

challenges by employers in current and 

future enforcement proceedings based 

on the ground that the regulations DOL 

is seeking to enforce are void because 

DOL exceeded its statutory authority in 

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9Such challenges cannot be adjudicated before 

DOL Administrative Law Judges, but may be 

brought in federal district court. See 2008 rule, 20 

CFR 655.75(d) (‘‘The administrative law judge shall 

not render determinations as to the legality of a 

regulatory provision or the constitutionality of a 

statutory provision.’’); see also Prince v. 

Westinghouse Savannah River Co., ARB No. 10– 

079, slip op. at 9 (ARB Nov. 17, 2010) (‘‘ ‘The Board 

shall not have jurisdiction to pass on the validity 

of any portion of the Code of Federal Regulations 

that has been duly promulgated by the Department 

of Labor and shall observe the provisions thereof, 

where pertinent, in its decisions.’ ’’) (quoting 

Secretary’s Order No. 1–2010 (Delegation of 

Authority and Assignment of Responsibility to the 

Administrative Review Board), sec. 5(c)(48), 75 FR 

3924 (Jan. 15, 2010)). 

10The default six-year statute of limitations for 

civil claims against the government applies to 

challenges under the APA, and so the statute of 

limitations for facial challenges to the 2008 Rule, 

published December 19, 2008, has run. See 28 

U.S.C. 2401(a); Harris v. FAA, 353 F.3d 1006, 1009 

(D.C. Cir. 2004) (‘‘Unless another statute prescribes 

otherwise, a suit challenging final agency action 

[under the APA] must be commenced within six 

years after the right of action first accrues.’’) 

unilaterally issuing the 2008 rule.9 In 

this regard, the statute of limitations 

under the APA would not likely be 

available to DOL in such challenges 

because, even where the statute of 

limitations for a facial challenge has 

run, a litigant may challenge statutory 

authority for a rule in an enforcement 

proceeding when the rule is applied to 

it.10 See Wong v. Doar, 571 F.3d 247, 263 

n. 15 (2d Cir. 2009) (statute of 

limitations for a substantive challenge 

‘‘begins to run at the time of the adverse 

agency action on the particular claim’’); 

Indep. Cmty. Bankers of Am. v. Bd. of 

Governors of Fed. Reserve Sys., 195 F.3d 

28, 34 (D.C. Cir. 1999) (‘‘We have 

frequently said that a party against 

whom a rule is applied may, at the time 

of application, pursue substantive 

objections to the rule, including claims 

that an agency lacked the statutory 

authority to adopt the rule, even where 

the petitioner had notice and 

opportunity to bring a direct challenge 

within statutory time limits.’’); see also 

Coal River Energy LLC v. Jewell, 751 

F.3d 659, 664 (D.C. Cir. 2014) (‘‘A 

substantive defense is one based on an 

argument that a regulation is not 

authorized by a statute or the 

Constitution, as opposed to a claim 

under the APA regarding the method 

used in promulgating the regulation, 

such as that it was issued without 

adequate notice, or that the government 

inadequately responded to comments.’’). 

Therefore, employers subject to 

enforcement under the 2008 rule have 

an available defense that DOL is without 

regulatory authority to enforce rights 

and obligations in the H–2B program, 

leaving DOL in an untenable position 

with respect to its ability to require 

adherence to program standards. In the 

absence of this interim final rule, which 

immediately replaces the 2008 rule, 

uncertainty, confusion and attendant 

legal vulnerability arise each time DOL 

attempts to enforce the provisions of the 

2008 rule, putting critical protections 

for U.S. and H–2B workers in jeopardy. 

Accordingly, even if the Perez 

decision is ultimately dismissed on 

standing or other grounds or if the stay 

is subsequently extended, the court’s 

earlier decision—finding on the merits 

that DOL lacked regulatory authority to 

issue the 2008 rule—has created 

significant confusion about the 

continued viability of the 2008 rule. To 

leave the 2008 rule in place while the 

Departments pursue a new notice-andcomment rulemaking would prolong for 

many months the regulatory confusion 

about the 2008 rule’s status and DOL’s 

authority to enforce worker protections 

and wages required under the 2008 rule 

and 2013 IFR. In the interim, in 

response to a challenge to any 

enforcement action under the 2008 rule, 

DOL may be required to defend the 

validity of the 2008 rule. Such 

challenges could lead to inconsistent 

outcomes, producing further instability 

in the program. Given the potential for 

harm to U.S. and foreign workers if DOL 

is unable to effectively protect their 

rights, and uncertainty and confusion 

about the status of the 2008 rule in the 

regulated community, the Departments 

conclude that it is impracticable and 

contrary to the public interest to 

conduct a rulemaking proceeding under 

the APA’s notice and comment 

requirements, and that they have good 

and substantial cause to issue this rule 

immediately. 

Finally, the Departments also have 

good cause to forego notice and 

comment because, as explained below, 

this rule has already been subject to one 

full round of notice and comment. On 

March 18, 2011, DOL proposed a 

regulation and sought public input on 

all issues addressed in this interim final 

rule during a 60-day comment period. 

76 FR 15130. As noted below, DOL 

received over 800 comments from a 

wide variety of stakeholders, and 

adapted the final rule in 2012 based on 

those comments. 77 FR 10038 (Feb. 21, 

2012). The public has by now had 

notice and an opportunity to comment 

on virtually every provision in this 

interim final rule. The only new 

provisions in this interim final rule 

involve transition filing procedures at 

§ 655.4, which are necessary to instruct 

those program users who have already 

begun the employment certification 

process on the procedures to follow 

under the new regulatory system; 

electronic filing procedures at 

§ 655.15(c) to permit easier submissions 

for H–2B program users; the rules that 

apply to Administrative Law Judge 

proceedings involving determinations 

under 8 U.S.C. 1184(c), section 214(c) of 

the INA, at 29 CFR 503.40(b); and 

implementation of the Congressional 

mandate in § 655.15(f) to permit 

employers in the seafood industry 

flexibility with respect to the entry into 

the U.S. by their H–2B nonimmigrant 

workers. The first three provisions 

(§§ 655.4, 655.15(c), 503.40(b)) are 

procedural in nature, and the last 

provision incorporates a statutory 

requirement that DOL and DHS have 

already implemented. The rulemaking 

record from the 2011–2012 proceeding 

remains fresh, and no new information 

relevant to policy decisions made 

during that proceeding has come to 

light. Therefore, the Departments have 

satisfied the APA’s notice-and-comment 

requirements where, after one full 

period of notice and comment for a rule, 

we reinstate a virtually identical rule 

without an additional notice and 

comment period. See Am. Mining Cong. 

v. EPA, 907 F.2d 1179, 1191–1192 (D.C. 

Cir. 1990); Am. Fed’n of Gov’t 

Employees v. OPM, 821 F.2d 761, 764 

(D.C. Cir. 1987). Accordingly, the 

Departments have good and sufficient 

reason to rely on the APA’s good cause 

exception, 5 U.S.C. 553(b)(B), to issue 

without notice and comment this new 

interim final rule. 

The APA also authorizes agencies to 

make a rule effective immediately upon 

a showing of good cause instead of 

imposing a 30-day delay. 5 U.S.C. 

553(d)(3). The good cause exception to 

the 30-day effective date requirement is 

easier to meet than the good cause 

exception for notice and comment. 

Riverbend Farms, Inc. v. Madigan, 958 

F.2d 1479, 1485 (9th Cir. 1992); Am. 

Fed’n of Gov’t Employees, AFL–CIO v. 

Block, 655 F.2d 1153, 1156 (D.C. Cir. 

1981); U.S. Steel Corp. v. EPA, 605 F.2d 

283, 289–90 (7th Cir. 1979). An agency 

can show good cause for eliminating the 

30-day waiting period when it 

demonstrates urgent conditions the rule 

seeks to correct or unavoidable time 

limitations. U.S. Steel Corp., 605 F.2d at 

290; United States v. Gavrilovic, 511 

F.2d 1099, 1104 (8th Cir. 1977). For the 

same reasons set forth above, we also 

conclude that the Departments have 

good cause to dispense with the 30-day 

effective date requirement given the 

continuing disruption, uncertainty, and 

confusion that a 30-day delay would 

cause in the H–2B program. 5 U.S.C. 

553(d)(3). 

The Departments underscore that 

although we are implementing this 

interim final rule in advance of a period 

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11Applications for temporary labor certification 

are processed by OFLC in the ETA, the agency to 

which the Secretary of Labor has delegated his 

responsibilities as described in the DHS H–2B 

regulations. Enforcement of the attestations made 

by employers in the course of submission of H–2B 

applications for labor certification is conducted by 

WHD within DOL, to which DHS on January 18, 

2009 delegated enforcement authority granted to it 

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

214(c)(14)(B); 8 CFR 214.2(h)(6)(ix). 

of public comment and without a 30- 

day delay in the effective date, we seek 

public input on every aspect of this 

interim final rule (even though virtually 

every provision herein has already gone 

through one round of notice and 

comment), and will assess that input 

and determine whether changes are 

appropriate. As a result, the public 

participation process will be preserved 

in this rulemaking proceeding, and we 

act only under the compulsion of the 

emergency conditions described above. 

3. Request for Comments on All Aspects 

of This Interim Final Rule 

Although this rule is being issued as 

an interim final rule, the Departments 

request public input on all aspects of 

the rule. The regulated community 

should be familiar with the provisions 

adopted in this interim final rule 

because they are largely the same as the 

provisions adopted in the 2012 H–2B 

rule, Temporary Non-agricultural 

Employment of H–2B Aliens in the 

United States, 77 FR 10038 (Feb. 21, 

2012). As part of the rulemaking 

proceeding that culminated in the 2012 

H–2B rule, DOL received, reviewed, and 

considered 869 comments on its 

proposal. Commenters represented a 

broad range of constituents of the H–2B 

program, including small business 

employers, U.S. and H–2B workers, 

worker advocacy groups, State 

Workforce Agencies (SWAs), agents, law 

firms, employer and industry advocacy 

groups, union organizations, members 

of the U.S. Congress, and interested 

members of the public. Those comments 

resulted in DOL’s adjustment to or 

further explanation of that rule, and are 

incorporated here as well. As a result, 

to the extent that any provision of part 

655 of title 20 or part 503 of title 29 of 

the Code of Federal Regulations adopted 

in this rulemaking proceeding requires 

further interpretation or justification, we 

refer the public to the explanations of 

the regulations contained in the prior 

rulemaking docket. That prior notice 

and comment proceeding does not 

foreclose public input in this 

proceeding, during which the 

Departments will jointly consider the 

public comments and revise this interim 

final rule as appropriate. The 

Departments invite the public to submit 

comments on all of the issues, 

requirements, and procedures addressed 

in this interim final rule; we will accept 

and consider these comments prior to 

issuing a final rule. 

III. Revisions to 8 CFR Part 214 

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

DHS currently requires all H–2B 

petitions to be accompanied by an 

approved temporary labor certification. 

See 8 CFR 214.2(h)(6)(iv)(A) (stating that 

an H–2B petition for temporary 

employment in the United States, 

except for temporary employment on 

Guam, must be accompanied by an 

approved temporary labor certification 

from the Secretary of Labor); 8 CFR 

214.2(h)(6)(v) (stating that an H–2B 

petition for temporary employment on 

Guam must be accompanied by an 

approved temporary labor certification 

issued by the Governor of Guam). These 

regulatory provisions were enacted as 

part of DHS’s 2008 notice and comment 

rulemaking on this topic. See DHS 

Proposed Rule, 73 FR 49109, 48110 

(Aug. 20, 2008); DHS Final Rule, 73 FR 

78104, 78104 (Dec. 19, 2008). 

Due to a drafting oversight, when 

enacting the requirements above, DHS 

inadvertently left untouched the 

provisions at 8 CFR 

214.2(h)(9)(iii)(B)(2), which should have 

been deleted. These provisions can only 

be read to apply to the time, before 

2008, when DHS would accept petitions 

without a temporary labor certification. 

The 2008 DHS Proposed Rule (73 FR 

49109) and DHS Final Rule (73 FR 

78104) make it clear that DHS intended 

to require a temporary labor certification 

to be submitted with an H–2B petition, 

and thus 8 CFR 214.2(h)(9)(iii)(B)(2) 

cannot be read to have any effect. 

Finally, the provision requiring that all 

H–2B petitions must be accompanied by 

a temporary labor certification went 

through notice and comment 

rulemaking. Thus, the deletion of 8 CFR 

214.2(h)(9)(iii)(B)(2) should be subject to 

the good cause exception under 5 U.S.C. 

553(b)(B) as such deletion is a 

housekeeping matter and a minor 

technical amendment, which makes 

notice and comment unnecessary. 

For these reasons, DHS will rescind 8 

CFR 214.2(h)(9)(iii)(B)(2) in this interim 

final rule, consistent with 5 U.S.C. 

553(b)(B). 

IV. Revisions to 20 CFR Part 655, 

Subpart A 

A. Introductory Sections 

1. § 655.1 Scope and Purpose of 

Subpart A 

This provision informs program users 

of the statutory basis and regulatory 

authority for the H–2B temporary labor 

certification process. This provision 

describes the Department’s role in 

receiving, reviewing, adjudicating, and 

upholding the integrity of an 

Application for Temporary Employment 

Certification. DHS regulations at 8 CFR 

214.2(h)(6)(iii)(D) recognize the 

Secretary of Labor as an appropriate 

authority with whom DHS consults 

regarding the H–2B program, and 

recognize the Secretary of Labor’s 

authority, in carrying out that 

consultative function, to issue 

regulations regarding the issuance of 

temporary labor certifications. The 

purpose of these regulations is for the 

Secretary of Labor to determine that: (1) 

There are not sufficient U.S. workers 

who are qualified and who will be 

available to perform the temporary 

services or labor for which an employer 

desires to import foreign workers; and 

(2) the employment of the H–2B 

worker(s) will not adversely affect the 

wages and working conditions of U.S. 

workers similarly employed. See 8 CFR 

214.2(h)(6)(iv)(A). It is through the 

regulatory provisions set forth below 

that DOL ensures that the criteria for its 

labor certification determinations are 

met. 

2. § 655.2 Authority of Agencies, 

Offices and Divisions in the Department 

of Labor 

This section describes the authority of 

and division of activities related to the 

H–2B program among DOL agencies. It 

discusses the authority of the Office of 

Foreign Labor Certification (OFLC), the 

office within ETA that exercises the 

Secretary of Labor’s responsibility for 

determining the availability of qualified 

U.S. workers and whether the 

employment of H–2B nonimmigrant 

workers will adversely affect the wages 

and working conditions of similarly 

employed workers. It also discusses the 

authority of the Wage and Hour Division 

(WHD), the agency responsible for 

investigation and enforcement of the 

terms and conditions of H–2B labor 

certifications, as delegated by DHS.11

3. § 655.3 Territory of Guam 

Under DHS regulations and pursuant 

to DHS’s consultative relationship with 

the Governor of Guam related to the H– 

2B visa program on Guam, the granting 

of H–2B labor certifications and the 

enforcement of the H–2B visa program 

on Guam resides with the Governor of 

Guam. 8 CFR 214.2(h)(6)(v). Subject to 

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DHS approval, the Governor of Guam is 

authorized to set the prevailing wage for 

H–2B job opportunities on Guam. 8 CFR 

214.2(h)(6)(v)(E) and (F). To further 

uniformity of standards through the 

United States, the Departments have 

concluded that it would be more 

appropriate for OFLC to issue H–2B 

prevailing wages for all workers on 

Guam, because OFLC already provides 

prevailing wage determinations (PWDs) 

for all other U.S. jurisdictions. 

Therefore, the process for obtaining a 

prevailing wage in § 655.10 would also 

apply to H–2B job opportunities on 

Guam, subject to the transfer of the 

authority to set the prevailing wage for 

a job opportunity on Guam to DOL in 

title 8 of the Code of Federal 

Regulations. Should such transfer occur, 

employment opportunities on Guam 

accordingly would be subject to the 

same process and methodology for 

calculating prevailing wages as any 

other jurisdiction within OFLC’s 

purview. DHS will separately conduct 

rulemaking intended to make DOL 

responsible for issuing prevailing wage 

rates for all H–2B workers on Guam. 

4. Special Procedures 

Special procedures in DOL’s 

temporary labor certification programs 

were based upon a determination that 

variations from the normal labor 

certification processes were necessary to 

permit the temporary employment of 

foreign workers in specific industries or 

occupations when qualified U.S. 

workers were not available and the 

employment of foreign workers would 

not adversely affect the wages or 

working conditions of similarly 

employed U.S. workers. The 2008 rule 

provided authority for DOL to ‘‘establish 

or to devise, continue, revise or revoke’’ 

special procedures in the H–2B 

program. 20 CFR 655.3 (2009). The 

regulation concerning the H–2A 

temporary agricultural worker program 

at 20 CFR 655.102 establishes in a 

virtually identical fashion, as did the 

2008 H–2B rule, DOL’s authority in the 

H–2A program to ‘‘establish, continue, 

revise, or revoke special procedures’’ for 

certain H–2A occupations. In Mendoza 

v. Perez, 754 F.3d 1002, 1022 (D.C. Cir. 

2014), the D.C. Circuit concluded that 

20 CFR 655.102 was ‘‘a grant of 

unconstrained and undefined authority 

[, and the] purpose of the APA would 

be disserved if an agency with a broad 

statutory command . . . could avoid 

notice-and-comment rulemaking simply 

by promulgating a comparably broad 

regulation . . . and then invoking its 

power to interpret that statute and 

regulation in binding the public to a 

strict and specific set of obligations.’’ 

Accordingly, the court in Mendoza held 

that for herding occupations the special 

procedures issued under 20 CFR 

655.102 were rules subject to the APA’s 

notice and comment requirements 

because they possess all the hallmarks 

of a legislative rule and could not be 

issued through subregulatory guidance. 

754 F.3d at 1024 (‘‘The [special 

procedures] are necessarily legislative 

rules because they ‘effect[ ] a 

[substantive] change in existing law or 

policy,’ and ‘effectively amend[ ] a prior 

legislative rule.’’) (citations omitted). 

In light of Mendoza, the Departments 

are not including in this interim final 

rule a provision to allow for the creation 

of special procedures that establish 

variations for processing certain H–2B 

Applications for Temporary 

Employment Certification, similar to a 

provision included in the 2008 H–2B 

rule. Special procedures currently in 

place on the effective date of this 

interim final rule will remain in force 

until we otherwise modify or withdraw 

them, and DOL will review such 

procedures expeditiously. 

5. § 655.4 Transition Filing Procedures 

Generally, DOL will process all 

applications in accordance with the 

rules in effect on the date the 

application was submitted. Accordingly, 

DOL will continue to process all 

applications for PWDs and for 

certification submitted prior to the 

effective date of this rule in accordance 

with the 2008 rule and the 2013 IFR. 

Further, DOL will process all 

applications for PWDs and for 

certification submitted on or after the 

effective date of this rule in accordance 

with this interim final rule and the 

companion wage final rule issued 

simultaneously. 

This rule will permit employers 

submitting an Application for 

Temporary Employment Certification on 

or after the effective date of this rule and 

who have a start date of need prior to 

October 1, 2015, to rely on the 

emergency processing provisions in 

§ 655.17. Such an Application for 

Temporary Employment Certification 

must include a signed and dated copy 

of the new Appendix B associated with 

the ETA Form 9142B containing the 

requisite program assurances and 

obligations under this rule. In the case 

of a job contractor filing as a joint 

employer with its employer-client, the 

NPC must receive a separate attachment 

containing the employer-client’s 

business and contact information (i.e., 

sections C and D of the ETA Form 

9142B) as well as a separate signed and 

dated copy of the Appendix B for its 

employer-client, as required by § 655.19. 

For these employers with a start date 

of need before October 1, 2015, the NPC 

will also waive the regulatory filing 

timeframe under § 655.15 and process 

the Application for Temporary 

Employment Certification and job order 

in a manner consistent with the 

handling of applications under § 655.17 

for emergency situations, including the 

recruitment of U.S. workers on an 

expedited basis, and make a 

determination on certification as 

required by § 655.50. The recruitment of 

U.S. workers on an expedited basis will 

consist of placing a new job order with 

the SWA serving the area of intended 

employment that contains the job 

assurances and contents set forth in 

§ 655.18 for a period of not less than 10 

calendar days. In addition, employers 

who have not placed any newspaper 

advertisements under the 2008 rule 

must place one newspaper 

advertisement, which may be published 

on any day of the week, meeting the 

advertising requirements of § 655.41, 

during the period of time the SWA is 

actively circulating the job order for 

intrastate clearance. If the Chicago NPC 

grants a temporary labor certification, 

the employer will receive an original 

certified ETA Form 9142B and a Final 

Determination letter. Upon receipt of 

the original certified ETA Form 9142B, 

the employer or its agent or attorney, if 

applicable, must complete the footer on 

the original Appendix B, retain the 

original Appendix B, and submit a 

signed copy of Appendix B, together 

with the original certified ETA Form 

9142B directly to USCIS. Under the 

document retention requirements in 

§ 655.56, the employer must retain a 

copy of the certified ETA 9142B and the 

original signed Appendix B. 

For the convenience of the employer 

submitting a new Application for 

Temporary Employment Certification 

with a start date of need prior to October 

1, 2015 and who did not submit an 

Application for a Prevailing Wage 

Determination prior to the effective date 

of this rule, such an employer may 

submit a completed Application for a 

Prevailing Wage Determination to the 

NPC with its emergency Application for 

Temporary Employment Certification 

requesting a prevailing wage 

determination for the job opportunity. 

Upon receipt, the NPC will transmit, on 

behalf of the employer, a copy of the 

Application for a Prevailing Wage 

Determination to the NPWC for 

processing and issuance of a prevailing 

wage determination using the wage 

methodology established in § 655.10 of 

the companion wage rule. 

For employers submitting new 

applications with a start date of need 

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24052 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

12 DOL will not publish agent or foreign recruiter 

names until it makes any necessary updates to its 

system of records notice required by the Privacy Act 

(5 U.S.C. 552a). 

13TEGL 5–11—Designation of Areas of 

Substantial Unemployment (ASUs) under the 

Workforce Investment Act (WIA) for Program Year 

(PY) 2012 has been added to the ETA Advisory Web 

site and is available at http://wdr.doleta.gov/

directives/corr_doc.cfm?DOCN=3069. With some 

exceptions, the provisions of the recently enacted 

Workforce Innovation and Opportunity Act 

(WIOA), Public Law 113–128, 128 Stat. 1425 (2014), 

will supersede WIA as of July 1, 2015. WIOA 

contains a statutory definition of ‘‘area of 

substantial unemployment’’ that is identical to the 

definition of this term in WIA. See 29 U.S.C. 

3162(b)(2)(B), 3172(b)(1)(B)(v)(III). 

before October 1, 2015, DOL will also 

waive the requirements in §§ 655.8 and 

655.9 of this interim final rule, requiring 

the employer, and its attorney or agent, 

as applicable, to provide copies of all 

agreements with any agent and/or 

foreign labor recruiter(s), executed in 

connection with the H–2B temporary 

employer certification application.12 In 

addition, due to the expedited 

timeframes for recruiting U.S. workers 

associated with H–2B temporary 

employment certification applications 

processed under these transition 

procedures, DOL will not place for 

public examination a copy of the job 

order posted by the state workforce 

agency (SWA) on DOL’s electronic job 

registry, as specified under § 655.34. 

However, DOL will implement the new 

electronic job registry requirement 

under § 655.34 for all temporary 

employment certification applications 

filed with the Chicago NPC where the 

employer has a start date of need on or 

after October 1, 2015. 

For all employers submitting new 

applications for employment 

certification, regardless of the start date 

of need, DOL will require a period of 

time to operationalize the registration 

process for H–2B employers required in 

§ 655.11. As a result, DOL will 

announce separately in the Federal 

Register the initiation and 

implementation of the registration 

requirements in § 655.11(j). In the 

meantime, on the effective date of this 

interim final rule and until such 

announcement is made in the Federal 

Register, H–2B temporary employment 

certification applications filed with the 

NPC will be exempt from the 

registration requirements of § 655.11, 

and adjudication of the employer’s 

temporary need will occur during the 

processing of the application. The 

exemption will terminate after a 

separate announcement in the Federal 

Register, which will provide the public 

with notice of when DOL will initiate 

the registration process. 

Finally, employers with a prevailing 

wage determination issued by the 

NPWC, or who have a pending or 

granted Application for Temporary 

Employment Certification on the 

effective date of this rule may seek a 

supplemental prevailing wage 

determination (SPWD) in order to obtain 

a prevailing wage based on an alternate 

wage source under the new rule. The 

SPWD will apply during the validity 

period of the certification, except that 

such SPWD will be applicable only to 

those H–2B workers who are not yet 

employed in the certified position on 

the date of the issuance of the SPWD. 

The SPWD will not be applicable to H– 

2B workers who are already employed 

in the certified position at the time of 

the issuance of the SPWD, and it will 

not apply to United States workers 

recruited and hired under the original 

job order. For seafood employers whose 

workers’ entry into the United States 

may be staggered under § 655.15(f), an 

SPWD issued under this provision will 

apply only to those H–2B workers who 

have not yet entered the United States 

and are therefore not yet employed in 

the certified position at the time of the 

issuance of the SPWD. In order to 

receive an SPWD under this provision, 

the employer must submit a new ETA 

Form 9141 to the NPWC that contains 

in Section E.a.5 Job Duties the original 

PWD tracking number (starting with P– 

400), the H–2B temporary employment 

certification application number 

(starting with H–400), and the words 

‘‘Request for a Supplemental Prevailing 

Wage Determination.’’ Electronic 

submission through the iCERT Visa 

Portal System is preferred. Upon receipt 

of the request, the NPWC will issue to 

the employer, or if applicable, the 

employer’s attorney or agent, an SPWD 

in an expedited manner and provide a 

copy to the Chicago NPC. 

6. § 655.5 Definition of Terms 

The Departments have made a 

number of changes to the definitions 

contained in the 2008 rule. Many of the 

changes clarify definitions in minor 

ways that do not substantively change 

the meaning of the term. However, we 

have also made some substantive 

changes to definitions, and we discuss 

below those definitions. 

a. ‘‘Area of Substantial Unemployment’’ 

This new term reflects the established 

definition of area of substantial 

unemployment in use within ETA as it 

relates to Workforce Investment Act 

(WIA) fund allocations, and is the 

existing definition of area of substantial 

unemployment within ETA. ETA uses 

this definition to identify areas with 

concentrated unemployment and to 

focus WIA funding for services to 

facilitate employment in those areas. 

ETA employs this term both as a way to 

improve labor market test quality and 

for the sake of operational simplicity. 

This existing definition provides the 

appropriate standard for identifying 

areas of concentrated unemployment 

where additional recruitment could 

result in U.S. worker employment. Also, 

the process of collecting data and 

designating an area of substantial 

unemployment using the existing 

definition is already established, as 

discussed in ETA’s Training and 

Employment Guidance Letter No. 5–11, 

Aug. 12, 2011,13 providing OFLC with a 

ready resource for identifying areas to 

focus additional recruitment. Finally, 

using this definition of area of 

substantial unemployment in the 

interim final rule enables an employer 

to check the list of areas of substantial 

unemployment ETA publishes to 

determine whether its job opportunity 

may fall within an area of substantial 

unemployment and, as appropriate, be 

subject to enhanced recruitment. 

b. ‘‘Corresponding Employment’’ 

In this interim final rule, 

‘‘corresponding employment’’ means 

the employment of workers who are not 

H–2B workers by an employer that has 

a certified H–2B Application for 

Temporary Employment Certification 

when those workers are performing 

either substantially the same work 

included in the job order or 

substantially the same work performed 

by the H–2B workers. The definition 

contains exceptions for two categories of 

incumbent employees (certain 

employees who have worked full-time 

for at least one year and certain 

employees covered by a collective 

bargaining agreement). 

The first category not included in the 

definition of corresponding employment 

covers incumbent employees: 

1. Who have been continuously employed 

by the H–2B employer to perform 

substantially the same work included in the 

job order or substantially the same work 

performed by the H–2B workers during the 

52 weeks prior to the period of employment 

certified on the Application for Temporary 

Employment Certification; 

2. who have worked or been paid for at 

least 35 hours per week in at least 48 of the 

prior 52 workweeks; and 

3. who have worked or been paid for an 

average of at least 35 hours per week over the 

prior 52 weeks. 

The second and third conditions of this 

exception must be demonstrated on the 

employer’s payroll records, and the 

employees’ terms and working 

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conditions of employment must not be 

substantially reduced during the period 

of employment covered by the job order. 

In determining whether this standard 

was met, the employer may take credit 

for any hours that were reduced by the 

employee voluntarily choosing not to 

work due to personal reasons such as 

illness or vacation. Second, not 

included in the definition are 

incumbent employees covered by a 

collective bargaining agreement or an 

individual employment contract that 

guarantees both an offer of at least 35 

hours of work each workweek and 

continued employment with the H–2B 

employer at least through the period of 

employment covered by the job order, 

except that the employee may be 

dismissed for cause. 

To qualify as corresponding 

employment, the work must be 

performed during the period of the job 

order, including any approved 

extension thereof. Any work performed 

by U.S. workers outside the specific 

period of the job order does not qualify 

as corresponding employment. 

Accordingly, the interim final rule does 

not require employers to offer their U.S. 

workers (part-time or full-time workers) 

corresponding employment protections 

outside of the period of the job order. If, 

for example, a U.S. worker is in 

corresponding employment with H–2B 

workers, the employer must provide 

corresponding employment protections 

during the time period of the job order 

but may choose not to do so during the 

time period outside of the job order. 

The interim final rule includes these 

workers within the definition of 

corresponding employment in order to 

fulfill the DHS regulatory requirement 

that an H–2B Petition will not be 

approved unless the Secretary of Labor 

certifies that the employment of the 

alien will not adversely affect the wages 

and working conditions of similarly 

employed U.S. workers. 8 CFR 

214.2(h)(6)(iv). Congress has long 

intended that similarly employed U.S. 

workers should not be treated less 

favorably than temporary foreign 

workers. For example, a 1980 report on 

temporary worker programs stated that 

U.S. employers were required to offer 

domestic workers wages equal to foreign 

workers as a prerequisite for labor 

certification. See Congressional 

Research Service: ‘‘Report to the Senate 

Committee on the Judiciary: Temporary 

Worker Programs: Background and 

Issues’’ 53 (1980); see also H.R. Rep. No. 

99–682, pt. 1 at 80 (1986) (‘‘The 

essential feature of the H–2 program has 

been and would continue to be the 

requirement that efforts be made to find 

domestic workers before admitting 

workers from abroad. A corollary rule, 

again preserved in the bill, is that the 

importation of foreign workers will not 

be allowed if it would adversely affect 

the wages and working conditions of 

domestic workers similarly employed’’). 

The 2008 rule reflected this principle, in 

part, by requiring that the terms and 

conditions of offered employment 

cannot be less favorable than those 

offered to H–2B workers. 20 CFR 

655.22(a) (2009). Thus, the 2008 rule 

provided for equal treatment of workers 

newly hired during the 10-day H–2B 

recruitment process. 

The 2008 rule, however, did not 

protect U.S. workers who engage in 

similar work performed by H–2B 

workers during the validity period of 

the job order, because it did not protect 

any incumbent employees. Therefore, 

for example, a U.S. employee hired 

three months previously performing the 

same work as the work requested in the 

job order, but earning less than the 

advertised wage, would have been 

required to quit the current employment 

and re-apply for the same job with the 

same employer to obtain the higher 

wage rate offered to H–2B workers. This 

was disruptive for the employer and 

created an additional administrative 

burden for the SWAs with respect to 

any workers being referred through 

them. It also overestimated employees’ 

understanding of their rights under the 

regulations, and placed workers in 

insecure situations by requiring them to 

quit their jobs with the hope of being 

immediately rehired in order to avail 

themselves of the regulation’s 

protections. Therefore, the interim final 

rule does not require incumbent 

employees to jump through this 

unnecessary hoop; U.S. workers 

generally will be entitled to the wage 

rates paid to H–2B employees without 

having to quit their jobs and be rehired. 

As set out above, there are only two 

categories of incumbent U.S. employees 

who will be excluded from the 

definition of corresponding 

employment. The first category covers 

those incumbents who have been 

continuously employed by the H–2B 

employer for at least the 52 weeks prior 

to the date of need, who have averaged 

at least 35 hours of work or pay over 

those 52 weeks, and who have worked 

or been paid for at least 35 hours in at 

least 48 of the 52 weeks, and whose 

terms and conditions of employment are 

not substantially reduced during the 

period of the job order. The employer 

may take credit for any hours that were 

reduced because the employee 

voluntarily chose for personal reasons 

not to work hours that the employer 

offered, such as due to illness or 

vacation. Thus, for example, assume an 

employee took six weeks of unpaid 

leave due to illness, and the employer 

offered the employee 40 hours of work 

each of those weeks. In that situation, 

the employer could take credit for all 

those hours in determining the 

employee’s average number of hours 

worked in the prior year and could take 

credit for each of those six weeks in 

determining whether it provided at least 

35 hours of work or pay in 48 of the 

prior 52 weeks. Similarly, if the 

employer provided a paid day off for 

Thanksgiving and an employee worked 

the other 32 hours in that workweek, the 

employer would be able to take credit 

for all 40 hours when computing the 

average number of hours worked and 

count that week toward the required 48 

weeks. In contrast, assume another 

situation where the employer offered 

the employee only 15 hours of work 

during each of three weeks, and the 

employee did not work any of those 

hours. The employer could only take 

credit for the hours actually offered 

when computing the average number of 

hours worked or paid during the prior 

52 weeks, and it would not be able to 

count those three weeks when 

determining whether it provided at least 

35 hours of work or pay for the required 

48 weeks. 

The second category of incumbent 

workers excluded from the definition of 

corresponding employment includes 

those covered by a collective bargaining 

agreement or individual employment 

contract that guarantees both an offer of 

at least 35 hours of work each week and 

continued employment with the H–2B 

employer at least through the period of 

the job order (except that the employee 

may be dismissed for cause). As noted 

above, incumbent employees in the first 

category are year-round employees who 

began working for the employer before 

the employer filed an Application for 

Temporary Employment Certification. 

They work 35 hours per week for the 

employer, even during its slow season. 

The Departments recognize that there 

may be some weeks when, due to 

personal factors such as illness or 

vacation, the employee does not work 

35 hours. The employer may still treat 

such a week as a week when the 

employee worked 35 hours for purposes 

of the corresponding employment 

definition, so long as the employer 

offered at least 35 hours of work and the 

employee voluntarily declined to work, 

as demonstrated by the employer’s 

payroll records. Thus, these workers 

have valuable job security that is lacked 

by H–2B workers and those hired during 

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the recruitment period or the period of 

the job order. Such full-time, year-round 

employees may have other valuable 

benefits as well, such as health 

insurance or paid time off. Similarly, 

employees covered by a collective 

bargaining agreement or an individual 

employment contract with a guaranteed 

weekly number of hours and just-cause 

provisions also have valuable job 

security; they may also have benefits 

beyond those guarantees provided by 

the H–2B program. These valuable terms 

and conditions of employment may 

account for any difference in wages 

between what they receive and what H– 

2B workers receive. Therefore, these 

U.S. workers are excluded from 

corresponding employment if they 

continue to be employed full-time at 

substantially the same terms and 

conditions throughout the period 

covered by the job order, except that 

they may be dismissed for cause. 

The interim final rule’s inclusion of 

other workers within the definition of 

corresponding employment is important 

because the 2008 rule did not protect 

U.S. workers in the situation where an 

H–2B employer places H–2B workers in 

occupations and/or at job sites outside 

the scope of the labor certification, in 

violation of the regulations. For 

example, if an employer submits an 

application for workers to serve as 

landscape laborers, but then assigns the 

H–2B workers to serve as bricklayers 

constructing decorative landscaping 

walls, the employer has bypassed many 

of the H–2B program’s protections for 

U.S. workers. The employer has 

deprived such U.S. workers of their 

right to protections such as domestic 

recruitment requirements, the right to be 

employed if available and qualified, and 

the prevailing wage requirement. The 

interim final rule guards against this 

abuse of the system and protects the 

integrity of the H–2B process by 

ensuring that the corresponding U.S. 

workers employed as bricklayers receive 

the prevailing wage for that work. 

The 2008 rule also did not protect 

U.S. workers in cases where employers 

placed H–2B workers at job sites outside 

the scope of the labor certification. For 

example, an employer may submit an 

application for workers to serve as 

landscape laborers in a rural county in 

southern Illinois, but instead violate its 

obligations by assigning its H–2B 

workers to work as landscape laborers 

in the Chicago area. Because the 

employer did not fulfill its recruitment 

obligations in the Chicago area, U.S. 

workers were not aware of the job 

opportunity, they could not apply and 

take advantage of their priority hiring 

right, and the prevailing wage assigned 

was not the correct rate for the Chicago 

area. Such a violation of the employer’s 

attestations would result both in the 

absence of a meaningful test of the labor 

market for available U.S. workers and 

U.S. workers being adversely affected by 

the presence of underpaid H–2B 

workers. The interim final rule’s 

definition of corresponding employment 

ensures that the employer’s incumbent 

landscape laborers who work where the 

H–2B workers actually are assigned to 

work will receive the appropriate 

prevailing wage rate. Paying the proper 

wage to such workers is necessary to 

protect against possible adverse effects 

on U.S. workers due to wage depression 

from the introduction of foreign 

workers. Therefore, the definition of 

corresponding employment in the 

interim final rule is necessary to fulfill 

the responsibility to provide temporary 

labor certifications only in appropriate 

circumstances. 

c. ‘‘Full-Time’’ 

The definition of ‘‘full-time’’ means 

35 or more hours of work per week. In 

accord with the decision in CATA I, 

which invalidated the 2008 rule’s 

definition of full-time employment 

because DOL did not consider and 

articulate relevant factors supporting the 

30-hour definition, 2010 WL 3431761 at 

*14, we have continued to carefully 

consider all pertinent information in 

determining the threshold number of 

hours for full-time employment, 

including national labor market 

statistics, empirical evidence from a 

random sample of approved 

applications, and other employment 

laws. All available evidence suggests 

that the 2008 rule’s definition of 30 

hours or more per workweek was not an 

accurate reflection of full-time 

employment. DOL’s enforcement 

experience confirms that the vast 

majority of H–2B temporary 

employment certification applications 

that are the subject of investigations are 

certified for 35 or more hours per week. 

Under the H–2A nonimmigrant visa 

program applicable to agricultural 

workers, DOL defines full-time as 35 

hours per week. The 35-hour floor 

allows employers access to the H–2B 

program for a relatively small number of 

full-time jobs that would not have been 

eligible under a higher criterion (for 

example, a 40-hour standard). H–2B 

employers are and will remain required 

to accurately represent the actual 

number of hours per week associated 

with the job, recruit U.S. workers on the 

basis of those hours, and pay for all 

hours of work. Therefore, the employer 

is obligated to disclose and offer those 

hours of employment—whether 35, 40, 

45, or more—that accurately reflect the 

job being certified. Failure to do so 

could result in a finding of violation of 

these regulations. 

d. ‘‘Job Contractor’’ 

This term means a person, 

association, firm, or a corporation that 

meets the definition of an employer and 

that contracts services or labor on a 

temporary basis to one or more 

employers, which is not an affiliate, 

branch or subsidiary of the job 

contractor and where the job contractor 

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

performance of the services or labor to 

be performed other than hiring, paying 

and firing the workers. The following 

examples illustrate the differences 

between an employer that is a job 

contractor and an employer that is not. 

Employer A is a temporary clerical 

staffing company. It sends several of its 

employees to Acme Corporation to 

answer phones and make copies for a 

week. Although Employer A has hired 

these employees and will be issuing 

paychecks to these employees for the 

time worked at Acme Corporation, 

Employer A will not exercise 

substantial, direct day-to-day 

supervision and control over its 

employees during their performance of 

services at Acme Corporation. Rather, 

Acme Corporation will direct and 

supervise the Employer A employees 

during that week. Under this particular 

set of facts, Employer A would be 

considered a job contractor. By contrast, 

Employer B is a landscaping company. 

It sends several of its employees to 

Acme Corporation once a week to do 

mowing, weeding, and trimming around 

the Acme campus. Among the 

employees that Employer B sends to 

Acme Corporation are several landscape 

laborers and one supervisor. Employer 

B’s supervisor instructs and supervises 

the laborers as to the tasks to be 

performed on the Acme campus. Under 

this particular set of facts, Employer B 

would not be considered a job 

contractor. 

Similarly, in the reforestation 

industry, employers may perform 

contract work using crews of workers 

subject to the employer’s on-site, day-today supervision and control. Such an 

employer, whose relationship with its 

employees involves substantial, direct, 

on-site, day-to-day supervision and 

control would not be considered a job 

contractor under this interim final rule. 

However, if a reforestation employer 

were to send its workers to another 

company to work on that company’s 

crew and did not provide substantial, 

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

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and control of the workers, that 

employer would be considered a job 

contractor under this interim final rule. 

Note that the provision of services to 

another company, under a contract 

alone, does not render an employer a job 

contractor; rather, each employment 

situation must be evaluated individually 

to determine the nature of the employeremployee relationship and, accordingly, 

whether the petitioning employer is in 

fact a job contractor. 

e. Other Definitions 

As discussed under § 655.6, we have 

decided to permit job contractors to 

participate in the H–2B program where 

they can demonstrate their own 

temporary need, not that of their clients. 

The particular procedures and 

requirements that govern their 

participation are set forth in § 655.19 

and provide in greater detail the 

responsibilities of the job contractors 

and their clients. Accordingly, we are 

adding a definition of ‘‘employer-client’’ 

to this interim final rule to define the 

characteristics of the employer that is 

served by the job contractor and the 

nature of their relationship. 

We have included definitions of job 

offer and job order to make certain that 

employers understand the difference 

between the offer that is made to 

workers, which must contain all the 

material terms and conditions of the job, 

and the order that is the published 

document used by SWAs in the 

dissemination of the job opportunity. 

The definition of job order reflects that 

it must include some, but not all, of the 

material terms and conditions of 

employment as reflected in § 655.18, 

which identifies the minimum content 

required for job orders. The definition of 

job offer requires an employer’s job offer 

to contain all material terms and 

conditions of employment. 

We have included the definition of 

strike so that the term is defined more 

consistently with DOL’s 2010 H–2A 

regulations. The definition recognizes a 

range of protected concerted activity 

and clearly notifies employers and 

workers of their obligations when 

workers engage in these protected 

activities. 

7. § 655.6 Temporary Need 

We will interpret temporary need in 

accordance with the DHS definition of 

that term and our experience in the H– 

2B program. The DHS regulations define 

temporary need as a need for a limited 

period of time, where the employer 

must ‘‘establish that the need for the 

employee will end in the near, definable 

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

interim final rule, as discussed in 

further detail below, is consistent with 

this approach. 

a. Job Contractors: We generally 

conclude that a person or entity that is 

a job contractor, as defined under 

§ 655.5, has no individual need for 

workers. Rather, its need is based on the 

underlying need of its employer-clients. 

Job contractors generally have an 

ongoing business of supplying workers 

to other entities, even if the receiving 

entity’s need for the services is 

temporary. However, we recognize that 

we should exclude from the program 

only those job contractors who have a 

definitively permanent need for 

workers, and that job contractors who 

only have a need for the services or 

labor to be performed several months 

out of the year have a genuine 

temporary need and should not be 

excluded. Therefore, § 655.6 permits 

only those contractors that demonstrate 

their own temporary need, not that of 

their employer-clients, to continue to 

participate in the H–2B program. 

Job contractors will only be permitted 

to file applications based on seasonal 

need or a one-time occurrence. In other 

words, in order to participate in the H– 

2B program, a job contractor would have 

to demonstrate, just as all employers 

seeking H–2B workers based on 

seasonal need have always been 

required to demonstrate: 1) If based on 

a seasonal need that the services or 

labor that it provides are traditionally 

tied to a season of the year, by an event 

or pattern and is of a recurring nature; 

or 2) if based on a one-time occurrence, 

that the employer has not employed 

workers to perform the services or labor 

in the past and will not need workers to 

perform the services in the future or that 

it has an employment situation that is 

otherwise permanent, but a temporary 

event of short duration has created the 

need for a temporary worker. For a job 

contractor with a seasonal need, the job 

contractor must specify the period(s) or 

time during each year in which it does 

not employ the services or labor. The 

employment is not seasonal if the 

period during which the services or 

labor is not provided is unpredictable or 

subject to change or is considered a 

vacation period for the contractor’s 

permanent employees. For instance, a 

job contractor that regularly supplies 

workers for ski resorts from October to 

March but does not supply any workers 

performing the same services or labor 

needed by the ski resorts outside of 

those months would qualify as having a 

temporary need that is seasonal for such 

workers. 

We are allowing job contractors to be 

certified based only on seasonal or onetime need because it is extremely 

difficult, if not impossible, to identify 

appropriate peakload or intermittent 

needs for job contractors with clients 

who have variable needs. The seminal 

Immigration and Naturalization Service 

(INS) decision, Matter of Artee, 18 I. & 

N. Dec 366 (Comm’r 1982), established 

that a determination of temporary need 

rests on the nature of the underlying 

need for the duties of the position. To 

the extent that a job contractor is 

applying for a temporary labor 

certification, the job contractor whose 

need rests on that of its clients has itself 

no independent need for the services or 

labor to be performed. The Board of 

Alien Labor Certification Appeals 

(BALCA) has further clarified the 

definition of temporary need in Matter 

of Caballero Contracting & Consulting 

LLC, 2009–TLN–00015 (Apr. 9, 2009), 

finding that ‘‘the main point of Artee 

. . . is that a job contractor cannot use 

[solely] its client’s needs to define the 

temporary nature of the job where 

focusing solely on the client’s needs 

would misrepresent the reality of the 

application.’’ The BALCA, in Matter of 

Cajun Constructors, Inc. 2009–TLN– 

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

an employer by the nature of its 

business works on a project until 

completion and then moves on to 

another has a permanent rather than a 

temporary need. The limited 

circumstances under which job 

contractors may continue to participate 

in the H–2B program will be subject to 

the requirements in § 655.19, which sets 

forth the procedures and requirements 

governing the filing of applications by 

job contractors. Contractors have no 

temporary need apart from the 

underlying need of the employer on 

whose behalf they are filing the 

Application for Temporary Employment 

Certification. When considering any 

employer’s H–2B Registration, DOL will 

require that employer to substantiate its 

temporary need by providing evidence 

required to support such a need. 

b. Duration of Temporary Need. For 

the reasons described below, DOL is 

defining temporary need, except in the 

event of a one-time occurrence, as 9 

months in duration, a decrease from the 

10-month limitation under DOL’s 2008 

rule. This definition is consistent with 

the definition of temporary need in DHS 

regulations, which provides that 

‘‘[g]enerally, that period of time will be 

limited to one year or less, but in the 

case of a one-time event could last up 

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

(emphasis provided). This interim final 

rule further provides, consistent with 8 

CFR 214.2(h)(6)(ii)(B), that in the case of 

‘‘extraordinary circumstances,’’ DOL 

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may extend a temporary labor 

certification for a period beyond nine 

months, but not to exceed a total period 

of twelve months. 

DHS categorizes and defines 

temporary need into four classifications: 

seasonal need; peakload need; 

intermittent need; and one-time 

occurrence. A one-time occurrence may 

be for a period of up to 3 years. The 

other categories are generally limited to 

1 year or less in duration. See 8 CFR 

214.2(h)(6)(ii)(B). DOL’s temporary need 

period falls comfortably within the 

parameters of the general ‘‘one year or 

less’’ limitation contained in the DHS 

regulations. Routinely allowing 

employers to file seasonal, peakload or 

intermittent need applications for 

periods approaching a year would be 

inconsistent with the statutory 

requirement that H–2B job opportunities 

need to be temporary. In our experience, 

the closer the period of employment is 

to one year in the H–2B program, the 

more the opportunity resembles a 

permanent position. We conclude that a 

maximum employment period of 9 

months establishes the temporariness of 

the position. Where there are only a few 

days or even a month or two for which 

no work is required, the job becomes 

less distinguishable from a permanent 

position, particularly one that offers 

time off due to a slow-down in work 

activity. Recurring temporary needs of 

more than 9 months are, as a practical 

matter, permanent positions for which 

H–2B labor certification is not 

appropriate. The approach in the 2008 

rule that permitted temporary 

certifications for periods up to 10 

months encompasses job opportunities 

that we conclude are permanent in 

nature and inconsistent with 

congressional intent to limit H–2B visas 

to employers with temporary or 

seasonal needs. We conclude that the 9- 

month limitation that fairly describes 

the maximum scope of a seasonal need 

should also be applied to peakload need 

since there is no compelling rationale 

for creating a different standard for 

peakload. 

The impact of the change from 10 

months, which was the standard in the 

2008 rule, to 9 months, may have an 

adverse impact on some employers. But 

that impact, standing alone, is not 

dispositive regarding our legal 

obligation to protect the wages and 

working conditions of U.S. workers. 

DOL previously relied on the standard 

articulated in Matter of Vito Volpe 

Landscaping, Nos. 91–INA–300, 91– 

INA–301, 92–INA–170, 91–INA–339, 

91–INA–323, 92–INA–11 (Sept. 29, 

1994), which stated that a period of 10 

months was not permanent. The 

Departments may adopt through 

rulemaking a new standard that is 

within their respective responsibilities 

in administering the program. See 

United States v. Storer Broad., 351 U.S. 

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

461 U.S. 458, 467 (1983); see also FDA 

v. Brown & Williamson Tobacco Corp., 

529 U.S. 120, 156–57 (2000) 

(recognizing that ‘‘agencies must be 

given ample latitude to adapt their rules 

and policies to the demands of changing 

circumstances’’). DOL has determined 

that 9 months better reflects a recurring 

seasonal or temporary need and have 

accordingly adopted a new standard in 

this interim final rule. The majority of 

H–2B employer applicants will not be 

affected by this change. According to 

DOL H–2B program data for FY 2010– 

2014, 65.2 percent of certified and 

partially certified employer applicants 

had a duration of temporary need less 

than or equal to 9 months. 

Similarly, we have determined that 

limiting to 9 months the duration of 

temporary need on a peakload basis 

would ensure that the employer is not 

mischaracterizing a permanent need as 

one that is temporary. For example, 

since temporary need on a peakload 

basis is not tied to a season, under the 

current 10-month standard, an employer 

may be able to characterize a permanent 

need for the services or labor by filing 

consecutive applications for workers on 

a peakload basis. To the extent that each 

application does not exceed 10 months, 

the 2-month inactive period may 

correspond to a temporary reduction in 

workforce due to annual vacations or 

administrative periods. Increasing the 

duration of time during which an 

employer must discontinue operations 

from 2 months to 3 will ensure that the 

use of the program is reserved for 

employers with a genuine temporary 

need. Similarly, a 9-month limitation is 

appropriate for ensuring that the 

employer’s intermittent need is, in fact, 

temporary. In addition, under the 

interim final rule, each employer with 

an intermittent need will be required to 

file a separate H–2B Registration and 

Application for Temporary Employment 

Certification to make certain that any 

disconnected periods of need are 

accurately portrayed and comply with 

the 9-month limitation. 

c. Peakload need: The Departments 

will employ the definition of peakload 

need established in DHS regulations at 

8 CFR 214.2(h)(6)(ii)(B)(3). 

d. One-Time Occurrence. The 

Departments will employ the definition 

of one-time occurrence established in 

DHS regulations at 8 CFR 

214.2(h)(6)(ii)(B)(1). The Departments 

do not intend for the 3-year 

accommodation of special projects to 

provide a specific exemption for 

industries like construction in which 

many of an employer’s projects or 

contracts may prove a permanent rather 

than a temporary need. Therefore, we 

will closely review all assertions of 

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

of this category is limited to those 

circumstances where the employer has 

a non-recurring need which exceeds the 

9-month limitation. For example, an 

employer who has a construction 

contract that exceeds 9 months may not 

use the program under a one-time 

occurrence if it has previously filed an 

Application for Temporary Employment 

Certification identifying a one-time 

occurrence and the prior Application for 

Temporary Employment Certification 

requested H–2B workers to perform the 

same services or labor in the same 

occupation. 

8. § 655.7 Persons and Entities 

Authorized To File 

The employer, or its attorney or agent, 

are persons authorized to file an H–2B 

Registration or an Application for 

Temporary Employment Certification. 

The employer must sign the H–2B 

Registration or Application for 

Temporary Employment Certification 

and any other required documents, 

whether or not it is represented by an 

attorney or agent. 

9. § 655.8 Requirements for Agents 

Employer’s agents are required to 

provide copies of current agreements 

defining the scope of their relationships 

with employers, or other document 

demonstrating the agent’s authority to 

represent the employer. DOL will 

review the documents to make certain 

that there is evidence that a bona fide 

relationship exists between the agent 

and the employer and, where the agent 

is also engaged in recruitment, to ensure 

that the agreements include the 

language required at § 655.20(p) 

prohibiting the payment of fees by the 

worker. DOL also reserves the right to 

further review the agreements in the 

course of an investigation or other 

integrity measure. A certification of an 

employer’s application that includes 

such a submitted agreement in no way 

indicates a general approval of the 

agreement or the terms therein. The 

requirement does not obligate either the 

agent or the employer to disclose any 

trade secrets or other proprietary 

business information. The interim final 

rule only requires the agent to provide 

sufficient documentation to clearly 

demonstrate the scope of the agency 

relationship. In addition, under this 

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interim final rule, DOL does not plan at 

present to post these agreements for 

public viewing. If, however, DOL does 

so in the future, DOL will continue to 

follow all applicable legal and internal 

procedures including those relating to 

Freedom of Information Act (FOIA) 

requests to ensure the protection of 

private data in such circumstances. 

We remind both agents and employers 

that each is responsible for the accuracy 

and veracity of the information and 

documentation submitted, as indicated 

in the ETA Form 9142B and Appendix 

B, both of which must be signed by the 

employer and its agent. As discussed 

under § 655.73(b), agents who are 

signatories to ETA Form 9142B may 

now be held liable for their own 

independent violations of the H–2B 

program. 

Finally, under this provision, where 

an agent is required under the Migrant 

and Seasonal Agricultural Worker 

Protection Act (MSPA) to have a 

Certificate of Registration, the agent 

must also provide a current copy of the 

certificate which identifies the specific 

farm labor contracting activities that the 

agent is authorized to perform. 

10. § 655.9 Disclosure of Foreign 

Worker Recruitment 

Paragraph (a) requires an employer 

and its attorney and/or agent to provide 

DOL a copy of all agreements with any 

agent or recruiter that it engages or 

plans to engage in the recruitment of 

prospective H–2B workers, regardless 

whether the agent or recruiter is located 

in the U.S. or abroad. The written 

contract must contain the contractual 

prohibition on charging fees, as set forth 

in § 655.20(p). At the time of collection, 

DOL will review the agreements to 

obtain the names of the foreign labor 

recruiters (for purposes of maintaining a 

public list, as described below), and to 

verify that these agreements include the 

required contractual prohibition against 

charging fees. DOL may also further 

review the agreements in the course of 

an investigation or other integrity 

measure. Certification of an employer’s 

application that includes such a 

submitted agreement, however, does not 

indicate general approval of the 

agreement or the terms therein. Where 

the contract is not in English and the 

required contractual prohibition is not 

readily discernible, DOL reserves the 

right to request further information to 

ensure that the contractual prohibition 

is included in the agreement. 

Agreements between the employer and 

the foreign labor recruiter will not be 

made public unless required by law. 

This interim final rule provides for DOL 

to obtain the agreements, but only share 

with the public the identity of the 

recruiters as discussed further below, 

but not the full agreements. 

Paragraph (b) requires an employer 

and its attorney or agent, as applicable, 

to disclose to DOL the identity (name) 

and geographic location of persons and 

entities hired by or working for the 

foreign labor recruiter and any of the 

agents or employees of those persons 

and entities who will recruit or solicit 

prospective H–2B workers for the job 

opportunities offered by the employer. 

We interpret the term ‘‘working for’’ to 

encompass any persons or entities 

engaged in recruiting prospective 

foreign workers for the H–2B job 

opportunities offered by the employer, 

whether they are hired directly by the 

primary recruiter or are working 

indirectly for that recruiter downstream 

in the recruitment chain. This 

requirement encompasses all 

agreements, whether written or verbal, 

involving the whole recruitment chain 

that brings an H–2B worker to the 

employer’s certified H–2B job 

opportunity in the United States. 

Employers, and their attorneys or 

agents, as applicable, are expected to 

provide these names and geographic 

locations to the best of their knowledge 

at the time the application is filed. DOL 

expects that, as a normal business 

practice, when completing the written 

agreement with the primary recruiting 

agent or recruiter, the employer/

attorney/agent will ask whom the 

recruiter plans to use to recruit workers 

in foreign countries, and whether those 

persons or entities plan to hire other 

persons or entities to conduct such 

recruitment, throughout the recruitment 

chain. 

Paragraph (c) provides for DOL’s 

public disclosure of the names of the 

agents and foreign labor recruiters used 

by employers, as well as the identities 

and locations of all the persons or 

entities hired by or working for the 

primary recruiter in the recruitment of 

prospective H–2B workers, and the 

agents or employees of these entities. 

Determining the identity and location of 

persons hired by or working for the 

recruiter or its agent to recruit or solicit 

prospective H–2B workers—effectively 

acting as sub-recruiters, sub-agents, or 

sub-contractors—serves several 

purposes. It bolsters program integrity 

by aiding in the enforcement of certain 

regulatory provisions. This provision 

will also bring a greater level of 

transparency to the H–2B worker 

recruitment process. By maintaining 

and making public a list of agents and 

recruiters, DOL will be in a better 

position to enforce recruitment 

violations, and workers will be better 

protected against fraudulent recruiting 

schemes because they will be able to 

verify whether a recruiter is in fact 

recruiting for legitimate H–2B job 

opportunities in the United States. As 

the Government Accountability Office 

(GAO) explained in a recent report, 

‘‘[w]ithout accurate, accessible 

information about employers, recruiters, 

and jobs during the recruitment process, 

potential foreign workers are unable to 

effectively evaluate the existence and 

nature of specific jobs or the legitimate 

parties contracted to recruit for 

employers, potentially making them 

more vulnerable to abuse.’’ H–2A and 

H–2B Visa Programs: Increased 

Protections Needed for Foreign Workers, 

GAO–15–154 (Mar. 2015). A list of 

foreign labor recruiters will facilitate 

information sharing between the 

Departments and the public, and assist 

us, other agencies, workers, and 

community and worker advocates to 

better understand the roles of recruiters 

and their agents in the recruitment 

chain and permit a closer examination 

of applications or certifications 

involving recruiters who may be 

engaged in improper behavior. 

Information about the identity of the 

international and domestic recruiters of 

foreign labor will also assist DOL in 

more appropriately directing its audits 

and investigations. Strengthening 

enforcement of recruitment abuses also 

ensures that employers who comply 

with the H–2B program requirements 

are not undercut by unscrupulous 

employers, such as those who pass 

recruitment fees on to workers. 

B. Prefiling Procedures 

1. § 655.10 Prevailing Wage 

The interim final rule requires 

employers to request PWDs from the 

NPWC before posting their job orders 

with the SWA. The PWD must be valid 

on the day the job orders are posted. We 

encourage employers to continue to 

request a PWD in the H–2B program at 

least 60 days before the date the 

determination is needed. Under the 

companion H–2B final wage rule, issued 

simultaneously with this interim final 

rule, employer-provided surveys may 

not be used to set the prevailing wage 

except in limited circumstances. 

Paragraph (g) provides that if OFLC 

determines that an employer-provided 

survey is not acceptable, it will inform 

the employer in writing of the reasons 

the survey is being rejected. Employers 

may request review of this 

determination through the appeal 

process in § 655.13 of this interim final 

rule. Unlike the 2008 rule, this interim 

final rule does not allow an employer to 

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14 DHS is the final arbiter in terms of determining 

temporary need. See 8 CFR 214.2(h)(6)(iii)(A) 

(stating that a temporary labor certification 

constitutes advice to DHS as to the availability of 

qualified U.S. workers and as to any adverse effect 

hiring an alien worker may have on the wages and 

working conditions of similarly employed U.S. 

workers). 

request a redetermination of the 

rejection of an employer-provided 

survey from the certifying officer (CO), 

but may request review by the NPWC 

Director as specified in § 655.13. DOL 

has determined that the 2008 

procedures, which allowed an employer 

to request redetermination from the CO 

before appeal to the NPWC Director, 

were unnecessarily burdensome and 

that streamlining this process will allow 

for more expeditious resolution of 

prevailing wage requests. 

2. § 655.11 Registration of H–2B 

Employers 

The interim final rule bifurcates the 

current application process into a 

registration phase, which addresses the 

employer’s temporary need, and an 

application phase, which addresses the 

labor market test. This provision 

requires employers to submit an H–2B 

Registration and receive an approval 

before submitting an Application for 

Temporary Employment Certification 

and conducting the U.S. labor market 

test. 

Paragraph (a) requires employers to 

file an H–2B Registration, which must 

be accompanied by documentation 

showing: The number of positions the 

employer desires to fill in the first year 

of registration; the period of time for 

which the employer needs the workers; 

and that the employer’s need for the 

services or labor is non-agricultural, 

temporary and is justified as either a 

one-time occurrence, a seasonal need, a 

peakload need, or an intermittent need, 

as described in 8 CFR 214.2(h)(6)(ii)(B) 

and § 655.6 of this interim final rule. 

The Departments have found that 

evaluating temporary need is a factintensive process which, in many cases, 

can take a considerable amount of time 

to resolve. DOL has a longstanding 

practice of evaluating temporary need as 

an integral part of the adjudication of 

the Application for Temporary 

Employment Certification; the 

bifurcation of the application process 

into a registration phase and a labor 

market test phase shifts the timing of, 

but does not change the nature of, DOL’s 

review. See Matter of Golden Dragon 

Chinese Rest., 19 I. & N. Dec. 238, 239 

(Comm’r 1984). Separating the two 

processes will give OFLC the time to 

make a considered decision about 

temporary need without negatively 

impacting an employer’s ability to have 

the workers it needs in place in a timely 

manner. In addition, we anticipate that 

many employers, with 3 years of 

registration validity, will benefit from a 

one-step process involving only the 

labor market test in their second and 

third years after registration, which will 

allow DOL to process these applications 

more efficiently. We conclude that 

enforcement alone cannot ensure 

program integrity; in the move from an 

attestation-based model to a 

compliance-based model, the 

bifurcation of application processing 

into registration and labor market test 

phases contributes to program integrity. 

Job contractors also must register, and 

provide documentation that establishes 

their temporary seasonal need or onetime occurrence during the registration 

process. Although a job contractor must 

file an Application for Temporary 

Employment Certification jointly with 

its employer-client, in accordance with 

§ 655.19, a job contractor and its 

employer-client must each file a 

separate H–2B Registration. Paragraph 

(b) requires the employer and, as 

applicable, its agent and/or attorney, to 

sign the H–2B Registration. 

Paragraph (c) requires employers to 

file an H–2B Registration no less than 

120 and no more than 150 calendar days 

before the date of initial need for H–2B 

workers, except where the employer 

submits the H–2B Registration in 

support of an emergency filing, 

discussed further below with reference 

to paragraph (j). The registration 

window (i.e., 120 to 150 days before the 

employer’s anticipated date of need) 

provides enough time for processing the 

registration before an employer may 

submit an Application for Temporary 

Employment Certification (i.e., 75 to 90 

days before the employer’s anticipated 

date of need) to assure that the 

adjudication of the Application for 

Temporary Employment Certification 

will not be delayed. In addition, many 

employers will not have to repeat the 

registration process with respect to the 

following 2 years. The registration 

timeframe also reflects the 

understanding that some employers may 

have difficulty accurately predicting 

their need more than 5 months in 

advance. The registration window seeks 

to balance both processing time and 

accuracy concerns. We anticipate an 

employer’s overall processing time to 

decrease significantly when the 

bifurcated process goes into effect. 

Paragraph (d) states that the assertion 

of temporary need will be evaluated 

based on standards established by DHS 

in 8 CFR 214.2(h)(6)(ii).14 The NPC will 

review the registration under the 

standards set in paragraph (e) of 

§ 655.11. Paragraph (f) of this provision 

establishes mailing and postmark 

requirements. 

Paragraph (g) authorizes the CO to 

issue one or more Requests for Further 

Information (RFIs) before issuing a 

Notice of Decision on the H–2B 

Registration if the CO determines that 

he or she could not approve the H–2B 

Registration for various reasons, 

including, but not limited to: An 

incomplete or inaccurate ETA Form 

9155; a job classification and duties that 

do not qualify as non-agricultural; the 

failure to demonstrate temporary need; 

and/or positions that do not constitute 

bona fide job opportunities. In addition, 

DOL will perform the initial business 

existence verification and, if questions 

arise, will request additional 

documentation of bona fide existence 

through the RFI process. 

Paragraph (h) provides that, if 

approved, the registration would be 

valid for a period of up to 3 years, 

absent a significant change in 

conditions, enabling an employer to 

begin the application process at the 

second phase without having to reestablish temporary need for the second 

and third years of registration. This 

provision grants the CO the necessary 

discretion to approve a registration for 

a period up to 3 consecutive years, 

taking into consideration the standard of 

need and any other factors in the 

registration. If the H–2B Registration is 

denied, the CO will send a Notice of 

Decision stating the reason(s) for the 

denial and providing an opportunity for 

administrative review within 10 days of 

the denial. 

Paragraph (i) requires all employers 

that file an H–2B Registration to retain 

any documents and records not 

otherwise submitted proving 

compliance with this subpart for a 

period of 3 years from the date of 

certification of the last Application for 

Temporary Employment Certification 

supported by the H–2B Registration, if 

approved, or 3 years from the date the 

decision is issued if the H–2B 

Registration is denied or withdrawn. We 

have included corresponding § 655.56 

that sets out all document retention 

obligations for H–2B employers. 

Paragraph (j) adds a provision to 

allow for the transition to the 

registration process through a future 

announcement in the Federal Register, 

until which time the CO will adjudicate 

temporary need through the application 

process. 

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3. § 655.12 Use of Registration by H– 

2B Employers 

Under this provision, an employer 

may file an Application for Temporary 

Employment Certification upon 

approval of its H–2B Registration, and 

for the duration of the registration’s 

validity period, which may be up to 3 

consecutive years from the date of 

issuance, provided that the employer’s 

need for workers has not changed. The 

employer will be required to file a new 

H–2B Registration if the employer’s 

need for workers increases by more than 

20 percent (or 50 percent for employers 

requesting fewer than 10 workers); if the 

dates of need of the job opportunity 

have changed by more than a total of 30 

calendar days from the initial year for 

the entire period of need; if the nature 

of the job classification and/or duties 

materially changed; and/or if the 

temporary nature of the employer’s need 

for services or labor materially changed. 

We conclude that material changes in 

the job classification or job duties, 

material changes in the nature of the 

employer’s temporary need, or changes 

in the number of workers needed greater 

than the specified levels, from one year 

to the next, merit a fresh review through 

re-registration. We note that the 

tolerance level for the number of 

workers requested for the registration 

process (i.e., 20 percent (or 50 percent 

for employers requesting fewer than 10 

workers)) is the same as the tolerance 

level in the 2008 rule, the current H–2A 

regulation, and § 655.35 of this interim 

final rule, which pertains to 

amendments to an Application for 

Temporary Employment Certification 

before certification. Under the interim 

final rule, an H–2B Registration is nontransferrable. 

4. § 655.13 Review of Prevailing Wage 

Determinations 

The interim final rule alters the 

process from the 2008 rule for the 

review of PWDs to improve clarity and 

consistency. Specifically, the provision 

reduces the number of days within 

which the employer must request 

review of a PWD by the NPWC Director 

from 10 calendar days in the 2008 rule 

to 7 business days from the date of the 

PWD in this interim final rule. In 

addition, the NPWC Director will 

review determinations, and the 

employer has 10 business days from the 

date of the NPWC Director’s final 

determination within which to request 

review by the BALCA. 

C. Application for Temporary 

Employment Certification Filing 

Procedures 

1. § 655.15 Application Filing 

Requirements 

Under the interim final rule, we have 

returned to a post-filing recruitment 

model in order to develop more robust 

recruitment and to ensure better and 

more complete compliance by H–2B 

employers with program requirements. 

DOL’s experience in administering the 

H–2B program since the implementation 

of the 2008 rule suggests that the lack 

of agency oversight during the pre-filing 

recruitment process has resulted in 

failures to comply with program 

requirements. We conclude that the 

recruitment model adopted in this 

interim final rule will enhance 

coordination between OFLC and the 

SWAs, better serve the public by 

providing U.S. workers more access to 

available job opportunities, and assist 

employers in obtaining the workers that 

they require in a timelier manner. This 

provision requires all employers to first 

obtain a prevailing wage determination 

under § 655.10 and register under the 

procedures set out in § 655.11, unless 

requirements under §§ 655.4 or 655.17 

are met. 

Paragraph (a) requires a registered 

employer to file the Application for 

Temporary Employment Certification, 

together with copies of all contracts and 

agreements with any agent and/or 

recruiter executed in connection with 

the job opportunities, and a copy of the 

job order with the Chicago NPC at the 

same time it files the job order with the 

SWA. DOL understands that there are 

circumstances in which the job order 

has yet to be created and posted by the 

SWA, so DOL will require a document 

that outlines the details of the 

employer’s job opportunity where a 

copy of the official job order from the 

SWA’s job order system is not yet 

available; DOL expects the employer to 

provide the Chicago NPC with an exact 

copy of the draft the employer provides 

to the SWA for the creation of the SWA 

job order. The process relies on the 

SWAs’ significant knowledge of the 

local labor market and job requirements. 

The resulting job order will provide 

accurate, program compliant 

notification of the job opportunity to 

U.S. workers. In addition, requiring the 

employer to simultaneously file the job 

order with the Chicago NPC and the 

SWA will enhance coordination 

between the agencies, resulting in 

increased U.S. worker access to job 

opportunities as well as helping 

employers locate qualified and available 

U.S. workers. The employer is required 

to also submit to the NPC any 

information required under §§ 655.8 and 

655.9 (including the identity and 

location of persons and entities hired by 

or working with the recruiter or agent or 

employee of the recruiter to recruit 

prospective foreign workers for the H– 

2B job opportunities). Under Paragraph 

(b), the employer must submit this filing 

no more than 90 days and no fewer than 

75 days before its date of need. 

Paragraph (c) permits the employer or 

its authorized attorney or agent to file 

electronically H–2B temporary 

employment certification applications 

under the H–2B visa category through 

the iCERT System (http://

icert.doleta.gov). An employer or its 

authorized attorney or agent electing not 

to use the electronic filing capability 

must file their H–2B temporary 

employment certification applications 

directly with the Chicago NPC using the 

traditional paper-based filing method. 

Data from mailed-in H–2B temporary 

employment certification applications 

will be entered into the iCERT System’s 

internal case management system by the 

Chicago NPC and processed in a similar 

manner as those filed electronically. 

Paragraph (d) requires the employer 

and, as applicable, its attorney and/or 

agent, to sign the Application for 

Temporary Employment Certification. 

When filing an H–2B temporary 

employment certification application 

electronically, the iCERT System 

account holder must upload a signed 

and dated copy of the Appendix B 

associated with the H–2B temporary 

employment certification application 

containing the requisite program 

assurances and obligations under this 

interim final rule. In the case of a job 

contractor filing as a joint employer 

with its employer-client, a separate 

attachment containing the employerclient’s business and contact 

information (i.e., Sections C and D of the 

ETA Form 9142B) and a separate signed 

and dated copy of the Appendix B and 

H–2B Registration for the employerclient must be uploaded prior to 

electronically submitting the H–2B 

temporary employment certification 

application, as required by 20 CFR 

655.19. For electronic filing only, an H– 

2B temporary employment certification 

application bearing original signatures 

will no longer be required by the 

Chicago NPC at the time of filing, 

because a copy of the signed and dated 

Appendix B will be uploaded directly 

into the iCERT System and the original 

Appendix B will be retained by the 

employer, as required by 20 CFR 655.56. 

In addition to the H–2B temporary 

employment certification application, 

the regulations require an employer to 

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15The official attestation is available in PDFformat on OFLC’s Web site at http://www.foreign

laborcert.doleta.gov/form.cfm. The attestation was 

developed as a result of Congress’s original and 

temporary enactment of legislation permitting 

seafood industry employers to stagger the entry of 

their H–2B workers into the U.S. under section 113 

of the Consolidated Appropriations Act, 2014, 

Public Law 113–76, 128 Stat. 5 (Jan. 17, 2014). 

submit all supporting documentation at 

the time of filing. When filing an H–2B 

temporary employment certification 

application electronically, the iCERT 

System account holder must upload, 

prior to submission of the application 

and in an electronic format acceptable 

to the iCERT System, all required 

supporting documentation that would 

normally be sent to the Chicago NPC by 

U.S. mail, because the system will not 

permit documents to be uploaded once 

the H–2B temporary employment 

certification application has been 

submitted for processing. An employer 

who elects to file H–2B temporary 

employment certification applications 

by U.S. mail must submit all required 

documentation in hard copy to the 

Chicago NPC. To avoid any processing 

delays, the iCERT account holder is 

strongly encouraged to preview and 

check the H–2B temporary employment 

certification application and all 

uploaded documents for completeness 

and accuracy before submitting the 

application electronically. Any 

supporting documentation required 

after the H–2B temporary employment 

certification application is filed will be 

requested by the Chicago NPC and must 

be filed by U.S. mail, electronic mail or 

facsimile, even if the application itself 

was submitted electronically. 

Where a temporary labor certification 

is granted, the Chicago NPC will send 

the approved H–2B temporary 

employment certification application 

and a Final Determination letter to the 

employer by means normally assuring 

next day delivery, including electronic 

mail, and a copy, if applicable, to the 

employer’s attorney or agent. For all H– 

2B temporary employment certification 

applications granted under this interim 

final rule, whether filed electronically 

or mailed, the employer will receive 

from the Chicago NPC an original 

certified ETA Form 9142B, but not an 

Appendix B, issued on security 

certification paper. A certified ETA 

Form 9142B is valid when it contains a 

completed Section K bearing the 

electronic signature of the OFLC 

Administrator, and a completed ‘‘For 

Department of Labor Use Only’’ footer 

on each page identifying the case 

number, case status, and validity period. 

Upon receipt of the original certified 

ETA Form 9142B, the employer or its 

agent or attorney, if applicable, must 

complete the footer on the original 

Appendix B, retain the original 

Appendix B, and submit a signed copy 

of Appendix B, together with the 

original certified ETA Form 9142B 

directly to USCIS. Under the document 

retention requirements in § 655.56, the 

employer must retain a copy of the 

temporary labor certification and the 

original signed Appendix B. 

Paragraph (f) requires that, with one 

exception discussed below applicable to 

employers in the seafood industry, 

employers file separate applications 

when there are different dates of need 

for the same job opportunity or different 

worksites within an area of intended 

employment. Employers must 

accurately identify their personnel 

needs and, for each period within their 

season for which they have more than 

one date of need, file a separate 

application for each separate date of 

need. An application with an accurate 

date of need will be more likely to 

attract qualified U.S. workers to fill 

those open positions, especially when 

the employer conducts recruitment 

closer to the actual date of need. This 

prohibition against staggered entries 

based on a single date of need is 

intended to require that employers 

provide U.S. workers the maximum 

opportunity to consider the job 

opportunity and is consistent with 

USCIS policies. It is intended to provide 

that U.S. workers are not treated less 

favorably than H–2B workers who, for 

example, may be permitted to report for 

duty 6 weeks after the stated date of 

need. 

The interim final rule, at § 655.15(f), 

permits only employers in the seafood 

industry to stagger the entry of their 

otherwise admissible H–2B 

nonimmigrants into the United States 

under certain circumstances. Under 

section 108 of the Consolidated and 

Further Continuing Appropriations Act, 

2015 (the ‘‘2015 Appropriations Act’’), 

Public Law 113–235, 128 Stat. 2130, 

2464, permits staggered entry of H–2B 

nonimmigrants employed by employers 

in the seafood industry under certain 

conditions. The Departments have 

determined that this legislation 

constitutes a permanent enactment, and 

so we have incorporated the 

requirements into this interim final rule. 

Under the 2015 Appropriations Act 

and § 655.15(f), employers in the 

seafood industry may bring into the 

United States, in accordance with an 

approved H–2B petition, nonimmigrant 

workers at any time during the 120-day 

period on or after the employer’s 

certified start date of need if certain 

conditions are met. No additional 

information or documentation related to 

this provision should be submitted with 

an H–2B temporary employment 

certification application to the Chicago 

NPC. However, as discussed below, in 

order for employers to use this 

provision, H–2B nonimmigrant workers 

must show to the Department of State’s 

consular officers and to the DHS’s U.S. 

Customs and Border Protection officers, 

as necessary, the employer’s attestation 

that the conditions set forth in the 

statute and regulation have been met. 

The statute and regulation contain 

two primary conditions that employers 

must meet in order to benefit from this 

exception. First, this rule applies only to 

employers engaged in a business in the 

seafood industry. We have added to 

§ 655.5 a definition of ‘‘seafood,’’ which 

is defined as fresh or saltwater finfish, 

crustaceans, other forms of aquatic 

animal life, including, but not limited 

to, alligator, frog, aquatic turtle, 

jellyfish, sea cucumber, and sea urchin 

and the roe of such animals, and all 

mollusks. Second, any seafood industry 

employer that permits or requires its H– 

2B nonimmigrant workers to enter the 

United States between 90 and 120 days 

after the certified start date of need must 

complete a new assessment of the local 

labor market during the period that 

begins at least 45 days after the certified 

start date of need and ends before the 

90th day after the certified start date of 

need, which must include: (A) Listing 

the job in local newspapers on two 

separate Sundays; (B) placing new job 

orders for the job opportunity with the 

SWA serving the area of intended 

employment and posting the job 

opportunity at the place of employment 

for at least 10 days; and (C) offering the 

job to any equally or better qualified 

U.S. worker who applies for the job and 

who will be available at the time and 

place of need. Seafood industry 

employers who conduct the required 

additional recruitment should not 

submit proof of the additional 

recruitment to OFLC. However, seafood 

industry employers must retain the 

additional recruitment documentation, 

together with their pre-filing 

recruitment documentation, for a period 

of 3 years from the date of certification, 

consistent with the document retention 

requirements under § 655.56. 

In order to comply with this 

provision, a seafood industry employer 

must prepare a written, signed 

attestation indicating its compliance 

with the conditions outlined above.15

Employers must download the official 

attestation, review the conditions 

contained in the attestation, and 

indicate compliance by signing and 

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Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 24061 

dating the attestation. An employer 

seeking to use this statutory and 

regulatory provision must provide each 

H–2B nonimmigrant worker seeking 

entry into the United States a copy of 

the signed and dated attestation, with 

instructions that the worker must 

present the documentation upon request 

to the Department of State’s consular 

officers when they apply for an H–2B 

visa, and/or DHS’s U.S. Customs and 

Border Protection officers when seeking 

entry into the United States. Without 

this attestation, an H–2B nonimmigrant 

may be denied admission to the United 

States if seeking to enter at any time 

other than the designated 20-day period 

(10 days before and after the start date) 

surrounding the start date stated in the 

petition. (The attestation is not 

necessary when filing an amended 

petition based on a worker that is being 

substituted under 8 CFR 

214.2(h)(6)(viii)). The attestation 

presented by an H–2B nonimmigrant 

worker in order to be admitted to the 

United States in H–2B status must be 

the official attestation downloaded from 

OFLC’s Web site and may not be altered 

or revised in any manner. 

2. § 655.16 Filing of the Job Order at 

the SWA 

The interim final rule requires the 

employer to submit its job order directly 

to the SWA at the same time it files the 

Application for Temporary Employment 

Certification and a copy of the job order 

with the Chicago NPC, no more than 90 

calendar days and no fewer than 75 

calendar days before the employer’s 

date of need. As discussed above, we are 

continuing to rely on the SWAs’ 

experience with the local labor market, 

job requirements, and prevailing 

practices by requiring the SWA to 

review the contents of the job order for 

compliance with § 655.18 and to notify 

the CO of any deficiencies within 6 

business days of the SWA’s receipt of 

the job order. By requiring such 

concurrent filing and review, the CO 

can use the knowledge of the SWA, in 

addition to its own review, in a single 

Notice of Deficiency before the 

employer conducts its recruitment. 

SWAs can continue to rely on foreign 

labor certification grant funding to 

support those functions. We conclude 

that this continued cooperative 

relationship between the CO and the 

SWA will ensure greater program 

integrity and efficiency. 

Under paragraph (c), the SWAs must 

circulate the job order in intrastate 

clearance, and in interstate clearance by 

providing a copy of the job order to 

other states as directed by the CO. 

Intrastate clearance refers to placement 

of the job order within the SWA labor 

exchange services system of the State to 

which the employer submitted the job 

order and to which the NPC sent the 

Notice of Acceptance, and interstate 

clearance refers to circulation of the job 

order to SWAs in other States, including 

those with jurisdiction over listed 

worksites and those the CO designates, 

for placement in their labor exchange 

services systems. We note that, under 

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

in the Notice of Acceptance to circulate 

the job order in the course of interstate 

clearance, ensuring that the employer is 

also aware of the job order’s exposure in 

the SWAs’ labor exchange services 

systems. 

Posting the job order in the SWA 

labor exchange system is but one of the 

recruitment requirements contained in 

the interim final rule, which together 

are designed to ensure maximum job 

opportunity exposure for U.S. workers 

during the recruitment period. Also, in 

most cases, the job order will be posted 

for at least 54 days, since the interim 

final rule requires the employer to file 

its application no more than 90 calendar 

days and no less than 75 calendar days 

before its date of need and the SWA to 

post the job order upon receipt of the 

Notice of Acceptance and to keep the 

job order posted until 21 days before the 

date of need, as discussed in the 

preamble to § 655.20(t). 

3. § 655.17 Emergency Situations 

The interim final rule permits an 

employer to file an H–2B Registration 

fewer than 120 days before the date of 

need, and/or an Application for 

Temporary Employment Certification 

with the job order fewer than 75 days 

before the date of need, where an 

employer has good and substantial 

cause and there is enough time for the 

employer to undertake an adequate test 

of the labor market. This emergency 

provision permits an employer to file 

fewer than 75 days before the start date 

of need, but does not expand the earliest 

date an employer is eligible to submit an 

H–2B Registration or Application for 

Temporary Employment Certification. 

This provision represents a change from 

the 2008 rule, which did not allow for 

emergency filings, and affords 

employers flexibility while maintaining 

the integrity of the application and 

recruitment processes. 

To rely on this provision, the 

employer must provide the CO with 

detailed information describing the 

‘‘good and substantial cause’’ 

necessitating the waiver. Such cause 

may include the substantial loss of U.S. 

workers due to Acts of God, or a similar 

unforeseeable human-made catastrophic 

event that is wholly outside the 

employer’s control, unforeseeable 

changes in market conditions, or 

pandemic health issues. The CO’s 

denial of an H–2B Registration in 

accordance with the procedures under 

§ 655.11 does not, standing alone, 

constitute good and substantial cause 

for a waiver request. 

In processing an emergency H–2B 

Registration or Application for 

Temporary Employment Certification 

and job order, the CO will review the 

submissions in a manner consistent 

with this subpart and make a 

determination in accordance with 

§ 655.50. If the CO grants the waiver 

request, the CO will forward a Notice of 

Acceptance and the approved job order 

to the SWA serving the area of intended 

employment identified by the employer 

in the job order. If the CO determines 

that the certification cannot be granted 

because, under paragraph (a) of this 

section, the request for emergency filing 

is not justified and/or there is not 

sufficient time to make a determination 

of temporary need or ensure compliance 

with the criteria for certification 

contained in § 655.51, the CO will send 

a Final Determination letter to the 

employer in accordance with § 655.53. 

As discussed earlier, for purposes of 

simultaneous filing, we use the term 

‘‘job order’’ in this provision, when the 

job order has yet to be created and 

posted by the SWA. As a result, the 

employer must submit a draft document 

outlining the details of the employer’s 

job opportunity simultaneously with the 

Application for Temporary Employment 

Certification, not the official job order. 

Under the interim final rule, an H–2B 

Registration and/or Application for 

Temporary Employment Certification 

processed under the emergency 

situation provision is subject to the 

same recruitment activities, audit 

processes, and enforcement mechanisms 

as a non-emergency H–2B Registration 

and/or Application for Temporary 

Employment Certification. However, 

DOL intends to subject emergency 

applications to a higher level of scrutiny 

than non-emergency applications in 

order to make certain that the provision 

is not subject to abuse. The regulation 

gives the CO the discretion not to accept 

the emergency filing if the CO 

concludes there is insufficient time to 

thoroughly test the U.S. labor market 

and make a final determination. 

Moreover, under § 655.46, the CO has 

the discretion to instruct an employer to 

conduct additional recruitment. The CO 

will adjudicate the foreseeability of the 

emergency based on the precise 

circumstances of each situation 

presented. The burden of proof is on the 

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24062 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

16 General Administration Letter 1–95, 

Procedures for H–2B Temporary Labor Certification 

in Nonagricultural Occupations (Dec. 31, 1995). 

employer to demonstrate the 

unforeseeability leading to a request for 

a filing on an emergency basis. 

4. § 655.18 Job Order Assurances and 

Contents 

The job order is essential for U.S. 

workers to make informed employment 

decisions. It must include not only 

standard information about the job 

opportunity, but also several key 

assurances and obligations to which the 

employer is committing by filing an 

Application for Temporary Employment 

Certification for H–2B workers and to 

which U.S. workers are also entitled. 

The job order must also be provided to 

H–2B workers with its pertinent terms 

in a language the worker understands, 

as required in § 655.20(l) of this interim 

final rule. 

Assurances 

There are two overarching assurances 

in § 655.18(a) with which the employer 

agrees to comply by filing an 

Application for Temporary Employment 

Certification. These assurances, which 

pertain to the prohibition against 

preferential treatment and bona fide job 

requirements, need not be included in 

the job order verbatim; rather, they are 

applicable to each job order insofar as 

they apply to each listed term and 

condition of employment. 

a. Prohibition against preferential 

treatment, § 655.18(a)(1). Similar to the 

requirements under § 655.22(a) of the 

2008 rule, and as described under 

§ 655.20(q) of this interim final rule, the 

employer must provide to U.S. workers 

at least the same benefits, wages, and 

working conditions that are being or 

will be offered or provided to H–2B 

workers. The purpose of § 655.18(a)(1) is 

to protect U.S. workers by ensuring that 

employers do not understate wages and/ 

or benefits in an attempt to discourage 

U.S. applicants or to provide 

preferential treatment to temporary 

foreign workers. Employers are required 

to offer and provide H–2B workers at 

least the minimum wages and benefits 

outlined in these regulations. So long as 

the employer offers U.S. workers at least 

the same level of benefits, wages, and 

working conditions as will be provided 

to the H–2B workers, the employer will 

be in compliance with this provision. 

Section 655.18(a)(1) does not preclude 

an employer from offering a higher wage 

rate or more generous benefits or 

working conditions to U.S. workers, as 

long as the employer offers to U.S. 

workers all the wages, benefits, and 

working conditions offered to and 

required for H–2B workers pursuant to 

the certified Application for Temporary 

Employment Certification. 

b. Bona fide job requirements, 

§ 655.18(a)(2). The job qualifications 

and requirements listed in the job order 

must be bona fide and consistent with 

the normal and accepted job 

qualifications and requirements of 

employers that do not use H–2B workers 

for the same or comparable occupations 

in the same area of intended 

employment. 

Under DOL’s longstanding policy, job 

qualifications and requirements must be 

customary; i.e., they may not be used to 

discourage applicants from applying for 

the job opportunity. Including 

requirements that do not meet this 

standard would undermine a true test of 

the labor market. The standard for 

employment of H–2B workers is that 

there are no U.S. workers capable and 

available to perform such services or 

labor. For purposes of complying with 

this requirement, the Departments have 

clarified in § 655.20(e) the meaning of 

qualifications and requirements. A 

qualification means a characteristic that 

is necessary to the individual’s ability to 

perform the job in question. Such 

characteristics include but are not 

limited to, the ability to use specific 

equipment or any education or 

experience required for performing a 

certain job task. A requirement, on the 

other hand, means a term or condition 

of employment which a worker is 

required to accept to obtain or retain the 

job opportunity, e.g., the willingness to 

complete the full period of employment 

or commute to and from the worksite. 

This interpretation is consistent with 

program history, primarily under the 

General Administration Letter 1–95,16

where the State Employment Security 

Agencies (now SWAs) were specifically 

directed to reject any restrictive job 

requirements. To the extent an employer 

has requirements that are related to the 

U.S. workers’ qualifications or 

availability, DOL will examine those in 

consultation with the SWAs to 

determine whether they are normal and 

accepted. For example, the Departments 

recognize that background checks are 

used in private industry and it is not our 

intent to preclude the employer from 

conducting such checks to the extent 

that the requirement is a bona fide, 

normal and accepted requirement 

applied by non-H–2B employers for the 

occupation in the area of employment, 

and the employer applies the same 

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

However, where such job requirements 

are included in the recruitment 

materials, DOL reserves the right to 

inquire further as to whether such 

requirements are normal and accepted 

by non-H–2B employers and by what 

methods the employer will administer 

and evaluate such requirements. 

Contents 

In addition to complying with the 

assurances in paragraph (a) of this 

section, § 655.18(b) requires that the 

employer include at a minimum the 

following contents in the job order. 

a. Benefits, wages and working 

conditions, § 655.18(b)(2), (5), (6), (9). 

Employers must list the following 

benefits, wages, and working conditions 

in the job order: The rate of pay, 

frequency of pay, the availability of 

overtime, and that the job opportunity 

concerns a full-time position. These 

disclosures are critical to any 

applicant’s decision to apply for and 

accept the job opportunity. 

b. Board, lodging, or facilities, 

§ 655.18(b)(10). If an employer provides 

the worker with the option of board, 

lodging, or other facilities, including 

fringe benefits, or intends to assist 

workers to secure such lodging, this 

must be listed in the job order along 

with any wage deductions related to 

such provision of board, lodging or 

other facilities. Assisting workers to 

secure lodging consists of more than an 

employer’s simple provision of 

information, such as providing workers 

coming from remote locations with a list 

of facilities providing short-term leases, 

or a list of extended-stay motels. 

Assistance could be reserving a block of 

rooms for employees and negotiating a 

discounted rate on the workers’ behalf, 

or arranging to have housing provided at 

a subsidized cost for employees. Any 

such assistance may make it more 

feasible for a U.S. worker from outside 

the area of intended employment to 

accept the job, and therefore it should 

be included in the job order. 

The Departments note that the 

concept of ‘‘facilities’’ is defined in 29 

CFR 531.32, which has been construed 

and enforced by DOL for several 

decades. The Departments have 

concluded that it is beneficial for 

workers, employers, agents, and the 

WHD to ground enforcement of H–2B 

program obligations in DOL’s decades of 

experience enforcing the Fair Labor 

Standards Act (FLSA), and the decades 

of court decisions interpreting the 

regulatory language we are adopting in 

these regulations. Therefore, the 

Departments note throughout this 

preamble where they rely on FLSA 

principles to explain the meaning of the 

requirements of the H–2B program that 

use similar language. 

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Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 24063 

17The workers rights card is available at http:// 

travel.state.gov/content/dam/visas/LegalRightsand

Protections/WilberforcePamphletEnglishDouble

SidedPrinting12-22-2014.pdf. 

DOL’s longstanding position is that 

deductions or costs incurred for 

facilities that are primarily for the 

benefit or convenience of the employer 

will not be recognized as reasonable and 

therefore may not be charged to the 

worker. See 29 CFR 531.3(d)(1). Thus, 

housing that is provided by employers 

with a need for a mobile workforce, 

such as those in the carnival or forestry 

industries where workers are in an area 

for a short period of time, need to be 

available to work immediately, and may 

not be able to procure temporary 

housing easily, is primarily for the 

employer’s benefit and convenience and 

cannot be charged to the workers. 

c. Deductions, § 655.18(b)(11). The job 

order must specify that the employer 

will make all deductions from the 

worker’s paycheck required by law and 

specifically list all deductions not 

required by law that the employer 

intends to make from the worker’s 

paycheck. This includes, if applicable, 

any wage deductions for the reasonable 

cost of board, lodging, or other facilities. 

Any deductions not disclosed in the job 

order are prohibited under § 655.20(c) of 

this interim final rule. 

Under the FLSA, there is no legal 

difference between deducting a cost 

from a worker’s wages and shifting a 

cost to an employee to bear directly. As 

the U.S. Court of Appeals for the 

Eleventh Circuit stated in Arriaga v. 

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

1228, 1236 (11th Cir. 2002): 

An employer may not deduct from 

employee wages the cost of facilities which 

primarily benefit the employer if such 

deductions drive wages below the minimum 

wage. See 29 CFR 531.36(b). This rule cannot 

be avoided by simply requiring employees to 

make such purchases on their own, either in 

advance of or during employment. See id. 

§ 531.35; Ayres v. 127 Rest. Corp., 12 

F.Supp.2d 305, 310 (S.D.N.Y. 1998). 

Consistent with the FLSA and the 

Departments’ obligation to prevent 

adverse effects on U.S. workers by 

protecting the integrity of the H–2B 

offered wage, the offered wage will be 

considered the effective minimum wage 

for H–2B and corresponding U.S. 

workers. 

d. Three-fourths guarantee, 

§ 655.18(b)(17). The employer must list 

in the job order that the employer will 

guarantee to offer employment for a 

total number of work hours equal to at 

least three-fourths of the workdays of 

each 12-week period (or 6-week period 

if the employment covered by the job 

order is less than 120 days) and, if the 

guarantee is not met, the employer will 

pay the worker what the worker would 

have earned if the employer had offered 

the guaranteed number of days, as 

required by § 655.20(f) of this interim 

final rule. 

e. Transportation and visa fees, 

§ 655.18(b)(12)–(15). The employer must 

detail in the job order how the worker 

will be provided with or reimbursed for 

inbound transportation and subsistence 

costs if the worker completes 50 percent 

of the period of employment covered by 

the job order, consistent with 

§ 655.20(j)(1)(i) of this interim final rule. 

The employer must also state that it will 

provide or pay for the worker’s 

outbound transportation and 

subsistence if the worker completes the 

job order period or is dismissed early, 

consistent with § 655.20(j)(1)(ii) of this 

interim final rule. The employer must 

also disclose that it will provide or 

reimburse inbound and outbound 

transportation and daily subsistence 

costs for corresponding U.S. workers 

who are not reasonably able to return to 

their residence within the same 

workday. Finally, employers are 

required to disclose in the job order that 

they will provide daily transportation to 

the worksite, if they intend to do so, and 

that the employer will reimburse H–2B 

workers for visa and related fees in the 

first workweek. 

f. Employer-provided items, 

§ 655.18(b)(16). The job order must 

disclose that the employer will provide 

workers with all tools, supplies, and 

equipment needed to perform the job at 

no cost to the employee. This provision 

gives workers additional protection 

against improper deductions from wages 

for items that primarily benefit the 

employer, and assures workers that they 

will not be required to pay for items 

necessary to perform the job. 

The Departments note that section 

3(m) of the FLSA and DOL regulations 

at 20 CFR part 531 prohibit deductions 

that are primarily for the benefit of the 

employer that bring a worker’s wage 

below the applicable minimum wage, 

including deductions for tools, supplies, 

or equipment that are incidental to 

carrying out the employer’s business. 

Consistent with the FLSA, § 655.22(g)(1) 

in the 2008 rule (which required all 

deductions to be reasonable), and the 

Departments’ obligation to prevent 

adverse effects on U.S. workers, this 

interim final rule similarly protects the 

integrity of the H–2B offered wage by 

treating it as the effective minimum 

wage. Therefore, deductions for items 

such as damaged and lost equipment, 

which are encompassed within 

deductions for equipment needed to 

perform a job, would not be permissible 

where such deductions bring a worker’s 

wage below the offered wage. 

Employers must provide standard 

equipment that allows employees to 

perform their job fully, but they are not 

required to provide, for example, 

equipment such as custom-made skis 

that may be preferred, but not needed 

by, ski instructors. This requirement 

does not prohibit employees from 

electing to use their own equipment, nor 

does it penalize employers whose 

employees voluntarily do so, so long as 

a bona fide offer of adequate, 

appropriate equipment has been made. 

In addition to the provisions 

discussed above, this interim final rule 

requires employers to list in the job 

order the following information that is 

essential for providing U.S. workers 

sufficient information about the job 

opportunity: The employer’s name and 

contact information (§ 655.18(b)(1)); a 

full description of the job opportunity 

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

area of intended employment 

(§ 655.18(b)(4)); if applicable, a 

statement that on-the-job training will 

be provided to the worker 

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

employer will use a single workweek as 

its standard for computing wages due 

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

inquiring about the job opportunity or 

submitting applications, indications of 

availability, and/or resumes to the 

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

last requirement is included to ensure 

that applicants who learn of the job 

opening through the electronic job 

registry are provided with the 

opportunity to contact the SWA for 

more information or referral. 

The Departments believe that the 

information employers are required to 

include in the job order under § 655.18 

of this interim final rule is necessary 

and sufficient to provide the worker 

with adequate information to determine 

whether to accept the job opportunity, 

and notes that the Department of State 

provides all H–2B nonimmigrants with 

a detailed worker rights card at the visa 

application stage.17

Finally, the Departments view the 

terms and conditions of the job order as 

binding. In the event that an employer 

does not provide a copy of the job order 

to workers as required under § 655.20(l) 

of this interim final rule, the terms and 

conditions of the job order nevertheless 

apply. 

5. § 655.19 Job Contractor Filing 

Requirements 

This interim final rule establishes in 

§ 655.6 the limited circumstances under 

which job contractors may continue to 

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24064 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

18See http://www.foreignlaborcert.doleta.gov/faqs

answers.cfm#h2b. 

participate in the H–2B program. DOL 

will no longer accept H–2B temporary 

employment certification applications 

from job contractors if the job 

contractor’s employer-clients are not 

also included on the temporary 

employment certification applications. 

However, both the 2008 rule and this 

interim final rule only permit one H–2B 

temporary employment certification 

application to be filed for worksite(s) 

within one area of intended 

employment for each job opportunity 

with an employer. Accordingly, a job 

contractor and employer-client cannot 

separately file an individual application 

for a single job opportunity. 

Job contractors and their employerclients must file a single application 

when acting as joint employers. Joint 

employment is defined as circumstances 

in which two or more employers each 

have sufficient definitional indicia of 

employment to be considered the 

employer of an employee, in which case 

the employers may be considered to 

jointly employ that employee. An 

employer may be considered a joint 

employer if it has an employment 

relationship with an individual, even if 

the individual may be considered the 

employee of another employer. See 

§ 655.4. DOL has issued guidance on its 

Web site which addresses the 

requirements and procedures for filing 

and processing applications for joint 

employers (which could include job 

contractors and their employer-client(s)) 

under the H–2B program.18

In deciding whether to file as joint 

employers, the job contractor and its 

employer-client should understand that 

employers are considered to jointly 

employ an employee when they each, 

individually, have sufficient 

definitional indicia of employment with 

respect to that employee. As described 

in the definition of employee in § 655.4, 

some factors relevant to the 

determination of employment status 

include, but are not limited to, the 

following: The right to control the 

manner and means by which work is 

accomplished; the skill required to 

perform the work; the source of the 

instrumentalities and tools for 

accomplishing the work; the location of 

the work; discretion over when and how 

long to work; and whether the work is 

part of the regular business of the 

employer or employers. Whenever a job 

contractor and its employer client file 

applications, each employer is 

responsible for compliance with H–2B 

program assurances and obligations. In 

the event a violation is determined to 

have occurred, either or both employers 

can be found to be responsible for 

remedying the violation and attendant 

penalties. 

D. Assurances and Obligations 

1. § 655.20 Assurances and Obligations 

of H–2B Employers 

Section 655.20 of the interim final 

rule, which is similar to § 655.22 of the 

2008 rule, contains the employer 

obligations that WHD will enforce to 

ensure that the employment of H–2B 

workers will not adversely affect the 

wages and working conditions of U.S. 

workers similarly employed. These 

assurances and obligations are 

consistent with, and are intended to 

complement, DHS’s regulations where 

they address similar issues, such as 

transportation and recruitment fees. 

Requiring compliance with the 

following conditions of employment is 

the most effective way to meet this goal. 

As discussed in the preamble to § 655.5, 

workers engaged in corresponding 

employment are entitled to the same 

protections and benefits, set forth 

below, that are provided to H–2B 

workers. 

a. Rate of pay (§ 655.20(a)). Section 

655.20(a)(1), like § 655.22(e) in the 2008 

rule, requires that employers pay the 

offered wage during the entire 

certification period and that the offered 

wage equal or exceed the highest of the 

prevailing wage, the applicable Federal 

minimum wage, the State minimum 

wage, and any local minimum wage. It 

also requires that such wages be paid 

free and clear. See 29 CFR 531.35. If, 

during the course of the period certified 

in the Application for Temporary 

Employment Certification, the Federal, 

State or local minimum wage increases 

to a level higher than the prevailing 

wage certified in the Application, then 

the employer is obligated to pay that 

higher rate for the work performed in 

that jurisdiction where the higher 

minimum wage applies. Section 

655.20(a)(2), similarly to § 655.22(g)(1) 

in the 2008 rule, provides that the wage 

may not be based on commissions, 

bonuses, or other incentives unless the 

employer guarantees the offered wage 

each workweek. 

With respect to productivity 

standards, § 655.20(a)(3) requires the 

employer to demonstrate that any 

productivity standards are normal and 

usual for non-H–2B employers for the 

same occupation in the area of intended 

employment. Unlike in the H–2A 

program, DOL does not conduct 

prevailing practice surveys through the 

SWAs, which would provide such 

information to enable a CO to make this 

decision. If an employer wishes to 

provide productivity standards as a 

condition of job retention, the burden of 

proof rests with that employer to show 

that such productivity standards are 

normal and usual for employers not 

employing H–2B workers in order to 

ensure there is no adverse effect on 

similarly employed U.S. workers. 

Finally, pursuant to § 655.20(a)(4), if 

an employer pays on a piece-rate basis, 

it must demonstrate that the piece rate 

is no less than the normal rate paid by 

non-H–2B employers to workers 

performing the same activity in the area 

of intended employment, and that each 

workweek the average hourly piece rate 

earnings result in an amount at least 

equal to the offered wage (or the 

employer must make up the difference). 

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

Section 655.20(b) requires that wages be 

paid either in cash or negotiable 

instrument payable at par, and that 

payment be made finally and 

unconditionally and free and clear in 

accordance with WHD regulations at 29 

CFR part 531. This assurance clarifies 

the pre-existing obligation for both 

employers and employees to ensure that 

wages are not reduced below the 

required rate. 

c. Deductions (§ 655.20(c)). Section 

655.20(c) ensures payment of the offered 

wage by limiting deductions which 

reduce wages to below the required rate. 

The section limits authorized 

deductions to those required by law, 

made under a court order, that are for 

the reasonable cost or fair value of 

board, lodging, or facilities furnished 

that primarily benefit the employee, or 

that are amounts paid to third parties 

authorized by the employee or a 

collective bargaining agreement. Similar 

to § 655.22(g)(1) of the 2008 rule, this 

section specifically provides that 

deductions not disclosed in the job 

order are prohibited. The section also 

specifies deductions that would never 

be permissible, including: Those for 

costs that are primarily for the benefit of 

the employer; those not specified on the 

job order; kickbacks paid to the 

employer or an employer representative; 

and amounts paid to third parties which 

are unauthorized, unlawful, or from 

which the employer or its foreign labor 

contractor, recruiter, agent, or affiliated 

person benefits to the extent that such 

deductions reduce the actual wage to 

below the required wage. 

This section refers to the FLSA and 29 

CFR part 531 for further guidance. 

Consistent with these and other 

authorities administered by DOL, for 

purposes of § 655.20(c) deductions 

must, among other requirements, be 

truly voluntary, and may not be a 

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Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 24065 

19The scope and substance of DOL regulations in 

this interim final rule relating to permissible 

deductions, prohibited payment of fees by workers, 

and employer transportation obligations, see, e.g., 

new 20 CFR 655.20(c), (j), and (o) (and identical 

provisions in new 29 CFR part 503) reflect DOL 

statutory and regulatory authorities relating to 

worker protections, including under the FLSA; DOL 

H–2B enforcement responsibilities, including 

pursuant to the DHS delegation to DOL under 8 

U.S.C. 1184(c)(14)(B), see also 8 CFR 214.2(h)(6)(ix); 

and DOL investigative capabilities. Similarly, the 

scope and substance of DHS’s separate and 

independent regulations concerning prohibited fees 

and other compensation and transportation 

obligations, see 8 CFR 214.2(h)(6)(i) and (vi)(E), 

reflect USCIS operational realities inherent to the 

H–2B petition adjudication process. 

condition of employment under the 

totality of the circumstances in order to 

be permissible.19 In evaluating whether 

an employee voluntarily authorized an 

otherwise permissible deduction for 

purposes of § 655.20(c), it is important 

to evaluate whether the employee had a 

meaningful choice in light of all the 

facts presented. 

Moreover, for purposes of § 655.20(c), 

a deduction for any cost that is 

primarily for the benefit of the employer 

is never reasonable and therefore never 

permitted under this interim final rule. 

Some examples of costs that DOL has 

long held to be primarily for the benefit 

of the employer are: Tools of the trade 

and other materials and services 

incidental to carrying on the employer’s 

business; the cost of any construction by 

and for the employer; the cost of 

uniforms (whether purchased or rented) 

and of their laundering, where the 

nature of the business requires the 

employee to wear a uniform; and 

transportation charges where such 

transportation is an incident of and 

necessary to the employment. This list 

is not an all-inclusive list of employer 

business expenses. Further, the concept 

of de facto deductions initially 

developed under the FLSA, where 

employees are required to purchase 

items like uniforms or tools that are 

employer business expenses, is equally 

applicable to purchases that bring H–2B 

workers’ wages below the required 

wage, as the payment of the prevailing 

wage is necessary to ensure that the 

employment of foreign workers does not 

adversely affect the wages and working 

conditions of similarly employed U.S. 

workers. To allow deductions for 

business expenses, such as tools of the 

trade, would undercut the prevailing 

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

workers. 

d. Job opportunity is full-time 

(§ 655.20(d)). Section 655.20(d) requires 

that all job opportunities be full-time 

temporary positions, consistent with 

language in § 655.22(h) of the vacated 

2008 rule, and that employers use a 

single workweek as the standard for 

computing wages due. Additionally, 

consistent with the FLSA, this section 

provides that the workweek is a fixed 

and regularly recurring period of 168 

hours or seven consecutive 24-hour 

periods which may start on any day or 

hour of the day. This establishment of 

a clear period for determining whether 

the employer has paid the required 

wage will aid in enforcement. 

e. Job qualifications and requirements 

(§ 655.20(e)). Section 655.20(e), which 

clarifies § 655.22(h) of the 2008 rule, 

states that each job qualification and 

requirement listed in the job order must 

be consistent with normal and accepted 

qualifications required by non-H–2B 

employers for the same occupation in 

the area of intended employment. 

Further, the employer’s job 

qualifications and requirements 

imposed on U.S. workers must be no 

less favorable than the qualifications 

and requirements that the employer is 

imposing or will impose on H–2B 

workers. A qualification means a 

characteristic that is necessary to the 

individual’s ability to perform the job in 

question. In contrast, a requirement 

means a term or condition of 

employment which a worker is required 

to accept in order to obtain the job 

opportunity. Finally, the CO has the 

authority to require the employer to 

substantiate any job qualifications or 

requirements specified in the job order. 

This provision enables DOL to 

continue to review the job qualifications 

and special requirements by looking at 

what non-H–2B employers determine is 

normal and accepted to be required to 

perform the duties of the job 

opportunity. The purpose of this review 

is to avoid the consideration (and the 

subsequent imposition) of requirements 

on the performance of the job duties that 

would serve to limit U.S. worker access 

to the opportunity. OFLC has significant 

experience in conducting this review 

and in making determinations based on 

a wide range of sources assessing what 

is normal for a particular job, and 

employers will continue to be held to an 

objective standard beyond their mere 

assertion that a requirement is 

necessary. DOL will continue to look at 

a wide range of available objective 

sources of such information, including 

but not limited to O*NET and other job 

classification materials and the 

experience of local treatment of 

requirements at the SWA level. 

Ultimately, however, it is incumbent 

upon the employer to provide sufficient 

justification for any requirement outside 

the standards for the particular job 

opportunity. 

f. Three-fourths guarantee 

(§ 655.20(f)). Section 655.20(f) requires 

employers to guarantee to offer 

employment for a total number of work 

hours equal to at least three-fourths of 

the workdays of each 12-week period if 

the period of employment covered by 

the job order is 120 days or more and 

each 6-week period, if the period of 

employment covered by the job order is 

less than 120 days. If the guarantee is 

not met, the employer is required to pay 

the worker what the worker would have 

earned if the employer had offered the 

guaranteed number of days. These 12- 

week periods (6 weeks if the job order 

is less than 120 days) begin the first 

workday after the worker’s arrival at the 

place of employment or the advertised 

contractual first date of need, whichever 

is later, and end on the expiration date 

specified in the job order or in any 

extensions. A workday is based on the 

workday hours stated in the employer’s 

job order, and the 12-week periods (6 

weeks if the job order is less than 120 

days) are based on the employer’s 

workweek for pay purposes, with partial 

week increases for the initial period and 

decreases for the last period on a pro 

rata basis, depending on which day of 

the workweek the worker starts or 

ceases work. 

If a worker fails or refuses to work 

hours offered by the employer, the 

employer may count any hours offered 

consistent with the job order that a 

worker freely and without coercion 

chooses not to work, up to the 

maximum number of daily hours on the 

job order, in the calculation of 

guaranteed hours. The employer may 

offer the worker more than the specified 

daily work hours, but the employer may 

not require the employee to work such 

hours or count them as offered if the 

employee chooses not to work the extra 

hours. However, the employer may 

include all hours actually worked when 

determining whether the guarantee has 

been met. Finally, as detailed in 20 CFR 

655.20(g), the CO can terminate the 

employer’s obligations under the 

guarantee in the event of fire, weather, 

or other Act of God that makes the 

fulfillment of the job order impossible, 

or for a similar man-made catastrophic 

event such as an oil spill or controlled 

flooding. 

The Departments believe that the 

interim final rule’s approach provides 

the benefits of having a wage guarantee, 

while offering employers the flexibility 

to spread the required hours over a 

sufficiently long period of time such 

that the vagaries of the weather or other 

events out of their control that affect 

their need for labor do not prevent 

employers from fulfilling their 

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24066 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

20Testimony of Daniel Angel Castellanos 

Contreras before the House Committee on Oversight 

and Government Reform Domestic Policy 

Subcommittee 2 (Apr. 23, 2009), available at 

http://oversight.house.gov/wp-content/uploads/

2012/01/20090423Contreras.pdf. 21Testimony of Miguel Angel Jovel Lopez before 

the House Committee on Oversight and Government 

Reform Domestic Policy Subcommittee 2 (Apr. 23, 

2009), available at http://oversight.house.gov/wpcontent/uploads/2012/01/20090423Lopez.pdf. 

guarantee. When employers file 

applications for H–2B labor 

certifications, they represent that they 

have a need for full-time workers during 

the entire certification period. 

Therefore, it is important to the integrity 

of the program, which is a capped visa 

program, to have a methodology for 

ensuring that employers have fairly and 

accurately estimated their temporary 

need. The guarantee deters employers 

from misusing the program by 

overstating their need for full-time, 

temporary workers, such as by 

carelessly calculating the starting and 

ending dates of their temporary need, 

the hours of work needed per week, or 

the total number of workers required to 

do the work available. To the extent that 

employers more accurately describe the 

amount of work available and the 

periods during which work is available, 

it gives both U.S. and foreign workers a 

better chance to realistically evaluate 

the desirability of the offered job. U.S. 

workers will not be induced to abandon 

employment, to seek full-time work 

elsewhere at the beginning of the season 

or near the end of the season because 

the employer overstated the number of 

employees it actually needed to ramp 

up or to wind down operations. Nor will 

U.S. workers be induced to leave 

employment at the beginning of the 

season or near the end of the season due 

to limited hours of work because the 

employer misstated the months during 

which it reasonably could expect to 

perform the particular type of work 

involved in that geographic area. 

Likewise, H–2B workers will not be 

induced to try to seek employment not 

permitted under the terms of their H–2B 

nonimmigrant status. Not only will the 

guarantee result in U.S. and H–2B 

workers actually working most of the 

hours promised in the job order, but it 

also will make the capped H–2B visas 

more available to other employers 

whose businesses need to use H–2B 

workers. Therefore, the Departments 

believe the guarantee is an important 

element to ensure the integrity of the 

temporary labor certification process, to 

ensure that the availability of U.S. 

workers for full-time employment is 

appropriately tested, to ensure that there 

is no adverse effect on U.S. workers 

from the presence of H–2B workers who 

seek work not permitted under the 

terms of their H–2B nonimmigrant 

status because the job that was promised 

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

visas are available to employers who 

truly have a need for temporary labor for 

the dates and for the numbers of 

employees stated. 

DOL’s recent experience in enforcing 

the H–2B regulations demonstrates that 

its concerns about employers 

overstating their need for workers are 

not unfounded. DOL’s investigations 

have revealed that some employers have 

stated on their H–2B temporary 

employment certification applications 

that they would provide 40 hours of 

work per week when, in fact, their 

workers averaged far fewer hours of 

work, especially at the beginning and/or 

end of the season. Indeed, in some 

weeks the workers have not worked at 

all. In addition, there has been 

testimony before Congress involving 

similar cases in which employers have 

overstated the period of need and/or the 

number of hours for which the workers 

are needed. For example, H–2B workers 

testified at a hearing before the 

Domestic Policy Subcommittee, House 

Committee on Oversight and 

Government Reform, on April 23, 2009, 

that there were several weeks in which 

they were offered no work; others 

testified that their actual weekly 

hours—and hence their weekly 

earnings—were less than half of the 

amount they had been promised in the 

job order. Daniel Angel Castellanos 

Contreras, a Peruvian engineer, was 

promised 60 hours per week at $10–$15 

per hour. According to Mr. Contreras, 

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

became an average of only 20 to 30 

hours per week—sometimes less. With 

so little work at such low pay [$6.02 to 

$7.79 per hour] it was impossible to 

even cover our expenses in New 

Orleans, let alone pay off the debt we 

incurred to come to work and save 

money to send home.’’ 20 Miguel Angel 

Jovel Lopez, a plumber and farmer from 

El Salvador, was recruited to do 

demolition work in Louisiana with a 

guaranteed minimum of 40 hours of 

work per week. Mr. Lopez testified, 

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

was dropped off at an apartment and left 

for two weeks. Then I was told to attend 

a two week training course. I waited 

three more weeks before working for 

one day on a private home and then 

sitting for three more weeks.’’ 21

Testimony at the same hearing by three 

attorneys who represent H–2B workers 

stated that these witnesses’ experiences 

were not aberrations but were typical. 

Hearing on the H–2B Guestworker 

Program and Improving the Department 

of Labor’s Enforcement of the Rights of 

Guestworkers, 111th Cong. (Apr. 23, 

2009). 

Therefore, spreading the three-fourths 

guarantee over the entire period covered 

by the job order would not adequately 

protect the integrity of the program 

because it would not measure whether 

an employer has appropriately 

estimated its need for temporary 

workers. It would not prevent an 

employer from overstating the beginning 

date of need and/or the ending date of 

need and then making up for the lack of 

work in those two periods by offering 

employees 100 percent of the advertised 

hours in the middle of the certification 

period. Indeed the employer could offer 

employees more than 100 percent of the 

advertised hours in the peak season and, 

although they would not be required to 

work the excess hours, most employees 

could reasonably be expected to do so 

in an effort to maximize their earnings. 

However, in order to meet the 

legitimate needs of employers for 

adequate flexibility to respond to 

changes in climatic conditions (such as 

too much or too little snow or rain, or 

temperatures too high or too low) as 

well as the impact of other events 

beyond the employer’s control (such as 

a major customer who cancels a large 

contract), the Departments are 

establishing the increment of time for 

measuring the guarantee at 12 weeks (if 

the period of employment covered by 

the job order is at least 120 days) and 

6 weeks (if the employment is less than 

120 days). The Departments believe this 

provides sufficient flexibility to 

employers, while continuing to deter 

employers from requesting workers for 9 

months, for example, when they really 

only have a need for their services for 

7 months. If an employer needs fewer 

workers during the shoulder months (at 

the beginning and end of the season) 

than during the peak months, it should 

not attest to an inaccurate statement of 

need by requesting the full number of 

workers for all the months. Rather, the 

proper approach it should follow is to 

submit two applications with separate 

dates of need, so that it engages in the 

required recruitment of U.S. workers at 

the appropriate time when it actually 

needs the workers. 

The Departments remind employers 

that they may count toward the 

guarantee hours that are offered but that 

the employee fails to work, up to the 

maximum number of hours specified in 

the job order for a workday; thus, they 

do not have to pay an employee who 

voluntarily chooses not to work. 

Similarly, they may count all hours the 

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employee actually works, even if they 

are in excess of the daily hours specified 

in the job order. 

Finally, the Departments do not 

believe it would be appropriate to 

impose a more protective guarantee, 

such as a 100 percent, 90 percent, or 

weekly guarantee. The three-fourths 

guarantee is a reasonable deterrent to 

potential carelessness and an important 

protection for workers, while still 

providing employers with some 

flexibility relating to the required hours, 

given that many common H–2B 

occupations involve work that can be 

significantly affected by weather 

conditions. Moreover, it is not just 

outdoor jobs such as landscaping that 

are affected by weather. For example, 

indoor jobs such as housekeeping and 

waiting on tables can be affected when 

a hurricane, flood, unseasonably cool 

temperatures, or the lack of snow deters 

customers from traveling to a resort 

location. The impact on business of 

such weather effects may last for several 

weeks, although they are likely to be 

able to make up for them in other weeks 

of the season. Moreover, the 

Departments understand that it is 

difficult to predict with precision 

months in advance exactly how many 

hours of work will be available, 

especially as the period of time involved 

is shortened. 

g. Impossibility of fulfillment 

(§ 655.20(g)). Section 655.20(g) allows 

employers to terminate a job order in 

certain narrowly-prescribed 

circumstances when approved by the 

CO, such as due to fire, weather, other 

Acts of God, or a similar unforeseeable 

human-made catastrophic event (such 

as an oil spill or controlled flooding) 

that is wholly outside the employer’s 

control, that makes the fulfillment of the 

job order impossible. In such an event, 

the employer is required to meet the 

three-fourths guarantee discussed in 

paragraph (f) of this section based on the 

starting date listed in the job order or 

first workday after the arrival of the 

worker, whichever is later, and ending 

on the date on which the job order is 

terminated due to the event. The 

employer also is required to attempt to 

transfer the H–2B worker (to the extent 

permitted by DHS) or worker in 

corresponding employment to another 

comparable job. Actions employers 

could take include reviewing the 

electronic job registry to locate other H– 

2B-certified employers in the area and 

contacting any known H–2B employers, 

the SWA, or ETA for assistance in 

placing workers. Absent such 

placement, the employer will be 

required to comply with the 

transportation requirements in 

paragraph (j) of this section. We remind 

employers that CO approval is required 

to terminate the job order; simply 

submitting a request to the CO is 

insufficient to terminate the threefourths guarantee. 

h. Frequency of pay (§ 655.20(h)). 

Section 655.20(h) requires that the 

employer indicate the frequency of pay 

in the job order and that workers be 

paid at least every two weeks or 

according to the prevailing practice in 

the area of intended employment, 

whichever is more frequent. Further, it 

requires that wages be paid when due. 

The requirement that workers be paid 

at least every 2 weeks is designed to 

protect financially vulnerable workers. 

Allowing an employer to pay less 

frequently than every two weeks would 

impose an undue burden on workers 

who are often paid low wages and may 

lack the means to make their income 

stretch through a month until they get 

paid. 

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

Section 655.20(i) requires the employer 

to maintain accurate records of worker 

earnings and provide the worker an 

appropriate earnings statement on or 

before each payday, specifying the 

information that the employer must 

include in such a statement (including, 

e.g., the worker’s total earnings each 

workweek, the hourly rate and/or piece 

rate, the hours offered and worked, and 

an itemization of all deductions from 

pay). 

The Departments believe that any 

administrative burden resulting from 

this provision will be outweighed by the 

importance of providing workers with 

this crucial information, especially 

because an earnings statement provides 

workers with an opportunity to quickly 

identify and resolve any anomalies with 

the employer and hold employers 

accountable for proper payment. Similar 

to § 655.122(j)(3) in the H–2A program, 

the interim final rule requires an 

employer to record the reasons why a 

worker declined any offered hours of 

work, which will support DOL’s 

enforcement activities related to the 

three-fourths guarantee in § 655.20(f). 

Additionally, this section, 

§ 655.16(i)(2)(iv), and 29 CFR 

503.16(i)(l) require employers to 

maintain records of any additions made 

to a worker’s wages and to include such 

information in the earnings statements 

furnished to the worker. Such additions 

could include performance bonuses, 

cash advances, or reimbursements for 

costs incurred by the worker. This 

requirement is consistent with the 

recordkeeping requirements under the 

FLSA in 29 CFR part 516. See 29 CFR 

part 785 for guidance regarding what 

constitutes hours worked. 

j. Transportation and visa fees 

(§ 655.20(j)). Section 655.20(j)(1)(i) 

requires an employer to provide 

inbound transportation and subsistence 

to H–2B employees and to U.S. 

employees who have traveled to take the 

position from such a distance that they 

are not reasonably able to return to their 

residence each day, if the workers 

complete 50 percent of the period of 

employment covered by the job order 

(not counting any extensions). The 

interim final rule provides that 

employers may: Arrange and pay for the 

transportation and subsistence directly; 

advance, at a minimum, the most 

economical and reasonable common 

carrier cost and subsistence; or 

reimburse the worker’s reasonable costs. 

If the employer advances or provides 

transportation and subsistence costs to 

foreign workers, or it is the prevailing 

practice of non-H–2B employers to do 

so, the employer must advance such 

costs or provide the services to workers 

in corresponding employment traveling 

to the worksite. The interim final rule 

also reminds employers that the FLSA 

imposes independent wage payment 

obligations, where it applies. 

Section 655.20(j)(1)(ii) requires the 

employer, at the end of the employment, 

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

worker’s return transportation and daily 

subsistence from the place of 

employment to the place from which 

the worker departed to work for the 

employer, if the worker has no 

immediate subsequent approved H–2B 

employment; however, the obligation 

attaches only if the worker completes 

the period of employment covered by 

the job order or if the worker is 

dismissed from employment for any 

reason before the end of the period. The 

employer is required to provide or pay 

for the return transportation and daily 

subsistence of a worker who has 

completed the period of employment 

listed on the certified Application for 

Temporary Employment Certification, 

regardless of any subsequent extensions. 

An employer is not required to provide 

return transportation if separation is due 

to a worker’s voluntary abandonment. If 

the worker has been contracted to work 

for a subsequent and certified employer, 

the last H–2B employer to employ the 

worker is required to provide or pay the 

U.S. or foreign worker’s return 

transportation. Therefore, prior 

employers are not obligated to pay for 

such return transportation costs. 

Section 655.20(j)(1)(iii) requires that 

all employer-provided transportation— 

including transportation to and from the 

worksite, if provided—must meet 

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applicable safety, licensure, and 

insurance standards. Furthermore, all 

transportation and subsistence costs 

covered by the employer must be 

disclosed in the job order 

(§ 655.20(j)(1)(iv)). Finally, § 655.20(j)(2) 

requires employers to pay or reimburse 

the worker in the first workweek for the 

H–2B worker’s visa, visa processing, 

border crossing, and other related fees 

including those fees mandated by the 

government (the employer need not, but 

may, reimburse workers for expenses 

that are primarily for the benefit of the 

employee, such as passport expenses). 

Under the FLSA the transportation, 

subsistence, and visa and related 

expenses for H–2B workers are for the 

primary benefit of employers, as DOL 

explained in Wage and Hour’s Field 

Assistance Bulletin No. 2009–2 (Aug. 

21, 2009). The employer benefits 

because it obtains foreign workers 

where the employer has demonstrated 

that there are not sufficient qualified 

U.S. workers available to perform the 

work; the employer has demonstrated 

that unavailability by engaging in 

prescribed recruiting activities that do 

not yield sufficient U.S. workers. The 

H–2B workers, on the other hand, only 

receive the right to work for a particular 

employer, in a particular location, and 

for a temporary period of time; if they 

leave that specific job, they generally 

must leave the country. Transporting 

these H–2B workers from remote 

locations to the workplace thus 

primarily benefits the employer who has 

sought authority to fill its workforce 

needs by bringing in workers from 

foreign countries. Similarly, because an 

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

related expenses, which vary by 

country, including the visa processing 

interview fee and border crossing fee) is 

an incident of and necessary to 

employment under the program, the 

employer is the primary beneficiary of 

such expenses. The visa does not allow 

the employee to find work in the U.S. 

generally, but rather permits the visa 

holder to apply for admission in H–2B 

nonimmigrant status, which restricts the 

worker to the employer with an 

approved temporary labor certification 

and to the particular approved work 

described in the employer’s application. 

Therefore, the interim final rule 

includes a reminder to employers that 

the FLSA applies independently of the 

H–2B requirements. Employers covered 

by the FLSA must pay such expenses to 

nonexempt employees in the first 

workweek, to the level necessary to 

meet the FLSA minimum wage (outside 

the Fifth Circuit, which covers 

Louisiana, Mississippi, and Texas). See, 

e.g., Rivera v. Peri & Sons Farms, Inc., 

735 F.3d 892 (9th Cir. 2013); Arriaga v. 

Florida Pacific Farms, LLC, 305 F.3d 

1228 (11th Cir. 2002); Morante-Navarro 

v. T&Y Pine Straw, Inc., 350 F.3d 1163 

(11th Cir. 2003); Gaxiola v. Williams 

Seafood of Arapahoe, Inc., 2011 WL 

806792 (E.D.N.C. 2011); Teoba v. 

Trugreen Landcare LLC, 2011 WL 

573572 (W.D.N.Y. 2011); DeLeonGranados v. Eller & Sons Trees, Inc., 

581 F. Supp. 2d 1295 (N.D. Ga. 2008); 

Rosales v. Hispanic Employee Leasing 

Program, 2008 WL 363479 (W.D. Mich. 

2008); Rivera v. Brickman Group, 2008 

WL 81570 (E.D. Pa. 2008). But see 

Castellanos-Contreras v. Decatur Hotels, 

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

Payment sufficient to satisfy the FLSA 

in the first workweek is also required 

because § 655.20(z) of the interim final 

rule, like § 655.22(d) in the 2008 H–2B 

rule, specifically requires employers to 

comply with all applicable Federal, 

State, and local employment-related 

laws. Furthermore, because U.S. 

workers are entitled to receive at least 

the same terms and conditions of 

employment as H–2B workers, in order 

to prevent adverse effects on U.S. 

workers from the presence of foreign 

workers, the interim final rule requires 

the same reimbursement for U.S. 

workers in corresponding employment 

who are unable to return to their 

residence each workday, such as those 

from another state who saw the position 

advertised in a SWA posting or on 

DOL’s electronic job registry. 

The interim final rule separately 

requires employers to reimburse these 

inbound transportation and subsistence 

expenses, up to the offered wage rate, if 

the employee completes 50 percent of 

the period of employment covered by 

the job order. The Departments believe 

this approach is appropriate and 

adequately protects the interests of both 

U.S. and H–2B workers and employers, 

because it does not require employers to 

pay the inbound transportation and 

subsistence costs of U.S. workers 

recruited pursuant to H–2B job orders 

who do not remain on the job for more 

than a very brief period. 

Additionally, the interim final rule 

requires reimbursement of outbound 

transportation and subsistence if the 

worker completes the job order period 

or if the employer dismisses the worker 

before the end of the period of 

employment in the job order, even if the 

employee has completed less than 50 

percent of the period of employment 

covered by the job order. This 

requirement uses language contained in 

the DHS regulation at 8 CFR 

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

employers will be liable for reasonable 

return transportation costs if the 

employer dismisses the worker for any 

reason before the end of the period of 

authorized admission. See 8 U.S.C. 

1184(c)(5)(A), INA section 214(c)(5)(A). 

For example, if there is a constructive 

discharge, such as the employer’s failure 

to offer any work or sexual harassment 

that created an untenable working 

situation, the requirement to pay 

outbound transportation applies. 

However, if separation from 

employment is due to voluntary 

abandonment by an H–2B worker or a 

corresponding worker, and the 

employer provides appropriate 

notification specified under § 655.20(y), 

the employer is not responsible for 

providing or paying for return 

transportation and subsistence expenses 

of that worker. 

This requirement to pay inbound 

transportation at the 50 percent point 

and outbound transportation at the 

completion of the work period is 

consistent with the rule under the H–2A 

visa program. Moreover, the interim 

final rule fulfills the Departments’ 

obligation to protect U.S. workers from 

adverse effect due to the presence of 

temporary foreign workers. As 

discussed above, under the FLSA, 

numerous courts have held in the 

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

that the inbound and outbound 

transportation costs associated with 

using such workers are an inevitable 

and inescapable consequence of 

employers choosing to participate in 

these visa programs. Moreover, the 

courts have held that such 

transportation expenses are not ordinary 

living expenses, because they have no 

substantial value to the employee 

independent of the job and do not 

ordinarily arise in an employment 

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

courts view employers as the primary 

beneficiaries of such expenses under the 

FLSA; in essence the courts have held 

that inbound and outbound 

transportation are employer business 

expenses just like any other tool of the 

trade. A similar analysis applies to the 

H–2B required wage. If employers were 

permitted to shift their business 

expenses onto H–2B workers, they 

would effectively be making a de facto 

deduction and bringing the worker 

below the H–2B required wage, thereby 

risking depression of the wages of U.S. 

workers in corresponding employment. 

This regulatory requirement, therefore, 

ensures the integrity of the full H–2B 

required wage, rather than just the FLSA 

minimum wage, over the full term of 

employment; both H–2B workers and 

U.S. workers in corresponding 

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employment will receive the H–2B 

required wage they were promised, as 

well as reimbursement for the 

reasonable transportation and 

subsistence expenses that primarily 

benefit the employer, over the full 

period of employment. To enhance this 

protection, the interim final rule 

contains the additional requirement 

that, where a worker pays out of pocket 

for inbound transportation and 

subsistence, the employer must 

maintain records of the cost of 

transportation and subsistence incurred 

by the worker, the amount reimbursed, 

and the date(s) of reimbursement. 

Finally, to comply with this section, 

transportation must be reimbursed from 

the place from which the worker has 

come to work for the employer to the 

place of employment; therefore, the 

employer must pay for transportation 

from the place of recruitment to the 

consular city and then on to the 

worksite. Similarly, the employer must 

pay for subsistence during that period, 

so if an overnight stay at a hotel in the 

consular city is required while the 

employee is interviewing for and 

obtaining a visa, that subsistence must 

be reimbursed. See Morales-Arcadio v. 

Shannon Produce Farms, Inc., 2007 WL 

2106188 (S.D. Ga. 2007). Finally, if an 

employer provides daily transportation 

to the worksite, the regulation requires 

both that the transportation must 

comply with all applicable safety laws 

and that the employer must disclose the 

fact that free transportation will be 

provided in the job order. 

k. Employer-provided items 

(§ 655.20(k)). Section 655.20(k) requires, 

consistent with the requirement under 

the FLSA regulations at 29 CFR part 

531, that the employer provide to the 

worker without charge all tools, 

supplies, and equipment necessary to 

perform the assigned duties. The 

employer may not shift to the employee 

the burden to pay for damage to, loss of, 

or normal wear and tear of, such items. 

This provision gives workers additional 

protections against improper deductions 

for the employer’s business expenses 

from required wages. 

As discussed above with respect to 

the disclosure requirement in 

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

prohibits employers from making 

deductions for items that are primarily 

for the benefit of the employer if such 

deductions reduce the employee’s wage 

below the Federal minimum wage. 

Therefore an employer that does not 

provide tools but requires its employees 

to bring their own would already be 

required under the FLSA to reimburse 

its employees for the difference between 

the weekly wage minus the cost of 

equipment and the weekly minimum 

wage. This provision simply extends 

this protection to cover the required H– 

2B offered wage, in order to protect the 

integrity of the required H–2B wage rate 

and thereby avoid adverse effects on the 

wages of U.S. workers. However, as 

discussed above with regard to 

§ 655.18(b), this requirement does not 

prohibit employees from voluntarily 

choosing to use their own specialized 

equipment; it simply requires employers 

to make available to employees 

adequate and appropriate equipment. 

l. Disclosure of the job order 

(§ 655.20(l)). Section 655.20(l) requires 

that the employer provide a copy of the 

job order to prospective H–2B workers 

no later than the time of application for 

a visa and to workers in corresponding 

employment no later than the first day 

of work. For H–2B workers changing to 

a subsequent H–2B employer, the job 

order must be provided no later than the 

time the subsequent offer of 

employment is made. The job order 

must contain information about the 

terms and conditions of employment 

and employer obligations as provided in 

§ 655.18 and must be in a language 

understandable to the workers, as 

necessary and reasonable. The purpose 

of the disclosure is to provide workers 

with the terms and conditions of 

employment and of employer 

obligations to strengthen worker 

protection and promote program 

compliance. 

This section does not require written 

disclosure of the job order at the time of 

recruitment, as required under the 

Migrant and Seasonal Agricultural 

Worker Protection Act (MSPA). DOL 

notes that H–2B employers that are 

subject to MSPA are bound by the 

requirements of that Act, including 

disclosure of the appropriate job order 

at the time of recruitment. The H–2B 

and MSPA programs are not analogous, 

however. MSPA workers are often 

recruited domestically shortly before the 

start date of the job order, making the 

provision of the job order at the time of 

recruitment both logical and practical. 

In the H–2B program, as in the H–2A 

program, recruitment is often less 

directly related to the work start date, 

making immediate disclosure of the job 

order less necessary. It thus is more 

practical to require disclosure of the job 

order at the time the worker applies for 

a visa, to be sure that workers fully 

understand the terms and conditions of 

their job offer before they make a 

commitment to come to the United 

States. To clarify, the time at which the 

worker applies for the visa means before 

the worker has made any payment, 

whether to a recruiter or directly to the 

consulate, to initiate the visa 

application process. Worker notification 

is a vital component of worker 

protection and program compliance, 

and the Departments believe that the 

requirement provides workers with 

sufficient notice of the terms and 

conditions of the job so that they can 

make an informed decision. 

In addition, providing the terms and 

conditions of employment to each 

worker in a language that the individual 

understands is a key element of muchneeded worker protection. Therefore, 

DOL intends to broadly interpret the 

necessary or reasonable qualification 

and apply the exemption only in those 

situations where having the job order 

translated into a particular language 

would both place an undue burden on 

an employer and not significantly 

disadvantage an H–2B or corresponding 

worker. 

m. Notice of worker rights 

(§ 655.20(m)). Section 655.20(m) 

requires that the employer post a notice 

in English of worker rights and 

protections in a conspicuous location 

and if necessary post the notice in other 

appropriate languages if such 

translations are provided by DOL. 

The poster, which will be printed and 

provided by DOL, will state that 

workers who believe their rights under 

the program have been violated may file 

confidential complaints and will 

display the number for WHD’s toll-free 

help line. While the purpose of this 

section would be undermined if workers 

cannot read the notice, DOL cannot 

guarantee that it will have available 

translations of the notice in any given 

language, and cannot require employers 

to display a translation that may not 

exist. Translations will be made in 

response to demand; employers and 

organizations that work with H–2B 

workers are encouraged to inform DOL 

about the language needs of the H–2B 

worker population. If revised versions of 

the poster are created, DOL expects 

employers to post the most recent 

version published by DOL. 

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

Section 655.20(n) provides 

nondiscrimination and nonretaliation 

protections that are fundamental to the 

statutes that DOL enforces. Worker 

rights cannot be secured unless there is 

protection from all forms of 

intimidation or discrimination resulting 

from any person’s attempt to report or 

correct perceived violations of the H–2B 

provisions. Therefore, workers are 

protected from retaliation, including 

retaliation based on contact or 

consultation with an attorney or an 

employee of a legal assistance 

organization, or contact with labor 

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unions, worker centers, and community 

organizations, which frequently have 

the first contact with temporary foreign 

workers when they seek help to correct 

and/or report perceived violations of the 

H–2B provisions. This provision applies 

to oral complaints and complaints made 

internally to employers, and it applies 

to current, former and prospective 

workers. As provided in 29 CFR 503.20, 

make-whole relief would be available to 

victims of discrimination and retaliation 

under this paragraph. 

This provision protects against 

discrimination and retaliation for 

asserting rights specific to the H–2B 

program. For example, if workers sought 

legal assistance in relation to their terms 

and conditions of employment, such as 

legal assistance relating to employerprovided housing because an employer 

charged for housing that was listed as 

free of charge in the job order, this 

would be a protected act; however, a 

routine landlord-tenant dispute may not 

fall under the protections of this section. 

This section provides protection to U.S. 

workers and H–2B workers alike. While 

H–2B workers are particularly 

vulnerable to retaliation and need 

protection against employer retaliatory 

acts, it is important to encourage all 

workers to come forward when there is 

a potential workplace violation. 

Therefore, the Departments clarify that 

§ 655.20(n) applies equally to H–2B 

workers and U.S. workers. 

o. Comply with the prohibitions 

against employees paying fees 

(§ 655.20(o)). Section 655.20(o), 

similarly to § 655.22(j) in the 2008 rule, 

prohibits employers and their attorneys, 

agents, or employees from seeking or 

receiving payment of any kind from 

workers for any activity related to 

obtaining H–2B temporary labor 

certification or employment, including 

recruitment costs. However, this 

provision does allow employers and 

their agents to receive reimbursement 

for fees that are primarily for the benefit 

of the worker, such as passport fees, 

which can be used for personal travel or 

for travel to another job. 

p. Contracts with third parties to 

comply with prohibitions (§ 655.20(p)). 

Section 655.20(p), similarly to 

§ 655.22(g)(2) in the 2008 rule, requires 

that an employer that engages any agent 

or recruiter must prohibit in a written 

contract the agent or recruiter from 

seeking or receiving payments from 

prospective employees. DOL notes that 

the new requirements at § 655.9 of this 

interim final rule require disclosure of 

the employer’s agreements with any 

agent or recruiter whom it engages or 

plans to engage in the recruitment of 

prospective H–2B workers, whether in 

the U.S. or abroad, as well as the 

identity and geographic location of any 

persons or entities hired by or working 

for the recruiter and the agents or 

employees of those persons and entities. 

The Departments believe that public 

disclosure of the identity of recruiters 

and the entities for which they work is 

necessary to prevent abuse, and this 

issue is addressed under § 655.9. DOL 

will maintain a publicly available list of 

agents and recruiters who are party to 

such recruitment contracts, as well as a 

list of the identity and location of any 

persons or entities hired by or working 

for the recruiters to recruit prospective 

H–2B workers for the H–2B job 

opportunities offered by the employer. 

The difference between § 655.9, 

which requires the employer to provide 

copies of such agreements to DOL when 

an employer files its Application for 

Temporary Employment Certification, 

and this provision’s requirements is that 

the requirements in this provision are of 

an ongoing nature. The employer must 

always prohibit the seeking or collection 

of fees from prospective employees in 

any contract with third parties whom 

the employer engages to recruit 

international workers, and is required to 

provide a copy of such existing 

agreements when the employer files its 

Application for Temporary Employment 

Certification. For employers’ 

convenience, and to facilitate the 

processing of applications, the interim 

final rule contains the exact language of 

the required contractual prohibition that 

must appear in such agreements. 

Further guidance on how DOL 

interprets the employer obligations in 

§ 655.20(o) and (p) regarding prohibited 

fees can be found in Field Assistance 

Bulletin No. 2011–2 (May 2011), 

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

FieldBulletins/fab2011_2.htm. 

The Departments recognize the 

complexities of recruiters using 

subcontractor recruiters and have 

accounted for this in § 655.20(p) by 

including language requiring the 

employer to contractually prohibit in 

writing any agent or recruiter (or any 

agent or employee of such agent or 

recruiter) whom the employer engages, 

either directly or indirectly, from 

seeking or receiving payments from any 

prospective employees. The specific 

language covers subcontractors. In 

addition, the required contractual 

prohibition applies to the agents and 

employees of the recruiting agent, and 

encompasses both direct and indirect 

fees. 

q. Prohibition against preferential 

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

Section 655.20(q), similarly to 

§ 655.22(a) in the 2008 rule, prohibits 

employers from providing better terms 

and conditions of employment to H–2B 

workers than to U.S. workers. The 

substance of this provision is identical 

to the assurance found at § 655.18(a)(1) 

of this interim final rule, relating to the 

job order, and a discussion of it is set 

forth in the preamble to that section. 

r. Non-discriminatory hiring practices 

§ 655.20(r). Section 655.20(r), like 

§ 655.22(c) of the 2008 rule, sets forth a 

non-discriminatory hiring provision; it 

clarifies that the employer’s obligation 

to hire U.S. workers continues 

throughout the period described in 

§ 655.20(t). Under this provision, 

rejections of U.S. workers continue to be 

permitted only for lawful, job-related 

reasons. This section works together 

with § 655.20(q), which specifies that 

job qualifications and requirements 

imposed on U.S. workers must be no 

less favorable than the qualifications 

and requirements that the employer is 

imposing or will impose on H–2B 

workers. Thus, for example, where an 

employer requires drug tests or criminal 

background checks for U.S. workers and 

does not require the same tests and 

background checks for H–2B workers, 

the employer has violated this 

provision. Additionally, where an 

employer conducts criminal background 

checks on prospective employees, in 

order to be lawful and job-related, the 

employer’s consideration of any arrest 

or conviction history must be consistent 

with guidance from the Equal 

Employment Opportunity Commission 

(EEOC) on employer consideration of 

arrest and conviction history under Title 

VII of the Civil Rights Act of 1964. See 

EEOC Policy Statement on the Issue of 

Conviction Records under Title VII of 

the Civil Rights Act of 1964, available 

at http://www.eeoc.gov/policy/docs/

convict1.html; EEOC, Pre-Employment 

Inquiries and Arrest & Conviction, 

available at http://www.eeoc.gov/laws/

practices/inquiries_arrest_

conviction.cfm. Thus, employers may 

reject U.S. workers solely for lawful, 

job-related reasons, and they must also 

comply with all applicable 

employment-related laws, pursuant to 

§ 655.20(z). 

s. Recruitment requirements 

(§ 655.20(s)). Section 655.20(s) requires 

employers to conduct required 

recruitment as described in §§ 655.40– 

.46, including any activities directed by 

the CO. Such required recruitment 

activities are discussed in the preamble 

to those sections. 

t. Continuing obligation to hire U.S. 

workers § 655.20(t). Section 655.20(t) 

requires employers to hire qualified U.S. 

workers referred by the SWA or who 

respond to recruitment until 21 days 

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before the date of need. The provision 

corrects the inadequacy in the 2008 

rule, under which an employer is under 

no obligation to hire U.S. workers after 

submitting the recruitment report, 

which could occur almost four months 

before the first date of need. U.S. 

applicants—particularly unemployed 

workers—applying for the kinds of 

temporary positions typically offered by 

H–2B employers are often unable to 

make informed decisions about jobs 

several months in advance; it is far more 

likely that they are in need of a job 

beginning far sooner. In fact, many of 

these potential applicants may not even 

be searching for work as early as several 

months in advance and are therefore 

unlikely to see SWA job orders in the 

10 days they are posted or the 

newspaper advertisements on the 2 days 

they are published in accordance with 

the 2008 rule’s minimum recruitment 

requirements. This segment of the labor 

force cannot afford to make plans 

around the possibility of a temporary 

job several months in the future. The 

2008 rule’s recruitment and hiring 

structure simply cannot be reconciled 

with the Departments’ obligation to 

protect U.S. workers and ensure that 

qualified U.S. applicants are unavailable 

for a job opportunity before H–2B 

workers are hired. 

Requiring a priority hiring period 

until 21 days before the date of need is 

consistent with the DHS requirement 

that H–2B nonimmigrants not be 

admitted to the United States until 10 

days before the date of need, see 8 CFR 

214.2(h)(13)(i)(A), since it minimizes 

the possibility that a U.S. applicant 

could displace an H–2B nonimmigrant 

who has been recruited, traveled to the 

consulate, obtained a visa, or even 

begun inbound transportation to the 

worksite. At the same time, the 21-day 

provision still gives employers certainty 

regarding the timing of and need for 

their efforts to recruit prospective H–2B 

workers. With regard to travel expenses, 

the 21-day cutoff will be sufficient to 

allow for the arrangement of inbound 

transportation without employers 

having to bear any risk of last-minute 

cancellations, pay premiums for 

refundable fares, or pay visa expenses 

that are ultimately not needed. Housing 

arrangements should not present an 

issue, as § 655.20(q) requires an 

employer to offer U.S. workers the same 

benefits that it is offering, intends to 

offer, or will provide to H–2B workers. 

If an employer intends to offer housing 

to H–2B workers, such housing must 

also be offered to all U.S. applicants 

who live outside the area of intended 

employment. Housing secured for 

workers can just as easily be occupied 

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

some combination of U.S. and H–2B 

workers. 

The 21-day provision also will 

prevent H–2B workers from being 

dismissed after beginning travel from 

their home to the consulate or even to 

the United States as the obligation to 

hire U.S. workers now ends 11 days 

before the earliest date an H–2B worker 

may be admitted to the United States. 

Additionally, in order to create 

appropriate expectations for potential 

H–2B workers, when an employer 

recruits foreign workers, it should put 

them on notice that the job opportunity 

will be available to U.S. workers until 

21 days before the date of need; 

therefore, the job offer is conditional 

upon there being no qualified and 

available U.S. workers to fill the 

positions. 

The Departments believe this 21-day 

requirement, which extends the 

duration of the U.S. worker referral 

period by as much as 3 months 

compared to the 2008 rule, is sufficient 

to protect the interests of U.S. workers. 

Further, the Departments note that the 

extended recruitment period is not the 

only provision of this interim final rule 

enhancing U.S. applicants’ access to 

vacancies: the number and breadth of 

recruitment vehicles in place (i.e., 

contact of previous workers, a national 

job registry, a 15-day job posting notice 

at worksites, among others) have also 

expanded. The worker protections 

contained in this interim final rule are 

intended to encourage U.S. applicants 

hired to remain on the job. However, 

provisions such as those found at 

§ 655.20(y) (Abandonment/termination 

of employment) offer protection to 

employers from workers who might 

accept the offer of employment but who 

subsequently abandon the job, and 

§ 655.20(y) similarly relieves the 

employer, under certain circumstances, 

of the responsibilities to provide 

transportation and to fulfill the threequarter work guarantee obligation. 

The Departments note that regardless 

of the time when the obligation to hire 

terminates, the H–2B employer has a 

high degree of certainty that it will have 

access to workers, whether from within 

or outside the United States. Further, 

the interim final rule’s 21-day 

obligation-to-hire cutoff should provide 

employers with time to identify foreign 

workers if they are, in fact, needed and 

to initiate their travel without 

substantial uncertainty. However, the 

primary purpose of this provision is to 

ensure that available U.S. workers have 

a viable opportunity to apply for H–2B 

job opportunities and to facilitate the 

employment of these workers. 

State laws that require employers in 

some industries to submit requests for 

background checks or drug testing for 

their employees 30 to 45 days before the 

date of need may affect the requirement 

that such employers continue to hire 

U.S. workers until 21 days before the 

date of need. A background check or 

drug test required for employment in a 

State, if listed in the job order, would be 

considered a bona fide job requirement, 

as long as it was clearly disclosed in the 

job order and recruitment materials. An 

applicant who submitted an application 

for employment after a State-established 

deadline and was therefore unable to 

undergo such an evaluation would be 

considered not qualified for 

employment in that State. However, 

consistent with §§ 655.18(a)(2) and 

655.20(e), such a requirement must be 

disclosed in the job order, and the 

employer would bear the responsibility 

of demonstrating that it is bona fide and 

consistent with the normal and accepted 

requirements imposed by non-H–2B 

employers in the same occupation and 

area of intended employment. 

Furthermore, employers cannot treat 

U.S. workers less favorably than foreign 

workers with regard to start date; 

employers may not conduct such 

screening for prospective H–2B workers 

at a later date if the employer does not 

provide the same late screening for U.S. 

workers who submit an application after 

a State-established deadline. 

Finally, given that many employers’ 

workforce needs vary throughout the 

season and they require fewer workers 

in slow months at the beginning and 

end of the season, the Departments wish 

to remind employers about the 

requirements of the three-fourths 

guarantee. Specifically, the guarantee 

begins on the first workday after the 

arrival of the worker at the place of 

employment or the advertised first date 

of need, whichever is later. An 

employer cannot delay the three-fourths 

guarantee, such as by telling workers to 

come to work three weeks after the 

advertised first date of need, because the 

employer does not have a need for them 

at that time (but see the provisions 

applicable to employers in the seafood 

industry discussed in the preamble to 

§ 655.15). This means that when 

workers present themselves at the place 

of employment on the advertised first 

date of need, the three-fourths guarantee 

is triggered, whether or not the 

employer has sufficient full-time work 

for all of them to perform. 

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

Section 655.20(u) modifies the no strike 

or lockout language in the 2008 rule to 

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require employers to assure DOL that 

there is no strike or lockout at any of the 

employer’s worksites in the area of 

intended employment for which the 

employer is requesting H–2B 

certification, rather than solely no strike 

or lockout in the positions being filled 

by H–2B workers, which is the 

requirement under § 655.22(b) of the 

2008 regulations. If there is a strike or 

lockout at the worksite when the 

employer requests H–2B workers, the 

CO may deny the H–2B certification. 

This provision is intended to decrease 

the chances that an unscrupulous 

employer will circumvent the regulatory 

requirement by transferring U.S. 

workers to fill positions vacated by 

striking workers and employing H–2B 

workers in the positions those U.S. 

workers vacated. The Departments 

believe that this extension will provide 

added protection for workers whose 

employers have multiple locations 

within a commuting distance where 

transferring employees among locations 

would be relatively easy. 

With respect to annual layoffs that 

occur due to the end of the peak season, 

§ 655.20(u) is not intended to include 

employer layoffs; § 655.20(v) addresses 

employer layoffs. Further, with respect 

to the ability of a CO to deny an 

application due to a strike or a lockout 

and whether that might complicate the 

application process and increase delays, 

unsuccessful applications, and lastminute refusals of H–2B workers, DOL 

does not anticipate that this will be a 

problem as long as employers do not 

seek approval of an Application for 

Temporary Employment Certification 

while there is a strike or lockout at the 

worksite. 

v. No recent or future layoffs 

(§ 655.20(v)). Section 655.20(v) modifies 

the dates of impermissible layoffs of 

U.S. workers in § 655.22(i) of the 2008 

rule, extending the period during which 

an H–2B employer must not lay off any 

similarly employed U.S. workers from 

120 days after the date of need to the 

end of the certification period. Further, 

this section provides that H–2B workers 

must be laid off before any U.S. worker 

in corresponding employment. 

However, the provision specifically 

permits layoffs due to lawful, job-related 

reasons, such as the end of the peak 

season or a natural or manmade 

disaster, as long as, if applicable, the 

employer lays off its H–2B workers first. 

w. Contact with former U.S. 

employees (§ 655.20(w)). Section 

655.20(w) requires employers to contact 

former U.S. employees who worked for 

the employer in the occupation and at 

the place of employment listed on the 

Application for Temporary Employment 

Certification within the last year, 

including any U.S. employees who were 

laid off within 120 days before the date 

of need. This expands the 2008 rule’s 

requirement at § 655.15(h) that 

employers contact only former 

employees who were laid off during the 

120 days preceding the date of need. 

The employer is not required to contact 

those who were dismissed for cause or 

who abandoned the worksite. Note, 

however, that voluntary abandonment is 

different from a constructive discharge, 

which occurs when the ‘‘working 

conditions have become so intolerable 

that a reasonable person in the 

employee’s position would have felt 

compelled to resign.’’ Pennsylvania 

State Police v. Suders, 542 U.S. 129, 141 

(2004). DOL also reminds employers 

that if qualified former employees apply 

during the recruitment period they, like 

all qualified U.S. applicants, must be 

offered employment. 

x. Area of intended employment and 

job opportunity (§ 655.20(x)). Section 

655.20(x) modifies § 655.22(l) of the 

2008 rule by additionally prohibiting 

the employer from placing a worker in 

a job opportunity not specified on the 

Application for Temporary Employment 

Certification, clarifying that an H–2B 

worker is only permitted to work in the 

job and in the location that OFLC 

approves unless the employer obtains a 

new temporary labor certification. 

y. Abandonment/termination of 

employment (§ 655.20(y)). Section 

655.20(y), which is largely consistent 

with the notification requirement in 

§ 655.22(f) of the 2008 rule, requires that 

employers notify OFLC within 2 days of 

the separation of an H–2B worker or 

worker in corresponding employment if 

the separation occurs before the end 

date certified on the Application for 

Temporary Employment Certification 

and notify DHS. The section also deems 

that an abandonment or abscondment 

begins after a worker fails to report for 

work without the employer’s consent for 

5 consecutive working days, and adds 

language relieving the employer of the 

subsequent transportation requirements 

under § 655.22(j) and 29 CFR 503.16(j) 

if the separation is due to a worker’s 

voluntary abandonment. Additionally, 

the section clarifies that if a worker 

voluntarily abandons employment or is 

terminated for cause, an employer is not 

required to guarantee three-fourths of 

the work in the worker’s final partial 6- 

or 12-week period, as described in 

§ 655.22(f) and 29 CFR 503.16(f). 

This section provides employers with 

guidance regarding their notification 

obligations, which is informed by DOL’s 

enforcement experience with the 

§ 655.22(f) of the 2008 rule, under 

which neither WHD nor employers 

expressed confusion or concerns since 

its introduction in the 2008 rule. DOL’s 

enforcement experience under the H–2A 

program suggests that the identical 

provision in its H–2A regulations has 

not resulted in confusion for H–2A 

employers, many of whom also 

participate in the H–2B program. The 

written notification required under 20 

CFR 655.20(y) must be provided by one 

of the following means: 

1. By electronic mail (email) to: 

TLC.Chicago@dol.gov mailbox, or 

2. Employers without Internet access 

may instead send written notification 

by: 

(a) Facsimile to: (312) 886–1688; or 

(b) U.S. Mail to: U.S. Department of 

Labor, Office of Foreign Labor 

Certification, Chicago National 

Processing Center, Attention: H–2B 

Program Unit, 11 West Quincy Court, 

Chicago, IL 60604–2105. 

In order to ensure prompt and 

effective processing of the notification, 

DOL requests that the employer’s notice 

include at a minimum the following 

information: 

1. The reason(s) for notification or late 

notification, if applicable; 

2. The H–2B temporary employment 

certification application Case 

Number(s); 

3. The employer’s name; address, 

telephone number, and Federal 

Employer Identification Number (FEIN). 

4. The date of abandonment or 

separation from employment; and 

5. The number of H–2B worker(s) 

and/or other worker(s) in corresponding 

employment who abandoned or was/

were separated from employment, and 

the name(s) of each such H–2B worker 

and/or worker in corresponding 

employment and each employee’s last 

known address. 

The Chicago NPC will also accept a 

copy of the written notification of 

abandonment or separation from 

employment submitted by the employer 

to DHS as long as it contains all of the 

information listed above and is 

submitted to the Chicago NPC via one 

of the means enumerated in this IFR. 

Employers must retain records in 

accordance with documentation 

retention requirements outlined at 29 

CFR 503.17. DOL penalties for this 

violation are different from DHS fines. 

The notification requirement serves 

different purposes for DHS and DOL, 

and DOL concludes it is fair and 

consistent to treat this violation in the 

same way it treats other violations of 

employers’ H–2B obligations. 

The Departments emphasize that the 

notification requirements in § 655.20(y) 

are not intended to be used as threats 

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22As provided in the discussion of § 655.11, each 

employer filing an Application for Temporary 

Employment Certification is required under the 

interim final rule to establish temporary need 

through the registration process. However, in 

limited circumstances where the employer has 

applied for a temporary labor certification on an 

emergency basis under emergency procedures in 

§ 655.17 without an approved H–2B Registration, 

the CO may be required to also make a 

determination of temporary need. 

against vulnerable foreign workers to 

keep them in abusive work situations. 

Further, the Departments caution that 

coercing workers into performing labor 

by threatening potential deportation or 

immigration enforcement may violate 

anti-trafficking laws. The Departments 

remind the public that DHS regulations 

already compel employers to notify DHS 

of early separations to assist the agency 

in keeping track of foreign nationals in 

the United States. See 8 CFR 

214.2(h)(6)(i)(F), (h)(11)(i). Employers 

should note that DHS has its own 

notification requirements under 8 CFR 

214.2(h)(6)(i)(F) that employers must 

comply with if: An H–2B worker fails to 

report for work within 5 work days after 

the employment start date; the H–2B 

labor or services for which H–2B 

workers were hired were completed 

more than 30 days early; or an H–2B 

worker absconds from the worksite or is 

terminated prior to the completion of 

the nonagricultural labor or services for 

which he or she was hired. Both OFLC’s 

(which may share information with 

WHD) and DHS’s awareness of early 

separations are critical to program 

integrity, allowing the agencies to 

appropriately monitor and audit 

employer actions. If not for proper 

notification, employers with histories of 

frequent and unjustified early 

dismissals of workers could continue to 

have an Application for Temporary 

Employment Certification certified and 

an H–2B Petition approved. 

With respect to whether a termination 

actually was for cause, DOL reminds the 

public that WHD, as part of its 

enforcement practices, may investigate 

conditions behind the early termination 

of foreign workers to ensure that the 

dismissals were not affected merely to 

relieve an employer of its outbound 

transportation and three-quarter 

guarantee obligations. Further, 

§ 655.20(n) already protects workers 

from a dismissal in retaliation for 

protected activities. However, some 

employer personnel rules set the 

abscondment threshold at 3 days. This 

regulation does not intrude upon or 

supersede employer attendance policies. 

The requirement that an employer 

provide appropriate notification if a 

worker fails to report for 5 consecutive 

working days does not preclude an 

employer from establishing a different 

standard for dismissing its workers. 

Further, the Departments do not intend 

the H–2B regulations to provide job 

protection to workers in the case of 

illness or injury that may result in 

absences and considers such 

determinations beyond its authority. 

The rule leaves it largely to employers 

to determine the worker behaviors that 

trigger a dismissal for cause, beyond the 

protected activities described in 

§ 655.20(n) and the requirement in 

§ 655.20(z) that the employer comply 

with all applicable employment-related 

laws. 

z. Compliance with applicable laws 

(§ 655.20(z)). Section 655.20(z) requires 

H–2B employers to comply with all 

other applicable Federal, State, and 

local employment laws, similar to the 

2008 rule’s provision at § 655.22(d), and 

it explicitly references 18 U.S.C. 

1592(a), which prohibits employers 

from holding or confiscating workers’ 

immigration documents such as 

passports or visas under certain 

circumstances. Because the prohibition 

must include employers’ attorneys and 

agents in order to achieve the intended 

worker protection, appropriate language 

is included in § 655.20(z) of this interim 

final rule to reflect that coverage. 

aa. Disclosure of foreign worker 

recruitment (§ 655.20(aa)). Section 

655.20(aa) requires the employer and its 

attorney and/or agents to provide a copy 

of any agreements with an agent or 

recruiter whom it engages or plans to 

engage in the recruitment of prospective 

H–2B workers under this Application 

for Temporary Employment 

Certification (§ 655.9), at the time of 

filing the application (§ 655.15(a)), as 

well as to disclose those persons and 

entities hired by or working for the 

recruiter or agent, and any of their 

agents or employees who recruit 

prospective foreign workers for the H– 

2B job opportunities offered by the 

employer. The Departments are adding 

this obligation to the list of Assurances 

and Obligations in this interim final 

rule, as it is a critical obligation that will 

significantly enhance the recruitment 

process, as explained in the preamble to 

§§ 655.9 and 655.15. 

bb. Cooperation with investigators 

(§ 655.20(bb)). Section 655.20(bb) 

requires the employer to cooperate with 

any DOL employee who is exercising or 

attempting to exercise DOL’s authority 

pursuant to 8 U.S.C. 1184(c), INA 

section 214(c). Including this provision 

in the list of employer obligations will 

facilitate enforcement if an employer 

fails to cooperate in any administrative 

or enforcement proceeding, and if that 

failure is determined to be a violation 

under these regulations. Requirements 

for employer cooperation with WHD 

investigations are set forth more fully in 

29 CFR 503.25. 

E. Processing of an Application for 

Temporary Employment Certification 

1. § 655.30 Processing an Application 

and Job Order 

Under this provision, upon receipt of 

an Application for Temporary 

Employment Certification and copy of 

the job order, the CO will promptly 

conduct a comprehensive review. The 

CO’s review of the Application for 

Temporary Employment Certification, 

in most cases,22 will no longer entail a 

determination of temporary need 

following H–2B Registration. Instead, 

this aspect of the CO’s review is limited 

to verifying that the employer 

previously submitted a request for and 

was granted H–2B Registration, and that 

the terms of the Application for 

Temporary Employment Certification 

have not significantly changed from 

those approved under the H–2B 

Registration. 

The interim final rule also requires 

the use of next day delivery methods, 

including electronic mail, for any notice 

or request sent by the CO requiring a 

response from the employer and the 

employer’s response to such a notice or 

request. This provision also contains a 

long-standing program requirement that 

the employer’s response to the CO’s 

notice or request must be sent by the 

due date or the next business day if the 

due date falls on a Saturday, Sunday, or 

a Federal holiday. 

2. § 655.31 Notice of Deficiency 

This provision requires the CO to 

issue a formal Notice of Deficiency 

where the CO determines that the 

Application for Temporary Employment 

Certification and/or job order contains 

errors or inaccuracies, or fails to comply 

with applicable regulatory and program 

requirements. The CO must issue the 

Notice of Deficiency within 7 business 

days from the date on which the 

Chicago NPC receives the employer’s 

Application for Temporary Employment 

Certification and job order. Once the CO 

issues a Notice of Deficiency to the 

employer, the CO will provide the SWA 

and the employer’s attorney or agent, if 

applicable, a copy of the notice. The 

Notice of Deficiency will include the 

specific reason(s) why the Application 

for Temporary Employment 

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Certification and/or job order is 

deficient, identify the type of 

modification necessary for the CO to 

issue a Notice of Acceptance, and 

provide the employer with an 

opportunity to submit a modified 

Application for Temporary Employment 

Certification and/or job order within 10 

business days from the date of the 

Notice of Deficiency. The Notice of 

Deficiency will also inform the 

employer that it may, alternatively, 

request administrative review before an 

Administrative Law Judge (ALJ) within 

10 business days of the date of the 

Notice of Deficiency and instruct the 

employer how to file a request for such 

review in accordance with the 

administrative review provision under 

this subpart. Finally, the Notice of 

Deficiency will inform the employer 

that failing to timely submit a modified 

Application for Temporary Employment 

Certification and/or job order, or request 

administrative review, will cause the 

CO to deny that employer’s Application 

for Temporary Employment 

Certification. The CO may issue 

multiple Notices of Deficiency, if 

necessary, to provide the CO with the 

needed flexibility to work with 

employers seeking to resolve 

deficiencies that are preventing 

acceptance of their Application for 

Temporary Employment Certification. 

For example, there are situations in 

which a response to a Notice of 

Deficiency raises other issues that must 

be resolved, requiring the CO to request 

more information. The CO will have the 

ability to address these situations. 

3. § 655.32 Submission of a Modified 

Application or Job Order 

The interim final rule permits the CO 

to deny any Application for Temporary 

Employment Certification where the 

employer neither submits, following 

request by the CO, a modification nor 

requests a timely administrative review, 

and such a denial cannot be appealed. 

The interim final rule also requires the 

CO to deny an Application for 

Temporary Employment Certification if 

the modification(s) made by the 

employer do not comply with the 

requirements for certification in 

§ 655.50. A denial of a modified 

Application for Temporary Employment 

Certification may be appealed. 

If the CO deems a modified 

application acceptable, the CO will 

issue a Notice of Acceptance and 

require the SWA to modify the job order 

in accordance with the accepted 

modification(s), as necessary. In 

addition to requiring modification 

before the acceptance of an Application 

for Temporary Employment 

Certification, this provision permits the 

CO to require the employer to modify a 

job order at any time before the final 

determination to grant or deny the 

Application for Temporary Employment 

Certification if the CO determines that 

the job order does not contain all the 

applicable minimum benefits, wages, 

and working conditions. The CO’s 

ability to require modification(s) of a job 

order strengthens H–2B program 

integrity. In some cases, information 

may come to the CO’s attention after 

acceptance indicating that the job order 

does not contain all the applicable 

minimum benefits, wages, and working 

conditions that are required for 

certification. This provision enables the 

CO to ensure that the job order meets all 

regulatory requirements. 

The provision requires the CO to 

update the electronic job registry to 

reflect the necessary modification(s) and 

to direct the SWA(s) in possession of the 

job order to replace the job order in their 

active files with the modified job order. 

The provision also requires the 

employer to disclose the modified job 

order to all workers recruited under the 

original job order or Application for 

Temporary Employment Certification. 

4. § 655.33 Notice of Acceptance 

The interim final rule requires the CO 

to issue a formal notice accepting the 

employer’s Application for Temporary 

Employment Certification for 

processing. Specifically, the CO will 

send a Notice of Acceptance to the 

employer (and the employer’s attorney 

or agent, if applicable), with a copy to 

the SWA, within 7 business days from 

the CO’s receipt of the Application for 

Temporary Employment Certification or 

modification, provided that the 

Application for Temporary Employment 

Certification and job order meet all the 

program and regulatory requirements. 

The Notice of Acceptance directs the 

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

circulating the job order to the SWAs in 

all other States listed on the employer’s 

Application for Temporary Employment 

Certification and job order as 

anticipated worksites and (ii) to any 

States to which the CO directs the SWA 

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

job order on its active file and continue 

to refer U.S. workers to the employer 

until the end of the recruitment period 

defined in § 655.40(c), as well as 

transmit those instructions to all other 

SWAs to which it circulates the job 

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

job order to certain labor organizations, 

where the job classification is 

traditionally or customarily unionized. 

The Notice of Acceptance will direct 

the employer to recruit U.S. workers in 

accordance with employer-conducted 

recruitment provisions in §§ 655.40– 

655.46, as well as to conduct any 

reasonable additional recruitment the 

CO directs, consistent with § 655.46, 

within 14 calendar days from the date 

of the notice. The Notice of Acceptance 

will inform the employer that such 

employer-conducted recruitment is 

required in addition to SWA circulation 

of the job order in intrastate and 

interstate clearance under § 655.16. In 

addition, the Notice of Acceptance will 

require the employer to submit a written 

report of its recruitment efforts as 

specified in § 655.48. Finally, the Notice 

of Acceptance may require the employer 

to contact appropriate designated 

community-based organizations with 

the notice of the job opportunity. 

5. § 655.34 Electronic Job Registry 

The CO will post employers’ H–2B job 

orders, including modifications and/or 

amendments approved by the CO, on an 

electronic job registry to disseminate the 

job opportunities to the widest audience 

possible. The electronic job registry was 

initially created to accommodate the 

posting of H–2A job orders, and DOL 

will expand it to include H–2B job 

orders. DOL will inform the public 

when the electronic job registry is 

available for the H–2B program. Once 

the registry is operational, the CO will 

post the job orders on the electronic job 

registry, after accepting an Application 

for Temporary Employment 

Certification, for the duration of the 

recruitment period, as provided in 

§ 655.40(c). Although a job order may be 

circulated among multiple SWAs, only 

the job order placed with the initial 

SWA, which identifies all work 

locations, will be posted on the 

electronic job registry. The electronic 

job registry will be accessible via the 

internet to anyone seeking employment. 

We will work with the SWAs to devise 

procedures to further publicize the 

electronic job registry. At the conclusion 

of the recruitment period, we will 

maintain the job order on the electronic 

job registry in inactive status, making 

the information available for a variety of 

other public examination purposes. 

6. § 655.35 Amendments to an 

Application or Job Order 

This provision permits an employer to 

request to amend its Application for 

Temporary Employment Certification 

and/or job order to increase the number 

of workers, to change the period of 

employment, or to make other changes 

to the application, before the CO makes 

a final determination to grant or deny 

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the Application for Temporary 

Employment Certification. The 

provision permits an employer to seek 

such amendments only before 

certification, not after certification. This 

provision provides clarity to employers 

and workers alike of the limitations on 

and processes for amending an 

Application for Temporary Employment 

Certification and the need to inform any 

U.S. workers already recruited of the 

changed job opportunity. The provision 

recognizes that business is not static and 

employers can face changed 

circumstances from varying sources— 

from climatic conditions to cancelled 

contracts. Accordingly, we include this 

provision to provide some flexibility to 

enable employers to assess and respond 

to such changes. 

In considering whether to approve the 

request, the CO will determine whether 

the proposed amendment(s) are 

sufficiently justified and must take into 

account the effect of the changes on the 

underlying labor market test for the job 

opportunity. We do not intend this 

provision to allow employers to amend 

their applications beyond the 

parameters contained in § 655.12; 

rather, part of the CO’s review will 

involve comparing the requested 

amendments to the content of the 

approved H–2B Registration. 

We have included certain limitations 

to ensure that these job opportunities 

are not misrepresented or materially 

changed as a result of such 

amendments. We expect that these 

parameters, which limit the extent of 

the change in number of workers or 

period of need permitted, and the CO 

review process to control the frequency 

with which post-acceptance and precertification job order amendments are 

requested or approved and maintain the 

integrity of the H–2B Registration 

process. 

Specifically, the employer may 

request an amendment of the 

Application for Temporary Employment 

Certification and/or job order to increase 

the number of workers initially 

requested. However, amendments to 

increase the number of workers must be 

limited to no more than 20 percent (50 

percent for employers requesting fewer 

than 10 workers) above the number 

specified in the H–2B Registration. In 

addition, the provision permits minor 

changes to the period of employment at 

any time before the CO’s final 

determination. However, such 

amendments to the period of 

employment may not exceed 14 days 

and may not cause the total period to 

exceed 9 months, except in the event of 

a demonstrated one-time occurrence. 

This limitation to 14 days is designed to 

ensure that the employer had a 

legitimate need before initiating the 

registration process, and accurately 

estimated its dates of need. Although an 

H–2B registration covers the entire 

period of need for up to 3 years, this 

provision, by contrast, allows an 

employer to request a change of up to 

14 days from the from the period listed 

on its Application for Temporary 

Employment Certification, allowing for 

up to 2 such changes from the initial 

dates provided in the registration, as 

long as the deviations do not result in 

a total period of need exceeding 9 

months. 

Under this provision, the employer 

must request any amendment(s) to the 

Application for Temporary Employment 

Certification and/or job order in writing 

and any such amendment(s) will not be 

effective until approved by the CO. 

After reviewing an employer’s request to 

amend its Application for Temporary 

Employment Certification and/or job 

order, the CO will approve these 

changes if the CO determines the 

proposed amendment(s) are justified 

and will not negatively affect the CO’s 

ability to make a timely temporary labor 

certification determination, including 

the ability to adequately test the U.S. 

labor market. Changes will not be 

approved that affect the underlying H– 

2B registration. Once the CO approves 

an amendment to the Application for 

Temporary Employment Certification 

and/or job order, the CO will submit to 

the SWA any necessary change(s) to the 

job order and update the electronic job 

registry to reflect the approved 

amendment(s). 

F. Recruitment Requirements 

This interim final rule maintains and 

expands some of the requirements 

relating to the recruitment of U.S. 

workers that were contained in the 2008 

rule. The Departments conclude that, 

with expanded requirements, including 

the requirement that the employer 

contact its former U.S. workers and the 

requirement to conduct additional 

recruitment at the discretion of the CO, 

recruitment is more likely to identify 

qualified and available U.S. workers 

than under the 2008 rule and will better 

protect against the potential for adverse 

effect. 

1. § 655.40 Employer-Conducted 

Recruitment 

Unlike under the 2008 rule, this 

interim final rule requires that the 

employer conduct recruitment of U.S. 

workers after its Application for 

Temporary Employment Certification is 

accepted for processing by the CO. 

Paragraph (a) contains the general 

requirement that employers must 

conduct recruitment of U.S. workers to 

ensure that there are not qualified U.S. 

workers who will be available for the 

positions listed in the Application for 

Temporary Employment Certification 

and provides that U.S. applicants can be 

rejected only for lawful job-related 

reasons. This general requirement to test 

the U.S. labor market is needed to 

ensure that the importation of foreign 

workers will not have an adverse effect 

on U.S. workers. 

Paragraph (b) requires that employers 

complete specific recruitment steps 

outlined in §§ 655.42 through 655.46 

within 14 days from the date of the 

Notice of Acceptance unless otherwise 

instructed by the CO. This paragraph 

further requires that all employerconducted recruitment must be 

completed before the employer submits 

the recruitment report as required in 

§ 655.48. We conclude that a 14-day 

recruitment period provides an 

appropriate timeframe for the employer 

to conduct the recruitment described in 

§§ 655.42 through 655.46, especially 

when combined with the longer SWA 

referral period discussed further below. 

Paragraph (c) requires that employers 

must continue to accept referrals and 

applications of all U.S. applicants 

interested in the position until 21 days 

before the date of need. Separate from 

the employer-conducted recruitment, 

this interim final rule at § 655.16 

requires the SWA, upon acceptance of 

the job order and Application for 

Temporary Employment Certification by 

the CO, to circulate the job order, and 

§ 655.34 of this interim final rule 

provides that the CO will post the job 

order to the electronic job registry. The 

requirement that employers continue to 

accept all qualified U.S. applicants 

referred for employment by the SWA or 

who apply for the position directly with 

the employer until 21 days before the 

date of need balances the need to ensure 

an adequate test of the U.S. labor market 

without requiring the employer to incur 

any additional costs in conducting 

independent recruitment efforts beyond 

the sources and the 14 days specified in 

the Notice of Acceptance. 

Paragraph (d) provides that where the 

employer wishes to conduct interviews 

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

telephone or at a location where 

workers can participate at little or no 

cost to the workers. This provision does 

not require employers to conduct 

employment interviews under this 

provision. Rather, employers are barred 

from offering preferential treatment to 

potential H–2B workers, including any 

requirement to interview for the job 

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opportunity. In addition, this interim 

final rule ensures that employers 

conduct a fair labor market test by 

requiring employers that conduct 

interviews to conduct them by phone or 

provide a procedure for the interviews 

to be conducted in the location where 

the worker is being recruited so that the 

worker incurs little or no cost. 

Accordingly, an employer who requires 

a U.S. worker to undergo an interview 

must provide such worker with a 

reasonable opportunity to meet such a 

requirement. The purpose of these 

requirements is to ensure that that the 

employer does not use the interview 

process to the disadvantage of U.S. 

workers. 

To ensure no adverse effect to U.S. 

workers, paragraph (e) requires that the 

employer must consider all U.S. 

applicants for the job opportunity and 

that the employer must accept and hire 

any applicants who are qualified and 

who will be available for the job 

opportunity. 

Paragraph (f) requires the employer to 

prepare a recruitment report meeting the 

requirements of § 655.48. 

2. § 655.41 Advertising Requirements 

Section 655.41 of this interim final 

rule requires that all employer 

recruitment contain terms and 

conditions of employment no less 

favorable than those offered to the 

prospective H–2B workers and provide 

the terms and conditions of employment 

necessary to apprise U.S. workers of the 

job opportunity. 

Paragraph (a) requires that all 

recruitment must, at a minimum, 

comply with the assurances applicable 

to job orders as set forth in § 655.18(a). 

While this requires advertising to 

conform to the job order assurances and 

include the minimum terms and 

conditions of employment, it does not 

require an advertisement to include the 

full text of the assurances applicable to 

job orders. Consistent with § 655.18(a), 

all job qualifications and requirements 

listed in the employer’s advertising 

must be bona fide and consistent with 

normal and accepted job qualifications 

and requirements. 

Paragraph (b) provides a list of the 

minimum terms and conditions of 

employment that must be included in 

all advertising, including a requirement 

that the employer make the appropriate 

disclosure when it is offering or 

providing board, lodging or facilities, as 

well as identify any deductions, if 

applicable, that will be applied to the 

employee’s pay for the provision of such 

accommodations. In requiring that 

advertisements comply with the 

assurances from the job order and meet 

minimum content requirements, but not 

requiring that advertisements contain all 

of the text of the assurances from the job 

order, we strike a balance between the 

employer’s cost in placing potentially 

lengthy advertisements and the need to 

ensure that entities disclose all 

necessary information to all potential 

applicants. In addition, as a continuing 

practice in the program, employers will 

be able to use abbreviations in the 

advertisements so long as the 

abbreviation clearly and accurately 

captures the underlying content 

requirement. 

In order to help employers comply 

with these requirements, we provide 

below specific language which is 

sufficient on the issues of 

transportation; the three-fourths 

guarantee; and tools, equipment, and 

supplies to apprise U.S. applicants of 

those required items in the 

advertisement. As provided above, the 

employer may also abbreviate some of 

this language so long as the underlying 

guarantee can be clearly understood by 

a prospective applicant. The following 

statements in an employer’s 

advertisements are permitted: 

1. Transportation: Transportation 

(including meals and, to the extent necessary, 

lodging) to the place of employment will be 

provided, or its cost to workers reimbursed, 

if the worker completes half the employment 

period. Return transportation will be 

provided if the worker completes the 

employment period or is dismissed early by 

the employer. 2. Three-fourths guarantee: For 

certified periods of employment lasting fewer 

than 120 days: The employer guarantees to 

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

period of the total employment period. For 

certified periods of employment lasting 120 

days or more: The employer guarantees to 

offer work for hours equal to at least threefourths of the workdays in each 12-week 

period of the total employment period. 3. 

Tools, equipment and supplies: The 

employer will provide workers at no charge 

all tools, supplies, and equipment required to 

perform the job. 

The interim final rule at 

§ 655.41(b)(14) requires all employer 

advertisements to direct applicants to 

apply for the job at the nearest SWA 

office because we conclude that 

allowing SWAs to apprise job applicants 

of the terms and conditions of 

employment is an essential aspect of 

ensuring an appropriate labor market 

test. However, notwithstanding the 

many benefits of being referred to the 

job opportunity by the SWA, U.S. 

workers may contact the employer 

directly, and the interim final rule at 

§ 655.41(b)(1) requires that employers 

include their contact information to 

enable such direct contact. We 

anticipate that the enhanced role of the 

SWA in employee referrals and the 

additional duties inherent in that role 

will be offset through the elimination of 

the requirement for the SWA to conduct 

employment verification activities as 

discussed further below. 

3. § 655.42 Newspaper Advertisements 

As under the 2008 rule, this interim 

final rule at § 655.42(a) requires the 

employer to place two advertisements in 

a newspaper of general circulation for 

the area of intended employment that is 

appropriate to the occupation and the 

workers likely to apply for the job 

opportunity, at least one appearing in a 

Sunday edition. In addition this 

paragraph requires the employer to 

place the advertisement(s) in a language 

other than English where the CO 

determines it is appropriate. Further, we 

eliminate the employer’s option under 

the 2008 rule to replace one of the 

newspaper advertisements with an 

advertisement in a professional, trade, 

or ethnic newspaper. 

Newspapers of general circulation 

remain an important source for 

recruiting U.S. workers, particularly 

those interested in positions typically 

found in the H–2B program. Low-wage 

workers are less likely to have internet 

access than more skilled workers, and 

are thus more likely to search for jobs 

using traditional means. Particularly 

given that the CO has authority to 

require the newspaper advertisement to 

be published in a language other than 

English, newspapers continue to be a 

valuable source for recruitment. In 

addition, newspaper advertisements are 

also recognized as information sources 

likely to generate informal, word of 

mouth referrals. No single alternative 

method of advertising uniformly applies 

to the variety of H–2B job opportunities 

or is likely to reach as broad a potential 

audience for these types of job 

opportunities. 

Paragraph (b) provides the CO with 

discretion to direct the employer, in 

place of a Sunday edition, to advertise 

in the regularly published daily print 

edition with the widest circulation in 

the area of intended employment if the 

job opportunity is located in a rural area 

that does not have a newspaper with a 

Sunday edition. This provision is 

similar to the 2008 rule, which required 

an employer to advertise in the regularly 

published daily edition with the widest 

circulation in the area of intended 

employment if the job opportunity was 

located in such an area. 

Paragraph (c) provides that the 

newspaper advertisements must meet 

the requirements in § 655.41. 

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Paragraph (d) requires the employer to 

maintain documentation of its 

newspaper advertisements in the form 

of copies of newspaper pages (with date 

of publication and full copy of the 

advertisement), tear sheets of the pages 

of the publication in which the 

advertisements appeared, or other proof 

of publication furnished by the 

newspaper containing the text of the 

printed advertisements and the dates of 

publication, consistent with the 

document retention requirements in 

§ 655.56. It further requires that if the 

advertisement was required to be placed 

in a language other than English, the 

employer must maintain a translation 

and retain it in accordance with 

§ 655.56. 

4. § 655.43 Contact With Former U.S. 

Employees 

This provision requires employers to 

make reasonable efforts to contact by 

mail or other effective means its former 

U.S. workers who were employed by the 

employer in the same occupation at the 

place of employment during the 

previous year before the date of need 

listed in the Application for Temporary 

Employment Certification. This 

requirement expands the 2008 rule’s 

requirement that employers contact 

former U.S. workers who have been laid 

off within 120 days of the employer’s 

date of need. However, employers are 

not required to contact U.S. workers 

who were terminated for cause or who 

abandoned the worksite, as defined in 

§ 655.20(y). The Departments believe 

that this provision will help ensure that 

the greatest number of U.S. workers, 

particularly those that have previously 

held these positions, have awareness of 

and access to these job opportunities. 

Each employer must provide its 

former U.S. employees a full disclosure 

of the terms and conditions of the job 

order, and solicit their return to the job. 

Employers will be required to maintain 

documentation to be submitted in the 

event of an audit or investigation 

sufficient to prove contact with its 

former employees consistent with 

document retention requirements under 

§ 655.56. This documentation may 

consist of a copy of a form letter sent to 

all former employees, along with 

evidence of its transmission (postage 

account, address list, etc.). 

Although the requirement focuses on 

a longer period of time than the 

requirement under the 2008 rule, it is 

unlikely that it will impose a 

significantly greater burden on 

employers. Typically, employers will 

have laid off seasonal or temporary U.S. 

workers at the end of the period of need, 

which was up to 10 months under the 

2008 rule. This means that such workers 

are those whom the employer would 

have been required to contact under 

§ 655.15(h) under the 2008 rule. If for 

some reason, the employer did lay off 

some workers who were hired to work 

during the employer’s period of 

temporary need, before the end of the 

period of need—e.g., additional workers 

who were hired for a period of peakload 

need within the longer period of 

temporary need, the Departments 

believe that it would be most 

appropriate to give those workers the 

first opportunity to take the jobs. 

Generally, however, there will be little 

practical difference between the 

operation of the previous requirement 

and the operation of this requirement in 

the interim final rule except perhaps for 

seasonal jobs. In a seasonal program, 

reaching back to contact former 

employees who were employed over a 

cycle of a full year would be the 

minimum amount of time necessary to 

capture all of the seasonal activities for 

which H–2B workers are sought. For 

example, an oceanfront resort employer 

hires workers at the start of its season 

in May and releases them in September. 

The employer then seeks H–2B workers 

the following March, more than 60 days 

before the usual date of need. Reaching 

that particular workforce requires the 

employer to reach back to the time those 

employees were hired—the previous 

May—to ensure that the group of 

employees most likely to return to the 

employment are given the opportunity 

to do so. 

The Departments recognize that 

collective bargaining agreements may 

require the employer to contact laid-off 

employees in accordance with specific 

terms governing recall and a recall 

period. The requirement in this section 

that the employer contact former 

employees employed by the employer 

during the prior year would not 

substitute for the terms in a collective 

bargaining agreement. The employer is 

separately obligated to comply with the 

terms and conditions of the bargaining 

agreement, which may include recall 

provisions that cover workers employed 

by the employer beyond the prior year. 

The Departments also recognize that 

some unscrupulous employers may use 

termination as a means of retaliating 

against workers who complain about 

unlawful treatment or exercise their 

rights under the program. However, the 

requirement in this interim final rule 

that each employer affirmatively attest 

that it has not engaged in unfair 

treatment as defined in § 655.20(n), i.e., 

that it has not retaliated against 

complaining employees, acts as a 

backstop against this prohibited activity 

and the possibility that an employer 

would be released from contacting such 

workers. 

5. § 655.44 [Reserved] 

6. § 655.45 Contact With Bargaining 

Representative, Posting Requirements, 

and Other Contact Requirements 

Paragraph (a) of this section requires 

employers that are party to a CBA to 

provide written notice to the bargaining 

representative(s) of the employer’s 

employees in the job classification in 

the area of intended employment by 

providing a copy of the Application for 

Temporary Employment Certification 

and the job order. The employer must 

maintain documentation that the 

application and job order were sent to 

the bargaining representative(s). This 

requirement will provide that each 

employer’s existing U.S. workers receive 

timely notice of the job opportunities, 

thereby increasing the likelihood that 

those workers will apply for the 

available positions for the subsequent 

temporary period of need, and other 

U.S. workers, possibly including former 

workers, will be more likely to learn of 

the job opportunities as well. This 

paragraph further requires such 

employers to include information in 

their recruitment reports that confirms 

that the bargaining representative(s) was 

contacted and notified of the position 

openings and whether the organization 

referred qualified U.S. worker(s), 

including the number of referrals, or 

was non-responsive to the employer’s 

requests. 

Paragraph (b) requires that, where 

there is no bargaining representative of 

the employer’s employees, the employer 

must post a notice to its employees of 

the job opportunities for at least 15 

consecutive business days in at least 

two conspicuous locations at the place 

of intended employment or in some 

other manner that provides reasonable 

notification to all employees in the job 

classification and area in which work 

will be performed by the H–2B workers. 

Web posting can fulfill this requirement 

in some circumstances. 

The posting of the notice at the 

employer’s worksite, in lieu of formal 

contact with a representative when one 

does not exist, is intended to provide 

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

are afforded the same access to the job 

opportunities for which the employer 

intends to hire H–2B workers. In 

addition, the posting of the notice may 

result in the sharing of information 

between the employer’s unionized and 

nonunionized workers and therefore 

result in more referrals and a greater 

pool of qualified U.S. workers. This 

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interim final rule provides a degree of 

flexibility for complying with this 

requirement; specifically, the regulation 

includes the language ‘‘or in some other 

manner that provides reasonable 

notification to all employees in the job 

classification and area in which the 

work will be performed by the H–2B 

workers.’’ This permits the employer to 

devise an alternative method for 

disseminating this information to the 

employer’s employees, for example, by 

posting the notice in the same manner 

and location as for other notices, such 

as safety and health occupational 

notices, that the employer is required by 

law to post. This provision further 

provides that electronic posting, such as 

displaying the notice prominently on 

any internal or external Web site that is 

maintained by the employer and 

customarily used for notices to 

employees about terms and conditions 

of employment, is sufficient to meet this 

posting requirement as long as the 

posting otherwise meets the 

requirements of this section. Finally, 

this paragraph requires the notice to 

meet the requirements of § 655.41 and 

that the employer maintain a copy of the 

posted notice and identify where and 

when it was posted in accordance with 

§ 655.56. 

Paragraph (c) provides, in addition to 

the requirements for notification to 

bargaining representatives or employees 

in this section, that the CO may also 

require the employer to contact 

community-based organizations to 

disseminate the notice of the job 

opportunity. Community-based 

organizations are an effective means of 

reaching out to domestic workers 

interested in specific occupations. ETA 

administers our nation’s public 

exchange workforce system through a 

series of One-Stop Career Centers. These 

One-Stop Centers provide a wide range 

of employment and training services for 

workers through job training and 

outreach programs such as job search 

assistance, job referral and job 

placement services, and also provide 

recruitment services to businesses 

seeking workers. Community-based 

organizations with employment 

programs including workers who might 

be interested in H–2B job opportunities 

have established relationships with the 

One-Stop Career Center network. The 

One-Stop Center in or closest to the area 

of intended employment will be, in 

most cases, the designated point of 

contact the CO will give employers to 

use to provide notice of the job 

opportunity. This provides the 

employer with access not only to the 

community-based organization, but to a 

wider range of services of assistance to 

its goal of meeting its workforce needs. 

This contact is to be made when 

designated specifically by the CO in the 

Notice of Acceptance as appropriate to 

the job opportunity and the area of 

intended employment. 

We note that, not unlike additional 

recruitment (discussed below), contact 

with community-based organizations is 

intended to broaden the pool of 

potential applicants and assist the many 

unemployed U.S. workers with finding 

meaningful job opportunities. These 

organizations are especially valuable 

because they are likely to serve those 

workers in greatest need of assistance in 

finding work and individuals who may 

be seeking positions in H–2B 

occupations that require little or no 

specialized knowledge. Although we 

will not require each employer to make 

this type of contact, this provision, 

where directed by the CO, will assist 

with fulfilling the intent of the H–2B 

program and enhancing the integrity of 

the labor market test. 

7. § 655.46 Additional EmployerConducted Recruitment 

Where the CO determines that the 

employer-conducted recruitment 

described in §§ 655.42 through 655.45 is 

not sufficient to attract qualified U.S. 

workers who are likely to be available 

for a job opportunity, § 655.46 of this 

interim final rule provides the CO with 

discretion to require the employer to 

engage in additional reasonable 

recruitment activities. Paragraph (a) 

provides the CO with discretion to order 

additional reasonable recruitment where 

the CO has determined that there is a 

likelihood that U.S. workers are 

qualified and who will be available for 

the work, including, but not limited to, 

where the job opportunity is located in 

an Area of Substantial Unemployment. 

This discretion may be exercised, 

including in Areas of Substantial 

Unemployment where appropriate, 

where additional recruitment efforts 

will likely result in more opportunities 

for and a greater response from available 

and qualified U.S. workers. In addition, 

we recognize that the increased rate of 

technological innovation, including its 

implications for communication of 

information about job opportunities, is 

changing the way many U.S. workers 

search for and find jobs. In part due to 

these changes, the inclusion of this 

requirement is intended to allow the CO 

flexibility to keep pace with the everchanging labor market trends. 

Areas of Substantial Unemployment 

by their nature have a higher likelihood 

of worker availability; DOL’s 

recognition of worker availability in 

these areas is a strong indicator that 

these open job opportunities may have 

more receptive potential populations. 

However, Areas of Substantial 

Unemployment are only one example of 

a situation in which the CO has 

discretion to order additional 

recruitment. This discretion permits 

DOL to ensure the appropriateness and 

integrity of the labor market test and 

determine the appropriate level of 

recruitment based on the specific 

situation. The COs (with advice from 

the SWAs, which are familiar with local 

employment patterns and real-time 

market conditions), are well-positioned 

to judge where additional recruitment 

may or may not be required as well as 

the sources that should be used by the 

employer to conduct such additional 

recruitment. It is also within the CO’s 

discretion to determine that such 

additional efforts are unlikely to result 

in additional meaningful applications 

for the job opportunity. 

Additional positive recruitment under 

this paragraph will be conducted in 

addition to, and occur within the same 

time period as, the circulation of the job 

order and the other mandatory 

employer-conducted recruitment 

described above. Thus, additional 

recruitment will not result in any delay 

in certification. 

Paragraph (b) provides that, if the CO 

elects to require additional recruitment, 

the CO will describe the number and 

type of additional recruitment efforts 

required. This paragraph also provides a 

non-exclusive list of the types of 

additional recruitment that may be 

required by the CO, including, where 

appropriate: advertising on the 

employer’s Web site or another Web 

site; contact with additional 

community-based organizations that 

have contact with potential worker 

populations; additional contact with 

labor unions; contact with faith-based 

organizations; and reasonable additional 

print advertising. When assessing the 

appropriateness of a particular 

recruitment method, the CO will take 

into consideration all options at her/his 

disposal, including relying on the SWA 

experience and expertise with local 

labor markets, where appropriate, and 

will consider both the cost and the 

likelihood that the additional 

recruitment will identify qualified and 

available U.S. workers, and where 

appropriate opt for the least 

burdensome method(s). CO-ordered 

efforts to contact community-based 

organizations and/or One-Stop Career 

Centers under this section are in 

addition to the requirements in 

§§ 655.16 and 655.45. 

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Paragraph (c) provides that, where the 

CO requires additional recruitment, the 

CO will specify the documentation or 

other supporting evidence that must be 

maintained by the employer as proof 

that the additional recruitment 

requirements were met. Documentation 

must be maintained as required in 

§ 655.56. 

8. § 655.47 Referrals of U.S. Workers 

Section 655.47 of this interim final 

rule requires that SWAs refer for 

employment only individuals who have 

been informed of the material terms and 

conditions of the job opportunity and 

are qualified and will be available for 

employment. Unlike the 2008 rule, this 

interim final rule does not require that 

the SWAs conduct employment (I–9) 

eligibility verification. 

In light of limited resources, we have 

determined that the requirement under 

the 2008 rule that SWAs conduct 

employment eligibility verification of 

job applicants was duplicative of the 

employer’s responsibility under the 

INA. In addition, the INA provides that 

SWAs may, but are not required to, 

conduct such verification for those job 

applicants they refer to employers. DHS 

regulations permit employers to rely on 

the employment eligibility verification 

voluntarily performed by a State 

employment agency in certain limited 

circumstances. 

The elimination of the requirement 

that SWAs conduct employment 

eligibility verification will allow the 

SWAs to focus their staff and resources 

on ensuring that U.S. workers who come 

to them are apprised of job 

opportunities for which the employer 

seeks to hire H–2B workers, which is 

one of the basic functions of the SWAs 

under their foreign labor certification 

grants, and to ensure such workers are 

qualified and available for the job 

opportunities. This does not mean that 

every referral must be assisted by SWA 

staff. To the contrary, many H–2B 

referrals are not staff-assisted but are 

instead self-referrals (e.g., electronic job 

matching systems), and we have no 

intention of interfering with the current 

processes established by most SWAs to 

handle these job orders, since the 

material terms and conditions of 

employment will be available for selfreview by U.S. applicants. However, to 

the extent that SWA staff is directly 

involved in a referral, we expect that the 

referrals made would be only of 

qualified workers. If staff are directly 

involved in the screening process, 

SWAs will be required to ascertain that 

the unemployed U.S. applicants who 

request referral to the job opportunity 

are sufficiently informed about the job 

opportunity, including the start and end 

dates of employment, and that they 

commit to accepting the job offer if 

extended by the employer. We do not 

expect this to be an additional burden 

on SWA staff. 

The Departments do not presume that 

the judgment of the SWAs as to an 

applicant’s qualifications is irrebuttable 

or a substitute for the employer’s 

business judgment with respect to any 

candidate’s suitability for employment. 

However, to the extent that the 

employer does not hire a SWA referral 

who was screened and assessed as 

qualified, the employer will have a 

heightened burden to demonstrate to 

DOL that the applicant was rejected 

only for lawful, job-related reasons. 

9. § 655.48 Recruitment Report 

Consistent with the requirements of 

the 2008 rule, paragraph (a) continues to 

require the employer to submit to the 

Chicago NPC a signed recruitment 

report. Unlike the 2008 rule, however, 

this interim final rule requires the 

employer to send the recruitment report 

on a date specified by the CO in the 

Notice of Acceptance instead of at the 

time of filing its Application for 

Temporary Employment Certification. 

This change accommodates the new 

recruitment model under this interim 

final rule under which the employer 

does not begin its recruitment until 

directed by the CO in the Notice of 

Acceptance. In addition, paragraph (a) 

clarifies that where recruitment is 

conducted by a job contractor or its 

employer-client, both joint employers 

must sign the recruitment report, 

consistent with § 655.19(e). 

Paragraph (a) further details the 

information the employer is required to 

include in the recruitment report, 

including the recruitment steps 

undertaken and their results, as well as 

other pertinent information. The 

provision requires the employer to 

provide the name and contact 

information of each U.S. worker who 

applied or was referred for the job 

opportunity. This reporting allows DOL 

to ensure the employer has met its 

obligation and the agency has met its 

responsibility to determine whether 

there were insufficient U.S. workers 

who are qualified and available to 

perform the job for which the employer 

seeks certification. In addition, when 

WHD conducts an investigation, WHD 

may contact U.S. workers listed in the 

report to verify the reasons given by the 

employer as to why they were not hired, 

where applicable. 

Paragraph (b) requires the employer to 

update the recruitment report 

throughout the referral period to ensure 

that the employer accounts for contact 

with each prospective U.S. worker. The 

employer is not required to submit the 

updated recruitment report to DOL, but 

is required to retain the report and make 

it available in the event of a postcertification audit, a WHD investigation, 

or upon request by the CO. 

DOL notes that it continues to reserve 

the right to post any documents 

received in connection with the 

Application for Temporary Employment 

Certification and will redact information 

accordingly. 

G. Temporary Labor Certification 

Determinations 

1. § 655.50 Determinations 

This section corresponds to 20 CFR 

655.32(a) and (b) in the 2008 rule. 

Paragraph (a) generally authorizes the 

OFLC Administrator and center-based 

COs to certify or deny Applications for 

Temporary Employment Certification 

for H–2B workers. It also authorizes the 

Administrator to redirect applications to 

the OFLC National Office. Paragraph (b) 

requires the CO to determine whether to 

certify (including partially certify) or 

deny an application. It requires the CO 

to certify an application only when the 

employer has fully complied with 

requirements for H–2B temporary labor 

certification, including the criteria 

established in § 655.51. 

2. § 655.51 Criteria for Certification 

This section requires, as conditions of 

certification, that the employer have a 

valid H–2B Registration and have 

demonstrated full compliance with the 

requirements of this subpart. In making 

a determination about the availability of 

U.S. workers for the job opportunity, the 

CO will treat, as available, individuals 

whom the employer rejected for any 

reason that was not lawful or jobrelated. Paragraph (c) makes clear that 

DOL will not grant certification to 

employers that have failed to comply 

with one or more sanctions or remedies 

imposed by final agency actions under 

the H–2B program. 

3. § 655.52 Approved Certification 

This section generally corresponds to 

20 CFR 655.32(d) in the 2008 rule, but 

has been updated to better reflect 

current practices and DOL’s experience. 

In cases where the application is 

approved, this interim final rule 

requires that the CO use electronic mail 

or other next day delivery methods to 

send the Final Determination letter to 

the employer and, when applicable, a 

copy to the employer’s representative. 

The requirement for next-day delivery is 

designed to add efficiency and economy 

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to the certification process. The 

requirement to advise the employer’s 

attorney or agent, when applicable, is 

based on DOL’s program experience 

with complications or 

miscommunications that can arise 

between employers and their agents or 

attorneys. Even when an employer is 

represented, it makes sense for that 

employer to receive and maintain the 

original, approved certification, as the 

employer attests to and is primarily 

responsible for meeting the obligations 

created by the Application for 

Temporary Employment Certification. 

Should the Application for Temporary 

Employment Certification be filed 

electronically, the employer must retain 

the approved temporary labor 

certification. As noted earlier in the 

discussion about electronic filing, upon 

receipt of the original certified ETA 

Form 9142B, the employer or its agent 

or attorney, if applicable, must complete 

the footer on the original Appendix B, 

retain the original Appendix B, and 

submit a signed copy of Appendix B, 

together with the original certified ETA 

Form 9142B directly to USCIS. Under 

the document retention requirements in 

§ 655.56, the employer must retain a 

copy of the temporary labor certification 

and the original signed Appendix B. 

4. § 655.53 Denied Certification 

This section generally corresponds to 

20 CFR 655.32(e) in the 2008 rule, but 

has been updated in ways similar to 

§ 655.52, above. In cases where the 

application is denied, this provision, as 

in § 655.52, requires that the CO use 

electronic mail or other means of next 

day delivery to send the Final 

Determination letter to the employer 

and, when applicable, a copy to the 

employer’s attorney or agent. The Final 

Determination letter must state the 

reasons for the denial, and cite the 

relevant regulatory provisions that 

govern. The letter must also advise the 

employer of its right to seek 

administrative review of the 

determination and of the consequences, 

should the employer elect not to appeal. 

5. § 655.54 Partial Certification 

This section generally corresponds to 

20 CFR 655.32(f) in the 2008 rule. It 

grants the CO authority to issue a partial 

certification that reflects either a 

shorter-than-requested period of need or 

a lower-than-requested number of H–2B 

workers, or both. For each qualified, 

available U.S. worker the SWA has 

referred or who applies directly with the 

employer, and whom the employer has 

accepted or has rejected for reasons that 

are unlawful or unrelated to the job, the 

CO will reduce by one the number of H– 

2B workers certified. To issue a partial 

certification, the CO will amend the 

application and return it and a Final 

Determination letter to the employer, 

with a copy to the employer’s 

representative. The letter must state the 

reasons for the reduction, and governing 

legal authority; when appropriate, 

address the availability of U.S. workers 

in the occupation; explain the 

employer’s right to seek administrative 

review; and describe the consequences, 

should the employer elect not to appeal. 

6. § 655.55 Validity of Temporary 

Employment Certification 

This section mirrors 29 CFR 503.18 

and corresponds to 20 CFR 655.34(a) 

and (b) in the 2008 rule, establishing the 

period of time and scope for which an 

Application for Temporary Employment 

Certification is valid. Under this 

provision, a temporary labor 

certification is valid only for the period 

of authorized employment. The 

certification is also valid only for the 

number of H–2B positions, the area of 

intended employment, the job 

classification and specific services, and 

the employer listed on the approved 

application. The sponsoring employer 

may not transfer the certification to 

another employer, except where the 

other employer is a successor in interest 

to the sponsoring employer. These 

limitations on validity are critical to the 

integrity of the certification and the 

broader H–2B program. They are also 

consistent with the prohibition on 

transfers of an H–2B Registration, and 

with the features DOL has put in place 

for certifications in the permanent 

program. See Labor Certification for the 

Permanent Employment of Aliens in the 

United States; Reducing the Incentives 

and Opportunities for Fraud and Abuse 

and Enhancing Program Integrity; Final 

Rule, 72 FR 27904, 27918 (May 17, 

2007). 

7. § 655.56 Document Retention 

Requirements of H–2B Employers 

This section brings together 

recordkeeping requirements that 

appeared in separate paragraphs 

throughout the 2008 rule, including 20 

CFR 655.6(e), 655.10(i), and 655.15(c) 

and (j). These requirements are similar 

to those in the WHD provisions of this 

interim final rule, at 29 CFR 503.17. 

Under § 655.56, employers must retain 

documents and records proving 

compliance with this subpart and the 

WHD regulation at 29 CFR part 503, 

including but not limited to the 

documents listed in paragraph (c). 

Paragraph (c) lists, among other things, 

the H–2B Registration, the H–2B 

Petition, documents related to 

recruitment of U.S. workers, payroll 

records, and copies of contracts with 

agents or recruiters. Paragraph (b) 

requires the employer to retain relevant 

records for three years from the date of 

certification (for approved applications), 

date of adjudication (for denied 

applications), or date DOL received the 

employer’s letter of withdrawal (for 

withdrawn applications). Employers 

must be prepared to produce these 

records and documents for DOL or for 

other federal agencies in the event of an 

audit or investigation. Under paragraph 

(d), employers must make these 

documents and records available to 

WHD within 72 hours following a 

request. This interim final rule also 

provides that, if the Application for 

Temporary Employment Certification 

and the H–2B Registration are filed 

electronically, the employer must sign 

and retain a copy of each adjudicated 

Application for Temporary Employment 

Certification, including any approved 

modifications, amendments, or 

extensions. 

This requirement is substantively 

similar to the record retention 

requirement currently in place for H–2B 

employers. In addition, employers 

keeping records under this provision 

may keep those records electronically. 

Hence, this requirement does not create 

significant additional burden. Further, 

the records this provision covers serve 

a critical purpose in the operation and 

integrity of the H–2B program. For 

example, in the past, DOL has used 

employer records to make basic 

decisions related to the certification, 

verify compliance with program 

requirements, and confirm the nature of 

payments under contracts with agents or 

recruiters. 

8. § 655.57 Determinations Based on 

the Unavailability of U.S. Workers 

This section addresses employers for 

which certified numbers have been 

reduced due to the existence of 

qualified, available U.S. workers who 

later fail to report for work or fail to stay 

for the period of the contract. In such 

cases, the employer may request a new 

determination from the CO, who must 

make a determination within 72 hours 

after receiving the complete request. 

The employer must submit its request 

directly to the CO, attach a statement 

signed by the employer, and include 

contact information for every U.S. 

worker whom the employer claims has 

become unavailable and the reason for 

nonavailability. 

If the CO denies a new determination, 

the employer may appeal. If the CO 

cannot identify sufficient available U.S. 

workers, the CO will grant the 

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23 If extraordinary circumstances warrant an 

extension beyond the 9-month period, consistent 

with DHS regulations, the maximum period of H– 

2B employment including the extension period 

generally cannot exceed one year. See 8 CFR 

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

employer’s request for a new 

determination. However, even when the 

CO makes a new determination, the 

employer may submit additional 

requests for new determinations in the 

future. 

H. Post Certification Activities 

Sections 655.60 through 655.63 

concern actions an employer may take 

after an Application for Temporary 

Employment Certification has been 

adjudicated, including making a request 

for extension of certification, appealing 

a decision of the CO, and withdrawing 

an Application for Temporary 

Employment Certification. In addition, 

this interim final rule codifies the DOL’s 

practice of maintaining a publiclyaccessible electronic database of 

employers that have applied for H–2B 

certification. 

1. § 655.60 Extensions 

Under the interim final rule, there 

will be instances when an employer will 

have a reasonable need for an extension 

of the time period that was not foreseen 

at the time the employer originally filed 

the Application for Temporary 

Employment Certification. This 

provision provides flexibility to the 

employer in the event of such 

circumstances while maintaining the 

integrity of the certification and the 

determination of temporary need. 

The provision requires that the 

employer submit its request to the CO 

in writing and provide documentation 

showing that the extension is needed 

and that the employer could not have 

reasonably foreseen the need. Except in 

extraordinary circumstances, extensions 

are available only to employers whose 

original certified period of employment 

is less than the 9-month maximum 

period allowable in this subpart.23

Extensions differ from amendments to 

the period of need because extensions 

are requested after certification, while 

amendments are requested before 

certification. Extensions will only be 

granted if the employer demonstrates 

that the need for the extension arose 

from unforeseeable circumstances, such 

as weather conditions or other factors 

beyond the control of the employer 

(including unforeseen changes in 

market conditions). If an employer 

receives an extension, the employer 

must immediately provide a copy of the 

approved extension to its workers. An 

employer denied an extension may 

appeal the decision by following the 

procedures set forth in § 655.61. 

2. § 655.61 Administrative Review 

This provision sets forth the 

procedures for BALCA review of a 

decision of a CO. Subparagraph (a) 

provides the timeframe within which 

requests must be made and sets forth the 

various requirements related to the 

request, including that requests must 

contain only legal argument and be 

limited to evidence that was actually 

submitted to the CO before the date the 

CO’s determination was issued. This 

provision does not provide for de novo 

review. 

The substance of this provision is the 

same as that in the 2008 rule. However, 

this provision does not refer to the 

particular decision of the CO that may 

be appealed, such as the denial of 

temporary labor certification. Rather, 

this provision refers generally to the 

decisions of the CO that may be 

appealed, where authorized in this 

subpart. These decisions are identified 

in the section of the interim final rule 

that discusses the CO’s authority and 

procedure for making that particular 

decision. Additionally, this provision 

increases from 5 business days to 7 

business days: the time in which the CO 

will assemble and submit the appeal file 

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

may file a brief in § 655.61(c); and the 

time BALCA should provide a decision 

upon the submission of the CO’s brief in 

§ 655.61(f). 

3. § 655.62 Withdrawal of an 

Application for Temporary Employment 

Certification 

Under this provision, an employer 

may withdraw an Application for 

Temporary Employment Certification 

before it is adjudicated. Such request 

must be made in writing. 

4. § 655.63 Public Disclosure 

This provision codifies DOL’s practice 

of maintaining, apart from the electronic 

job registry, an electronic database 

accessible to the public containing 

information on all employers that apply 

for H–2B temporary labor certifications. 

The database will continue to include 

non-privileged information such as the 

number of workers the employer 

requests on an application, the date an 

application is filed, and the final 

disposition of an application. The 

continued accessibility of such 

information will increase the 

transparency of the H–2B program and 

process and provide information to 

those currently seeking such 

information from the Departments 

through FOIA requests. 

I. Integrity Measures 

Sections 655.70 through 655.73 have 

been grouped together under the 

heading Integrity Measures, describing 

those actions DOL plans to take to 

ensure that an Application for 

Temporary Employment Certification 

filed with DOL in fact complies with the 

requirements of this subpart. 

The Departments have not elected to 

establish procedures to allow for 

workers and organizations of workers to 

intervene and participate in the audit, 

revocation, and debarment processes. 

Such procedures would be 

administratively infeasible and 

inefficient and would cause numerous 

delays in the adjudication process. For 

example, we would have to identify 

which workers and/or organizations of 

workers should receive notice and 

should be allowed to intervene. 

Processing delays would be exacerbated 

by the fact that once identified, we 

would have to provide additional time 

and resources to notify the parties and 

provide them with the opportunity to 

prepare and present their information, 

regardless of whether they have any 

specific interest or information about 

the particular proceedings at hand. 

Workers and worker advocates continue 

to have the opportunity to contact the 

OFLC or WHD with any findings or 

concerns that they have about a 

particular employer or certification, 

even without a formal notice and 

intervention process in place. 

1. § 655.70 Audits 

This section outlines the process 

under which the CO will conduct audits 

of adjudicated temporary employment 

certification applications. These 

provisions are similar to the 2008 rule. 

The Departments’ mandate to ensure 

that qualified workers in the United 

States are not available and that the 

foreign worker’s employment will not 

adversely affect wages and working 

conditions of similarly employed U.S. 

workers serves as the basis for the 

Departments’ authority to audit 

adjudicated applications, even if the 

employer’s application was ultimately 

withdrawn after adjudication or denied. 

Adjudicated applications include those 

that have been certified, denied, or 

withdrawn after certification. There is 

real value in auditing those applications 

because they could be used to establish 

a record of employer compliance or 

non-compliance with program 

requirements and because the 

information they contain assists DOL in 

determining whether it needs to further 

investigate or debar an employer or its 

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agent or attorney from future labor 

certifications. 

Paragraph (a) provides the CO with 

sole discretion to choose which 

Applications for Temporary 

Employment Certification will be 

audited, including selecting 

applications using a random assignment 

method. When an Application for 

Temporary Employment Certification is 

selected for audit, paragraph (b) requires 

the CO to send a letter to the employer 

and, if appropriate, a copy of the letter 

to the employer’s attorney or agent, 

listing the documentation the employer 

must submit and the date by which the 

documentation must be sent to the CO. 

Paragraph (b) also provides that an 

employer’s failure to fully comply with 

the audit process may result in the 

revocation of its certification or in 

debarment, under §§ 655.72 and 655.73, 

respectively, or require the employer to 

undergo assisted recruitment in future 

filings of an Application for Temporary 

Employment Certification, under 

§ 655.71. 

Paragraph (c) permits the CO to 

request additional information and/or 

documentation from the employer as 

needed in order to complete the audit. 

Paragraph (d) provides that the CO may 

provide any findings made or 

documents received in the course of the 

audit to DHS or other enforcement 

agencies, as well as WHD. The CO may 

also refer any findings that an employer 

discriminated against a qualified U.S. 

worker to the Department of Justice, 

Civil Rights Division, Office of Special 

Counsel for Immigration-Related Unfair 

Employment Practices. 

2. § 655.71 CO-Ordered Assisted 

Recruitment 

Paragraph (a) of this provision permits 

the CO to require an employer to 

participate in assisted recruitment for 

any future Application for Temporary 

Employment Certification, if the CO 

determines as a result of an audit or 

otherwise that a violation that does not 

warrant debarment has occurred. This 

provision will also assist those 

employers that, due to either program 

inexperience or confusion, have made 

mistakes in their Application for 

Temporary Employment Certification 

that indicate a need for further 

assistance from DOL. 

Under paragraph (b) the CO will 

notify the employer (and its attorney or 

agent, if applicable) in writing of the 

requirement to participate in assisted 

recruitment for any future filed 

Application for Temporary Employment 

Certification for a period of up to 2 

years. The assisted recruitment will be 

at the discretion of the CO, and 

determined based on the unique 

circumstances of the employer. 

As set forth in paragraph (c), the 

assisted recruitment may consist of, but 

is not limited to, reviewing the 

employer’s advertisements before 

posting and directing the employer 

where such advertisements are to be 

placed and for how long, requiring the 

employer to conduct additional 

recruitment, requesting and reviewing 

copies of all advertisements after they 

have been posted, and requiring the 

employer to submit proof of contact 

with past U.S. workers, and proof of 

SWA referrals of U.S. workers. If an 

employer materially fails to comply 

with the requirements of this section, 

paragraph (d) provides that the 

employer’s application will be denied 

and the employer may be debarred from 

future program participation under 

§ 655.73. 

3. § 655.72 Revocation 

Under this section, OFLC can revoke 

an approved H–2B temporary labor 

certification under certain conditions, 

including where there is fraud or willful 

misrepresentation of a material fact in 

the application process as defined in 

§ 655.73(d), or a substantial failure to 

comply with the terms and conditions 

of the certification, as defined in 

§ 655.73(d) and (e). Discussion of the 

standards used in determining willful 

misrepresentations and substantial 

failures is discussed in the preamble to 

29 CFR 503.19 (Violations) of this 

interim final rule. OFLC may also 

revoke a certification upon determining 

that the employer failed to cooperate 

with a DOL investigation or with a DOL 

official performing an investigation, 

inspection, audit, or law enforcement 

function, or that the employer failed to 

comply with one or more sanctions or 

remedies imposed by WHD, or with one 

or more decisions or orders of the 

Secretary of Labor, with respect to the 

H–2B program. 

The procedures for revocation begin 

with OFLC sending the employer a 

Notice of Revocation. Upon receiving 

the Notice of Revocation, the employer 

has two options: (1) It may submit 

rebuttal evidence or (2) appeal the 

revocation under the procedures in 

§ 655.61. If the employer does not file 

rebuttal evidence or an appeal within 10 

business days of the date of the Notice 

of Revocation, the Notice will be 

deemed final agency action and will 

take effect immediately at the end of the 

10-day period. If the employer chooses 

to file rebuttal evidence, and the 

employer timely files that evidence, 

OFLC will review it and inform the 

employer of the final determination on 

revocation within 10 business days of 

receiving the rebuttal evidence. 

If OFLC determines that the 

certification should be revoked, OFLC 

will inform the employer of its right to 

appeal under § 655.61. The employer 

must file the appeal of OFLC’s 

determination within 10 business days, 

or OFLC’s decision becomes the final 

decision of the Secretary and will take 

effect immediately after the 10-day 

period. 

If the employer chooses to appeal 

either in lieu of submitting rebuttal 

evidence, or after OFLC makes a 

determination on the rebuttal evidence, 

the appeal will be conducted under the 

procedures contained in § 655.61. The 

timely filing of either the rebuttal 

evidence or an administrative appeal 

stays the revocation pending the 

outcome of those proceedings. If the 

temporary labor certification is 

ultimately revoked, OFLC will notify 

DHS and the Department of State. 

Section 655.72(c) lists an employer’s 

continuing obligations to its H–2B and 

corresponding workers if the employer’s 

H–2B certification is revoked. The 

obligations include reimbursement of 

actual inbound transportation, visa, and 

other expenses (if they have not been 

paid), payment of the workers’ 

outbound transportation expenses, 

payment to the workers of the amount 

due under the three-fourths guarantee; 

and payment of any other wages, 

benefits, and working conditions due or 

owing to workers under this subpart. 

When an employer’s certification is 

revoked, the revocation applies to that 

particular certification only; violations 

relating to a particular certification will 

not be imputed to an employer’s other 

certifications in which there has been 

no finding of employer culpability. 

However, in some situations, OFLC may 

revoke all of an employer’s existing 

labor certifications where the 

underlying violation applies to all of the 

employer’s certifications. For instance, 

if OFLC finds that the employer meets 

either the basis for revocation in 

subparagraph (a)(3) of this section 

(failure to cooperate with a DOL 

investigation or with a DOL official 

performing an investigation, inspection, 

audit, or law enforcement function) or 

in subparagraph (a)(4) of this section 

(failure to comply with sanctions or 

remedies imposed by WHD or with 

decisions or orders of the Secretary of 

Labor with respect to the H–2B 

program), this finding could provide a 

basis for revoking any and all of the 

employer’s existing labor certifications. 

Additionally, where OFLC finds that 

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

of this section affect all of the 

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employer’s certifications, such as where 

an employer misrepresents its legal 

status, OFLC also may revoke that 

employer’s certifications. Lastly, where 

an employer’s certification has been 

revoked, OFLC would take a more 

careful look at the employer’s other 

certifications to determine if similar 

violations exist that would warrant their 

revocation. 

The Departments recognize the 

seriousness of revocation as a remedy; 

accordingly, the bases for revocation 

reflect violations that significantly 

undermine the integrity of the H–2B 

program. OFLC intends to use the 

authority to revoke only when an 

employer’s actions warrant such a 

severe consequence. OFLC does not 

intend to revoke certifications if an 

employer commits minor mistakes. 

4. § 655.73 Debarment 

This interim final rule revises the 

debarment provision from the 2008 rule 

to strengthen the enforcement of H–2B 

labor certification requirements and to 

clarify the basis under which debarment 

may be applied. Under § 655.73(a), 

OFLC may debar an employer if it finds 

that the employer: willfully 

misrepresented a material fact in its H– 

2B Registration, approved Application 

for Temporary Employment 

Certification, or H–2B Petition; 

substantially failed to meet any of the 

terms and conditions of H–2B 

Registration, approved Application for 

Temporary Employment Certification, 

or H–2B Petition; or willfully 

misrepresented a material fact to the 

Department of State during the visa 

application process. Section 655.73(a)(2) 

defines a ‘‘substantial failure’’ to mean 

a willful failure to comply that 

constitutes a significant deviation from 

the terms and conditions of such 

documents, in accordance with the 

statutory definition of ‘‘substantial 

failure’’ in 8 U.S.C. 1184(c)(14)(D), INA 

section 214(c)(14)(D). 

Section 655.73(d) provides the 

standard for determining whether a 

violation was willful. Section 655.73(e) 

describes the factors that OFLC may 

consider in determining whether a 

violation constitutes a significant 

deviation from the terms and conditions 

of the H–2B Registration, approved 

Application for Temporary Employment 

Certification, or H–2B Petition. This list 

of factors is not exclusive, but it offers 

some guidance as to what OFLC 

generally considers when determining 

whether a violation would warrant 

debarment. The factors are the same 

factors used by WHD to determine 

whether a violation is significant under 

29 CFR 503.19(c) of this interim final 

rule. The preamble for 29 CFR 503.19 

explains these definitions in detail. 

Section 655.73(f) provides a 

comprehensive but not exhaustive list of 

violations that would warrant 

debarment where the standards in 

§ 655.73(d)–(e) are met. This is an 

updated list of debarrable violations 

from the 2008 rule. The most significant 

differences are that a single act, as 

opposed to a pattern or practice of such 

actions, would be sufficient to merit 

debarment and that the following 

violations would be considered 

debarrable: 

• Improper layoff or displacement of 

U.S. workers or workers in 

corresponding employment 

(§ 655.73(f)(4)); 

• A violation of the requirements of 

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

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

• A violation of any of the antidiscrimination provisions listed in 

§ 655.20(r) (§ 655.73(f)(11)); 

• Failure to comply with the assisted 

recruitment process (§ 655.73(f)(7)); and 

• A material misrepresentation of fact 

during the registration or application 

process (§ 655.73(f)(14)). 

The procedures for debarment are 

similar to the debarment procedures 

contained in the 2008 rule. They begin 

with OFLC sending the employer, 

attorney, or agent a Notice of 

Debarment. Upon receiving the Notice 

of Debarment, the party has two options: 

It may submit rebuttal evidence or 

request a hearing. If the party does not 

file rebuttal evidence or request a 

hearing within 30 days, the Notice will 

be deemed final agency action and will 

take effect immediately at the end of the 

30-day period. If the party timely files 

rebuttal evidence, OFLC will review it 

and inform the party of the final 

determination on debarment within 30 

days of receiving the rebuttal evidence. 

If OFLC determines that the party 

should be debarred, OFLC will inform 

the party of its right to request a hearing. 

The party must request a hearing of 

OFLC’s determination within 30 days, 

or OFLC’s decision becomes the final 

decision of the Secretary of Labor and 

will take effect immediately at the end 

of the 30-day period. The timely filing 

of either the rebuttal evidence or a 

hearing request stays the debarment 

pending the outcome of those 

proceedings. 

If the employer chooses to request a 

hearing either in lieu of submitting 

rebuttal evidence, or after OFLC makes 

a determination on the rebuttal 

evidence, the hearing will be conducted 

before an Administrative Law Judge 

(ALJ) under the procedures contained in 

29 CFR part 18. After the hearing, the 

ALJ must affirm, reverse, or modify 

OFLC’s determination. The ALJ’s 

decision becomes the final agency 

action unless either party seeks review 

of the decision with the Administrative 

Review Board (ARB) within 30 days. If 

the ARB declines to accept the petition 

or does not issue a notice accepting the 

petition for review within 30 days, the 

ALJ’s decision becomes the final agency 

action. If the ARB accepts the petition 

for review, the ALJ’s decision is stayed 

until the ARB issues a decision. 

Paragraph (h) of this section provides 

that copies of final DOL debarment 

decisions will be forwarded to DHS and 

DOS promptly. See also 8 CFR 214.1(k) 

(stating that upon debarment by the 

Department of Labor, USCIS may deny 

any petition filed by that petitioner for 

nonimmigrant status under section 

101(a)(15)(H) for a period of at least 1 

year but not more than 5 years). Where 

it is warranted, DOL will notify 

additional agencies, such as DOJ, of the 

violations. 

WHD also has independent 

debarment authority under this interim 

final rule. See 29 CFR 503.24 and the 

corresponding preamble. Section 

655.73(h) clarifies that while WHD and 

OFLC will have concurrent debarment 

jurisdiction, the two agencies will 

coordinate their activities so that a 

specific violation for which debarment 

is imposed will be cited in a single 

debarment proceeding. An important 

distinction between the OFLC and WHD 

debarment procedures is that the WHD 

debarment procedures do not provide 

for a 30-day rebuttal period because 

WHD debarments arise from 

investigations during which the 

employer has ample opportunity to 

submit any evidence and arguments in 

its favor. 

Finally, § 655.73(i) provides that an 

employer, agent, or attorney who is 

debarred by OFLC or WHD from the H– 

2B program will also be debarred from 

all other foreign labor certification 

programs administered by DOL for the 

time period in the final debarment 

decision. Many employers, agents and 

attorneys participate in more than one 

foreign labor certification program 

administered by DOL. However, under 

the 2008 rule, a party that was debarred 

under the H–2B program could continue 

to file applications under DOL’s other 

foreign labor programs. Under this 

interim final rule DOL will refuse to 

accept applications filed by or on behalf 

of a debarred party under the H–2B 

program in any of DOL’s foreign labor 

certification programs. 

Although DOL does not have the 

authority to routinely seek debarment of 

entities that are not listed on the ETA 

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24084 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

Form 9142, in appropriate 

circumstances, DOL may pierce the 

corporate veil in order to more 

effectively remedy the violations found. 

Piercing the corporate veil may be 

necessary to foreclose the ability of 

individual principals of a company or 

legal entity to reconstitute under 

another business entity. 

Debarment of Agents and Attorneys 

This interim final rule does not limit 

debarment to employers. Under 

§ 655.73(b), agents and attorneys of the 

employer may be debarred for their own 

violations as well as their participation 

in an employer’s violation (under the 

2008 rule agents could only be debarred 

for their participation in an employer’s 

violation). As discussed under § 655.8, 

the Departments have had concerns 

about the role of agents in the program, 

and whether their presence and 

participation have contributed to 

problems with program compliance, 

such as the passing on of prohibited 

costs to employees. However, the 

Departments recognize that the vast 

majority of employers file H–2B 

temporary employment certification 

applications using an agent, and that 

many of these agents are intimately 

familiar with the H–2B program 

requirements, and help guide employers 

through the process. The Departments 

believe that, in order to improve 

program integrity and compliance, these 

agents and attorneys should be 

accountable for their own program 

violations, just as their employer-clients 

are. 

The agents and attorneys who file 

applications on behalf of employers 

certify under penalty of perjury on the 

ETA Form 9142B Application for 

Temporary Employment Certification 

that everything stated on the application 

is true and correct. However, for 

example, a bad actor agent may pass on 

prohibited fees to workers in violation 

of the prohibition on collecting such 

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

while affirming that everything on the 

application is true and correct, 

including the employer’s declaration 

that its agents and/or attorneys have not 

sought or received prohibited fees. In 

addition, § 655.20(p) and 29 CFR 

503.16(p) require an employer to 

contractually prohibit an agent or 

recruiter from seeking or receiving 

payments from prospective employees. 

This creates a potential loophole, under 

which an employer may contractually 

prohibit the attorney or agent from 

collecting prohibited fees, yet the 

attorney or agent independently charges 

the workers for prohibited fees. In this 

situation, the employer will not be 

debarred for the independent violation 

of the agent or attorney because the 

employer has not committed any 

violation, provided the employer did 

not know or have reason to know of 

such independent violation. The 2008 

rule did not provide a mechanism for 

holding the attorney or agent 

accountable for such a violation absent 

a link to an employer violation. This 

interim final rule closes that loophole 

by applying debarment to independent 

violations by attorneys and agents, 

recognizing that agents and attorneys 

should be held accountable for their 

own independent willful violations of 

the H–2B program, separate from an 

employer’s violation. This concept 

applies throughout the program 

sanction sections, including the OFLC 

and WHD debarment provisions at 

§ 655.73(b) and 29 CFR 503.24(b), as 

well as the WHD sanctions and 

remedies section, as discussed further in 

the preamble at 29 CFR 503.20. These 

enhanced compliance measures apply 

only to the agents and attorneys who are 

signatories on the ETA Form 9142, as 

these agents and attorneys have become 

directly involved with the H–2B 

program and have made attestations to 

DOL. 

The Departments do not intend to 

make attorneys or agents strictly liable 

for debarrable offenses committed by 

their employer clients, nor do we intend 

to debar attorneys who obtain privileged 

information during the course of 

representation about their client’s 

violations or whose clients disregard 

their legal advice and commit willful 

violations. DOL will be sensitive to the 

facts and circumstances in each 

particular instance when considering 

whether an attorney or agent has 

participated in an employer’s violation; 

DOL will seek to debar only those 

attorneys or agents who work in 

collusion with their employer-clients to 

either willfully misrepresent material 

facts or willfully and substantially fail 

to comply with the regulations. 

Similarly, where employers have 

colluded with their agents or attorneys 

to commit willful violations, we will 

consider debarment of the employer as 

well. 

OFLC and WHD publicly post a list of 

employers, agents, or attorneys who 

have been debarred under all of the 

labor certification programs. Where 

circumstances warrant, DOL may decide 

to report debarred attorneys to State bar 

associations using the information 

provided in the ETA Form 9142, which 

provides a field for the attorney’s State 

bar association number and State of the 

highest court where the attorney is in 

good standing. 

Period of Debarment 

Under this interim final rule, an 

employer, attorney, or agent may not be 

debarred for less than 1 year nor more 

than 5 years from the date of the final 

debarment decision. This increases the 

maximum debarment period, which was 

3 years in the 2008 rule. The 1 to 5-year 

range for the period of debarment is 

consistent with the H–2B enforcement 

provisions in the INA, and the 

Departments believe that it is 

appropriate to apply the same standard 

in our regulations. 8 U.S.C. 

1184(c)(14)(A)(ii), INA section 

214(c)(14)(A)(ii); see also 8 CFR 

214.1(k). The Departments do not intend 

to debar employers, attorneys, or agents 

who make minor, unintentional 

mistakes in complying with the 

program, but rather those who commit 

a willful misrepresentation of a material 

fact, or a substantial failure to meet the 

terms and conditions, in the H–2B 

Registration, Application for Prevailing 

Wage Determination, Application for 

Temporary Employment Certification, 

or H–2B Petition. Additionally, just 

because OFLC has the authority to debar 

a party for up to 5 years does not mean 

that would be the result for all 

debarment determinations, as OFLC 

retains the discretion to determine the 

appropriate period of debarment based 

on the severity of the violation. 

The debarment timeline varies greatly 

depending on the timing of when 

violations are discovered through OFLC 

audits, WHD targeted investigations, or 

WHD investigations initiated by 

complaints. In other words, there is no 

one time within a season when a 

debarment proceeding might be 

initiated. Additionally, various factors 

affect the timing of an investigation that 

may lead to debarment, including the 

complexity of the case and the number 

of violations involved. Parties subject to 

debarment also have the right to appeal 

the debarment decision. Thus, DOL 

cannot ensure any particular timing for 

the debarment process, or that the 

timing would align before an employer 

obtains authorization to bring in H–2B 

workers for another season. 

V. Addition of 29 CFR Part 503 

Effective January 18, 2009, pursuant 

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

transferred to DOL enforcement 

authority for the provisions in section 

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

petitions to admit H–2B workers. See 

also 8 CFR 214.2(h)(6)(ix) (stating that 

the Secretary of Labor may investigate 

employers to enforce compliance with 

the conditions of a petition and 

Department of Labor-approved 

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24Sec’y of Labor Order No. 01–2014 (Dec. 19, 

2014). 

temporary labor certification to admit or 

otherwise provide status to an H–2B 

worker). This enforcement authority has 

been further delegated within the DOL 

to the Administrator of WHD.24 The 

2008 rule contained the regulatory 

provisions governing ETA’s processing 

of the employer’s Application for 

Temporary Employment Certification 

and WHD’s enforcement responsibilities 

in ensuring that the employer had not 

willfully misrepresented a material fact 

or substantially failed to meet a 

condition of such application or the 

DHS Form I–129, Petition for a 

Nonimmigrant Worker for an H–2B 

worker. 

The Departments have carefully 

reviewed the 2008 rule, and this interim 

final rule provides substantive changes 

to both the certification and 

enforcement processes to enhance 

protection of U.S. and H–2B workers. 

This interim final rule includes a new 

part, 29 CFR part 503, to further define 

and clarify the protections for workers. 

This part and 20 CFR part 655, subpart 

A, have added workers in corresponding 

employment to the protected worker 

group, imposed additional recruitment 

obligations and employer obligations for 

laid off U.S. workers, and increased 

wage protections for H–2B workers and 

workers in corresponding employment. 

Additionally, the Departments have 

enhanced WHD’s enforcement role in 

administrative proceedings following a 

WHD investigation, such as by allowing 

WHD to pursue debarment rather than 

simply recommending to ETA that it 

debar an employer as it did under the 

2008 rule. 

To ensure consistency and clear 

delineation of responsibilities between 

DOL agencies implementing and 

enforcing H–2B provisions, this new 

part 503 was written in close 

collaboration with ETA and is being 

published concurrently with ETA’s 

interim final rule in 20 CFR part 655, 

subpart A, to amend the employer 

certification process. 

A. General Provisions and Definitions 

Sections 503.0 through 503.8 provide 

general background information about 

the H–2B program and its operation. 

Section 503.1 is similar to the 2008 rule 

provision at 20 CFR 655.1; it explains 

the standards governing the H–2B 

program, the respective roles of ETA 

and WHD, and the consultative role 

played by DOL. Section 503.2 is similar 

to the 2008 rule provision at 20 CFR 

655.2; it explains in particular that 

WHD does not enforce compliance with 

the provisions of the H–2B program in 

the Territory of Guam. Section 503.3 

describes how DOL will coordinate both 

internally and with other agencies. 

1. § 503.4 Definition of Terms 

This section contains definitions that 

are identical to those contained in 20 

CFR part 655, subpart A, except that this 

section contains only those definitions 

applicable to this part. The preamble to 

20 CFR 655.5 contains the relevant 

discussion of these definitions. 

2. § 503.5 Temporary Need 

This section mirrors the requirements 

set forth in 20 CFR 655.6; the preamble 

to that section includes a full discussion 

of this provision. 

3. § 503.6 Waiver of Rights Prohibited 

This section prohibits an employer 

from seeking to have workers waive or 

modify any rights granted them under 

these regulations. Under this provision, 

any agreement purporting to waive or 

modify such rights is void, with limited 

exceptions. The Departments recognize 

the vulnerability of foreign H–2B 

workers, and believe that the nonwaiver principle is important to ensure 

that unscrupulous employers do not 

induce waiver of rights under the 

program. Such waiver would also 

undermine the required H–2B wages 

and working conditions, which are 

necessary to prevent an adverse effect 

on U.S. workers. This provision is also 

consistent with similar prohibitions 

against waiver of rights under other 

laws, such as the Family and Medical 

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

the H–2A program, see 29 CFR 501.5. 

4. § 503.7 Investigation Authority of 

Secretary of Labor 

This section retains the authority 

established under 20 CFR 655.50 of the 

2008 rule, and affirms WHD’s authority 

to investigate employer compliance 

with these regulations and WHD’s 

obligation to protect the confidentiality 

of complainants. This section also 

discusses the reporting of violations. 

Complaints may be filed by calling 

WHD at 866–4US–WAGE or by 

contacting a local WHD office. Contact 

information for local offices is available 

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

america2.htm. 

5. § 503.8 Accuracy of Information, 

Statements, Data 

This section notes that information, 

statements, and data submitted in 

compliance with 8 U.S.C. 1184(c), INA 

section 214(c), or these regulations are 

subject to 18 U.S.C. 1001, under which 

entities that make false representations 

to the government are subject to 

penalties, including a fine of up to 

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

B. Enforcement Provisions 

1. § 503.15 Enforcement 

This section provides that the 

investigation, inspection, and law 

enforcement functions that carry out the 

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

section 214(c), and the regulations in 

this interim final rule pertain to the 

employment of H–2B workers, any 

worker in corresponding employment, 

or any U.S. worker improperly rejected 

for employment or improperly laid off 

or displaced. WHD investigates 

complaints filed by both foreign and 

U.S. workers affected by the H–2B 

program, as well as concerns raised by 

other federal agencies, such as DHS or 

DOS, regarding particular employers 

and agents. WHD also conducts targeted 

or directed (i.e., not complaint-based) 

investigations of H–2B employers to 

evaluate program compliance. WHD’s 

enforcement authority is outlined in the 

preamble under 20 CFR 655.2 and the 

addition of 29 CFR part 503, and was 

discussed in detail in the 2008 rule, 73 

FR 78020, 78046–47 (civil monetary 

penalties and remedies). The 

Departments reaffirm that DOL—and 

within DOL, WHD—is authorized to 

conduct the enforcement activities 

described in this interim final rule. 

Corresponding workers, as defined 

under 20 CFR 655.5, are included in 

these enforcement provisions in order to 

ensure that U.S. workers are not 

adversely affected by the employment of 

H–2B workers. The preamble at 20 CFR 

655.5 discusses the rationale for 

including corresponding workers in this 

interim final rule. The Departments 

believe that giving corresponding 

workers this means of redress is critical 

to effectuating their mandate to ensure 

that the certification and employment of 

H–2B aliens does not harm similarlysituated U.S. workers. Further, it helps 

to prevent situations where U.S. 

workers who are employed alongside 

H–2B workers are not afforded the pay, 

benefits, and worker protections that 

their H–2B counterparts enjoy. 

2. § 503.16 Assurances and Obligations 

of H–2B Employers 

The assurances and obligations 

described in this section are identical to 

those in 20 CFR 655.20. The preamble 

to 20 CFR 655.20 contains the relevant 

discussion of the assurances and 

obligations for employers participating 

in the H–2B program. 

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3. § 503.17 Document Retention 

Requirements of H–2B Employers 

The document retention requirements 

in this section are similar to those in 20 

CFR 655.56, with minor differences 

related to OFLC’s and WHD’s separate 

interests. The preamble to 20 CFR 

655.56 discusses these recordkeeping 

requirements. Employers must retain 

documents and records proving 

compliance with the regulations, 

including but not limited to the specific 

documents listed in this section that 

require, for example, retention of 

documentation showing employers’ 

recruitment efforts, workers’ earnings, 

and reimbursement of transportation 

and subsistence costs incurred by 

workers. This section does not require 

employers to create any new 

documents, but simply to preserve those 

documents that are already required for 

participation in the H–2B program. The 

Departments believe that these 

documentation retention requirements 

and a retention period of 3 years will be 

sufficient for purposes of WHD’s 

enforcement responsibilities in this 

interim final rule, which, as discussed 

in the preamble introducing this part, 

have been augmented by the addition of 

workers in corresponding employment 

to the protected worker group, 

additional recruitment obligations and 

employer obligations for laid off U.S. 

workers, and increased wage protections 

for H–2B workers and workers in 

corresponding employment. 

Employers are required to make such 

records available to WHD within 72 

hours following a request by WHD. This 

time frame is the same under the FLSA, 

where employers who maintain records 

at a central recordkeeping office, other 

than in the place(s) of employment, are 

required to make records available 

within 72 hours following notice from 

WHD. See 29 CFR 516.7. This provision, 

which has been in place for decades, 

has not created undue burden for 

employers; indeed, as many H–2B 

employers are likely covered by the 

FLSA, this provision results in no 

additional burden. A full discussion of 

the use of electronic records can be 

found in the preamble to 20 CFR 655.56. 

4. § 503.18 Validity of Temporary 

Labor Certification 

This section mirrors 20 CFR 655.55, 

and corresponds to 20 CFR 655.34 (a) 

and (b) in the 2008 rule, providing the 

time frame and scope for which an 

Application for Temporary Employment 

Certification is valid. It explains that the 

temporary labor certification is only 

valid for the period of time between the 

beginning and ending dates of 

employment, and is only valid for the 

number of H–2B positions, the job 

classification and specific services to be 

performed, and the employer listed on 

the certification. Further, the 

certification may not be transferred to 

another employer unless that employer 

is a successor in interest to the employer 

to which the certification was issued. 

5. § 503.19 Violations 

Under this section, the Departments 

specify the types of violations that may 

be cited as a result of an investigation. 

However, the definitions and concepts 

used in this section apply to all 

violations under the H–2B program, 

regardless of whether the violation 

results in revocation imposed by OFLC 

pursuant to 20 CFR 655.72, debarment 

imposed by OFLC pursuant to 20 CFR 

655.73 or WHD pursuant to § 503.24, 

monetary or other remedies assessed by 

WHD pursuant to § 503.20, or civil 

money penalties assessed by WHD 

pursuant to § 503.23. 

Under paragraphs (a)(1) and (3) of this 

section, a violation may consist of a 

willful misrepresentation of a material 

fact on the H–2B Registration, the 

Application for Temporary Employment 

Certification, or the H–2B Petition, or to 

the Department of State during the visa 

application process. Under paragraph 

(a)(2) of this section, a violation may 

consist of a substantial failure to meet 

any of the conditions of the H–2B 

Registration, Application for Temporary 

Employment Certification, or H–2B 

Petition. A ‘‘substantial failure’’ is 

defined as ‘‘a willful failure to comply 

that constitutes a significant deviation 

from the terms and conditions of such 

documents.’’ 

Violations under the H–2B program, 

both in the 2008 rule and this interim 

final rule, have been defined in 

accordance with the INA’s provisions 

regarding H–2B violations. Specifically, 

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

1184(c)(14)(A), sets forth two potential 

violations under the H–2B program: (1) 

‘‘a substantial failure to meet any of the 

conditions of the petition’’ and (2) ‘‘a 

willful misrepresentation of a material 

fact in such petition.’’ The INA further 

defines a ‘‘substantial failure’’ to be a 

‘‘willful failure to comply . . . that 

constitutes a significant deviation from 

the terms and conditions of a petition.’’ 

8 U.S.C. 1184(c)(14)(D), INA section 

214(c)(14)(D). The H–2B Petition 

includes the approved Application for 

Temporary Employment Certification. 

See § 503.4; 20 CFR 655.5. 

Based on this statutory language, it is 

the Departments’ view that non-willful 

violations are not cognizable under the 

H–2B program. In this interim final rule, 

the basis for determining violations 

continues to be either a 

misrepresentation of material fact or a 

substantial failure to comply with terms 

and conditions, both of which will be 

determined to be a violation if the 

evidence surrounding the violation 

establishes that it is willful. See 

§ 503.19(a)(1) & (2) (WHD violations, 

which lead to remedies, civil monetary 

penalties, and/or debarment), 20 CFR 

655.72(a)(1) & (2) (OFLC revocation), 20 

CFR 655.73(a)(1)–(3) (OFLC debarment). 

Paragraph (b) of this section sets out 

when a violation qualifies as willful. To 

determine whether a violation is willful, 

DOL will consider whether the 

employer, attorney, or agent knows its 

statement is false or that its conduct is 

in violation, or shows reckless disregard 

for the truthfulness of its representation 

or for whether its conduct satisfies the 

required conditions. See § 503.19(b); 20 

CFR 655.73(d). This is consistent with 

the longstanding definition of 

willfulness. See McLaughlin v. Richland 

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

Trans World Airlines, Inc. v. Thurston, 

469 U.S. 111 (1985). 

Further, tracking the INA language, 8 

U.S.C. 1184(c)(14)(D), INA section 

214(c)(14)(D), a substantial failure 

continues to be defined as willful as 

well as a significant deviation from the 

terms or conditions of a petition. See 

§ 503.19(a)(2), 20 CFR 655.72(a)(2), 20 

CFR 655.73(a)(2). Paragraph (c) of this 

section provides guidance on 

determining whether a failure to comply 

constitutes a significant deviation from 

the terms and conditions of the H–2B 

Registration, Application for Temporary 

Employment Certification, or H–2B 

Petition, and provides a non-exhaustive 

list of factors that WHD may consider. 

The factors are the same factors used by 

OFLC to determine whether a 

substantial failure is a ‘‘significant 

deviation’’ for purposes of debarment 

under 20 CFR 655.73 and are similar to 

the factors used by WHD to determine 

the amount of civil monetary penalties 

(CMPs) to be assessed under § 503.23. 

When WHD encounters violations 

that do not rise to the level of 

willfulness, it puts the party on notice 

regarding future compliance. WHD will 

consider subsequent violations 

committed with the knowledge that 

such acts or omissions violate H–2B 

program requirements to be willful. In 

evaluating whether a first-time violation 

constitutes a willful violation, WHD 

will look at all circumstances, including 

the fact that employers submit a signed 

Application for Temporary Employment 

Certification attesting under penalty of 

perjury that that they know and accept 

the obligations of the program, which 

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are listed clearly in Appendix B of the 

Application, as well as submitting a 

signed H–2B Petition, which requires 

employers to certify under penalty of 

perjury that the information is true and 

accurate to the best of their knowledge. 

See § 503.19(d). 

6. § 503.20 Sanctions and Remedies— 

General 

This section sets forth the remedies 

that WHD will pursue when it 

determines that there has been a 

violation(s), as described in § 503.19. 

These remedies are largely the same 

types of remedies WHD pursued in its 

enforcement under the 2008 rule, see 20 

CFR 655.65, upon determining that a 

violation had occurred. Remedies 

include but are not limited to the 

recovery of unpaid wages, recovery of 

prohibited recruitment fees paid or 

impermissible deductions, and wages 

due for improperly placing workers in 

areas of employment or in occupations 

other than those identified on the 

Application for Temporary Employment 

Certification; enforcement of the 

provisions of the job order, 8 U.S.C. 

1184(c), INA section 214(c), 29 CFR part 

655, subpart A, or the regulations in this 

part; assessment of civil money 

penalties (CMPs); and make-whole relief 

for any person who has been 

discriminated against, as well as 

reinstatement and other make-whole 

relief for U.S. workers who were 

improperly denied employment. These 

remedies may be sought from the 

employer, the employer’s successor in 

interest, or from the employer’s agent or 

attorney, as appropriate. WHD may also 

seek debarment, concurrent with ETA’s 

debarment authority. WHD’s debarment 

authority is discussed under § 503.24. 

a. Liability for prohibited fees 

collected by foreign labor recruiters. As 

the preamble to the 2008 rule 

emphasized, see 73 FR 78037, and as 

DHS regulations have made clear, see 8 

CFR 214.2(h)(6)(i)(B), the recruitment of 

foreign workers is an expense to be 

borne primarily by the employer and 

not by the foreign worker, who generally 

should not have to pay a fee as a 

condition of obtaining access to the job 

opportunity. Examples of exploitation of 

foreign workers, who in some instances 

have been required to give recruiters 

thousands of dollars to secure a job, 

have been widely reported. The 

Departments are concerned about the 

exploitation of workers who have 

heavily indebted themselves to secure a 

place in the H–2B program, and believe 

that such exploitation may adversely 

affect the wages and working conditions 

of U.S. workers, driving down wages 

and working conditions for all workers, 

foreign and domestic. The Departments’ 

general prohibition on collecting 

placement or recruitment fees, directly 

or indirectly, as a condition of H–2B 

employment is consistent with 

Executive Order and regulatory changes 

in the federal contracting arena, 

prohibiting charging of recruitment fees 

to employees as part of the Federal 

Government’s efforts to enhance 

protections against trafficking in 

persons. See, e.g., Strengthening 

Protections Against Trafficking in 

Persons in Federal Contracts, Exec. 

Order No. 13627 (Sept. 25, 2012); 80 FR 

4967 (Jan. 29, 2015); see also 8 U.S.C. 

1375b (requiring pamphlet advising of 

temporary workers’ rights and available 

protections against human trafficking). 

The Departments believe that 

requiring employers to incur the costs of 

recruitment is reasonable, even when 

taking place in a foreign country. 

However, the Departments recognize 

that an employer’s ability to control the 

actions of agents and subcontractors 

across international borders is 

constrained, just as the Departments’ 

ability to enforce regulations across 

international borders is constrained. As 

discussed in the preamble to 20 CFR 

655.20(p), the Departments are requiring 

that the employer, as a condition of 

applying for temporary labor 

certification for H–2B workers, 

contractually forbid any foreign labor 

contractor or recruiter (or any agent or 

employee of such agent or recruiter) 

whom the employer engages in 

recruitment of prospective H–2B 

workers to seek or receive payments 

from prospective employees. DOL will 

attempt to ensure the bona fides of such 

contracts and will work together with 

DHS, whose regulations also generally 

preclude the approval of an H–2B 

Petition and provide for denial or 

revocation if the employer knows or has 

reason to know that the worker has 

paid, or has agreed to pay, prohibited 

fees to a recruiter, facilitator, agent, and 

similar employment service as a 

condition of an offer or maintaining 

condition of H–2B employment. See 8 

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

WHD Field Assistance Bulletin No. 

2011–2, any fee that facilitates an 

employee obtaining the visa in order to 

be able to work for that employer will 

be considered a recruitment fee, which 

must be borne by the H–2B employer. 

This is consistent with the DHS 

regulations. Although employees may 

voluntarily pay some fees to 

independent third-party facilitators for 

services such as assisting the employee 

to access the internet or in dealing with 

DOS, such fees may be paid by 

employees only if they are truly 

voluntary and not made a condition of 

access to the job opportunity. 

When employers use recruiters, and 

in particular when they impose the 

contractual prohibition on collecting 

prohibited fees, they must make it 

abundantly clear that the recruiter and 

its agents or employees, whether in the 

United States or abroad, are not to 

receive remuneration from the foreign 

worker recruited in exchange for access 

to a job opportunity or in exchange for 

having that worker maintain that job 

opportunity. For example, evidence 

showing that the employer paid the 

recruiter no fee or an extraordinarily 

low fee, or continued to use a recruiter 

about whom the employer had received 

credible complaints, could be an 

indication that the contractual 

prohibition was not bona fide. In 

addition, where WHD determines that 

workers have paid these fees and the 

employer cannot demonstrate the 

requisite bona fide contractual 

prohibitions, WHD will require the 

employer to reimburse the workers in 

the amount of these prohibited fees. 

However, where an employer has 

complied in good faith with this 

provision and has contractually 

prohibited the collection of prohibited 

fees from workers, and exercised 

reasonable diligence to ensure that its 

agents and others involved in the 

recruitment process, whether in the 

United States or abroad, adhere to this 

contractual prohibition, there is no 

willful violation. 

b. Agent and attorney liability. For the 

reasons stated in the discussion under 

Debarment of Agents and Attorneys in 

20 CFR 655.73, agent and attorney 

signatories to Form 9142B will be liable 

for their independent willful violations 

of the H–2B program, as well as their 

participation in an employer’s violation. 

As noted earlier under § 503.19 a willful 

misrepresentation of a material fact or a 

willful failure to meet the required 

terms and conditions occurs when the 

employer, attorney, or agent knows its 

statement is false or that its conduct is 

in violation, or shows reckless disregard 

for the truthfulness of its representation 

or for whether its conduct satisfies the 

required conditions. Under § 503.20(b), 

remedies will be sought directly from 

the employer or its successor, or from 

the employer’s agent or attorney, where 

appropriate. For example, it would be 

appropriate to seek reimbursement of 

prohibited fees to affected workers from 

an attorney or agent, as opposed to an 

employer, where the employer has 

contractually prohibited the attorney or 

agent from collecting such fees, the 

employer has exercised reasonable 

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diligence in determining such fees were 

not collected, yet the agent or attorney 

does so unbeknownst to the employer, 

despite the employer having affirmed on 

the Application for Temporary 

Employment Certification that 

everything in the application is true and 

correct, including the employer’s 

attestation that ‘‘[t]he employer and its 

attorney, agents and/or employees have 

not sought or received payment of any 

kind from the H–2B worker for any 

activity related to obtaining temporary 

labor certification, including but not 

limited to payment of the employer’s 

attorney or agent fees, application fees, 

or recruitment costs.’’ On the other 

hand, it would not be appropriate to 

hold the attorney or agent liable for 

unpaid wages when an employer fails to 

pay the required wage during the period 

of the application where the attorney or 

agent was uninvolved in such a 

violation. 

c. Make-whole relief. Make-whole 

relief in this section means that the 

party subjected to the violation is 

restored to the position, both 

economically and in terms of 

employment status, that the party would 

have occupied had the violation never 

taken place. Make-whole relief includes 

equitable and monetary relief such as 

reinstatement, hiring, front pay, 

reimbursement of monies illegally 

demanded or withheld, or the provision 

of specific relief such as the cash value 

of transportation or subsistence 

payments that the employer was 

required to, but failed to provide, in 

addition to the recovery of back wages, 

where appropriate. 

d. Workers who have returned to their 

home countries. The Departments 

recognize that workers who have been 

subjected to H–2B violations often 

return to their home countries, and that 

it is more difficult for workers who live 

outside the United States to participate 

in investigations or proceedings and 

recover damages. The Departments do 

not prohibit such participation by 

workers who may have returned to their 

home country, and DOL often 

distributes back wages to workers who 

have experienced violations and have 

returned to their home countries. Where 

appropriate given the circumstances in 

any specific investigation or proceeding, 

the Departments might seek a means for 

the worker to travel to the U.S. to 

participate in such proceedings. 

7. § 503.21 Concurrent Actions 

Under this section, the Departments 

clarify the different roles and 

responsibilities of OFLC and WHD, and 

note that both agencies have concurrent 

jurisdiction to impose debarment. 

Section 503.3(c) is intended to protect 

the employer from being debarred by 

both entities for a single violation. 

8. § 503.22 Representation of the 

Secretary of Labor 

The Solicitor of Labor will continue to 

represent the Administrator, WHD and 

the Secretary of Labor in all 

administrative hearings under 8 U.S.C. 

1184(c)(14), INA section 214(c), and 

these regulations. 

9. § 503.23 Civil Money Penalty 

Assessment 

This interim final rule utilizes a CMP 

assessment scheme similar to the CMP 

assessment contained in the 2008 rule, 

with additional and clarifying language 

specifying that WHD may find a 

separate violation for each failure to pay 

an individual worker properly or to 

honor the terms or conditions of the 

worker’s employment, as long as the 

violation meets the willfulness standard 

and/or substantial failure standard in 

§ 503.19. CMPs represent a penalty for 

non-compliance, and are payable to 

WHD for deposit with the Treasury. 

Similar to the CMPs in the 2008 rule, 

the CMP assessments set CMPs at the 

amount of back wages owed for 

violations related to wages and 

impermissible deductions or prohibited 

fees, and at the amount that would have 

been earned but for an illegal layoff or 

failure to hire, up to $10,000 per 

violation. There is also a catch-all CMP 

provision for any other violation that 

meets the standards in § 503.19. Section 

503.23(e) sets forth the factors WHD will 

consider in determining the level of 

penalties to assess for all violations but 

wage violations, which are similar to the 

factors WHD used to determine the level 

of CMPs assessed under 20 CFR 

655.65(g) in the 2008 rule. The 

maximum CMP amount is set at $10,000 

in order to be consistent with the 

statutory limit under 8 U.S.C. 

1184(c)(14)(A), INA section 

214(c)(14)(A). 

10. § 503.24 Debarment 

Under this section, WHD has the 

authority, upon finding a violation that 

meets the standards in § 503.19, to debar 

an employer, agent or attorney for not 

less than 1 year or more than 5 years. 

Section 503.24(a) contains a nonexhaustive list of acts or omissions that 

may constitute debarrable violations. 

Section 503.24(e) clarifies that while 

WHD and OFLC will have concurrent 

debarment jurisdiction, the two agencies 

will coordinate their activities so that a 

specific violation for which debarment 

is imposed will be cited in a single 

debarment proceeding. While OFLC has 

more expertise in the application and 

recruitment process, and will retain 

specific authority to debar for failure to 

comply with the Notice of Deficiency 

and assisted recruitment processes, 

WHD has extensive expertise in 

conducting workplace investigations 

under numerous statutes, and has been 

enforcing H–2B program violations 

since the 2008 rule became effective on 

January 18, 2009. 

Providing WHD with the ability to 

order debarment, along with or in lieu 

of other remedies, will streamline and 

simplify the administrative process, and 

eliminate unnecessary bureaucratic 

hurdles by removing extra steps. Under 

the 2008 rule, WHD conducted 

investigations of H–2B employers and 

assessed back wages, civil money 

penalties, and other remedies, which 

the employer had the right to challenge 

administratively. However, WHD could 

not order debarment, no matter how 

egregious the violations, and instead 

was required to take the extra step of 

recommending that OFLC issue a Notice 

of Debarment based on the exact same 

facts, which then had to be litigated 

again by OFLC. Allowing WHD to 

impose debarment along with the other 

remedies it can already impose in a 

single proceeding will simplify and 

speed up this duplicative enforcement 

process, and result in less bureaucracy 

for employers who have received a 

debarment determination. Instead, 

administrative hearings and appeals of 

back wage and civil money penalties, 

which the WHD already handles, will 

now be consolidated with challenges to 

debarment actions based on the same 

facts, so that an employer need only 

litigate one case and file one appeal 

rather than two. This means that both 

matters can be resolved more 

expeditiously. 

Moreover, WHD has extensive 

debarment experience under regulations 

implementing other programs, such as 

H–2A, H–1B, the Davis-Bacon Act, and 

the Service Contract Act. See, e.g., 29 

CFR 5.12. As discussed in the preamble 

to the 2008 rule, ‘‘[t]he debarment of 

entities from participating in a 

government program is an inherent part 

of an agency’s responsibility to maintain 

the integrity or that program.’’ 73 FR 

78020, 78044. WHD can assist OFLC to 

regulate the entities that appear before 

DOL, and in particular, can take more 

efficient action to debar based on 

violations WHD finds as a result of its 

investigations. 

WHD’s debarment procedures at 

§ 503.24(d) include procedural 

protections similar to the procedures in 

OFLC’s debarment proceedings at 20 

CFR 655.73, including notice of 

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debarment, the right to a hearing before 

an Administrative Law Judge (ALJ), and 

the right to seek review of an ALJ’s 

decision by the Administrative Review 

Board (ARB). However, an important 

distinction between the OFLC and WHD 

debarment procedures is that the WHD 

debarment procedures do not provide 

for a 30-day rebuttal period because 

WHD debarments arise from 

investigations during which the 

employer has ample opportunity to 

submit any evidence and arguments in 

its favor. During the course of an 

investigation, WHD contacts and 

interviews both the employer and 

workers. WHD investigators discuss 

potential violations with the employer 

and, when requested, with his or her 

legal representative, providing the 

employer ample notice and an 

opportunity to provide any information 

relevant to WHD’s final determination. 

Rather than a formal, 30-day rebuttal 

period, employers have numerous 

opportunities during the course of a 

WHD investigation and during a final 

conference to provide critical 

information regarding violations that 

may lead to debarment. 

The discussion of the time period for 

debarment in the preamble to OFLC’s 

debarment provision at 20 CFR 655.73 

applies equally to WHD’s period of 

debarment. For the reasons stated under 

Debarment of Agents and Attorneys in 

20 CFR 655.73, WHD may also debar 

agents and attorneys for their own 

independent violations as well as their 

participation in employer violations. 

Section 503.24(f) provides that an 

employer, agent, or attorney who is 

debarred by OFLC or WHD from the H– 

2B program will also be debarred from 

all other foreign labor certification 

programs administered by DOL for the 

time period in the final debarment 

decision. Many employers, agents and 

attorneys participate in more than one 

foreign labor certification program 

administered by DOL. However, under 

the 2008 rule, a party that was debarred 

under the H–2B program could continue 

to file applications under DOL’s other 

foreign labor programs. Under this 

interim final rule, DOL will refuse to 

accept applications filed by or on behalf 

of a debarred party under the H–2B 

program in any of DOL’s foreign labor 

certification programs. Paragraph (e) of 

this section also provides that copies of 

final debarment decisions will be 

forwarded to DHS and DOS promptly. 

Although DOL does not have the 

authority to routinely seek debarment of 

entities that are not listed on the ETA 

Form 9142, in appropriate 

circumstances, DOL may pierce the 

corporate veil in order to more 

effectively remedy the violations found. 

Piercing the corporate veil may be 

necessary to foreclose the ability of 

individual principals of a company or 

legal entity to reconstitute under 

another business entity. 

11. § 503.25 Failure To Cooperate With 

Investigators 

This provision prohibits interference 

or refusal to cooperate with a DOL 

investigation or enforcement action. In 

addition, it describes the penalties for 

failure to cooperate. Specifically, it 

notes the federal criminal laws 

prohibiting interference with federal 

officers in the course of official duties 

and permits WHD to recommend 

revocation to OFLC, initiate debarment 

proceedings, and/or assess CMPs for 

failures to cooperate that meet the 

violation standards set forth in § 503.19. 

12. § 503.26 Civil Money Penalties— 

Payment and Collection 

This provision instructs employers 

regarding how to submit payment of any 

CMPs owed. This section is 

administrative in nature and slightly 

modifies the provision from the 2008 

rule at 20 CFR 655.65(j). 

C. Administrative Proceedings 

This interim final rule generally 

adopts the applicable administrative 

proceedings from the 2008 rule at 20 

CFR 655.70–655.80. See 29 CFR 503.40– 

503.56. As explained in § 503.40(a), 

these procedures and rules prescribe the 

administrative appeal process that will 

be applied with respect to a WHD 

determination to assess CMPs, to debar, 

to enforce provisions of the job order or 

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

section 214(c), 20 CFR part 655, subpart 

A, or the regulations in this part, and/ 

or to the collection of monetary relief. 

Paragraph (b) of § 503.40 provides that 

the administrative appeals process 

prescribed by subpart C will apply to 

determinations (as described in 

paragraph (a)) involving the H–2B 

Petition regardless of the date of the 

violation. As discussed supra, WHD has 

been delegated enforcement authority 

for the provisions of section 

214(c)(14)(A)(i) of the INA. Under this 

authority, WHD may impose 

administrative remedies (including civil 

money penalties) that it determines to 

be appropriate where it finds, after 

notice and the opportunity for a hearing, 

a violation of the H–2B Petition (i.e., a 

substantial failure to meet any of the 

conditions of or a willful 

misrepresentation of a material fact on 

the H–2B Petition). The administrative 

appeals process prescribed by subpart C 

of this interim final rule will apply to 

such determinations and hearings, 

regardless of the date of the violation, as 

subpart C contains procedural rules; 

therefore, they apply to the enforcement 

proceedings for violations that occurred 

before the enactment of this interim 

final rule. 

The administrative procedures begin 

with WHD notifying the party in writing 

regarding WHD’s determination 

(§§ 503.41, 503.42). A party that wishes 

to appeal WHD’s determination must 

request an ALJ hearing within 30 days 

after the date of the determination 

(§ 503.43). The determination will take 

effect unless the appeal is timely filed, 

staying the determination pending the 

outcome of the appeal proceedings 

(§ 503.43(e)). 

The ALJ hearing will be conducted in 

accordance with 29 CFR part 18 

(§ 503.44). The ALJ will prepare a 

decision following a hearing within 60 

days after completion of the hearing and 

closing of the record (§ 503.50(a)). This 

decision will constitute the final agency 

order unless a party petitions the ARB 

to review the decision within 30 days 

and the ARB accepts a party’s petition 

for review (§ 503.50(e)). 

A party that wishes to review the 

ALJ’s decision must, within 30 days, 

petition the ARB to review the decision, 

specifying the issue(s) stated in the ALJ 

decision giving rise to the petition and 

the reason(s) why the party believes the 

decision is in error (§ 503.51(a)–(b)). If 

the ARB does not accept the petition for 

review within 30 days, the decision of 

the ALJ is deemed the final agency 

action (§ 503.51(c)). When the ARB 

determines to review a petition, either 

on its own or by accepting a party’s 

petition, it will serve notice on the ALJ 

and all parties to the proceeding 

(§ 503.51(d)). The ARB will notify the 

parties of the issue(s) raised, the form in 

which submissions will be made and 

the timeframe for doing so (§ 503.53). 

Upon receipt of the ARB’s notice, the 

Office of Administrative Law Judges 

(OALJ) will forward a copy of the 

hearing record to the ARB (§ 503.52). 

Section 503.54 provides the 

requirements for submission of 

documents to the ARB. The ARB’s 

decision will be issued within 90 days 

from the notice granting the petition 

(§ 503.55). The official record of every 

completed administrative hearing will 

be maintained by the Chief ALJ, or, 

where the case was the subject of 

administrative review, the ARB 

(§ 503.56). 

For the reasons stated in the preamble 

under Integrity Measures (20 CFR 

655.70–655.73), the Departments have 

not adopted additional procedures 

allowing workers a right to intervene 

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24090 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

25On April 15, 2015, the federal district court in 

the Northern District of Florida issued an order 

effectively permitting DOL to continue issuing 

temporary labor certifications under the H–2B 

program through May 15, 2015. 

and participate in every case. The 

importance of worker communication 

with WHD by filing complaints, 

participating in investigations, and 

serving as witnesses in administrative or 

judicial proceedings cannot be 

overstated; it is essential in carrying out 

WHD’s enforcement obligations. 

However, WHD notes that workers 

already participate in WHD 

investigations, which involve interviews 

with workers regarding program 

compliance. It is WHD’s practice to 

provide notice to the individual 

complainants and their designated 

representatives and/or any third-party 

complainants when WHD completes an 

investigation by providing them a copy 

of the WHD Determination Letter. To 

further protect their interests, workers 

can seek, and have sought, intervention 

upon appeal to an ALJ. See 20 CFR 

18.10(c) and (d). 

VI. Administrative Information 

A. Executive Orders 12866 and 13563 

Under Executive Order (E.O.) 12866 

and E.O. 13563, the Departments must 

determine whether a regulatory action is 

significant and, therefore, subject to the 

requirements of the E.O. and to review 

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

defines an economically significant 

regulatory action as an action that is 

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

annual effect on the economy of $100 

million or more, or adversely and 

materially affects a sector of the 

economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local or tribal 

governments or communities (also 

referred to as economically significant); 

(2) creates serious inconsistency or 

otherwise interferes with an action 

taken or planned by another agency; (3) 

materially alters the budgetary impacts 

of entitlement grants, user fees, or loan 

programs, or the rights and obligations 

of recipients thereof; or (4) raises novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the E.O. 

The Departments have determined 

that this rule is an economically 

significant regulatory action under 

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

regulation would have an annual effect 

on the economy of $100 million or 

more; however, it would not adversely 

affect the economy or any sector thereof, 

productivity, competition, jobs, the 

environment, or public health or safety 

in a material way. The Departments also 

have determined that this rule is a 

significant regulatory action under sec. 

3(f)(4) of E.O. 12866. Accordingly, OMB 

has reviewed this rule. 

The results of the Departments’ costbenefit analysis under this Part (VI.A) 

are meant to satisfy the analytical 

requirements under Executive Orders 

12866 and 13563. These longstanding 

requirements ensure that agencies select 

those regulatory approaches that 

maximize net benefits—including 

potential economic, environmental, 

public health and safety, and other 

advantages; distributive impacts; and 

equity—unless otherwise required by 

statute. The Departments did not use the 

cost-benefit analysis under this Part 

(VI.A) for purposes forbidden by or 

inconsistent with the Immigration and 

Nationality Act, as amended 

Need for Regulation 

The Departments have determined 

that there is a need for this interim final 

rule in light of the litigation, described 

in the preamble, challenging DOL’s 

authority to independently issue its own 

legislative rules in the H–2B program. 

See Bayou Lawn & Landscape Servs. et 

al. v. Sec’y of Labor, 613 F.3d 1080 

(11th Cir. 2013) (holding that employers 

are likely to prevail on their allegation 

that DOL lacks H–2B rulemaking 

authority). But see La. Forestry Ass’n v. 

Perez, 745 F.3d 653 (3d Cir. 2014) 

(holding that DOL does have H–2B 

rulemaking authority). In particular, 

because of the district court’s order in 

Perez v. Perez, No. 14–cv–682 (N.D. Fla. 

Mar. 4, 2015), vacating the 2008 rule 

and permanently enjoining DOL from 

enforcing it, DOL immediately ceased 

processing requests for prevailing wage 

determinations and applications for 

temporary labor certification in the H– 

2B program. Although on March 18, 

2015, the Perez district court 

temporarily stayed the vacatur order, 

DOL cannot operate the H–2B program 

and cannot fulfill its consultative role 

and provide advice to DHS without 

regulations that set the framework, 

procedures, and applicable standards 

for receiving, reviewing, and issuing H– 

2B prevailing wages and temporary 

labor certifications.25 Without advice 

from DOL, DHS in turn has no means by 

which to adequately test the domestic 

labor market or determine whether there 

are available U.S. workers to fill the 

employer’s job opportunity. Moreover, 

DHS is precluded by regulation from 

processing any H–2B petition without a 

temporary labor certification from DOL. 

See 8 CFR 214.2(h)(6)(iii)(C). Therefore, 

the Departments have determined that 

this interim final rule is necessary in 

order to ensure the continued operation 

and enforcement of the H–2B program. 

1. Alternatives 

The Departments considered a 

number of alternatives: (1) Promulgating 

the policy changes contained in the 

interim final rule; (2) issuing the 2008 

rule as the interim final rule; (3) and 

adopting various aspects of those two 

rules. The Departments conclude that 

this interim final rule retains the best 

features of the 2008 rule and adopts 

additional provisions to allow DOL to 

best achieve its policy objectives, 

consistent with its mandate under the 

H–2B program. 

DOL had previously examined these 

same issues in a notice-and-comment 

rulemaking that was finalized in 2012; 

before issuing the 2012 final rule, DOL 

carefully considered the hundreds of 

substantive comments that were 

received and made a number of 

modifications to the provisions that had 

been in the proposed rule based upon 

those comments. DOL’s implementation 

of the 2012 final rule was enjoined in 

the Bayou litigation, and DOL continued 

to operate the H–2B program based on 

the 2008 rule. 

However, in light of the Perez vacatur 

order, the Departments have reevaluated 

the policy choices made in both the 

2008 and the 2012 final rules, to 

determine the best ways for DOL to 

fulfill its responsibility to grant H–2B 

temporary labor certifications only 

when there are not sufficient U.S. 

workers who are qualified and who will 

be available to perform the temporary 

services or labor for which an employer 

desires to hire foreign workers, and 

when the employment of H–2B workers 

will not adversely affect the wages and 

working conditions of U.S. workers 

similarly employed. The Departments 

conclude, as DOL discussed in the 

preamble to the 2012 final rule, that the 

provisions of the 2008 rule do not 

adequately protect U.S. workers and fail 

to ensure the integrity of the program. 

The Departments conclude that the 

policy choices made in this interim final 

rule best allow DOL to fulfill its 

responsibilities under the H–2B 

program and to provide the appropriate 

consultation to DHS. 

3. Economic Analysis 

DOL derives its estimates by 

comparing the baseline, that is, the 

program benefits and costs under the 

2008 rule, against the benefits and costs 

associated with the implementation of 

the provisions in this interim final rule. 

The benefits and costs of the provisions 

of this interim final rule are estimated 

as incremental impacts relative to the 

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Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 24091 

26For the purposes of the cost-benefit analysis, 

the 10-year period starts on June 1, 2015. 

27The specific provisions associated with transfer 

payments are: Wages paid to corresponding 

workers; payments for transportation, subsistence, 

and lodging for travel to and from the place of 

employment; and visa-related fees. 

28U.S. Bureau of Labor Statistics (BLS). 2015. 

Employees on Nonfarm Payrolls by Major Industry 

Sector, 2005–2014. Available at http://www.bls.gov/ 

webapps/legacy/cesbtab1.htm. 

29Another industry, Forest Services, made the 

initial list of the top five industries, but it is not 

included in this analysis because the only data 

available for forestry also include various 

agriculture, fishing and hunting activities. Relevant 

data for forestry only were not available. 

30U.S. Census Bureau. 2015. Available at 

http://www.census.gov/econ/census/. DOL obtained 

2012 Economic Census data for the following 

industries: Landscaping Services; Janitorial 

Services; Food Services and Drinking Places; and 

Amusement, Gambling, and Recreation. The 2012 

Economic Census did not publish data for the 

Construction industry because the data did not 

meet publication standards. In its place, DOL uses 

2007 Economic Census data for the Construction 

industry. 

31 DOL estimates the number of unique employer 

applicants for FY 2013–2014 by multiplying the 

number of unique employers granted certification 

(3,955) by the ratio of unique applicants to unique 

employers granted certification over FY 2007–2009 

(1.1774). 

32This analysis sometimes uses the shorthand 

‘‘U.S. workers’’ to refer to these workers. 

baseline. Thus, benefits and costs 

attributable to the 2008 rule are not 

considered as benefits and costs of this 

interim final rule. We explain how the 

actions of workers, employers, and 

government agencies resulting from the 

interim final rule are linked to the 

expected benefits and costs. 

DOL sought to quantify and monetize 

the benefits and costs of this interim 

final rule where feasible. Where DOL 

was unable to quantify benefits and 

costs—for example, due to data 

limitations—DOL described them 

qualitatively. The analysis covers 10 

years (2015 through 2024) to ensure it 

captures major benefits and costs that 

accrue over time.26 DOL has sought to 

present benefits and costs both 

undiscounted and discounted at 7 

percent and 3 percent. 

In addition, DOL provides an 

assessment of transfer payments 

associated with certain provisions of the 

interim final rule.27 Transfer payments, 

as defined by OMB Circular A–4, are 

payments from one group to another 

that do not affect total resources 

available to society. Transfer payments 

are associated with a distributional 

effect, but do not result in additional 

benefits or costs to society. The rule 

would alter the transfer patterns and 

increase the transfers from employers to 

workers. The primary recipients of 

transfer payments reflected in this 

analysis are U.S. workers and H–2B 

workers. The primary payors of transfer 

payments reflected in this analysis are 

H–2B employers, and under the rule, 

those employers who choose to 

participate are likely to be those that 

have the greatest need to access the H– 

2B program. When summarizing the 

benefits or costs of specific provisions of 

this interim final rule, DOL presents the 

10-year averages to reflect the typical 

annual effect. 

The inputs used to calculate the costs 

of this interim final rule are described 

below. 

a. Number of H–2B Workers 

DOL estimates that from FY 2013– 

2014, an average of 87,998 H–2B 

positions were certified per year. 

Because the number of H–2B visas is 

statutorily limited, only a portion of 

these certified positions were ultimately 

filled by foreign workers. 

The number of visas available in any 

given year in the H–2B program is 

66,000, assuming no statutory changes 

in the number of visas available. Some 

costs, such as travel, subsistence, visa 

and border crossing, and reproducing 

the job order apply to these 66,000 

workers. Employment in the H–2B 

program represents a very small fraction 

of the total employment in the U.S. 

economy, both overall and in the 

industries represented in this program. 

The H–2B program’s annual cap of 

66,000 visas issued per year (33,000 

allocated semi-annually) represents 

approximately 0.05 percent of total 

nonfarm employment in the U.S. 

economy (134.8 million).28 The number 

of visas per year does not fully capture 

the number of H–2B workers in the 

United States at any given time as there 

are exceptions to the H–2B cap; 

additionally, a nonimmigrant’s H–2B 

classification may be extended for 

qualifying employment for a total stay of 

up to three years without being counted 

against the cap. DOL assumes that half 

of all H–2B workers entering the United 

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

one additional year, and half of those 

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

for a total of 115,500 H–2B workers 

employed at any given time. This 

suggests that 57 percent of H–2B 

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

entrants in a given year. Extending the 

analysis to the 115,500 H–2B workers 

we estimate are in the country at any 

given time, the number of H–2B workers 

represents approximately 0.09 percent 

of total nonfarm employment. 

According to H–2B program data for 

FY 2013–2014, the average annual 

numbers of H–2B positions certified in 

the top five industries were as follows: 

Landscaping Services—33,438 

Construction—8,357 

Amusement, Gambling, and 

Recreation—7,939 

Food Services and Drinking Places— 

7,098 

Janitorial Services—5,857 29

These employment numbers represent 

the following percentages of the total 

employment in each of these 

industries: 30

Landscaping Services—5.78 percent 

(33,438/578,970) 

Construction—0.11 percent (8,357/

7,316,240) 

Amusement, Gambling, and 

Recreation—0.52 percent (7,939/

1,518,405) 

Food Services and Drinking Places— 

0.07 percent (7,098/10,057,301) 

Janitorial Services—0.59 percent (5,857/ 

991,423) 

As these data illustrate, the H–2B 

program represents a small fraction of 

the total employment even in each of 

the top five industries in which H–2B 

workers are found. 

b. Number of Affected Employers 

DOL estimates that from FY 2013– 

2014, an average of 4,657 unique 

employers applied for H–2B workers,31

and of these, an average of 3,955 were 

granted certifications. Several of the 

interim final rule’s provisions (the 

requirement for employers to translate 

the job order from English to a language 

understood by the foreign workers, and 

payment of visa and visa-related fees) 

will predominantly or only apply to 

employers that ultimately employ H–2B 

workers. As there is no available source 

of data on the number of H–2B 

employer applicants who ultimately 

employ H–2B workers, DOL 

conservatively assumes that all certified 

H–2B employer applicants who are 

granted certification for H–2B workers 

will ultimately employ H–2B workers. 

c. Number of Corresponding Workers 

Several provisions of the interim final 

rule extend to workers in corresponding 

employment, defined as those non-H– 

2B workers who perform work for an H– 

2B employer, where such work is 

substantially the same as the work 

included in the job order, or is 

substantially the same as other work 

performed by H–2B workers.32

Corresponding workers are U.S. workers 

employed by the same employer 

performing substantially the same tasks 

at the same locations as the H–2B 

workers, and they are entitled to at least 

the same terms and conditions of 

employment as the H–2B workers. 

Corresponding workers might be 

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24092 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

temporary or permanent; that is, they 

could be employed under the same job 

order as the H–2B workers for the same 

period of employment, or they could 

have been employed before the H–2B 

workers, and might remain after the H– 

2B workers leave. However, the interim 

final rule excludes two categories of 

workers from the definition of 

corresponding employment. 

Corresponding workers are entitled to 

the same wages and benefits that the 

employer provides to H–2B workers, 

including the three-fourths guarantee, 

during the period covered by the job 

order. The corresponding workers 

would also be eligible for the same 

transportation and subsistence 

payments as the H–2B workers if they 

travel a long distance to reach the job 

site and cannot reasonably return to 

their residence each workday. In 

addition, as a result of the enhanced 

recruiting in this rule, including the 

new electronic job registry, certain costs 

may be avoided as employers are able to 

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

workers. DOL believes that the costs 

associated with hiring a new U.S. 

worker would be lower than the costs 

associated with hiring an H–2B worker 

brought to the United States from 

abroad because the costs of visa and 

border crossing fees to be paid for by the 

employer will be avoided and travel 

costs may likely be less (or zero for 

workers who are able to return to their 

residence each day). 

There are no reliable data sources on 

the number of corresponding workers at 

work sites for which H–2B workers are 

requested or the hourly wages of those 

workers. DOL does not systematically 

collect data regarding what have been 

defined as corresponding employees, 

and therefore cannot identify the 

numbers of workers to whom the 

obligations would apply. DOL 

extensively examined alternative data 

sources that might be used to accurately 

estimate the number of corresponding 

workers. 

First, DOL evaluated whether WHD 

field staff could provide reliable 

information on the number of 

corresponding workers employed by H– 

2B employers based on the data 

gathered during investigations. This 

information has not been relevant to 

WHD investigations because the 2008 

rule did not have a definition of 

corresponding employees and did not 

protect such incumbent workers; it 

protected only workers who were newly 

hired in response to the employer’s 

required H–2B recruitment activities. 

Anecdotal information from 

investigations indicates that the number 

of U.S. workers similarly employed 

varies widely among the companies 

investigated. However, no reliable data 

on the number of workers in 

corresponding employment compared to 

the number of H–2B workers is 

available, because no definition of 

corresponding employment existed in 

the 2008 rule. It also is unclear whether 

the limited numbers available in WHD 

investigations reflect the number of U.S. 

workers who were working during the 

pay period that WHD conducted the onsite investigation or the number who 

worked there at any point during the 

two-year period typically covered by an 

investigation. Further, there is no data 

regarding the length of the employment 

of the U.S. workers. Therefore, it is 

impossible to compare the pattern of 

employment of U.S. and H–2B workers. 

Finally, the limited data that is available 

did not represent a random sample of 

H–2B employers, but just the subset of 

employers that WHD had some reason 

to investigate. 

Second, DOL reviewed a random 

sample of 225 certified and partially 

certified applications from FY 2010 

submitted by employers in response to 

Requests for Information (RFIs) during 

the application process. While the 2011 

version of ETA Form 9142B includes an 

optional item on the number of nonfamily full-time equivalent employees, 

that number includes all employees and 

not only the employees in 

corresponding employment. (See also 

the instructions to the Form 9142, 

which inform the employer to ‘‘[e]nter 

the number of full-time equivalent (FTE) 

workers the employer employs.’’) 

Moreover, even if this number 

accounted for the number of 

corresponding employees, none of the 

applications in the random sample used 

the 2011 version of the form. Of the 225 

applications reviewed, two applications 

gave the current number of employees 

as part of the other information 

submitted. Additionally, DOL examined 

data in 34 payroll tables that were 

provided to supplement the application. 

The payroll tables reported data by 

month for at least one year from 2007 

to 2010 and included information such 

as the total number of workers, hours 

worked, and earnings for all workers 

performing work covered by the job 

order. These workers were broken down 

into categories for permanent workers 

(those already employed and performing 

the certified job) and for temporary 

workers (both H–2B workers and U.S. 

workers similarly employed who 

responded to the job order). DOL 

divided the total payroll by the total 

hours worked across the two categories 

of workers to estimate an average hourly 

wage per permanent and temporary 

worker. DOL compared the total number 

of workers in months where permanent 

workers were paid either more than or 

less than temporary employees for those 

months in which both were employed. 

DOL found 7,548 temporary and 

10,310 permanent worker-months 

(defined as one worker, whether full- or 

part-time, employed one month) in the 

34 payroll tables examined. Of these, 

permanent employees were paid more 

than temporary employees in 9,007 

worker-months, and were paid less than 

temporary employees in 1,303 workermonths. This suggests that the rule 

would have no impact on wages for 87 

percent of permanent workers (9,007/

10,310). Conversely, 13 percent of 

permanent workers (1,303/10,310) were 

paid less than temporary employees and 

would receive an increase in wages as 

a result of the rule. Calculating the ratio 

of 1,303 permanent worker-months to 

7,548 temporary worker-months when 

permanent workers are paid less than 

temporary workers suggests that for 

every temporary worker-month, there 

are 0.17 worker-months where the 

permanent worker wage is less than the 

temporary worker wage. Extrapolating 

this ratio based on DOL’s estimate that 

there are a total of 115,500 H–2B 

employees at any given time, suggests 

that 19,939 permanent workers (115,500 

× 0.17) would be eligible for pay raises 

due to the rule. 

DOL also calculated the percentage 

difference in the corresponding and 

temporary worker wages in months 

where temporary workers were paid 

more. On average, corresponding 

workers earning less than temporary 

employees would need their wages to be 

increased by 4.5 percent to match 

temporary worker wages. 

For several reasons, however, DOL 

did not believe it was appropriate to use 

the data in the payroll tables to 

extrapolate to the entire universe of H– 

2B employers. First, because of the 

selective way in which these payroll 

records were collected by DOL, the 

distribution of occupations represented 

in the payroll tables is not 

representative of the distribution of 

occupations in H–2B temporary 

employment certification applications. 

The 34 payroll tables examined by DOL 

included the following occupations: 

Nonfarm Animal Caretakers (12 payroll 

tables) 

Landscaping and Groundskeeping 

Workers (4 payroll tables) 

Maids and Housekeeping Cleaners (4 

payroll tables) 

Cooks (2 payroll tables) 

Waiters and Waitresses (2 payroll tables) 

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Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 24093 

33Applications for landscaping and 

groundskeeping workers similarly made up 35 

percent of the total number (1,893/5,467) of 

applications in FY 2014. 34 In FY 2014, applications for nonfarm animal 

caretakers made up only 3 percent of the total 

number of applications (178/5,467). 35U.S. Bureau of Labor Statistics (BLS). 2015. 

Employer Costs for Employee Compensation, 

December 2014, news release text. March 11, 2015. 

Available at http://www.bls.gov/news.release/

ecec.nr0.htm (accessed on March 12, 2015). 

36U.S. Bureau of Labor Statistics (BLS). 2014a. 

Occupational Employment and Wages, May 2013, 

43–6011 Executive Secretaries and Executive 

Administrative Assistants. April 1, 2014. Available 

at http://www.bls.gov/oes/current/oes436011.htm 

(accessed on March 12, 2015). 

37U.S. Bureau of Labor Statistics (BLS). 2014b. 

Occupational Employment and Wages, May 2013, 

11–3121 Human Resources Managers. April 1, 2014. 

Available at http://www.bls.gov/oes/current/

oes113121.htm (accessed on March 12, 2015). 

38OFLC. 2010. Independent Government Cost 

Estimates. 

39 DOL would not typically use a wage that 

included overhead costs, but here DOL uses the 

services of a contractor to develop the registry, and 

therefore the fully loaded wage is more reflective of 

costs. 

40U.S. Bureau of Labor Statistics. 2015. Available 

at http://data.bls.gov/cgi-bin/surveymost?cu 

(accessed on March 18, 2015). 

Forest and Conservation Workers (2 

payroll tables) 

Dishwashers (1 payroll table) 

Dining Room and Cafeteria Attendants 

and Bartender Helpers (1 payroll 

table) 

Separating, Filtering, Clarifying, 

Precipitating, and Still Machine 

Setters, Operators, and Tenders (1 

payroll table) 

Food Cooking Machine Operators and 

Tenders (1 payroll table) 

Floor Sanders and Finishers (1 payroll 

table) 

Production Workers, All Other (1 

payroll table) 

Receptionists and Information Clerks (1 

payroll table) 

Grounds Maintenance Workers, All 

Other (1 payroll table) 

The four payroll tables for 

landscaping and groundskeeping 

workers made up only 12 percent of the 

payroll tables, while applications for 

these workers represented 35 percent of 

FY 2010 applications.33 Conversely, the 

12 payroll tables from nonfarm animal 

caretakers made up 35 percent of the 

payroll tables in the sample, while 

applications for such workers made up 

only six percent of the FY 2010 

applications.34

Second, the total number of payroll 

tables or payroll records provided to 

DOL was very small. DOL found only 34 

payroll tables in 225 randomly selected 

applications. Furthermore, payroll 

records in H–2B temporary employment 

certification applications are provided 

in specific response to an RFI or in the 

course of a post-adjudication audit. In 

both instances the primary purpose of 

these records is to demonstrate 

compliance with program requirements, 

usually either to demonstrate 

proactively that the need for workers is 

a temporary need, or to demonstrate 

retroactively compliance with the wage 

obligation. Because payroll tables were 

submitted in response to an RFI rather 

than as a matter of routine in the 

application process, it is not clear that 

the data in the limited number of 

payroll tables for a given occupation are 

representative of all workers within that 

occupation in the H–2B program. 

Something triggered the RFI, 

presumably some indication that the 

need for temporary workers was not 

apparent, and therefore these 

applications are not representative of 

the 85 percent of applications that did 

not require a payroll table. 

Third, the payroll wage information 

in these tables is provided at the group 

level, and DOL is unable to estimate 

how many individual corresponding 

workers are paid less than temporary 

workers in any given month. The 

payroll tables only allow a gross 

estimate of whether corresponding or 

temporary workers were paid more, on 

average, in a given month. Because 

wages would only increase for those 

U.S. workers currently making less than 

the prevailing wage, this information is 

necessary to determine the effect the 

rule would have on workers in 

corresponding employment. Finally, 

DOL has no data regarding the number 

of employees who would fall under the 

two exclusions in the definition of 

corresponding employment. 

DOL, therefore, cannot confidently 

rely on the payroll tables alone and has 

no other statistically valid data to 

quantify the total number of 

corresponding workers or the number 

that would be eligible for a wage 

increase to match the H–2B workers. 

Nevertheless, DOL believes that the 

payroll tables show that the impact of 

the corresponding employment 

provision would be relatively limited, 

both as to the number of corresponding 

workers who would be paid more and 

as to the amount their wages would 

increase. 

Based on all the information available 

to us, including the payroll tables and 

DOL’s enforcement experience, DOL 

attempted to quantify the impact of the 

corresponding employment provision. 

DOL notes that the 2008 rule already 

protected U.S. workers hired in 

response to the required recruitment, 

including those U.S. workers who were 

laid off within 120 days of the date of 

need and offered reemployment. 

Therefore, this interim final rule will 

have no impact on their wages. This 

interim final rule simply extends the 

same protection to other employees 

performing substantially the same work 

included in the job order or 

substantially the same work that is 

actually performed by the H–2B 

workers, with the exception of the 

aforementioned incumbent employees. 

DOL believes that a reasonable estimate 

is that H–2B workers make up 75 to 90 

percent of the workers in the particular 

job and location covered by a job order; 

DOL assumes, therefore, that 10 to 25 

percent of the workers will be U.S. 

workers newly covered by the interim 

final rule’s coverage of corresponding 

workers. This assumption does not 

discount for the fact, as noted above, 

that some of these U.S. workers are 

already covered by the prevailing wage 

requirement or could be covered by one 

of the two exclusions from the 

definition of corresponding 

employment. Carrying forward with its 

estimate that there are a total of 115,500 

H–2B workers employed at any given 

time, DOL thus estimates that there will 

be between 12,833 (if 90 percent are H– 

2B workers) and 38,500 (if 75 percent 

are H–2B workers) U.S. workers newly 

covered by the corresponding 

employment provision. 

d. Wages Used in the Analysis 

In this analysis, DOL uses the most 

recent OES wage data available from 

BLS, and its most recent estimate of the 

ratio of fringe benefit costs to wages, 

44.1 percent.35 To represent the hourly 

compensation rate for an administrative 

assistant/executive secretary, DOL uses 

the median hourly wage ($23.70) for 

SOC 43–6011 (Executive Secretaries and 

Executive Administrative Assistants).36

The hourly compensation rate for a 

human resources manager is the median 

hourly wage of $48.46 for SOC 11–3121 

(Human Resources Managers).37 Both 

wage rates are multiplied by 1.441 to 

account for private-sector employee 

benefits. 

For registry development and 

maintenance activities, DOL uses fully 

loaded rates based on an Independent 

Government Cost Estimate (IGCE) 

produced by OFLC in 2010,38 which are 

inclusive of direct labor and overhead 

costs for each labor category.39 DOL 

inflates these fully loaded wage rates to 

2014 values using the CPI–U, published 

by the U.S. Bureau of Labor Statistics.40

The 2014 wages used in the analysis 

are summarized in Table 3. 

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41Bureau of Labor Statistics, Occupational 

Employment Statistics, May 2014 data, http://

www.bls.gov/oes/#data. 

42Landscaping and Groundskeeping Workers 

(SOC code: 37–3011); Maids and Housekeeping 

(SOC code: 37–2012); Amusement and Recreation 

Attendants (SOC code: 39–3091); Forest and 

Conservation Workers (SOC code: 45–4011); and 

Meat, Poultry, and Fish Cutters and Trimmers (SOC 

code: 51–3022). 

TABLE 3—WAGES USED IN THE ANALYSIS

Occupation Hourly wage Loaded wage a CPI–U adjusted wage b

Administrative Assistant ............................................................................................................... $24 $34 N/A 

HR Manager ................................................................................................................................ 48 70 N/A 

Program Manager ........................................................................................................................ N/A 138 150 

Computer Systems Analyst II ...................................................................................................... N/A 92 100 

Computer Systems Analyst III ..................................................................................................... N/A 110 119 

Computer Programmer III ............................................................................................................ N/A 90 98 

Computer Programmer IV ........................................................................................................... N/A 108 117 

Computer Programmer Manager ................................................................................................. N/A 124 135 

Data Architect .............................................................................................................................. N/A 105 114 

Web Designer .............................................................................................................................. N/A 125 136 

Database Analyst ......................................................................................................................... N/A 78 85 

Technical Writer II ........................................................................................................................ N/A 85 92 

Help Desk Support Analyst ......................................................................................................... N/A 55 60 

Production Support Manager ....................................................................................................... N/A 126 137 

aSource: OFLC. 2010. Independent Government Cost Estimate (IGCE). Accounts for 44.1 percent fringe. 

bAdjusted using CPI–U (2014 annual) and CPI–U (2010 annual), or 236.736/218.056 

N/A: Not applicable. 

Sources: BLS, 2015; BLS, 2014a; BLS, 2014b. 

e. H–2B Employment in the Territory of 

Guam 

Subject to the transfer of authority to 

DOL, this interim final rule applies to 

H–2B employers in the Territory of 

Guam only in that it requires them to 

obtain prevailing wage determinations 

in accordance with the process defined 

at 20 CFR 655.10. Because that transfer 

has not been effectuated, this analysis 

does not reflect any costs related to 

employment in Guam. 

4. Subject-by-Subject Analysis 

DOL’s analysis below considers the 

expected impacts of the interim final 

rule provisions against the baseline (i.e., 

the 2008 rule). The sections detail the 

costs of provisions that provide 

additional benefits for H–2B and/or 

workers in corresponding employment, 

expand efforts to recruit U.S. workers, 

enhance transparency and worker 

protections, and reduce the 

administrative burden on SWAs. 

a. Three-Fourths Guarantee 

In order to ensure that the capped H– 

2B visas are appropriately made 

available to employers based on their 

actual need for workers, and to ensure 

that U.S. workers can realistically 

evaluate the job opportunity, DOL 

asserts that employers should accurately 

state their beginning and end dates of 

need and the number of H–2B workers 

needed. To the extent that employers 

submit Applications for Temporary 

Employment Certification accurately 

reflecting their needs, the three-fourths 

guarantee provision should not 

represent a cost to employers, 

particularly given the 12-week and 6- 

week periods over which to calculate 

the guarantee. 

b. Application of H–2B Wages to 

Corresponding Workers 

There are two cohorts of 

corresponding workers: (1) The U.S. 

workers hired in the recruitment 

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

work for the employer and who perform 

the substantially the same work as the 

H–2B workers, other than those that fall 

under one of the two exclusions in the 

definition. The former are part of the 

baseline for purposes of the wage 

obligation, as employers have always 

been required to pay U.S. workers 

recruited under the H–2B program the 

same prevailing wage that H–2B 

workers get. Of the latter group of 

corresponding workers, some will 

already be paid a wage equal to or 

exceeding the H–2B prevailing wage so 

their wages represent no additional cost 

to the employer. Those who are 

currently paid less than the H–2B 

prevailing wage will have to be paid at 

a higher rate, with the additional cost to 

the employer equal to the difference 

between the former wage and the H–2B 

wage. 

As discussed above, DOL was unable 

to identify a reliable source of data 

providing the number of corresponding 

workers at work sites for which H–2B 

workers are requested or the hourly 

wages of those workers. Nevertheless, 

DOL has attempted to quantify the 

impacts associated with this provision. 

All increases in wages paid to 

corresponding workers under this 

provision represent a transfer from 

participating employers to U.S. workers. 

In the absence of reliable data, DOL 

can reasonably assume that H–2B 

workers make up 75 to 90 percent of the 

workers in a particular job and location 

covered by the job order, with the 

remaining 10 to 25 percent of workers 

being corresponding workers newly 

covered by the rule’s wage requirement. 

When these rates are applied to its 

estimate of the total number of H–2B 

workers (115,500) employed at any 

given time, DOL estimates that the 

number of corresponding workers newly 

covered by the corresponding 

employment provision will be between 

12,833 and 38,500. This is an 

overestimate of the rule’s impact since 

some of the employees included in the 

10–25 percent proportion of 

corresponding workers are those hired 

in response to required recruitment and 

are therefore already covered by the 

existing regulation, and some employees 

will fall within one of the two 

exclusions under the definition. 

The prevailing wage calculation 

represents a typical worker’s wage for a 

given type of work. The prevailing wage 

calculation is based on the current 

wages received by all workers in the 

occupation and area of intended 

employment. Based on OES data,41 DOL 

estimated that the weighted mean wage 

for the top five occupations in the H–2B 

program 42 reflects approximately the 

60th percentile of the wage distribution 

of those occupations. Therefore, it is 

reasonable to assume that 40 percent of 

the corresponding workforce earns a 

wage that is equal to or greater than the 

calculated prevailing wage. Conversely, 

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Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 24095 

43United States Census Bureau, 2007 Economic 

Census, http://www.census.gov/econ/census/data/. 

44United States Census Bureau, 2007 Economic 

Census, http://www.census.gov/econ/census/data/. 

45U.S. Department of Commerce, Bureau of 

Economic Analysis, Direct Requirements/After 

Redefinitions/Producer Value (2007), http://

www.bea.gov/industry/io_annual.htm.. 

it would be reasonable to assume that 60 

percent of the workers in corresponding 

employment earn less than the 

prevailing wage and would have their 

wages increased as a result of the 

interim final rule. Applying this rate to 

DOL’s estimate of the number of 

workers covered by the corresponding 

employment provision would mean that 

the number of newly covered workers 

who would receive a wage increase is 

between 7,700 and 23,100. 

These newly covered U.S. workers 

who are currently paid below the new 

H–2B prevailing wage as established in 

the final wage rule promulgated 

simultaneously with this interim final 

rule (generally the OES mean in the area 

of intended employment) are likely to 

receive a wage increase that would be 

the difference between the new H–2B 

prevailing wage and their current wage. 

DOL estimated the weighted wage 

differences between workers at the 10th 

percentile and workers at the OES mean 

($3.22), between workers at the 25th 

percentile and workers at the OES mean 

($2.39), and between workers at the 50th 

percentile and workers at the OES mean 

($1.03), respectively, for the top five 

occupations of the H–2B program. Using 

these weighted average hourly wage 

differences, DOL assumes that the wage 

increases for newly covered 

corresponding workers will be 

distributed between three hourly wage 

intervals: 10 percent of newly covered 

corresponding workers will receive an 

average hourly wage increase of $3.22; 

15 percent will receive an average 

hourly wage increase of $2.39; and 35 

percent will receive an hourly wage 

increase of $1.03. 

Finally, DOL estimates that these 

workers in corresponding employment 

will have their wages increased for 

1,365 hours of work. This assumes that 

every H–2B employer is certified for the 

maximum period of employment of nine 

months (39 weeks), and that every 

corresponding worker averages 35 hours 

of work per week for each of the 39 

weeks. This is an upper-bound estimate 

since it is based on every employer 

voluntarily providing in excess of the 

number of hours of work required by the 

three-fourths guarantee for the 

maximum number of weeks that can be 

certified. 

Therefore, based on all the 

assumptions noted above, DOL 

estimates the total annual transfer 

incurred due to the increase in wages 

for newly covered workers in 

corresponding employment ranges from 

$18.21 million to $54.62 million. See 

Table 4. 

TABLE 4—TRANSFER OF CORRESPONDING WORKER WAGES

Hourly wage increase 

Percent 

corresponding 

employees 

Corresponding 

employees Total cost 

H–2B Workers Are 90% of Occupation at Firm 

$0.00 ............................................................................................................................................ 40 5,133 $0 

$3.22 ............................................................................................................................................ 10 1,283 5,633,075 

$2.39 ............................................................................................................................................ 15 1,925 6,271,563 

$1.03 ............................................................................................................................................ 35 4,492 6,303,264 

Total ...................................................................................................................................... 100 12,833 18,207,902 

H–2B Workers Are 75% of Occupation at Firm 

$0.00 ............................................................................................................................................ 40 15,400 $0 

$3.22 ............................................................................................................................................ 10 3,850 16,903,617 

$2.39 ............................................................................................................................................ 15 5,775 18,814,688 

$1.03 ............................................................................................................................................ 35 13,475 18,898,641 

Total ...................................................................................................................................... 100 38,500 54,616,946 

Source: DOL assumptions 

Also, based on DOL’s review of 

available information on the 

characteristics of industries employing 

H–2B workers, there will be natural 

limit on the number of corresponding 

workers whose wages might be affected 

by the revised rule. DOL found that two 

of the top five industries that most 

commonly employ H–2B workers are 

landscaping services and janitorial 

services. Establishments in these 

industries tend to be small: 

Approximately seven percent of 

janitorial service and three percent of 

landscaping establishments have more 

than 50 year-round employees; and 83 

percent of janitorial services and 91 

percent of landscaping establishments 

have fewer than 20 year-round 

employees.43 Further, 20 percent of 

janitorial service firms and 30 percent of 

firms in landscaping do not operate 

year-round.44 Therefore, DOL believes 

that a majority of H–2B employers are 

small-sized firms whose workforces are 

composed predominately of H–2B 

workers. 

Finally, to the extent that firms in 

landscaping and janitorial services incur 

increased payroll costs, those increased 

costs are unlikely to have a significant 

aggregate impact. A U.S. Bureau of 

Economic Analysis (BEA) input-output 

analysis of the economy demonstrates 

that the demand for ‘‘Services to 

Buildings and Dwellings’’ (the sector in 

which janitorial and landscaping 

services are classified) is highly diffused 

throughout the economy.45

BEA calculates Direct Requirements 

tables that indicate the dollar amount of 

input from each industry necessary to 

produce one dollar of a specified 

industry’s output. These results show 

that building services account for a 

relatively negligible proportion of 

production costs: Of 389 sectors, 

building services account for less than 

$0.01 for each dollar of output in 379 

sectors, and less than $0.005 for each 

dollar of output in 369 sectors. The 

largest users of these services tend to be 

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24096 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

46For the purpose of this analysis, H–2B workers 

are considered temporary residents of the United 

States. 

47U.S. Department of Homeland Security (DHS). 

2013. Yearbook of Immigration Statistics. Available 

at http://www.dhs.gov/sites/default/files/

publications/immigration-statistics/yearbook/2013/

NI/nonimmsuptable2d.xls (accessed on March 18, 

2015). 

48Where possible, DOL used a selection of cities 

to represent travel from different regions of the 

country. 

retail trade, government and educational 

facilities, hotels, entertainment, and 

similar sectors. In other words, these 

services do not impact industrial 

productivity or the production of 

commodities that will result in large 

impacts that ripple throughout the 

economy. To further place this in 

perspective, Services to Buildings and 

Dwellings, upon which this 

characterization is based, includes more 

than just the janitorial and landscaping 

service industries. The estimated 39,295 

H–2B workers hired by these industries 

account for only 2.2 percent of 

employment in the Services to 

Buildings and Dwellings sector, even 

including impacts through 

corresponding employee provisions 

(described above as limited), and are 

only a small fraction of the already 

small direct requirements figures for 

this sector. 

Therefore, based on the characteristics 

of industries that use H–2B workers, 

only a relatively small fraction of 

employees and firms in those industries 

likely will be affected by corresponding 

worker provisions. 

However, because DOL does not have 

data on the number of corresponding 

workers or their wages relative to 

prevailing wages, it cannot project firmlevel impacts to those firms that do have 

permanent corresponding workers. 

Standard labor economic models 

suggest that an increase in the cost of 

employing U.S. workers in 

corresponding employment would 

reduce the demand for their labor. 

Because employers cannot replace U.S. 

workers laid off 120 days before the date 

of need or through the period of 

certification with H–2B workers, DOL 

concludes that there would be no shortterm reduction in the employment of 

corresponding workers among 

participating employers. In the long-run, 

however, these firms might be reluctant 

to hire additional permanent staff. The 

extent to which such unemployment 

effects might result from the prevailing 

wage provision will be a function of: 

The number of permanent staff 

requiring wage increases; the underlying 

demand for the product or service 

provided by the firm during off-peak 

periods; and the firm’s ability to 

substitute for labor to meet that off-peak 

demand for its products or services. 

First, the fewer the number of 

permanent staff receiving wage 

increases, the smaller the increase in the 

cost of producing the good or service. 

Second, the demand for labor services is 

a ‘‘derived demand.’’ That is, if the 

product or service provided has few 

substitutes, purchasers would prefer to 

pay a higher price rather than do 

without the product. Third, some goods 

and services are more difficult to 

produce than others by substituting 

equipment or other inputs for labor 

services. In summary, if increased wages 

result in a small overall cost increase, 

demand for the product is inelastic, and 

there are few suitable substitutes for 

labor in production, then 

unemployment effects are likely to be 

relatively small. 

c. Transportation to and From the Place 

of Employment for H–2B Workers 

The interim final rule requires H–2B 

employers to provide workers—both H– 

2B workers and those in corresponding 

employment who are unable to 

reasonably return to their permanent 

residences each day—with 

transportation and daily subsistence to 

the place of employment from the place 

from which the worker has come to 

work for the employer, whether in the 

United States or abroad, if the worker 

completes 50 percent of the period of 

the job order. The employer must also 

pay for or provide the worker with 

return transportation and daily 

subsistence from the place of 

employment to the place from which 

the worker, disregarding intervening 

employment, departed to work for the 

employer if the worker completes the 

period of the job order or is dismissed 

early. The impacts of requiring H–2B 

employers to pay for employees’ 

transportation and subsistence represent 

transfers from H–2B employers to 

workers because they represent 

distributional effects, not a change in 

society’s resources.46

To estimate the transfer related to 

transportation, DOL first calculated the 

average number of certified H–2B 

positions per year during FY 2013–2014 

from the 10 most common countries of 

origin, along with each country’s 

proportion of this total.47 These figures, 

presented in Table 5, are used to create 

weighted averages of travel costs in the 

analysis below. 

TABLE 5—NUMBER OF H–2B WORKERS BY COUNTRY OF ORIGIN, FY 2013 

Country Number of 

workers Percent of total 

Mexico .................................................................................................................................................................... 88,322 84 .1 

Jamaica .................................................................................................................................................................. 5,827 5 .6 

Guatemala ............................................................................................................................................................. 2,734 2 .6 

United Kingdom ..................................................................................................................................................... 1,414 1 .3 

South Africa ........................................................................................................................................................... 1,009 1 .0 

Philippines .............................................................................................................................................................. 922 0 .9 

El Salvador ............................................................................................................................................................ 478 0 .5 

Honduras ............................................................................................................................................................... 409 0 .4 

Canada .................................................................................................................................................................. 337 0 .3 

Romania ................................................................................................................................................................. 306 0 .3 

Total ................................................................................................................................................................ 104,984 100 

Source: Department of Homeland Security, 2015. 

DOL calculates transportation costs by 

adding two components: The estimated 

cost of a bus or ferry trip from a regional 

city 48 to the consular city to obtain a 

visa, and the estimated cost of a trip 

from the consular city to St. Louis. 

Workers from Mexico and Canada (85 

percent of the total) are assumed to 

travel by bus; workers from all other 

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Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 24097 

countries, by air. Because this interim 

final rule requires an employer to hire 

U.S. applicants until 21 days before the 

date of need, employers will not have to 

pay a premium for refundable fares. 

This analysis, therefore, includes only 

the cost for non-refundable tickets. 

The travel cost estimates are 

presented in Table 6. DOL estimated the 

round-trip transportation costs by 

doubling the weighted average one-way 

cost (for a round-trip travel cost of 

$836), then multiplying by the annual 

number of H–2B workers entering the 

United States (66,000). DOL estimates 

average annual transfer payments 

associated with transportation 

expenditures to be approximately $55.2 

million. Employers likely are already 

paying some of this cost, either 

voluntarily in order to secure the 

workers or because of the employer’s 

obligations under the FLSA Under the 

FLSA, the majority of H–2B employers 

are required to pay for the proportion of 

inbound and outbound transportation 

costs that would otherwise bring a 

worker’s earnings below the minimum 

wage in the first and last workweeks of 

employment. However, it is not possible 

to determine how much of the cost of 

transportation employers currently are 

paying. To the extent that this does 

already occur, this transportation 

transfer is an upper-bound estimate. 

DOL also believes it has over-estimated 

this transfer for the additional reason 

that inbound transportation is only due 

for workers who complete 50 percent of 

the job order and outbound 

transportation is due only for those who 

complete the full job order or are 

dismissed early. 

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

Item Value 

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

Mexico 

One way travel (bus)—Hometown to Monterrey 49 ............................................................................................................. $52 

One way travel (bus)—Monterrey to Juarez 50 ................................................................................................................... 78 

One way travel (bus)—El Paso to St. Louis 51 .................................................................................................................... 230 

Total one way travel ..................................................................................................................................................... 360 

Jamaica 

One way travel (bus)—Hometown to Kingston 52 ............................................................................................................... 1 

One way travel (air)—Kingston to St. Louis 53 .................................................................................................................... 502 

Total one way travel ..................................................................................................................................................... 503 

Guatemala 

One way travel (bus)—Hometown to Guatemala City 54 .................................................................................................... 2 

One way travel (air)—Guatemala City to St. Louis 55 ......................................................................................................... 758 

Total one way travel ..................................................................................................................................................... 760 

United Kingdom 

One way travel (bus or rail)—Hometown to London 56 ....................................................................................................... 32 

One way travel (air)—London to St. Louis 57 ...................................................................................................................... 2,006 

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

South Africa 

One way travel (bus)—Hometown to Johannesburg 58 ...................................................................................................... 57 

One way travel (air)—Johannesburg to St. Louis 59 ........................................................................................................... 1,323 

Total one way travel ..................................................................................................................................................... 1,380 

Philippines 

One way travel (ferry)—Hometown to Manila 60 ................................................................................................................. 40 

One way travel (air)—Manila to St. Louis 61 ....................................................................................................................... 1,735 

Total one way travel ..................................................................................................................................................... 1,775 

El Salvador 

One way travel (bus)—Hometown to San Salvador 62 ....................................................................................................... 1 

One way travel (air)—San Salvador to St. Louis 63 ............................................................................................................ 472 

Total one way travel ..................................................................................................................................................... 473 

Honduras 

One way travel (bus)—Hometown to Tegucigalpa 64 .......................................................................................................... 23 

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24098 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

49Omnibus de Me ́xico. 2015. Venta en Lı ́nea. 

Available at http://www.odm.com.mx/ (accessed on 

March 12, 2015). Averages cost of a bus ticket to 

Monterrey from: Tampico (690 pesos), Actopan (875 

pesos); and Aca ́mbaro (835 pesos). Converted from 

pesos to U.S. dollars at the rate of 0.065 pesos per 

dollar for an average cost of $52. 

50Omnibus de Me ́xico. 2015. Venta en Lı ́nea. 

Available at http://www.odm.com.mx/ (accessed on 

March 12, 2015). The cost of a bus ticket from 

Monterrey to Ciudad Juarez is 1200 pesos, 

converted from pesos to U.S. dollars at the rate of 

0.065 pesos per dollar for a cost of $78. 

51 Greyhound. 2015. Tickets. Available at https:// 

www.greyhound.com/farefinder/ (accessed on 

March 12, 2015). 

52 Jamaica Guide. 2015. Jamaica Buses. Available 

at http://caribya.com/jamaica/buses/ (accessed on 

March 12, 2015). 

53Orbitz. 2015. Home page. Available at http:// 

www.orbitz.com/ (accessed on March 12, 2015). 

54 Virtual Tourist. 2015. Guatemala City 

Transportation. Available at http:// 

www.virtualtourist.com/travel/ 

Caribbean_and_Central_America/Guatemala/ 

Departamento_de_Guatemala/Guatemala_City1671108/Transportation-Guatemala_City-TG-C1.html (accessed on March 12, 2015). 

55Orbitz. 2015. Home page. Available at http:// 

www.orbitz.com/ (accessed on March 12, 2015). 

56Megabus. 2011. Megabus UK home page. 

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

default.aspxhttp\:uk.megabus.com (accessed on 

July 10, 2011) and Raileasy. 2011. Raileasy home 

page. Available at https://www.raileasy.co.uk/ 

(accessed on July 10, 2011); average of the cost of 

a bus ticket from three cities in England to London 

(GBP 15) and a train from Northern Ireland to 

London (GBP 50); Converted at the rate of 1.36 GBP 

per USD for an average of $32. 

57Orbitz. 2015. Home page. Available at http:// 

www.orbitz.com/ (accessed on March 12, 2015). 

58Computicket. 2015. Computicket home page. 

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

bus_tickets/ (accessed on March 12, 2015). The 

maximum bus fare from one of the farthest cities 

(Cape Town) to Johannesburg is 715 Rand, which 

is approximately $57 (= 715 Rand × 0.08). 59Orbitz. 2015. Home page. Available at http:// 

www.orbitz.com/ (accessed on March 12, 2015). 60Lonely Planet. 2015. Ferry travel in the 

Philippines. Available at http:// 

www.lonelyplanet.com/philippines/transport/ 

getting-around (accessed on March 12, 2015). 

61Orbitz. 2015. Home page. Available at http:// 

www.orbitz.com/ (accessed on March 12, 2015). 

62Rome2Rio. 2015. Home page. Available at 

https://www.rome2rio.com/s/Santa-Ana-ElSalvador/San-Salvador (accessed on March 18, 

2015). 

63Orbitz. 2015. Home page. Available at http:// 

www.orbitz.com/ (accessed on March 18, 2015). 

64Rome2Rio. 2015. Home page. Available at 

http://www.rome2rio.com/s/Tegucigalpa/SanPedro-Sula (accessed on March 18, 2015). 

65Orbitz. 2015. Home page. Available at http:// 

www.orbitz.com/ (accessed on March 18, 2015). 

66Air Canada. 2011. Air Canada home page. 

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

on July 10, 2011). 

67 Greyhound. 2015. Tickets. Available at https:// 

www.greyhound.com/farefinder/ (accessed on 

March 12, 2015). 

68Lonely Planet. 2015. Getting around Romania. 

Available at http://www.lonelyplanet.com/romania/ 

transport/getting-around/bus/ (accessed on March 

12, 2015). According to Lonely Planet, ‘‘Figure on 

about 3 to 4 lei for every 20km travelled.’’ The 

travel distance from one of the farthest cities (Baia 

Mare) to Bucharest is approximately 600 km, so the 

maximum cost would be 120 lei (= 4 lei × 600km/ 

20km), which is approximately $28 (= 120 lei × 

0.236). 

69Orbitz. 2015. Home page. Available at http:// 

www.orbitz.com/ (accessed on March 12, 2015). 

70 Greyhound. 2015. Tickets. Available at 

https://www.greyhound.com/farefinder/ (accessed 

on March 12, 2015). 

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

Item Value 

One way travel (air)—Tegucigalpa to St. Louis 65 .............................................................................................................. 748 

Total one way travel ..................................................................................................................................................... 771 

Canada 

One way travel (air)—Hometown to Ottawa 66 .................................................................................................................... 175 

One way travel (bus)—Ottawa to St. Louis 67 ..................................................................................................................... 189 

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

Romania 

One way travel (bus)—Hometown to Bucharest 68 ............................................................................................................. 28 

One way travel (air)—Bucharest to St. Louis 69 .................................................................................................................. 1,396 

Total one way travel ..................................................................................................................................................... 1,424 

All 

One way travel—Weighted average .................................................................................................................................... 418 

Roundtrip travel—Weighted average .................................................................................................................................. 836 

Total Travel Costs—H–2B Workers ............................................................................................................................. 55,190,325 

d. Transportation to and From the Place 

of Employment for Corresponding 

Workers 

The interim final rule also requires 

the employer provide inbound and 

outbound transportation to and from the 

place of employment for corresponding 

workers who are unable to return daily 

to their permanent residences. DOL 

estimates an approximate unit cost for 

each traveling corresponding worker by 

taking the average of the cost of a bus 

ticket to St. Louis from Fort Wayne, IN 

($86), Pittsburgh, PA ($135), Omaha, NE 

($88), Nashville, TN ($81), and 

Palmdale, CA ($230).70 Averaging the 

cost of travel from these five cities 

results in an average one way cost of 

$124, and a round-trip cost of $248 (see 

Table 7). 

TABLE 7—UNIT COSTS OF

CORRESPONDING WORKER TRAVEL

One way travel to 

St. Louis, MO Cost 

Fort Wayne, IN ..................... $86 

Pittsburgh, PA ....................... 135 

Omaha, NE ........................... 88 

Nashville, TN ........................ 81 

Palmdale, CA ........................ 230 

One way travel—Average .... 124 

Round-trip travel ................... 248 

Source: Greyhound, 2015. 

Because DOL has no basis for 

estimating the number of workers in 

corresponding employment who will 

travel to the job from such a distance 

that they are unable to return daily to 

their permanent residence, or to 

estimate what percentage of them will 

remain on the job through at least half 

or all of the job order period, DOL is 

unable to further estimate the total 

transfer involved. 

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Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 24099 

71HostelWorld.com. Available at http:// 

www.hostelworld.com/ (accessed on March 13, 

2015). 

e. Subsistence Payments 

DOL estimated the transfer related to 

subsistence payments by multiplying 

the annual cap set for the number of H– 

2B workers generally entering the 

United States (66,000) by the 

subsistence per diem ($11.86), and the 

round-trip travel time for the top 10 H– 

2B countries (4 days—3 days to account 

for travel from the worker’s home town 

to the consular city to obtain a visa and 

from the consular city to the place of 

employment, and 1 day to account for 

the workers’ transportation back to their 

home town). Multiplying by 66,000 new 

entrants per year and the subsistence 

per diem of $11.86 results in average 

annual transfers associated with the 

subsistence per diem of approximately 

$3.1 million (see Table 8). Again, this is 

an upper-bound estimate because the 

inbound subsistence reimbursement 

only is due for workers who complete 

50 percent of the period of the job order 

and outbound subsistence is due only 

for those who complete the full job 

order period or are dismissed early. 

TABLE 8—TRANSFER OF SUBSISTENCE

PAYMENTS

Cost component Value 

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

Subsistence Per Diem .............. $11.86 

TABLE 8—TRANSFER OF SUBSISTENCE

PAYMENTS—Continued 

Cost component Value 

One way travel days—Inbound 3 

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

Round-trip travel days .............. 4 

Total annual subsistence 

transfer for H–2B workers 3,131,040 

This provision applies not only to H– 

2B workers, but also to workers in 

corresponding employment on H–2B 

worksites who are recruited from a 

distance at which the workers cannot 

reasonably return to their residence 

within the same workday. Assuming 

that each worker can reach the place of 

employment within 1 day and thus 

would be reimbursed for a total of 2 

round-trip travel days at a rate of $11.86 

per day, each corresponding worker 

would receive $23.72 in subsistence 

payments. DOL was unable to identify 

adequate data to estimate the number of 

corresponding workers who are unable 

to return to their residence daily or, as 

a consequence, the percent of 

corresponding workers requiring 

payment of subsistence costs; thus, the 

total cost of this transfer could not be 

estimated. 

f. Lodging for H–2B Workers 

Any expenses incurred between a 

worker’s hometown and the consular 

city are within the scope of inbound 

transportation and subsistence costs, 

which also includes lodging costs while 

H–2B workers travel from their 

hometown to the consular city to wait 

to obtain a visa and from there to the 

place of employment. DOL estimates 

that H–2B workers will spend an 

average of two nights in an inexpensive 

hostel-style accommodation and the 

costs of those stays in consular cities of 

the 10 most common countries of origin 

are as follows: Monterrey (Mexico), 

$13.81; Kingston (Jamaica), $22.72; 

Guatemala City (Guatemala), $13.25; 

London (United Kingdom), $38.66; 

Pretoria (South Africa), $17.55; Manila 

(Philippines), $11.25; San Salvador (El 

Salvador), $10.00; Tegucigalpa 

(Honduras), $15.78; Ottawa (Canada), 

$25.06; and Bucharest (Romania), 

$10.38.71 Using the number of certified 

H–2B workers from the top 10 countries 

of origin, DOL calculates a weighted 

average of $14.13 for one night’s stay, 

and $28.27 for two nights’ stay. 

Multiplying by the 66,000 new entrants 

per year suggests total transfers 

associated with travel lodging of $1.9 

million per year (see Table 9). This cost 

would not apply to U.S. workers. 

TABLE 9—COST OF LODGING FOR H–2B WORKERS

Cost component Value 

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

Nights in hostel .................................................................................................................................................................................... 2 

City Lodging Cost 

Monterrey (Mexico) .............................................................................................................................................................................. $13.18 

Kingston (Jamaica)* ............................................................................................................................................................................. 22.72 

Guatemala City (Guatemala) ............................................................................................................................................................... 13.25 

London (United Kingdom) .................................................................................................................................................................... 38.66 

Pretoria (South Africa) ......................................................................................................................................................................... 17.55 

Manila (Philippines) ............................................................................................................................................................................. 11.15 

San Salvador (El Salvador) ................................................................................................................................................................. 10.00 

Tegucigalpa (Honduras) ...................................................................................................................................................................... 15.78 

Ottawa (Canada) ................................................................................................................................................................................. 25.06 

Bucharest (Romania) ........................................................................................................................................................................... 10.38 

Weighted Average—One Night ........................................................................................................................................................... 14.13 

Weighted Average—Two Nights ......................................................................................................................................................... 28.27 

Total Cost of Lodging ................................................................................................................................................................... 1,865,637 

Source: Assumed foreign workers stayed in dormitory style accommodations at these hostels unless otherwise noted. *Foreign workers will 

stay at private accommodations at this hostel since dormitory style facilities were not provided. 

g. Visa and Consular Fees 

Under the 2008 rule, visa-related 

fees—including fees required by the 

Department of State for scheduling and/ 

or conducting an interview at the 

Consulate—may be paid by the 

temporary worker. This interim final 

rule, however, requires employers to 

pay visa fees and associated consular 

expenses. Requiring employers to bear 

the full cost of their decision to hire 

foreign workers is a necessary step 

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24100 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

72U.S. Department of State. 2015. Citizens of 

Canada and Bermuda—http://travel.state.gov/ 

content/visas/english/visit/canada-bermuda.html 

(accessed on March 13, 2015). 

73Consulate General of the United States— 

Monterrey—Mexico. 2015. Temporary worker. 

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

work_visa.html (accessed on March 13, 2015). 

74The U.S. Visa Information Service in Jamaica. 

2011. How the Online System Works. Available at 

http://www.usvisa-jamaica.com/jam/ (accessed on 

July 22, 2011). 

75Embassy of the United States—Guatemala. 

2011. Application Process. Available at http:// 

guatemala.usembassy.gov/ 

niv_how_to_apply.html#appointment (accessed on 

July 22, 2011). 

76Embassy of the United States—London—U.K. 

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

london.usembassy.gov/fee.html (accessed on July 

22, 2011). 

77The U.S. Visa Information Service in South 

Africa. 2011. Fee Payment Options. Available at 

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

us_fee_payment_options (accessed on July 22, 

2011). 

78Embassy of the United States—Manila— 

Philippines. 2011. Visa PointTM—The Online Visa 

Information and Appointment System. Available at 

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

(accessed on July 22, 2011). 

79U.S. Department of State. 2011a. Citizens of 

Canada, Bermuda and Mexico—When is a Visa 

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

temp/without/without_1260.html (accessed on July 

22, 2011). 

80Embassy of the United States—Bucharest— 

Romania. 2011. Non Immigrant Visas. Available at 

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

visa_application_process.html (accessed on July 22, 

2011). 

81U.S. Department of State. 2015. Reciprocity by 

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

content/visas/english/fees/reciprocity-bycountry.html (accessed on March 13, 2015). 

toward preventing the exploitation of 

foreign workers with its concomitant 

adverse effect on U.S. workers. As 

explained in the Preamble, governmentmandated fees such as these are integral 

to the employer’s choice to use the H– 

2B program to bring temporary foreign 

workers into the United States. 

The reimbursement by employers of 

visa application fees and fees for 

scheduling and/or conducting an 

interview at the consular post is a 

transfer from employers to H–2B 

workers. DOL estimates the total cost of 

these expenses by adding the cost of an 

H–2B visa and any applicable 

appointment and reciprocity fees. The 

H–2B visa fee is $160 in all of the 10 

most common countries of origin. We 

have not attributed a cost with respect 

to Canada because Canadian citizens 

traveling to the United States for 

temporary employment generally do not 

need a visa,72 resulting in a weighted 

average visa fee of $159. The same 

countries charge the following 

appointment fees: Mexico ($0),73

Jamaica ($10),74 Guatemala ($12),75 the 

U.K. ($0),76 South Africa ($0),77

Philippines ($10),78 El Salvador ($0), 

Honduras ($0), Canada ($0),79 and 

Romania ($11),80 for a weighted average 

appointment fee of $1.02. Additionally, 

South Africa charges a reciprocity fee of 

$85, resulting in a weighted average of 

$0.84.81 Multiplying the weighted 

average visa cost, appointment fee, and 

reciprocity fee by the 66,000 H–2B 

workers entering the United States 

annually results in an annual average 

transfer of visa-related fees from H–2B 

employers to H–2B workers of $10.6 

million (see Table 10). Again, this is an 

upper-bound estimate because many H– 

2B employers already are paying these 

fees in order to ensure compliance with 

the FLSA’s minimum wage 

requirements. 

TABLE 10—COST OF VISA AND

CONSULAR FEES

Cost component Value 

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

Visa Application Fee 

Mexico .................................. $160 

Jamaica ................................ 160 

Guatemala ............................ 160 

United Kingdom .................... 160 

South Africa .......................... 160 

Philippines ............................ 160 

El Salvador ........................... 160 

Honduras .............................. 160 

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

Romania ............................... 160 

Weighted Average Visa Fee 159 

H–2B Visa—Total Costs ....... 10,525,028 

Appointment Fee 

Mexico .................................. 0.00 

Jamaica ................................ 10.00 

Guatemala ............................ 12.00 

United Kingdom .................... 0.00 

South Africa .......................... 0.00 

Philippines ............................ 10.00 

El Salvador ........................... 0.00 

Honduras .............................. 0.00 

Canada ................................. 0.00 

Romania ............................... 11.00 

Weighted Average Appointment Fee ........................... 1.02 

Appointment Fee—Total 

Costs ................................. 67,236 

Reciprocity Fee 

Mexico .................................. 0.00 

Jamaica ................................ 0.00 

Guatemala ............................ 0.00 

United Kingdom .................... 0.00 

South Africa .......................... 85.00 

Philippines ............................ 0.00 

El Salvador ........................... 0.00 

Honduras .............................. 0.00 

Canada ................................. 0.00 

Romania ............................... 0.00 

Weighted Average Reciprocity Fee ........................ 0.84 

Reciprocity Fee—Total Costs 55,627 

TABLE 10—COST OF VISA AND

CONSULAR FEES—Continued 

Cost component Value 

Total Costs 

Total Visa and Consular 

Fees .................................. 10,647,891 

Sources: Given in text. 

h. Enhanced U.S. Worker Referral 

Period 

The interim final rule ensures that 

U.S. workers are provided with better 

access to H–2B job opportunities by 

requiring employers to continue to hire 

any qualified and available U.S. worker 

referred to them from the SWA until 21 

days before the date of need, 

representing an increase in the 

recruitment period compared to the 

baseline. The rule also introduces 

expanded recruitment provisions, 

including requiring employers to notify 

their current workforce of the job 

opportunity and contact their former 

U.S. employees from the previous year. 

The enhanced recruitment period and 

activities improve the information 

exchange between employers, SWAs, 

the public, and workers about job 

availability, increasing the likelihood 

that U.S. workers will be hired for those 

jobs. 

The benefits to U.S. workers also 

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

which discuss additional provisions 

aimed at further improving the 

recruitment of U.S. workers. 

The extension of the referral period in 

this interim final rule will likely result 

in more U.S. workers applying for these 

jobs, requiring more SWA staff time to 

process additional referrals. DOL does 

not have estimates of the additional 

number of U.S. applicants, and thus is 

unable to estimate the costs to SWAs 

associated with this provision. 

DOL believes that hiring a U.S. 

worker will cost employers less than 

hiring an H–2B worker, as 

transportation and subsistence expenses 

will likely be reduced, if not avoided 

entirely. The cost of visa fees will be 

entirely avoided if U.S. workers are 

hired. Because DOL has not identified 

appropriate data to estimate any 

increase in the number of U.S. workers 

that might be hired as a result of the 

interim final rule’s enhanced 

recruitment, it is unable to estimate total 

cost savings. Likewise, the enhanced 

recruitment period along with more 

extensive recruitment activities and a 

number of program changes that should 

make these job opportunities more 

desirable should generate an increased 

number of local referrals for whom no 

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Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 24101 

82The Virginian Pilot, available at http://

selfserve.pilotezads.com/vp-adportal/classified/

index.html. Selected the Platinum package for 14 

days (accessed on March 12, 2015). 83The Austin Chronicle. 2015. Place an Ad. 

Selected the Gold Plan. Available at http://austin

chronicle.adperfect.com/?catid=33631&chanid=

C0A801411d5931FD07Ggh2E376AE&clsid=621631 

(accessed on March 12, 2015). 84The Gainesville Sun, available at http:// 

gainesvillesun.adperfect.com/. Selected 

Employment Print and Online option (Thursday 

through Sunday). The latter option was for two 

weeks. 85The Plaquemines Gazette, available at http:// 

plaqueminesgazette.com/?page_id=118. For this 

newspaper selected $5 per day ad for 14 days. 86Contacted the classified ad staff for the Aspen 

Times. They do not give quotes over the phone 

because it depends on the number of lines, length 

of time published, and other variables. The staff 

member stated employment classifieds could run at 

least $300 up to $1,000. The rate of $513 was used 

for this publication. 87Contacted the classified ad staff on March 12, 

2015. The paper is only published on Wednesday 

and Saturdays of each week. For a 30-word ad, for 

one week is $32 and for two weeks is $64. For one 

month, it is $104. 88Monster.com. 2015. Job Postings Inventory. 

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

indexProspect.Redux.aspx (accessed on March 12, 

2015). 

89CareerBuilder. 2015. Job Posting. Available at 

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

ECommerce/CartOrderSummary.aspx?cblid=

epjobbtn&sc_cmp2=JP_HP_PostJobButton&

sslRedirectCnt=1 (accessed on March 12, 2015). 

90ServiceScape. 2015. How it Works—Cost 

Calculator. Available at http://www.servicescape.

com/help.asp (accessed on March 12, 2015). 

transportation or subsistence costs will 

be incurred. Since the number of such 

workers cannot be estimated with 

precision, these cost saving are not 

factored into this analysis; however, 

DOL is confident the actual overall costs 

to employers for transportation and 

subsistence will be lower than the 

estimates provided here. 

i. Additional Recruitment Directed by 

the CO 

Under the interim final rule, an 

employer may be directed by the CO to 

conduct additional recruitment if the 

CO has determined that there may be 

qualified U.S. workers available, 

particularly when the job opportunity is 

located in an area of substantial 

unemployment. This provision applies 

to all employer applicants regardless of 

whether they ultimately employ H–2B 

workers. Therefore, DOL estimates costs 

using the estimated number of unique 

employer applicants for FY 2013–2014 

(4,657). DOL conservatively estimates 

that 50 percent of these employer 

applicants (2,329) will be directed by 

the CO to conduct additional 

recruitment. 

To estimate the cost of a newspaper 

advertisement, DOL calculates the cost 

of placing a classified advertisement in 

the following newspapers: The 

Virginian Pilot ($574.00),82 The Austin 

Chronicle ($76.60),83 The Gainesville 

Sun ($569.24),84 Plaquemines (LA) 

Gazette ($70.00),85 Aspen Times 

($513.00),86 and Branson Tri-Lakes 

News ($104.00),87 for an average cost of 

$318. Employers may use other means 

of recruiting, such as listings on 

Monster.com ($375) 88 and Career 

Builder ($419).89 Because so many 

newspapers include posting of the 

advertisement on their Web sites and/or 

Career Builder in the cost of the print 

advertisement, DOL bases the estimate 

on the cost of newspaper recruiting. 

Multiplying the number of unique 

employer applicants who will be 

directed to conduct additional 

recruitment (2,329) by the average cost 

of a newspaper advertisement ($318) 

results in a total cost for newspaper ads 

of $0.7 million. 

DOL estimates that no more than 10 

percent of employer applicants (i.e., 20 

percent of those directed to conduct 

additional recruiting) will need to 

translate the advertisement in order to 

recruit workers whose primary language 

is not English. DOL calculated 

translation costs for translating a onepage document from English to any 

language to be $21.95.90 Multiplying the 

number of employers performing 

translation (466) by the translation cost 

results in total translation costs of $0.01 

million. 

To account for labor costs in posting 

additional ads, DOL multiplies the 

estimated number of unique employer 

applicants required to conduct 

additional recruiting (2,329) by the 

estimated time required to post the 

advertisement (0.08 hours, or 5 minutes) 

and the loaded hourly compensation 

rate of an administrative assistant/ 

executive secretary ($34.15). The result, 

$0.01 million, is added to the average 

annual cost of CO-directed recruiting 

activities for a total of approximately 

$0.8 million (see Table 11). 

TABLE 11—COST OF ADDITIONAL

RECRUITING

Cost component Value 

Number of unique H–2B employer applicants ............... 4,657 

Percent directed to conduct 

additional recruiting ........... 50% 

Employer applicants conducting additional recruiting ..................................... 2,329 

Newspaper advertisement— 

Unit cost ............................ $318 

Total Cost of Newspaper 

Ad .................................. $740,463 

TABLE 11—COST OF ADDITIONAL

RECRUITING—Continued 

Cost component Value 

Percent of employer applicants needing to perform 

translation .......................... 10% 

Employers performing translation .................................. 466 

English to any language (two 

day delivery) ...................... $22 

Total Cost of Translation .. $10,222 

Time to post advertisement 

(hours) ............................... 0.08 

Administrative Assistant 

hourly wage w/fringe ......... $34.15 

Total Cost of Labor to Post 

Newspaper Ad ............... $6,362 

Total Cost 

Total Cost of Additional Recruiting ............................... $757,047 

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

Census, 2008; ServiceScape 2015; Consulted 

the following publications for their rates on 

employment classifieds: Branson Tri-Lake 

News; Aspen Times; The Austin Chronicle; 

The Gainesville Sun; Plaquemines Gazette; 

The Virginian Pilot. 

It is possible that employers will 

incur costs from interviewing applicants 

who are referred to H–2B employers by 

the additional recruiting activities. 

However, DOL is unable to quantify the 

impact. 

j. Electronic Job Registry 

Under the interim final rule, DOL will 

post and maintain employers’ H–2B job 

orders, including modifications 

approved by the CO, in a national and 

publicly accessible electronic job 

registry. The electronic job registry will 

serve as a public repository of H–2B job 

orders for the duration of the referral 

period. The job orders will be posted in 

the registry by the CO upon the 

acceptance of each submitted 

Application for Temporary Employment 

Certification. The posting of the job 

orders will not require any additional 

effort on the part of H–2B employers or 

SWAs. 

i. Benefits 

The electronic job registry will 

improve the visibility of H–2B jobs to 

U.S. workers. In conjunction with the 

longer referral period under the interim 

final rule, the electronic job registry will 

expand the availability of information 

about these jobs to U.S. workers, and 

therefore improve their employment 

opportunities. In addition, the 

establishment of an electronic job 

registry will provide greater 

transparency of DOL’s administration of 

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24102 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

91U.S. Department of Homeland Security (DHS). 

2013. Yearbook of Immigration Statistics. Available 

at http://www.dhs.gov/sites/default/files/ 

publications/immigration-statistics/yearbook/2013/ 

NI/nonimmsuptable2d.xls (accessed on March 18, 

2015). 

92ServiceScape. 2015. How it Works—Cost 

Calculator. Available at http://www.servicescape.

com/help.asp (accessed on March 12, 2015). 

the H–2B program to the public, 

members of Congress, and other 

stakeholders. Transferring these job 

orders into electronic records for the 

electronic job registry will result in a 

more complete, real-time record of job 

opportunities for which H–2B workers 

are sought. Employers seeking 

temporary workers, in turn, will likely 

experience an increase in job 

applications from U.S. workers, and 

thus may not incur the additional 

expenses of hiring H–2B workers. DOL, 

however, is not able to estimate the 

increase in job applications resulting 

from the electronic job registry, and thus 

is unable to quantify this benefit. 

ii. Costs 

The establishment of an electronic job 

registry in this interim final rule 

represents increased maintenance costs 

to DOL. DOL estimates that first-year 

costs will be 25 percent of the first-year 

costs under the H–2A program (25 

percent of $561,365, or $140,341) and 

that subsequent year costs will be 10 

percent of the costs under the H–2A 

program (10 percent of $464,341, or 

$46,434). Using the loaded hourly rate 

for all relevant labor categories ($1,342) 

suggests that 105 labor hours will be 

required in the first year, and 35 labor 

hours will be required in subsequent 

years (see Table 12). 

TABLE 12—COST OF ELECTRONIC JOB REGISTRY

Cost component Value 

Sum of All Labor Category Loaded Wages ........................................................................................................................................ $1,342 

Registry development and maintenance hours—Year 1 .................................................................................................................... 105 

Registry maintenance hours—Year 2–10 ........................................................................................................................................... 35 

Cost to DOL to Develop and Maintain Job Registry—Year 1 ............................................................................................................ $140,341 

Cost to DOL to Maintain Job Registry—Year 2–10 ............................................................................................................................ $46,434 

k. Disclosure of Job Order 

The interim final rule requires an 

employer to provide a copy of the job 

order to H–2B workers outside the 

United States no later than the time at 

which the worker applies for the visa, 

and to workers in corresponding 

employment no later than the day that 

work starts. For H–2B workers changing 

employment from one certified H–2B 

employer to another, the copy must be 

provided no later than the time the 

subsequent H–2B employer makes an 

offer of employment. The job order must 

be translated to a language understood 

by the worker. 

DOL estimates two cost components 

for the disclosure of job orders: the cost 

of reproducing the document containing 

the terms and conditions of 

employment, and the cost of translation. 

The cost of reproducing job orders 

does not apply to employers of 

reforestation workers because the 

Migrant and Seasonal Agricultural 

Worker Protection Act already requires 

these employers to make this disclosure 

in a language common to the worker. 

According to H–2B program data for FY 

2013–2014, 89.1 percent of H–2B 

workers work in an industry other than 

reforestation, suggesting that the job 

order will need to be reproduced for 

102,911 (89.1 percent of 115,500) H–2B 

workers. DOL estimates the cost of 

reproducing the terms and conditions 

document by multiplying the number of 

affected H–2B workers (102,911) by the 

number of pages to be photocopied (3) 

and by the cost per photocopy ($0.09). 

DOL estimates average annual costs of 

reproducing the document containing 

the terms and conditions of employment 

to be approximately $0.03 million (see 

Table 13). 

DOL estimates that 91.6 percent of H– 

2B workers from the top 10 countries of 

origin do not speak English,91 so 

approximately 3,621 H–2B employers 

will need to translate their job orders. 

DOL assumes that an employer hires all 

of its H–2B workers from a country or 

set of countries that speak the same 

foreign language; thus, only one 

translation is necessary per employer 

needing translation. The estimate of the 

cost of translating a 3-page document 

into English from languages spoken in 

the top 10 countries of origin is 

$56.85.92 Multiplying the number of H– 

2B employers who will need to translate 

the job order (3,621) by the cost of 

translation ($56.85) suggests that 

translation costs will total $0.2 million 

(see Table 13). 

Summing the costs of reproducing 

and translating the job order results in 

total costs related to disclosure of the 

job order of $0.2 million (see Table 13). 

TABLE 13—COST OF DISCLOSURE OF JOB ORDER

Cost component Value 

Reproducing Job Order 

H–2B workers ...................................................................................................................................................................................... 115,500 

Percent workers not in reforestation ................................................................................................................................................... 89.1% 

Affected workers .................................................................................................................................................................................. 102,911 

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

Cost per page ...................................................................................................................................................................................... $0.09 

Cost per job order ................................................................................................................................................................................ $0.27 

Total Cost of Reproducing Document .......................................................................................................................................... $27,786 

Translating Job Order 

Number of unique certified H–2B employers ...................................................................................................................................... 3,955 

Percent workers needing translation ................................................................................................................................................... 91.6% 

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Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 24103 

TABLE 13—COST OF DISCLOSURE OF JOB ORDER—Continued 

Cost component Value 

Employers performing translation ........................................................................................................................................................ 3,621 

English to any language—3 page document, 2 day delivery ............................................................................................................. $56.85 

Total Translation Cost .................................................................................................................................................................. $205,868 

Total Cost 

Total Cost of Disclosure of Job Order ................................................................................................................................................. $233,654 

Sources: DHS, 2009; ServiceScape, 2015. 

l. Use of Post-Filing Recruitment Model 

The 2008 rule used an attestationbased model: employers conducted the 

required recruitment before submitting 

an Application for Temporary 

Employment Certification and, based on 

the results of that effort, applied for 

certification from DOL for a number of 

foreign workers to fill the remaining 

openings. Employers simply attested 

that they had undertaken the necessary 

activities and made the required 

assurances to workers. DOL has 

determined that this attestation-based 

model did not provide sufficient 

protection to workers. The recruitment 

process under this interim final rule 

occurs after the Application for 

Temporary Certification is filed so that 

employers have to demonstrate—and 

not merely attest—that they have 

performed an adequate test of the labor 

market. Therefore, the primary effect of 

the interim final rule is to change the 

timing of recruitment rather than to 

change the substantive requirements. 

Using a post-filing recruitment model 

in which employers demonstrate 

compliance with program obligations 

before certification will improve worker 

protections and reduce various costs for 

several different stakeholders. Greater 

compliance will provide improved 

administration of the program, 

conserving government resources at 

both the State and Federal levels. In 

addition, employers will be subject to 

fewer requests for additional 

information and denials of 

Applications, decreasing the time and 

expense of responding to these DOL 

actions. Finally, it will result in the 

intangible benefit of increased H–2B 

visa availability to those employers who 

have conducted bona fide recruitment 

around an actual date of need. DOL, 

however, is not able to estimate the 

economic impacts of these several 

effects and is therefore unable to 

quantify the related benefits. 

Requiring post-filing recruitment will 

impose minimal costs on employers 

because they will not be required to 

produce new documents, but only to 

supplement their recruitment report 

with additional information (including 

the additional recruitment conducted, 

means of posting the job opportunity, 

contact with former U.S. workers, and 

contact with labor organizations where 

the occupation is customarily 

unionized). 

DOL estimated two costs for postfiling recruitment: the material cost of 

reproducing and mailing the 

documents, and the associated labor 

cost. DOL estimated material costs equal 

to $2,492, calculated by multiplying the 

number of unique certified H–2B 

employers (3,955) by the estimated 

additional number of pages that must be 

submitted (3) and the additional postage 

required to ship those pages ($0.21). 

DOL estimated labor cost of $10,806 by 

multiplying the number of unique 

certified H–2B employers (3,955) by the 

time needed to reproduce and mail the 

documents (0.08 hours, or 5 minutes) 

and the hourly labor compensation of an 

administrative assistant/executive 

secretary ($34.15). Summing these two 

components results in incremental costs 

of $0.01 million per year associated 

with post-filing recruitment (see Table 

14). 

TABLE 14—COST OF POST-FILING RECRUITMENT

Cost component Value 

Postage Costs 

Number of unique certified H–2B employers ............................................................................................................ 3,955 

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

Additional postage ..................................................................................................................................................... $0.21 

Total Postage Costs ........................................................................................................................................... $2,492 

Labor Costs to Photocopy and Mail Documents 

Number of unique certified H–2B employers ............................................................................................................ 3,955 

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

Administrative Assistant hourly wage with fringe ...................................................................................................... $34.15 

Total Labor Costs to Photocopy and Mail Documents ...................................................................................... $10,806 

Total Cost 

Total Costs of Post-Filing Recruitment ...................................................................................................................... $13,297 

Sources: In January 2014, first class mail increased temporarily to 49 cents for one ounce while two ounces would be 70 cents. So the extra 

postage is 70 cents¥49 cents, or 21 cents. See the latest first class mail prices at http://pe.usps.com/cpim/ftp/manuals/dmm300/Notice123.pdf 

on page 1 (accessed on March 12, 2015). 

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24104 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

93Price at Office Depot. Vertical file cabinets. 

Available at http://www.officedepot.com/a/browse/ 

vertical-metal-file-cabinets/N=5+501585&

cbxRefine=311457&recordsPerPageNumber=24&

No=0/ (accessed on March 12, 2015). 

n. Document Retention 

Under the interim final rule, H–2B 

employers must retain documentation 

in addition to that required by the 2008 

rule. DOL assumes that each H–2B 

employer will purchase a filing cabinet 

at a cost of $67.99 93 in which to store 

the additional documents starting in the 

first year of the rule. To obtain the cost 

of storing documents, DOL multiplies 

the number of unique certified H–2B 

employers (3,955) by the cost per file 

cabinet for a total one-time cost of $0.3 

million (see Table 15). This cost is likely 

an overestimate since the 2008 rule also 

required document retention and many 

employers who already use the H–2B 

program will already have bought a file 

cabinet to store the documents they 

were required to retain under that rule. 

TABLE 15—COST OF DOCUMENT

RETENTION

Cost component Value 

Number of unique certified 

H–2B employers ............... 3,955 

Filing cabinet ........................ $67.99 

Total Document Retention Costs ................... $268,900 

Source: Office Depot, 2015. 

m. SWA Administrative Burden 

Under this interim final rule, SWAs 

will see both additions to and 

reductions from the baseline workload. 

Additional responsibilities that the 

SWAs will take on include contacting 

labor organizations to inform them 

about a job opportunity when the 

occupation or industry is customarily 

unionized, and accepting and 

processing a likely larger number of U.S. 

applicants during the extended 

recruitment period. DOL, however, does 

not have reliable data to measure these 

increased activities and is therefore 

unable to provide an estimate of the 

increased workload. 

In contrast, SWAs will not be 

responsible for conducting employment 

eligibility verification activities. These 

activities included completion of Form 

I–9 and vetting of application 

documents by SWA personnel. 

Under the 2008 rule, SWAs were 

required to complete Form I–9 for 

applicants who are referred through the 

SWA to non-agricultural job orders, and 

inspect and verify the employment 

eligibility documents furnished by the 

applicants. Under this interim final rule, 

SWAs will not be required to complete 

this process, resulting in cost savings. 

Due to a lack of data on the number of 

SWA referrals, DOL is not able to 

quantify this cost reduction. 

n. Read and Understand the Rule 

During the first year that the interim 

final rule will be in effect, H–2B 

employer applicants will need to learn 

about the new processes and 

requirements. DOL estimates the cost to 

read and understand the rule by 

multiplying the average number of 

unique H–2B employer applicants in FY 

2013–2014 (4,657) by the time required 

to read the new rule and associated 

educational and outreach materials (3 

hours), and the loaded hourly wage of 

a human resources manager ($69.83). In 

the first year of the rule, this amounts 

to labor costs of approximately $1.0 

million (see Table 16). 

TABLE 16—COST TO READ AND

UNDERSTAND RULE

Cost component Value6 

Number of unique H–2B employer applicants ............... 4,657 

Time to read rule and materials (hours) ....................... 3 

HR Manager hourly wage .... $69.83 

Total Cost to Read and 

Understand Rule ........ $975,607 

Sources: The median hourly wage rate was 

obtained Occupational and Employment Statistics, 2013, Bureau of Labor Statistics, 

accessed from: http://www.bls.gov/oes/current/

oes_nat.htm#13-0000. 

o. Job Posting Requirement 

The interim final rule requires 

employers applying for H–2B 

certification to post a notice of the job 

opportunity in two conspicuous 

locations at the place of anticipated 

employment (when there is no union 

representative) for at least 15 

consecutive days. This provision entails 

additional reproduction costs. To obtain 

the total cost incurred due to the job 

posting requirement, DOL multiplied 

the average number of unique H–2B 

employer applicants FY 2013–2014 

(4,657) by the cost per photocopy 

($0.09) and the number of postings per 

place of employment (2), which 

amounts to $838 per year (see Table 17). 

TABLE 17—COST OF JOB POSTING

REQUIREMENT

Cost component Value 

Number of unique H–2B employer applicants ............... 4,657 

Job postings per work site ... 2 

TABLE 17—COST OF JOB POSTING

REQUIREMENT—Continued 

Cost component Value 

Cost per photocopy .............. $0.09 

Total Cost to Post Job 

Opportunity ................ $838 

p. Workers’ Rights Poster 

In addition, the interim final rule 

requires employers to post and maintain 

in a conspicuous location at the place of 

employment a poster provided by DOL 

which sets out the rights and 

protections for workers. The poster must 

be in English and, to the extent 

necessary and as provided by DOL, 

foreign language(s) common to a 

significant portion of the workers if they 

are not fluent in English. To estimate 

the cost of producing workers’ rights 

posters, DOL multiplied the estimated 

number of unique certified H–2B 

employers (3,955) by the cost of 

downloading and printing the poster 

($0.09). In total, the cost of producing 

workers’ rights posters is $356 per year 

(see Table 18). If an employer needs to 

download and print additional versions 

of the poster in languages other than 

English, this would result in increased 

costs. 

TABLE 18—COST OF WORKERS’ RIGHT

POSTER

Cost component Value 

Number of unique certified 

H–2B employers ............... 3,955 

Cost per poster ..................... $0.09 

Total Cost of Workers’ 

Rights Poster ............. $356 

5. Summary of Cost-Benefit Analysis 

Table 19 presents a summary of the 

costs associated with this interim final 

rule. Because of data limitations on the 

number of corresponding workers and 

U.S. workers expected to fill positions 

currently held by H–2B workers, DOL 

was not able to monetize any costs of 

the rule that would arise as a result of 

deadweight losses associated with 

higher employment costs under the 

interim final rule. However, because the 

size of the H–2B program is limited, 

DOL expects that any deadweight loss 

would be small. The monetized costs 

displayed are the annual summations of 

the calculations described above. The 

total undiscounted costs of the rule in 

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Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 24105 

Years 1–10 are expected to total 

approximately $11.85 million. 

TABLE 19—TOTAL COSTS AND TRANSFERS—UNDISCOUNTED

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

Transfers 

Corresponding Workers’ Wages— 

90 Percent.

$18,207,902 .................................. $18,207,902 .................................. $182,079,024 

Corresponding Workers’ Wages— 

75 percent.

$54,616,946 .................................. $54,616,946 .................................. $546,169,461 

Transportation ................................ $55,190,325 .................................. $55,190,325 .................................. $551,903,254 

Subsistence ................................... $3,131,040 .................................... $3,131,040 .................................... $31,310,400 

Lodging .......................................... $1,865,637 .................................... $1,865,637 .................................... $18,656,366 

Visa and Border Crossing Fees .... $10,647,891 .................................. $10,647,891 .................................. $106,478,908 

Total Transfers—Low ..................... $87,241,061 .................................. $87,241,061 .................................. $890,427,952.48 

Total Transfers—High .................... $125,451,839 ................................ $125,451,839 ................................ $1,254,518,389.50 

Annual Costs to Employers 

Additional Recruiting ...................... $757,047 ....................................... $757,047 ....................................... $7,570,469 

Disclosure of Job Order ................. $233,654 ....................................... $233,654 ....................................... $2,336,540 

Elimination of Attestation-Based 

Model.

$13,297 ......................................... $13,297 ......................................... $132,972 

Post Job Opportunity ..................... $838 .............................................. $838 .............................................. $8,383 

Workers’ Rights Poster .................. $356 .............................................. $356 .............................................. $3,560 

Total Annual Costs to Employers.$1,005,192 .................................... $1,005,192 .................................... $10,051,923 

First Year Costs to Employers 

Read and Understand Rule ........... $975,607 ....................................... $0 .................................................. $975,607 

Document Retention ...................... $268,900 ....................................... $0 .................................................. $268,900 

Total First Year Costs to Employers.$1,244,507 .................................... $0 .................................................. $1,244,507 

Costs to Government 

Electronic Job Registry .................. $140,341 ....................................... $46,434 ......................................... $558,248 

Enhanced U.S. Worker Referral 

Period.

Not Estimated ............................... Not Estimated ............................... Not Estimated 

Total Costs to Government .... $140,341 ....................................... $46,434 ......................................... $558,248 

Total Costs 

Total Costs and Transfers—Low ... $91,432,836 .................................. $90,094,422 .................................. $902,282,631 

Total Costs and Transfers—High .. $127,841,880 ................................ $126,503,465 ................................ $1,266,373,068 

Total Transfers—Low ..................... $89,042,795 .................................. $89,042,795 .................................. $890,427,952 

Total Transfers—High .................... $125,451,839 ................................ $125,451,839 ................................ $1,254,518,390 

Total Costs ..................................... $2,390,041 .................................... $1,051,626 .................................... $11,854,679 

Note: Totals may not sum due to rounding. 

Summing the present value of the 

costs in Years 1–10 results in total 

discounted costs over 10 years of $9.24 

million to $10.58 million (with 7 

percent and 3 percent discounting, 

respectively) (see Table 20). The total 

transfers over 10 years range from 

$669.18 million to $942.80 million and 

from $792.92 million to $1,112.81 

million with 7 percent and 3 percent 

discounting, respectively. The annual 

average cost is $0.92 million with 7 

percent discounting and $1.06 million 

with 3 percent discounting. The annual 

average transfers range from $66.92 

million to $94.28 million with 7 percent 

discounting and from $79.29 to $111.28 

million with 3 percent discounting. 

TABLE 20—TOTAL COSTS AND TRANSFERS—SUM OF PRESENT VALUES

Cost component Year 1–10 costs 

Present Value—7% Discounting 

Total Costs & Transfers—Low .................. $678,418,918 

Total Costs & Transfers—High ................. 952,041,337 

Total Transfers—Low ... 669,177,286 

Total Transfers—High .. 942,799,706 

TABLE 20—TOTAL COSTS AND TRANSFERS—SUM OF PRESENT VALUES— 

Continued 

Cost component Year 1–10 costs 

Total Costs ................... 9,241,631 

Present Value—3% Discounting 

Total Costs & Transfers—Low .................. $792,917,817 

Total Costs & Transfers—High ................. 1,112,811,640 

Total Transfers—Low ... 782,339,698 

Total Transfers—High .. 1,102,233,521 

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24106 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

94Reich, Michael, Peter Hall and Ken Jacobs, 

‘‘Living Wages and Economic Performance: The San 

Francisco Airport Model,’’ Institute of Industrial 

Relations, University of California, Berkeley, March 

2003. Fairris, David, David Runsten, Carolina 

Briones, and Jessica Goodheart, ‘‘Examining the 

Evidence: The Impact of the Los Angeles Living 

Wage Ordinance on Workers and Businesses,’’ 

LAANE, 2005. 95Akerlof, G.A. (1982), ‘‘Labor Contracts as 

Partial Gift Exchange,’’ The Quarterly Journal of 

Economics, 97(4), 543–569; Shapiro, C. and Stiglitz, 

J.E. (1984), ‘‘Equilibrium Unemployment as a 

Worker Discipline Device,’’ The American 

Economic Review, 74(3), 433–444. 

TABLE 20—TOTAL COSTS AND TRANSFERS—SUM OF PRESENT VALUES— 

Continued 

Cost component Year 1–10 costs 

Total Costs ................... 10,578,119 

Note: Totals may not sum due to rounding. 

Because DOL was not able to 

monetize any benefits for this interim 

final rule due to the lack of adequate 

data, the monetized costs exceed the 

monetized benefits both at a 7 percent 

and a 3 percent discount rate. 

DOL was unable to identify data to 

provide monetary estimates of several 

important benefits to society, including 

increased employment opportunities for 

U.S. workers and enhancement of 

worker protections for U.S. and H–2B 

workers. These important benefits (and 

cost reductions) result from the 

following provisions of this interim 

final rule: the enhanced U.S. worker 

referral period, additional recruiting 

directed by the CO, the electronic job 

registry, transportation to and from the 

place of employment, payment of visa 

and consular fees, the job posting 

requirement, and enhanced integrity 

and enforcement provisions. Because 

the enhanced referral period extends the 

time during which jobs are available to 

U.S. workers, it increases the likelihood 

that U.S. workers are hired for those 

jobs. In addition, the electronic job 

registry will improve the visibility of H– 

2B jobs to U.S. workers and enhance 

their employment opportunities. In 

addition, the establishment of an 

electronic job registry will provide 

greater transparency with respect to 

DOL’s administration of the H–2B 

program to the public, members of 

Congress, and other stakeholders. 

The changes and increased 

protections for workers will result in an 

improved ability on the part of workers 

and their families to meet their costs of 

living and spend money in their local 

communities. These protections may 

also decrease turnover among U.S. 

workers and thereby decrease the costs 

of recruitment and retention to 

employers. Reduced worker turnover is 

associated with lower costs to 

employers arising from recruiting and 

training replacement workers. Because 

seeking and training new workers is 

costly, reduced turnover leads to 

savings for employers. Research 

indicates that decreased turnover costs 

partially offset increased labor costs.94

In addition, greater worker protections 

may increase a worker’s productivity by 

incentivizing the worker to work harder. 

Thus, the additional costs may be 

partially offset by higher productivity. A 

strand of economic research, commonly 

referred to as ‘‘efficiency wages,’’ 

indicates that employees may interpret 

the greater protections as a signal of the 

employer’s good will and reciprocate by 

working harder, or they put in more 

effort in order to reduce the risk of 

losing the job because it is now seen as 

more valuable.95 All of these benefits, 

however, are difficult to quantify due to 

data limitations. 

Several unquantifiable benefits result 

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

workers are hired as a result of this 

interim final rule, employers will avoid 

visa and consular fees for positions that 

might have otherwise been filled with 

H–2B workers; it is also likely that 

transportation costs will be lower. 

Under the 2008 rule, SWAs were 

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

verify the employment eligibility 

documents furnished by the applicants. 

Under this interim final rule, SWAs will 

not be required to complete this process, 

resulting in cost savings to SWAs. DOL 

was not able to quantify these cost 

savings due to a lack of data regarding 

the number of I–9 verifications SWAs 

have been performing for H–2B 

referrals. 

After considering both the 

quantitative and qualitative impacts of 

this interim final rule, DOL has 

concluded that the societal benefits of 

the rule justify the societal costs. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act, 5 

U.S.C. 601 et seq. (RFA), imposes 

certain requirements on Federal agency 

rules that are subject to the notice and 

comment requirements the APA, 5 

U.S.C. 553(b), and that are likely to have 

a significant economic impact on a 

substantial number of small entities. 

Under the APA, a general notice of 

proposed rulemaking is not required 

when an agency, for good cause, finds 

that notice and public comment thereon 

are impracticable, unnecessary, or 

contrary to the public interest. 5 U.S.C. 

553(b)(B). This interim final rule is 

exempt from the requirements of the 

APA because DOL and DHS have made 

a good cause finding, supra, that a 

general notice of proposed rulemaking 

is impracticable and contrary to the 

public interest under 5 U.S.C. 553(b)(B). 

Therefore, the requirements of the RFA 

applicable to notices of proposed 

rulemaking, 5 U.S.C. 603, do not apply 

to this interim final rule. Accordingly, 

the Departments are not required to 

either certify that the interim final rule 

would not have a significant economic 

impact on a substantial number of small 

entities or conduct a regulatory 

flexibility analysis. Nevertheless, for 

informational purposes DOL and DHS 

refer the public to the initial and final 

regulatory flexibility analyses that DOL 

completed in the 2012 rulemaking 

process. See 76 FR 15166; 77 FR 10132. 

DOL and DHS refer to the public to the 

rulemaking docket on regulations.gov in 

connection with that rule (RIN 1205– 

AB58) to obtain further information 

about DOL’s regulatory flexibility 

analyses under the 2012 rule. 

C. Unfunded Mandates Reform Act of 

1995 

Title II of the Unfunded Mandates 

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

directs agencies to assess the effects of 

Federal regulatory actions on State, 

local, and tribal governments, and the 

private sector. The interim final rule has 

no Federal mandate, which is defined in 

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

Federal intergovernmental mandate or a 

Federal private sector mandate. A 

Federal mandate is any provision in a 

regulation that imposes an enforceable 

duty upon State, local, or tribal 

governments, or imposes a duty upon 

the private sector that is not voluntary. 

A decision by a private entity to obtain 

an H–2B worker is purely voluntary and 

is, therefore, excluded from any 

reporting requirement under the Act. 

SWAs are mandated to perform 

certain activities for the Federal 

Government under the H–2B program, 

and receive grants to support the 

performance of these activities. Under 

the 2008 rule, the SWA role was 

changed to accommodate the 

attestation-based process. The current 

regulation requires SWAs to accept and 

place job orders into intra- and 

interstate clearance, review referrals, 

and verify employment eligibility of the 

applicants who apply to the SWA to be 

referred to the job opportunity. Under 

the interim final rule the SWA will 

continue to play a significant and active 

role. The Departments continue to 

require that employers submit their job 

orders to the SWA having jurisdiction 

over the area of intended employment 

as is the case in the current regulation, 

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Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 24107 

with the added requirement that the 

SWA review the job order prior to 

posting it. The interim final rule further 

requires that the employer provide a 

copy of the Application for Temporary 

Employment Certification to the SWA; 

however, this is simply a copy for 

disclosure purposes and would require 

no additional information collection or 

review activities by the SWA. DOL will 

also continue to require SWAs to place 

job orders into clearance, as well as 

provide employers with referrals 

received in connection with the job 

opportunity. Additionally, the interim 

final rule requires SWAs to contact 

labor organizations where union 

representation is customary in the 

occupation and area of intended 

employment. DOL recognizes that 

SWAs may experience a slight increase 

in their workload in terms of review, 

referrals, and employer guidance. 

However, DOL is eliminating the 

employment verification responsibilities 

the SWA has under the current 

regulations. The elimination of 

workload created by the employment 

verification requirement will allow the 

SWAs to apply those resources to the 

additional recruitment requirements 

under this rule. 

SWA activities under the H–2B 

program are currently funded by DOL 

through grants provided under the 

Wagner-Peyser Act. 29 U.S.C. 49 et seq., 

and directly through appropriated funds 

for administration of DOL’s foreign 

labor certification program. 

D. Executive Order 13132—Federalism 

We have reviewed this interim final 

rule in accordance with E.O. 13132 on 

federalism and have determined that it 

does not have federalism implications. 

The interim final rule does not have 

substantial direct effects on States, on 

the relationship between the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government as described by 

E.O. 13132. Therefore, we have 

determined that this interim final rule 

will not have a sufficient federalism 

implication to warrant the preparation 

of a summary impact statement. 

E. Executive Order 13175—Indian 

Tribal Governments 

We reviewed this interim final rule 

under the terms of E.O. 13175 and 

determined it not to have tribal 

implications. The interim final does not 

have substantial direct effects on one or 

more Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

As a result, no tribal summary impact 

statement has been prepared. 

F. Assessment of Federal Regulations 

and Policies on Families 

Section 654 of the Treasury and 

General Government Appropriations 

Act, enacted as part of the Omnibus 

Consolidated and Emergency 

Supplemental Appropriations Act of 

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

requires us to assess the impact of this 

interim final rule on family well-being. 

A rule that is determined to have a 

negative effect on families must be 

supported with an adequate rationale. 

We have assessed this interim final rule 

and determined that it will not have a 

negative effect on families. 

G. Executive Order 12630—Government 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

The interim final rule is not subject to 

E.O. 12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights, because it 

does not involve implementation of a 

policy with takings implications. 

H. Executive Order 12988—Civil Justice 

The interim final rule has been 

drafted and reviewed in accordance 

with E.O. 12988, Civil Justice Reform, 

and will not unduly burden the Federal 

court system. The Departments have 

developed the interim final rule to 

minimize litigation and provide a clear 

legal standard for affected conduct, and 

has reviewed the interim final rule 

carefully to eliminate drafting errors and 

ambiguities. 

I. Plain Language 

We drafted this interim final rule in 

plain language. 

J. Paperwork Reduction Act 

In accordance with the Paperwork 

Reduction Act of 1995 (PRA) (44 U.S.C. 

3501 et seq.) information collection 

requirements, which must be 

implemented as a result of this 

regulation, a clearance package 

containing proposed changes to the 

already previously collection was 

submitted to OMB under the emergency 

provisions of the PRA, 5 CFR 1320.13, 

in order to have the information 

collection take effect on the same date 

as all other parts of the interim final 

rule. OMB approved the information 

collection for 6 months, during which 

time DOL will publish Notices in the 

Federal Register that invite public 

comment on the collection 

requirements, in anticipation of 

extending the ICR. 

The Departments note that a Federal 

agency generally cannot conduct or 

sponsor a collection of information, and 

the public is generally not required to 

respond to an information collection, 

unless it is approved by the OMB under 

the PRA and displays a currently valid 

OMB Control Number. In addition, 

notwithstanding any other provisions of 

law, no person shall generally be subject 

to penalty for failing to comply with a 

collection of information that does not 

display a valid Control Number. See 5 

CFR 1320.5(a), 1320.6, and 

1320.11(k)(1). 

The forms used to comply with this 

interim final rule include those that 

have been required in the H–2B program 

over the last few years of program 

operation, except that Form ETA–9142, 

Appendix B has been modified to reflect 

the assurances and obligations of the H– 

2B employer as required under the 

compliance-based system of this interim 

final rule. Also, a new form was created 

for registering as an H–2B employer— 

the Form ETA–9155, H–2B Registration. 

DOL continues to include the Seafood 

Industry Attestation, but has made 

slight changes to it for clarity and 

accuracy. Changes to the program as 

reflected in the new regulations and 

which have PRA implications, have 

increased the hourly and cost burdens 

for employers. Those burdens and costs 

are outlined below. The Form ETA– 

9142B with Appendix B has a public 

reporting burden estimated to average 1 

hour per response or application filed. 

Additionally, the Form ETA–9155 has a 

public reporting burden estimated to 

average 1 hour per response or 

application filed. For an additional 

explanation of how the Departments 

calculated the burden hours and related 

costs, the PRA package for this 

information collection may be obtained 

from the RegInfo.gov Web site at 

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

PRAMain or by contacting the DOL at: 

Office of Policy Development and 

Research, U.S. Department of Labor, 200 

Constitution Ave. NW., Washington, DC 

20210 or by phone request to 202–693– 

3700 (this is not a toll-free number) or 

by email at DOL_PRA_PUBLIC@dol.gov. 

Overview of Information Collection 

Type of Review: Emergency. 

Agency: Employment and Training 

Administration. 

Title: H–2B Application for 

Temporary Employment Certification; 

H–2B Registration; and Seafood Industry 

Attestation. 

OMB Number: 1205–0509. 

Agency Number(s): Forms ETA– 

9142B (including Appendix B) and 

ETA–9155. 

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24108 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

Annual Frequency: On occasion. 

Affected Public: Individuals or 

Households, Private Sector—businesses 

or other for profits, Government, State, 

Local and Tribal Governments. 

Total Respondents: 7,355. 

Total Responses: 184,442. 

Estimated Total Burden Hours: 

47,992. 

Total Burden Cost (capital/startup): 0. 

Total Burden Cost (operating/

maintaining): $351,800. 

The information collection aspects of 

this rulemaking are taking effect 

immediately, but DOL will be following 

the normal approval process for the 

extension of this collection within the 

next 6 months. 

List of Subjects 

8 CFR Part 214 

Administrative practice and 

procedure, Aliens, Cultural exchange 

programs, Employment, Foreign 

officials, Health professions, Reporting 

and recordkeeping requirements, 

Students. 

20 CFR Part 655 

Administrative practice and 

procedure, Employment, Employment 

and training, Enforcement, Foreign 

workers, Forest and forest products, 

Fraud, Health professions, Immigration, 

Labor, Longshore and harbor work, 

Migrant workers, Nonimmigrant 

workers, Passports and visas, Penalties, 

Reporting and recordkeeping 

requirements, Unemployment, Wages, 

Working conditions. 

29 CFR Part 503 

Administrative practice and 

procedure, Employment, Foreign 

Workers, Housing, Housing standards, 

Immigration, Labor, Nonimmigrant 

workers, Penalties, Transportation, 

Wages. 

Department of Homeland Security 

8 CFR Chapter I 

Accordingly, for the reasons stated in 

the joint preamble, part 214 of chapter 

I of title 8 of the Code of Federal 

Regulations is amended as follows: 

PART 214—NONIMMIGRANT CLASSES 

■ 1. The authority citation for part 214 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1102, 1103, 

1182, 1184, 1186a, 1187, 1221, 1281, 1282, 

1301–1305 and 1372; sec. 643, Pub. L. 104– 

208, 110 Stat. 3009–708; Pub. L. 106–386, 

114 Stat. 1477–1480; section 141 of the 

Compacts of Free Association with the 

Federated States of Micronesia and the 

Republic of the Marshall Islands, and with 

the Government of Palau, 48 U.S.C. 1901 

note, and 1931 note, respectively; 48 U.S.C. 

1806; 8 CFR part 2. 

■ 2. Section 214.1 is amended by 

revising paragraph (k) to read as follows: 

§ 214.1 Requirements for admission, 

extension, and maintenance of status. 

* * * * * 

(k) Denial of petitions under section 

214(c) of the Act based on a finding by 

the Department of Labor. Upon 

debarment by the Department of Labor 

pursuant to 20 CFR part 655, USCIS 

may deny any petition filed by that 

petitioner for nonimmigrant status 

under section 101(a)(15)(H) (except for 

status under sections 

101(a)(15)(H)(i)(b1)), (L), (O), and (P)(i) 

of the Act) for a period of at least 1 year 

but not more than 5 years. The length 

of the period shall be based on the 

severity of the violation or violations. 

The decision to deny petitions, the time 

period for the bar to petitions, and the 

reasons for the time period will be 

explained in a written notice to the 

petitioner. 

■ 3. Section 214.2 is amended by 

revising paragraph (h)(9)(iii)(B) to read 

as follows: 

§ 214.2 Special requirements for 

admission, extension, and maintenance of 

status. 

* * * * * 

(h) * * * 

(9) * * * 

(iii) * * * 

(B) H–2B petition. The approval of the 

petition to accord an alien a 

classification under section 

101(a)(15)(H)(ii)(b) of the Act shall be 

valid for the period of the approved 

temporary labor certification. 

* * * * * 

Department of Labor 

Accordingly, for the reasons stated in 

the joint preamble, 20 CFR part 655 is 

amended and 29 CFR part 503 is added 

as follows: 

Title 20—EMPLOYEES’ BENEFITS 

PART 655—TEMPORARY 

EMPLOYMENT OF FOREIGN 

WORKERS IN THE UNITED STATES 

■ 4. The authority citation for part 655 

is revised to read as follows: 

Authority: Section 655.0 issued under 8 

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

and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n) and 

(t), 1184(c), (g), and (j), 1188, and 1288(c) and 

(d); sec. 3(c)(1), Pub. L. 101–238, 103 Stat. 

2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), 

Pub. L. 101–649, 104 Stat. 4978, 5027 (8 

U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102– 

232, 105 Stat. 733, 1748 (8 U.S.C. 1101 note); 

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

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

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

95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); 

29 U.S.C. 49k; Pub. L. 107–296, 116 Stat. 

2135, as amended; Pub. L. 109–423, 120 Stat. 

2900; 8 CFR 214.2(h)(4)(i); and 8 CFR 

214.2(h)(6)(iii). 

Subpart A issued under 8 CFR 214.2(h). 

Subpart B issued under 8 U.S.C. 

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

CFR 214.2(h). 

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

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

206, 107 Stat. 2428. 

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

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

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

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

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

2681; and 8 CFR 214.2(h). 

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

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

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

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

and 8 CFR 214.2(h). 

■ 5. Revise subpart A to read as follows: 

Subpart A—Labor Certification 

Process for Temporary NonAgricultural Employment in the United 

States (H–2B Workers) 

Sec. 

655.1 Scope and purpose of this subpart. 

655.2 Authority of the agencies, offices, and 

divisions in the Department of Labor. 

655.3 Territory of Guam. 

655.4 Transition procedures. 

655.5 Definition of terms. 

655.6 Temporary need. 

655.7 Persons and entities authorized to 

file. 

655.8 Requirements for agents. 

655.9 Disclosure of foreign worker 

recruitment. 

Prefiling Procedures 

655.10 Determination of prevailing wage for 

temporary labor certification purposes. 

655.11 Registration of H–2B employers. 

655.12 Use of registration of H–2B 

employers. 

655.13 Review of PWDs. 

655.14 [Reserved] 

Application for Temporary Employment 

Certification Filing Procedures 

655.15 Application filing requirements. 

655.16 Filing of the job order at the SWA. 

655.17 Emergency situations. 

655.18 Job order assurances and contents. 

655.19 Job contractor filing requirements. 

Assurances and Obligations 

655.20 Assurances and obligations of H–2B 

employers. 

655.21–655.29 [Reserved] 

Processing of An Application for Temporary 

Employment Certification 

655.30 Processing of an application and job 

order. 

655.31 Notice of deficiency. 

655.32 Submission of a modified 

application or job order. 

655.33 Notice of acceptance. 

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655.34 Electronic job registry. 

655.35 Amendments to an application or 

job order. 

655.36–655.39 [Reserved] 

Post-Acceptance Requirements 

655.40 Employer-conducted recruitment. 

655.41 Advertising requirements. 

655.42 Newspaper advertisements. 

655.43 Contact with former U.S. employees. 

655.44 [Reserved] 

655.45 Contact with bargaining 

representative, posting and other contact 

requirements. 

655.46 Additional employer-conducted 

recruitment. 

655.47 Referrals of U.S. workers. 

655.48 Recruitment report. 

655.49 [Reserved] 

Labor Certification Determinations 

655.50 Determinations. 

655.51 Criteria for certification. 

655.52 Approved certification. 

655.53 Denied certification. 

655.54 Partial certification. 

655.55 Validity of temporary labor 

certification. 

655.56 Document retention requirements of 

H–2B employers. 

655.57 Request for determination based on 

nonavailability of U.S. workers. 

655.5–655.59 [Reserved] 

Post Certification Activities 

655.60 Extensions. 

655.61 Administrative review. 

655.62 Withdrawal of an Application for 

Temporary Employment Certification. 

655.63 Public disclosure. 

655.64–655.69 [Reserved] 

Integrity Measures 

655.70 Audits. 

655.71 CO-ordered assisted recruitment. 

655.72 Revocation. 

655.73 Debarment. 

655.74–655.76 [Reserved] 

655.80–655.99 [Reserved] 

§ 655.1 Scope and purpose of this subpart. 

Section 214(c)(1) of the Immigration 

and Nationality Act (INA), 8 U.S.C. 

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

Homeland Security to consult with 

appropriate agencies before authorizing 

the classification of aliens as H–2B 

workers. Department of Homeland 

Security (DHS) regulations at 8 CFR 

214.2(h)(6)(iii)(D) designate the 

Secretary of Labor as an appropriate 

authority with whom DHS consults 

regarding the H–2B program, and 

specifies that the Secretary of Labor, in 

carrying out this consultative function, 

shall issue regulations regarding the 

issuance of temporary labor 

certifications. DHS regulations at 8 CFR 

214.2(h)(6)(iv) further provide that an 

employer’s petition to employ H–2B 

nonimmigrant workers for temporary 

non-agricultural employment in the 

United States (U.S.), except for Guam, 

must be accompanied by an approved 

temporary labor certification from the 

Secretary of Labor (Secretary). 

(a) Purpose. The temporary labor 

certification reflects a determination by 

the Secretary that: 

(1) There are not sufficient U.S. 

workers who are qualified and who will 

be available to perform the temporary 

services or labor for which an employer 

desires to hire foreign workers, and that 

(2) The employment of the H–2B 

worker(s) will not adversely affect the 

wages and working conditions of U.S. 

workers similarly employed. 

(b) Scope. This subpart sets forth the 

procedures governing the labor 

certification process for the temporary 

employment of nonimmigrant foreign 

workers in the H–2B nonimmigrant 

classification, as defined in 8 U.S.C. 

1101(a)(15)(H)(ii)(b), section 

101(a)(15)(H)(ii)(b) of the INA. It also 

establishes obligations with respect to 

the terms and conditions of the 

temporary labor certification with 

which H–2B employers must comply, as 

well as their obligations to H–2B 

workers and workers in corresponding 

employment. Additionally, this subpart 

sets forth integrity measures for 

ensuring employers’ continued 

compliance with the terms and 

conditions of the temporary labor 

certification. 

§ 655.2 Authority of the agencies, offices, 

and divisions in the Department of Labor. 

(a) Authority and role of the Office of 

Foreign Labor Certification (OFLC). The 

Secretary has delegated authority to 

make determinations under this subpart, 

pursuant to 8 CFR 214.2(h)(6)(iii)(D) and 

(h)(6)(iv), to the Assistant Secretary for 

the Employment and Training 

Administration (ETA), who in turn has 

delegated that authority to OFLC. 

Determinations on an Application for 

Temporary Employment Certification in 

the H–2B program are made by the 

Administrator, OFLC who, in turn, may 

delegate this responsibility to 

designated staff members, e.g., a 

Certifying Officer (CO). 

(b) Authority of the Wage and Hour 

Division (WHD). Pursuant to its 

authority under section 214(c)(14)(B) of 

the INA, 8 U.S.C. 1184(c)(l4)(B), DHS 

has delegated to the Secretary certain 

investigatory and enforcement functions 

with respect to terms and conditions of 

employment in the H–2B program. The 

Secretary has, in turn, delegated that 

authority to WHD. The regulations 

governing WHD investigation and 

enforcement functions, including those 

related to the enforcement of temporary 

labor certifications, issued under this 

subpart, may be found in 29 CFR part 

503. 

(c) Concurrent authority. OFLC and 

WHD have concurrent authority to 

impose a debarment remedy under 

§ 655.73 or under 29 CFR 503.24. 

§ 655.3 Territory of Guam. 

This subpart does not apply to 

temporary employment in the Territory 

of Guam, except that an employer who 

applies for a temporary labor 

certification for a job opportunity on 

Guam will need to obtain a prevailing 

wage from the U.S. Department of Labor 

(DOL) in accordance with § 655.10, 

subject to the transfer of authority to set 

the prevailing wage for a job 

opportunity on Guam to DOL in title 8 

of the Code of Federal Regulations. DOL 

does not certify to DHS the temporary 

employment of H–2B nonimmigrant 

foreign workers, or enforce compliance 

with the provisions of the H–2B visa 

program, in the Territory of Guam. 

§ 655.4 Transition procedures. 

(a) The NPWC shall continue to 

process an Application for Prevailing 

Wage Determination submitted prior to 

April 29, 2015, in accordance with the 

prevailing wage methodology at 20 CFR 

part 655, subpart A, revised as of April 

1, 2009, except for § 655.10(b)(2), see 20 

CFR part 655, subpart A, revised as of 

April 1, 2014. Employers with a 

pending Application for Prevailing 

Wage Determination who seek a 

prevailing wage based on an alternate 

wage source must submit a new 

Application for Prevailing Wage 

Determination. 

(b) The NPWC shall process an 

Application for a Prevailing Wage 

Determination submitted on or after 

April 29, 2015, in accordance with the 

wage methodology established in 

§ 655.10 of the final prevailing wage 

rule. 

(c) The NPC shall continue to process 

an Application for Temporary 

Employment Certification submitted 

prior to April 29, 2015, in accordance 

with 20 CFR part 655, subpart A, 

revised as of April 1, 2009. 

(d) The NPC shall process an 

Application for Temporary Employment 

Certification submitted on or after April 

29, 2015, and that has a start date of 

need prior to October 1, 2015, as 

follows: 

(1) Employers will be permitted to file 

an Application for Temporary 

Employment Certification job order with 

the NPC using the emergency situations 

provision at § 655.17. The Application 

for Temporary Employment 

Certification must include a signed and 

dated copy of the new Appendix B 

associated with the ETA Form 9142B 

containing the requisite program 

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assurances and obligations under this 

rule. In the case of a job contractor filing 

as a joint employer with its employerclient, the NPC must receive a separate 

attachment containing the employerclient’s business and contact 

information (i.e., sections C and D of the 

ETA Form 9142B) as well as a separate 

signed and dated copy of the Appendix 

B for its employer-client, as required by 

§ 655.19. 

(2) The NPC will waive the regulatory 

filing timeframe under § 655.15 and 

process the Application for Temporary 

Employment Certification and job order 

in a manner consistent with the 

handling of applications under § 655.17 

for emergency situations, including the 

recruitment of U.S. workers on an 

expedited basis, and make a 

determination as required by § 655.50. 

The recruitment of U.S. workers on an 

expedited basis will consist of placing a 

new job order with the SWA serving the 

area of intended employment that 

contains the job assurances and contents 

set forth in § 655.18 for a period of not 

less than 10 calendar days. In addition, 

employers who have not placed any 

newspaper advertisements under the 

rule published at 20 CFR part 655, 

subpart A, revised as of April 1, 2009. 

must place one newspaper 

advertisement, which may be published 

on any day of the week, meeting the 

advertising requirements of § 655.41, 

during the period of time the SWA is 

actively circulating the job order for 

intrastate clearance. 

(3) If the Chicago NPC grants a 

temporary labor certification, the 

employer will receive an original 

certified ETA Form 9142B and a Final 

Determination letter. Upon receipt of 

the original certified ETA Form 9142B, 

the employer or its agent or attorney, if 

applicable, must complete the footer on 

the original Appendix B of the 

Application for Temporary Employment 

Certification, retain the original 

Appendix B, and submit a signed copy 

of Appendix B, together with the 

original certified ETA Form 9142B 

directly to USCIS. Under the document 

retention requirements in § 655.56, the 

employer must retain a copy of the 

temporary labor certification and the 

original signed Appendix B. 

(4) An employer who did not submit 

an Application for a Prevailing Wage 

Determination prior to April 29, 2015, 

but who has a start date of need prior 

to October 1, 2015 may submit a 

completed Application for a Prevailing 

Wage Determination to the NPC with its 

emergency Application for Temporary 

Employment Certification requesting a 

prevailing wage determination for the 

job opportunity. Upon receipt, the NPC 

will transmit, on behalf of the employer, 

a copy of the Application for a 

Prevailing Wage Determination to the 

NPWC for processing and issuance of a 

prevailing wage determination using the 

wage methodology established in 

§ 655.10. 

(e) The NPC shall process an 

Application for Temporary Employment 

Certification submitted on or after April 

29, 2015, and that has a start date of 

need after October 1, 2015, in 

accordance with all application filing 

requirements under this rule, and the 

employer must obtain a valid prevailing 

wage determination under the wage 

methodology established in § 655.10 

prior to filing the job order with the 

SWA under § 655.16. 

(f) Employers with a prevailing wage 

determination issued by the NPWC, or 

who have a pending or granted 

Application for Temporary Employment 

Certification on April 29, 2015, may 

seek a supplemental prevailing wage 

determination (SPWD) in order to obtain 

a prevailing wage based on an alternate 

wage source under this rule. 

(1) The SPWD will apply during the 

validity period of the certification, 

except that such SPWD will be 

applicable only to those H–2B workers 

who are not yet employed in the 

certified position on the date of the 

issuance of the SPWD. The SPWD will 

not be applicable to H–2B workers who 

are already employed in the certified 

position at the time of the issuance of 

the SPWD, and it will not apply to U.S. 

workers recruited and hired under the 

original job order. For seafood 

employers whose workers’ entry into 

the U.S. may be staggered under 

§ 655.15(f), an SPWD issued under this 

provision will apply only to those H–2B 

workers who have not yet entered the 

U.S. and are therefore not yet employed 

in the certified position at the time of 

the issuance of the SPWD. 

(2) In order to receive an SPWD under 

this provision, the employer must 

submit a new ETA Form 9141 to the 

NPWC that contains in Section E.a.5 Job 

Duties the original PWD tracking 

number (starting with P–400), the H–2B 

temporary employment certification 

application number (starting with H– 

400), and the words ‘‘Request for a 

Supplemental Prevailing Wage 

Determination.’’ Electronic submission 

through the iCERT Visa Portal System is 

preferred. Upon receipt of the request, 

the NPWC will issue to the employer, or 

if applicable, the employer’s attorney or 

agent, an SPWD in an expedited manner 

and provide a copy to the Chicago NPC. 

§ 655.5 Definition of terms. 

For purposes of this subpart: 

Act means the Immigration and 

Nationality Act or INA, as amended, 8 

U.S.C. 1101 et seq. 

Administrative Law Judge (ALJ) means 

a person within the Department’s Office 

of Administrative Law Judges appointed 

under 5 U.S.C. 3105. 

Administrator, Office of Foreign Labor 

Certification (OFLC) means the primary 

official of the Office of Foreign Labor 

Certification, ETA, or the 

Administrator’s designee. 

Administrator, Wage and Hour 

Division (WHD) means the primary 

official of the WHD, or the 

Administrator’s designee. 

Agent means: 

(1) A legal entity or person who: 

(i) Is authorized to act on behalf of an 

employer for temporary nonagricultural 

labor certification purposes; 

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

employer, as defined in this part with 

respect to a specific application; and 

(iii) Is not an association or other 

organization of employers. 

(2) No agent who is under suspension, 

debarment, expulsion, disbarment, or 

otherwise restricted from practice before 

any court, the Department of Labor, the 

Executive Office for Immigration 

Review under 8 CFR 1003.101, or DHS 

under 8 CFR 292.3 may represent an 

employer under this part. 

Agricultural labor or services means 

those duties and occupations defined in 

subpart B of this part. 

Applicant means a U.S. worker who 

is applying for a job opportunity for 

which an employer has filed an 

Application for Temporary Employment 

Certification (ETA Form 9142B and the 

appropriate appendices). 

Application for Temporary 

Employment Certification means the 

Office of Management and Budget 

(OMB)-approved ETA Form 9142B and 

the appropriate appendices, a valid 

wage determination, as required by 

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

worker recruitment report, submitted by 

an employer to secure a temporary labor 

certification determination from DOL. 

Area of intended employment means 

the geographic area within normal 

commuting distance of the place 

(worksite address) of the job 

opportunity for which the certification 

is sought. There is no rigid measure of 

distance that constitutes a normal 

commuting distance or normal 

commuting area, because there may be 

widely varying factual circumstances 

among different areas (e.g., average 

commuting times, barriers to reaching 

the worksite, or quality of the regional 

transportation network). If the place of 

intended employment is within a 

Metropolitan Statistical Area (MSA), 

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including a multistate MSA, any place 

within the MSA is deemed to be within 

normal commuting distance of the place 

of intended employment. The borders of 

MSAs are not controlling in the 

identification of the normal commuting 

area; a location outside of an MSA may 

be within normal commuting distance 

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

border of) the MSA. 

Area of substantial unemployment 

means a contiguous area with a 

population of at least 10,000 in which 

there is an average unemployment rate 

equal to or exceeding 6.5 percent for the 

12 months preceding the determination 

of such areas made by the ETA. 

Attorney means any person who is a 

member in good standing of the bar of 

the highest court of any State, 

possession, territory, or commonwealth 

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

No attorney who is under suspension, 

debarment, expulsion, disbarment, or 

otherwise restricted from practice before 

any court, the Department of Labor, the 

Executive Office for Immigration 

Review under 8 CFR 1003.101, or DHS 

under 8 CFR 292.3 may represent an 

employer under this subpart. 

Board of Alien Labor Certification 

Appeals (BALCA or Board) means the 

permanent Board established by part 

656 of this chapter, chaired by the Chief 

Administrative Law Judge (Chief ALJ), 

and consisting of ALJs assigned to the 

Department of Labor and designated by 

the Chief ALJ to be members of BALCA. 

Certifying Officer (CO) means an 

OFLC official designated by the 

Administrator, OFLC to make 

determinations on applications under 

the H–2B program. The Administrator, 

OFLC is the National CO. Other COs 

may also be designated by the 

Administrator, OFLC to make the 

determinations required under this 

subpart. 

Chief Administrative Law Judge (Chief 

ALJ) means the chief official of the 

Department’s Office of Administrative 

Law Judges or the Chief Administrative 

Law Judge’s designee. 

Corresponding employment means: 

(1) The employment of workers who 

are not H–2B workers by an employer 

that has a certified H–2B Application for 

Temporary Employment Certification 

when those workers are performing 

either substantially the same work 

included in the job order or 

substantially the same work performed 

by the H–2B workers, except that 

workers in the following two categories 

are not included in corresponding 

employment: 

(i) Incumbent employees 

continuously employed by the H–2B 

employer to perform substantially the 

same work included in the job order or 

substantially the same work performed 

by the H–2B workers during the 52 

weeks prior to the period of 

employment certified on the 

Application for Temporary Employment 

Certification and who have worked or 

been paid for at least 35 hours in at least 

48 of the prior 52 workweeks, and who 

have worked or been paid for an average 

of at least 35 hours per week over the 

prior 52 weeks, as demonstrated on the 

employer’s payroll records, provided 

that the terms and working conditions 

of their employment are not 

substantially reduced during the period 

of employment covered by the job order. 

In determining whether this standard 

was met, the employer may take credit 

for any hours that were reduced by the 

employee voluntarily choosing not to 

work due to personal reasons such as 

illness or vacation; or 

(ii) Incumbent employees covered by 

a collective bargaining agreement or an 

individual employment contract that 

guarantees both an offer of at least 35 

hours of work each workweek and 

continued employment with the H–2B 

employer at least through the period of 

employment covered by the job order, 

except that the employee may be 

dismissed for cause. 

(2) To qualify as corresponding 

employment, the work must be 

performed during the period of the job 

order, including any approved 

extension thereof. 

Date of need means the first date the 

employer requires services of the H–2B 

workers as listed on the Application for 

Temporary Employment Certification. 

Department of Homeland Security 

(DHS) means the Federal Department 

having jurisdiction over certain 

immigration-related functions, acting 

through its component agencies, 

including USCIS. 

Employee means a person who is 

engaged to perform work for an 

employer, as defined under the general 

common law. Some of the factors 

relevant to the determination of 

employee status include: The hiring 

party’s right to control the manner and 

means by which the work is 

accomplished; the skill required to 

perform the work; the source of the 

instrumentalities and tools for 

accomplishing the work; the location of 

the work; the hiring party’s discretion 

over when and how long to work; and 

whether the work is part of the regular 

business of the hiring party. Other 

applicable factors may be considered 

and no one factor is dispositive. The 

terms employee and worker are used 

interchangeably in this subpart. 

Employer means a person (including 

any individual, partnership, association, 

corporation, cooperative, firm, joint 

stock company, trust, or other 

organization with legal rights and 

duties) that: 

(1) Has a place of business (physical 

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

which it may be contacted for 

employment; 

(2) Has an employer relationship 

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

supervise or otherwise control the work 

of employees) with respect to an H–2B 

worker or a worker in corresponding 

employment; and 

(3) Possesses, for purposes of filing an 

Application for Temporary Employment 

Certification, a valid Federal Employer 

Identification Number (FEIN). 

Employer-client means an employer 

that has entered into an agreement with 

a job contractor and that is not an 

affiliate, branch or subsidiary of the job 

contractor, under which the job 

contractor provides services or labor to 

the employer on a temporary basis and 

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

performance of the services or labor to 

be performed other than hiring, paying 

and firing the workers. 

Employment and Training 

Administration (ETA) means the agency 

within the Department of Labor that 

includes OFLC and has been delegated 

authority by the Secretary to fulfill the 

Secretary’s mandate under the DHS 

regulations for the administration and 

adjudication of an Application for 

Temporary Employment Certification 

and related functions. 

Federal holiday means a legal public 

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

Full-time means 35 or more hours of 

work per week. 

H–2B Petition means the DHS Form I– 

129 Petition for a Nonimmigrant 

Worker, with H Supplement or 

successor form or supplement, and 

accompanying documentation required 

by DHS for employers seeking to 

employ foreign persons as H–2B 

nonimmigrant workers 

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

an employer to register its intent to hire 

H–2B workers and to file an Application 

for Temporary Employment 

Certification. 

H–2B worker means any temporary 

foreign worker who is lawfully present 

in the U.S. and authorized by DHS to 

perform nonagricultural labor or 

services of a temporary or seasonal 

nature under 8 U.S.C. 

1101(a)(15)(H)(ii)(b), INA section 

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

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Job contractor means a person, 

association, firm, or a corporation that 

meets the definition of an employer and 

that contracts services or labor on a 

temporary basis to one or more 

employers, which is not an affiliate, 

branch or subsidiary of the job 

contractor and where the job contractor 

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

performance of the services or labor to 

be performed other than hiring, paying 

and firing the workers. 

Job offer means the offer made by an 

employer or potential employer of H–2B 

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

describing all the material terms and 

conditions of employment, including 

those relating to wages, working 

conditions, and other benefits. 

Job opportunity means one or more 

openings for full-time employment with 

the petitioning employer within a 

specified area(s) of intended 

employment for which the petitioning 

employer is seeking workers. 

Job order means the document 

containing the material terms and 

conditions of employment relating to 

wages, hours, working conditions, 

worksite and other benefits, including 

obligations and assurances under 29 

CFR part 503 and this subpart that is 

posted between and among the State 

Workforce Agencies (SWAs) on their job 

clearance systems. 

Joint employment means that where 

two or more employers each have 

sufficient definitional indicia of being 

an employer to be considered the 

employer of a worker, those employers 

will be considered to jointly employ 

that worker. Each employer in a joint 

employment relationship to a worker is 

considered a joint employer of that 

worker. 

Layoff means any involuntary 

separation of one or more U.S. 

employees without cause. 

Metropolitan Statistical Area (MSA) 

means a geographic entity defined by 

OMB for use by Federal statistical 

agencies in collecting, tabulating, and 

publishing Federal statistics. A metro 

area contains a core urban area of 50,000 

or more population, and a micro area 

contains an urban core of at least 10,000 

(but fewer than 50,000) population. 

Each metro or micro area consists of one 

or more counties and includes the 

counties containing the core urban area, 

as well as any adjacent counties that 

have a high degree of social and 

economic integration (as measured by 

commuting to work) with the urban 

core. 

National Prevailing Wage Center 

(NPWC) means that office within OFLC 

from which employers, agents, or 

attorneys who wish to file an 

Application for Temporary Employment 

Certification receive a prevailing wage 

determination (PWD). 

NPWC Director means the OFLC 

official to whom the Administrator, 

OFLC has delegated authority to carry 

out certain NPWC operations and 

functions. 

National Processing Center (NPC) 

means the office within OFLC which is 

charged with the adjudication of an 

Application for Temporary Employment 

Certification or other applications. For 

purposes of this subpart, the NPC 

receiving a request for an H–2B 

Registration and an Application for 

Temporary Employment Certification is 

the Chicago NPC whose address is 

published in the Federal Register. 

NPC Director means the OFLC official 

to whom the Administrator, OFLC has 

delegated authority for purposes of 

certain Chicago NPC operations and 

functions. 

Non-agricultural labor and services 

means any labor or services not 

considered to be agricultural labor or 

services as defined in subpart B of this 

part. It does not include the provision 

of services as members of the medical 

profession by graduates of medical 

schools. 

Occupational employment statistics 

(OES) survey means the program under 

the jurisdiction of the Bureau of Labor 

Statistics (BLS) that provides annual 

wage estimates for occupations at the 

State and MSA levels. 

Offered wage means the wage offered 

by an employer in an H–2B job order. 

The offered wage must equal or exceed 

the highest of the prevailing wage or 

Federal, State or local minimum wage. 

Office of Foreign Labor Certification 

(OFLC) means the organizational 

component of the ETA that provides 

national leadership and policy guidance 

and develops regulations to carry out 

the Secretary’s responsibilities, 

including determinations related to an 

employer’s request for H–2B 

Registration, Application for Prevailing 

Wage Determination, or Application for 

Temporary Employment Certification. 

Prevailing wage determination (PWD) 

means the prevailing wage for the 

position, as described in § 655.10, that 

is the subject of the Application for 

Temporary Employment Certification. 

The PWD is made on ETA Form 9141, 

Application for Prevailing Wage 

Determination. 

Professional athlete means an 

individual who is employed as an 

athlete by: 

(1) A team that is a member of an 

association of six or more professional 

sports teams whose total combined 

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

the association governs the conduct of 

its members and regulates the contests 

and exhibitions in which its member 

teams regularly engage; or 

(2) Any minor league team that is 

affiliated with such an association. 

Seafood is defined as fresh or 

saltwater finfish, crustaceans, other 

forms of aquatic animal life, including, 

but not limited to, alligator, frog, aquatic 

turtle, jellyfish, sea cucumber, and sea 

urchin and the roe of such animals, and 

all mollusks. 

Secretary means the Secretary of 

Labor, the chief official of the U.S. 

Department of Labor, or the Secretary’s 

designee. 

Secretary of Homeland Security 

means the chief official of the U.S. 

Department of Homeland Security 

(DHS) or the Secretary of Homeland 

Security’s designee. 

Secretary of State means the chief 

official of the U.S. Department of State 

or the Secretary of State’s designee. 

State Workforce Agency (SWA) means 

a State government agency that receives 

funds under the Wagner-Peyser Act (29 

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

State’s public labor exchange activities. 

Strike means a concerted stoppage of 

work by employees as a result of a labor 

dispute, or any concerted slowdown or 

other concerted interruption of 

operation (including stoppage by reason 

of the expiration of a collective 

bargaining agreement). 

Successor in interest means: 

(1) Where an employer has violated 

29 CFR part 503, or this subpart, and 

has ceased doing business or cannot be 

located for purposes of enforcement, a 

successor in interest to that employer 

may be held liable for the duties and 

obligations of the violating employer in 

certain circumstances. The following 

factors, as used under Title VII of the 

Civil Rights Act and the Vietnam Era 

Veterans’ Readjustment Assistance Act, 

may be considered in determining 

whether an employer is a successor in 

interest; no one factor is dispositive, but 

all of the circumstances will be 

considered as a whole: 

(i) Substantial continuity of the same 

business operations; 

(ii) Use of the same facilities; 

(iii) Continuity of the work force; 

(iv) Similarity of jobs and working 

conditions; 

(v) Similarity of supervisory 

personnel; 

(vi) Whether the former management 

or owner retains a direct or indirect 

interest in the new enterprise; 

(vii) Similarity in machinery, 

equipment, and production methods; 

(viii) Similarity of products and 

services; and 

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(ix) The ability of the predecessor to 

provide relief. 

(2) For purposes of debarment only, 

the primary consideration will be the 

personal involvement of the firm’s 

ownership, management, supervisors, 

and others associated with the firm in 

the violation(s) at issue. 

United States (U.S.) means the 

continental United States, Alaska, 

Hawaii, the Commonwealth of Puerto 

Rico, Guam, the U.S. Virgin Islands, and 

the Commonwealth of the Northern 

Mariana Islands (CNMI). 

U.S. Citizenship and Immigration 

Services (USCIS) means the Federal 

agency within DHS that makes the 

determination under the INA whether to 

grant petitions filed by employers 

seeking H–2B workers to perform 

temporary non-agricultural work in the 

U.S. 

United States worker (U.S. worker) 

means a worker who is: 

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

(2) An alien who is lawfully admitted 

for permanent residence in the U.S., is 

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

1157, section 207 of the INA, is granted 

asylum under 8 U.S.C. 1158, section 208 

of the INA, or is an alien otherwise 

authorized under the immigration laws 

to be employed in the U.S.; or 

(3) An individual who is not an 

unauthorized alien (as defined in 8 

U.S.C. 1324a(h)(3), section 274a(h)(3) of 

the INA) with respect to the 

employment in which the worker is 

engaging. 

Wage and Hour Division (WHD) 

means the agency within the 

Department of Labor with investigatory 

and law enforcement authority, as 

delegated from DHS, to carry out the 

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

section 214(c) of the INA. 

Wages mean all forms of cash 

remuneration to a worker by an 

employer in payment for personal 

services. 

§ 655.6 Temporary need. 

(a) An employer seeking certification 

under this subpart must establish that 

its need for non-agricultural services or 

labor is temporary, regardless of 

whether the underlying job is 

permanent or temporary. 

(b) The employer’s need is considered 

temporary if justified to the CO as one 

of the following: A one-time occurrence; 

a seasonal need; a peakload need; or an 

intermittent need, as defined by DHS 

regulations. Except where the 

employer’s need is based on a one-time 

occurrence, the CO will deny a request 

for an H–2B Registration or an 

Application for Temporary Employment 

Certification where the employer has a 

need lasting more than 9 months. 

(c) A job contractor will only be 

permitted to seek certification if it can 

demonstrate through documentation its 

own temporary need, not that of its 

employer-client(s). A job contractor will 

only be permitted to file applications 

based on a seasonal need or a one-time 

occurrence. 

(d) Nothing in this paragraph (d) is 

intended to limit the authority of the 

Secretary of Homeland Security, in the 

course of adjudicating an H–2B petition, 

to make the final determination as to 

whether a prospective H–2B employer’s 

need is temporary in nature. 

§ 655.7 Persons and entities authorized to 

file. 

(a) Persons authorized to file. In 

addition to the employer applicant, a 

request for an H–2B Registration or an 

Application for Temporary Employment 

Certification may be filed by an attorney 

or agent, as defined in § 655.5. 

(b) Employer’s signature required. 

Regardless of whether the employer is 

represented by an attorney or agent, the 

employer is required to sign the H–2B 

Registration and Application for 

Temporary Employment Certification 

and all documentation submitted to the 

Department of Labor. 

§ 655.8 Requirements for agents. 

An agent filing an Application for 

Temporary Employment Certification on 

behalf of an employer must provide: 

(a) A copy of the agent agreement or 

other document demonstrating the 

agent’s authority to represent the 

employer; and 

(b) A copy of the Migrant and 

Seasonal Agricultural Worker Protection 

Act (MSPA) Farm Labor Contractor 

Certificate of Registration, if the agent is 

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

et seq., to have such a certificate, 

identifying the specific farm labor 

contracting activities the agent is 

authorized to perform. 

§ 655.9 Disclosure of foreign worker 

recruitment. 

(a) The employer, and its attorney or 

agent, as applicable, must provide a 

copy of all agreements with any agent or 

recruiter whom it engages or plans to 

engage in the recruitment of H–2B 

workers under this Application for 

Temporary Employment Certification. 

These agreements must contain the 

contractual prohibition against charging 

fees as set forth in § 655.20(p). 

(b) The employer, and its attorney or 

agent, as applicable, must also provide 

the identity and location of all persons 

and entities hired by or working for the 

recruiter or agent referenced in 

paragraph (a) of this section, and any of 

the agents or employees of those 

persons and entities, to recruit 

prospective foreign workers for the H– 

2B job opportunities offered by the 

employer. 

(c) The Department of Labor will 

maintain a publicly available list of 

agents and recruiters who are party to 

the agreements referenced in paragraph 

(a) of this section, as well as the persons 

and entities referenced in paragraph (b) 

of this section and the locations in 

which they are operating. 

Prefiling Procedures 

§ 655.10 Determination of prevailing wage 

for temporary labor certification purposes. 

(a) Offered wage. The employer must 

advertise the position to all potential 

workers at a wage at least equal to the 

prevailing wage obtained from the 

NPWC, or the Federal, State or local 

minimum wage, whichever is highest. 

The employer must offer and pay this 

wage (or higher) to both its H–2B 

workers and its workers in 

corresponding employment. The 

issuance of a PWD under this section 

does not permit an employer to pay a 

wage lower than the highest wage 

required by any applicable Federal, 

State or local law. 

(b) [Reserved] 

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

must request and receive a PWD from 

the NPWC before filing the job order 

with the SWA. 

(2) The PWD must be valid on the 

date the job order is posted. 

(d) Multiple worksites. If the job 

opportunity involves multiple worksites 

within an area of intended employment 

and different prevailing wage rates exist 

for the opportunity within the area of 

intended employment, the prevailing 

wage is the highest applicable wage 

among all the worksites. 

(e) NPWC action. The NPWC will 

provide the PWD, indicate the source, 

and return the Application for 

Prevailing Wage Determination (ETA 

Form 9141) with its endorsement to the 

employer. 

(f) [Reserved] 

(g) Review of employer-provided 

surveys. (1) If the NPWC finds an 

employer-provided survey not to be 

acceptable, the NPWC shall inform the 

employer in writing of the reasons the 

survey was not accepted. 

(2) The employer, after receiving 

notification that the survey it provided 

for consideration is not acceptable, may 

request review under § 655.13. 

(h) Validity period. The NPWC must 

specify the validity period of the 

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prevailing wage, which in no event may 

be more than 365 days and no less than 

90 days from the date that the 

determination is issued. 

(i) Professional athletes. In computing 

the prevailing wage for a professional 

athlete when the job opportunity is 

covered by professional sports league 

rules or regulations, the wage set forth 

in those rules or regulations is 

considered the prevailing wage. 

(j) Retention of documentation. The 

employer must retain the PWD for 3 

years from the date of issuance or the 

date of a final determination on the 

Application for Temporary Employment 

Certification, whichever is later, and 

submit it to a CO if requested by a 

Notice of Deficiency, described in 

§ 655.31, or audit, as described in 

§ 655.70, or to a WHD representative 

during a WHD investigation. 

(k) Guam. The requirements of this 

section apply to any request filed for an 

H–2B job opportunity on Guam, subject 

to the transfer of authority to set the 

prevailing wage for a job opportunity on 

Guam to DOL in Title 8 of the Code of 

Federal Regulations. 

§ 655.11 Registration of H–2B employers. 

All employers, including job 

contractors, that desire to hire H–2B 

workers must establish their need for 

services or labor is temporary by filing 

an H–2B Registration with the Chicago 

NPC. 

(a) Registration filing. An employer 

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

2B Registration must be accompanied by 

documentation evidencing: 

(1) The number of positions that will 

be sought in the first year of registration; 

(2) The time period of need for the 

workers requested; 

(3) That the nature of the employer’s 

need for the services or labor to be 

performed is non-agricultural and 

temporary, and is justified as either a 

one-time occurrence, a seasonal need, a 

peakload need, or an intermittent need, 

as defined by DHS regulations and 

§ 655.6 (or in the case of job contractors, 

a seasonal need or one-time occurrence); 

and 

(4) For job contractors, the job 

contractor’s own seasonal need or onetime occurrence, such as through the 

provision of payroll records. 

(b) Original signature. The H–2B 

Registration must bear the original 

signature of the employer (and that of 

the employer’s attorney or agent if 

applicable). If and when the H–2B 

Registration is permitted to be filed 

electronically, the employer will satisfy 

this requirement by signing the H–2B 

Registration as directed by the CO. 

(c) Timeliness of registration filing. A 

completed request for an H–2B 

Registration must be received by no less 

than 120 calendar days and no more 

than 150 calendar days before the 

employer’s date of need, except where 

the employer submits the H–2B 

Registration in support of an emergency 

filing under § 655.17. 

(d) Temporary need. (1) The employer 

must establish that its need for nonagricultural services or labor is 

temporary, regardless of whether the 

underlying job is permanent or 

temporary, consistent with DHS 

regulations. A job contractor must also 

demonstrate through documentation its 

own seasonal need or one-time 

occurrence. 

(2) The employer’s need will be 

assessed in accordance with the 

definitions provided by the Secretary of 

Homeland Security and as further 

defined in § 655.6. 

(e) NPC review. The CO will review 

the H–2B Registration and its 

accompanying documentation for 

completeness and make a determination 

based on the following factors: 

(1) The job classification and duties 

qualify as non-agricultural; 

(2) The employer’s need for the 

services or labor to be performed is 

temporary in nature, and for job 

contractors, demonstration of the job 

contractor’s own seasonal need or onetime occurrence; 

(3) The number of worker positions 

and period of need are justified; and 

(4) The request represents a bona fide 

job opportunity. 

(f) Mailing and postmark 

requirements. Any notice or request 

pertaining to an H–2B Registration sent 

by the CO to an employer requiring a 

response will be mailed to the address 

provided on the H–2B Registration using 

methods to assure next day delivery, 

including electronic mail. The 

employer’s response to the notice or 

request must be mailed using methods 

to assure next day delivery, including 

electronic mail, and be sent by the due 

date specified by the CO or by the next 

business day if the due date falls on a 

Saturday, Sunday or Federal holiday. 

(g) Request for information (RFI). If 

the CO determines the H–2B 

Registration cannot be approved, the CO 

will issue an RFI. The RFI will be issued 

within 7 business days of the CO’s 

receipt of the H–2B Registration. The 

RFI will: 

(1) State the reason(s) why the H–2B 

Registration cannot be approved and 

what supplemental information or 

documentation is needed to correct the 

deficiencies; 

(2) Specify a date, no later than 7 

business days from the date the RFI is 

issued, by which the supplemental 

information or documentation must be 

sent by the employer; 

(3) State that, upon receipt of a 

response to the RFI, the CO will review 

the H–2B Registration as well as any 

supplemental information and 

documentation and issue a Notice of 

Decision on the H–2B Registration. The 

CO may, at his or her discretion, issue 

one or more additional RFIs before 

issuing a Notice of Decision on the H– 

2B Registration; and 

(4) State that failure to comply with 

an RFI, including not responding in a 

timely manner or not providing all 

required documentation within the 

specified timeframe, will result in a 

denial of the H–2B Registration. 

(h) Notice of Decision. The CO will 

notify the employer in writing of the 

final decision on the H–2B Registration. 

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

H–2B Registration is approved, the CO 

will send a Notice of Decision to the 

employer, and a copy to the employer’s 

attorney or agent, if applicable. The 

Notice of Decision will notify the 

employer that it is eligible to seek H–2B 

workers in the occupational 

classification for the anticipated number 

of positions and period of need stated 

on the approved H–2B Registration. The 

CO may approve the H–2B Registration 

for a period of up to 3 consecutive years. 

(2) Denied H–2B Registration. If the 

H–2B Registration is denied, the CO will 

send a Notice of Decision to the 

employer, and a copy to the employer’s 

attorney or agent, if applicable. The 

Notice of Decision will: 

(i) State the reason(s) why the H–2B 

Registration is denied; 

(ii) Offer the employer an opportunity 

to request administrative review under 

§ 655.61 within 10 business days from 

the date the Notice of Decision is issued 

and state that if the employer does not 

request administrative review within 

that period the denial is final. 

(i) Retention of documents. All 

employers filing an H–2B Registration 

are required to retain any documents 

and records not otherwise submitted 

proving compliance with this subpart. 

Such records and documents must be 

retained for a period of 3 years from the 

date of certification of the last 

Application for Temporary Employment 

Certification supported by the H–2B 

Registration, if approved, or 3 years 

from the date the decision is issued if 

the H–2B Registration is denied or 3 

years from the day the Department of 

Labor receives written notification from 

the employer withdrawing its pending 

H–2B Registration. 

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(j) Transition period. In order to allow 

OFLC to make the necessary changes to 

its program operations to accommodate 

the new registration process, OFLC will 

announce in the Federal Register a 

separate transition period for the 

registration process, and until that time, 

will continue to adjudicate temporary 

need during the processing of 

applications. 

§ 655.12 Use of registration of H–2B 

employers. 

(a) Upon approval of the H–2B 

Registration, the employer is authorized 

for the specified period of up to 3 

consecutive years from the date the H– 

2B Registration is approved to file an 

Application for Temporary Employment 

Certification, unless: 

(1) The number of workers to be 

employed has increased by more than 

20 percent (or 50 percent for employers 

requesting fewer than 10 workers) from 

the initial year; 

(2) The dates of need for the job 

opportunity have changed by more than 

a total of 30 calendar days from the 

initial year for the entire period of need; 

(3) The nature of the job classification 

and/or duties has materially changed; or 

(4) The temporary nature of the 

employer’s need for services or labor to 

be performed has materially changed. 

(b) If any of the changes in paragraphs 

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

the employer must file a new H–2B 

Registration in accordance with 

§ 655.11. 

(c) The H–2B Registration may not be 

transferred from one employer to 

another unless the employer to which it 

is transferred is a successor in interest 

to the employer to which it was issued. 

§ 655.13 Review of PWDs. 

(a) Request for review of PWDs. Any 

employer desiring review of a PWD 

must make a written request for such 

review to the NPWC Director within 7 

business days from the date the PWD is 

issued. The request for review must 

clearly identify the PWD for which 

review is sought; set forth the particular 

grounds for the request; and include any 

materials submitted to the NPWC for 

purposes of securing the PWD. 

(b) NPWC review. Upon the receipt of 

the written request for review, the 

NPWC Director will review the 

employer’s request and accompanying 

documentation, including any 

supplementary material submitted by 

the employer, and after review shall 

issue a Final Determination letter; that 

letter may: 

(1) Affirm the PWD issued by the 

NPWC; or 

(2) Modify the PWD. 

(c) Request for review by BALCA. Any 

employer desiring review of the NPWC 

Director’s decision on a PWD must 

make a written request for review of the 

determination by BALCA within 10 

business days from the date the Final 

Determination letter is issued. 

(1) The request for BALCA review 

must be in writing and addressed to the 

NPWC Director who made the final 

determinations. Upon receipt of a 

request for BALCA review, the NPWC 

will prepare an appeal file and submit 

it to BALCA. 

(2) The request for review, statements, 

briefs, and other submissions of the 

parties must contain only legal 

arguments and may refer to only the 

evidence that was within the record 

upon which the decision on the PWD 

was based. 

(3) BALCA will handle appeals in 

accordance with § 655.61. 

§ 655.14 [Reserved] 

Application for Temporary 

Employment Certification Filing 

Procedures 

§ 655.15 Application filing requirements. 

All registered employers that desire to 

hire H–2B workers must file an 

Application for Temporary Employment 

Certification with the NPC designated 

by the Administrator, OFLC. Except for 

employers that qualify for emergency 

procedures at § 655.17, employers that 

fail to register under the procedures in 

§ 655.11 and/or that fail to submit a 

PWD obtained under § 655.10 will not 

be eligible to file an Application for 

Temporary Employment Certification 

and their applications will be returned 

without review. 

(a) What to file. A registered employer 

seeking H–2B workers must file a 

completed Application for Temporary 

Employment Certification (ETA Form 

9142B and the appropriate appendices 

and valid PWD), a copy of the job order 

being submitted concurrently to the 

SWA serving the area of intended 

employment, as set forth in § 655.16, 

and copies of all contracts and 

agreements with any agent and/or 

recruiter, executed in connection with 

the job opportunities and all 

information required, as specified in 

§§ 655.8 and 655.9. 

(b) Timeliness. A completed 

Application for Temporary Employment 

Certification must be filed no more than 

90 calendar days and no less than 75 

calendar days before the employer’s 

date of need. 

(c) Location and method of filing. The 

employer must submit the Application 

for Temporary Employment 

Certification and all required supporting 

documentation to the NPC either 

electronically or by mail. 

(d) Original signature. The 

Application for Temporary Employment 

Certification must bear the original 

signature of the employer (and that of 

the employer’s authorized attorney or 

agent if the employer is so represented). 

If the Application for Temporary 

Employment Certification is filed 

electronically, the employer must satisfy 

this requirement by signing the 

Application for Temporary Employment 

Certification as directed by the CO. 

(e) Requests for multiple positions. 

Certification of more than one position 

may be requested on the Application for 

Temporary Employment Certification as 

long as all H–2B workers will perform 

the same services or labor under the 

same terms and conditions, in the same 

occupation, in the same area of intended 

employment, and during the same 

period of employment. 

(f) Separate applications. Except as 

otherwise permitted by this paragraph 

(f), only one Application for Temporary 

Employment Certification may be filed 

for worksite(s) within one area of 

intended employment for each job 

opportunity with an employer for each 

period of employment. Except where 

otherwise permitted under § 655.4, an 

association or other organization of 

employers is not permitted to file master 

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

(1) Subject to paragraph (f)(2) of this 

section, if a petition for H–2B 

nonimmigrants filed by an employer in 

the seafood industry is granted, the 

employer may bring the nonimmigrants 

described in the petition into the United 

States at any time during the 120-day 

period beginning on the start date for 

which the employer is seeking the 

services of the nonimmigrants without 

filing another petition. 

(2) An employer in the seafood 

industry may not bring H–2B 

nonimmigrants into the United States 

after the date that is 90 days after the 

start date for which the employer is 

seeking the services of the 

nonimmigrants unless the employer 

conducts new recruitment, that begins 

at least 45 days after, and ends before 

the 90th day after, the certified start date 

of need as follows: 

(i) Completes a new assessment of the 

local labor market by— 

(A) Listing the job orders in local 

newspapers on 2 separate Sundays; and 

(B) Placing new job orders for the job 

opportunity with the State Workforce 

Agency serving the area of intended 

employment and posting the job 

opportunity at the place of employment 

for at least 10 days; and 

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(C) Offering the job to an equally or 

better qualified United States worker 

who— 

(1) Applies for the job; and 

(2) Will be available at the time and 

place of need. 

(3) In order to comply with this 

provision, employers in the seafood 

industry must— 

(1) Sign and date an attestation form 

stating the employer’s compliance with 

this subparagraph. The attestation form 

is available at http://

www.foreignlaborcert.doleta.gov/

form.cfm; 

(2) Provide each H–2B nonimmigrant 

worker seeking admission to the United 

States a copy of the signed and dated 

attestation, with instructions that the 

worker must present the documentation 

upon request to the Department of 

State’s consular officers when they 

apply for a visa and/or the Department 

of Homeland Security’s U.S Customs 

and Border Protection officers when 

seeking admission to the United States. 

Without this attestation, an H–2B 

nonimmigrant may be denied a visa or 

admission to the United States if 

seeking to enter at any time other than 

the start date stated in the petition. (The 

attestation is not necessary when filing 

an amended petition based on a worker 

who is being substituted in accordance 

with DHS regulations.) The attestation 

presented by an H–2B nonimmigrant 

worker must be the official attestation 

downloaded from OFLC’s Web site and 

may not be altered or revised in any 

manner; and 

(3) Retain the additional recruitment 

documentation, together with their 

prefiling recruitment documentation, for 

a period of 3 years from the date of 

certification, consistent with the 

document retention requirements under 

§ 655.56. Seafood industry employers 

who conduct the required additional 

recruitment should not submit proof of 

the additional recruitment to the Office 

of Foreign Labor Certification. 

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

the CO will instruct the employer on 

any additional recruitment requirements 

with respect to the continuing validity 

of the labor market test or offered wage 

obligation. 

(h) Information dissemination. 

Information received in the course of 

processing a request for an H–2B 

Registration, an Application for 

Temporary Employment Certification or 

program integrity measures such as 

audits may be forwarded from OFLC to 

WHD, or any other Federal agency as 

appropriate, for investigative and/or 

enforcement purposes. 

§ 655.16 Filing of the job order at the SWA. 

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

The employer must submit the job order 

to the SWA serving the area of intended 

employment at the same time it submits 

the Application for Temporary 

Employment Certification and a copy of 

the job order to the NPC in accordance 

with § 655.15. If the job opportunity is 

located in more than one State within 

the same area of intended employment, 

the employer may submit the job order 

to any one of the SWAs having 

jurisdiction over the anticipated 

worksites, but must identify the 

receiving SWA on the copy of the job 

order submitted to the NPC with its 

Application for Temporary Employment 

Certification. The employer must inform 

the SWA that the job order is being 

placed in connection with a 

concurrently submitted Application for 

Temporary Employment Certification 

for H–2B workers. 

(2) In addition to complying with 

State-specific requirements governing 

job orders, the job order submitted to 

the SWA must satisfy the requirements 

set forth in § 655.18. 

(b) SWA review of the job order. The 

SWA must review the job order and 

ensure that it complies with criteria set 

forth in § 655.18. If the SWA determines 

that the job order does not comply with 

the applicable criteria, the SWA must 

inform the CO at the NPC of the noted 

deficiencies within 6 business days of 

receipt of the job order. 

(c) Intrastate and interstate clearance. 

Upon receipt of the Notice of 

Acceptance, as described in § 655.33, 

the SWA must promptly place the job 

order in intrastate clearance, and in 

interstate clearance by providing a copy 

of the job order to other states as 

directed by the CO. 

(d) Duration of job order posting and 

SWA referral of U.S. workers. Upon 

receipt of the Notice of Acceptance, any 

SWA in receipt of the employer’s job 

order must keep the job order on its 

active file until the end of the 

recruitment period, as set forth in 

§ 655.40(c), and must refer to the 

employer in a manner consistent with 

§ 655.47 all qualified U.S. workers who 

apply for the job opportunity or on 

whose behalf a job application is made. 

(e) Amendments to a job order. The 

employer may amend the job order at 

any time before the CO makes a final 

determination, in accordance with 

procedures set forth in § 655.35. 

§ 655.17 Emergency situations. 

(a) Waiver of time period. The CO may 

waive the time period(s) for filing an H– 

2B Registration and/or an Application 

for Temporary Employment 

Certification for employers that have 

good and substantial cause, provided 

that the CO has sufficient time to 

thoroughly test the domestic labor 

market on an expedited basis and to 

make a final determination as required 

by § 655.50. 

(b) Employer requirements. The 

employer requesting a waiver of the 

required time period(s) must submit to 

the NPC a request for a waiver of the 

time period requirement, a completed 

Application for Temporary Employment 

Certification and the proposed job order 

identifying the SWA serving the area of 

intended employment, and must 

otherwise meet the requirements of 

§ 655.15. If the employer did not 

previously apply for an H–2B 

Registration, the employer must also 

submit a completed H–2B Registration 

with all supporting documentation, as 

required by § 655.11. If the employer 

did not previously apply for a PWD, the 

employer must also submit a completed 

PWD request. The employer’s waiver 

request must include detailed 

information describing the good and 

substantial cause that has necessitated 

the waiver request. Good and 

substantial cause may include, but is 

not limited to, the substantial loss of 

U.S. workers due to Acts of God, or a 

similar unforeseeable man-made 

catastrophic event (such as an oil spill 

or controlled flooding) that is wholly 

outside of the employer’s control, 

unforeseeable changes in market 

conditions, or pandemic health issues. 

A denial of a previously submitted H– 

2B Registration in accordance with the 

procedures set forth in § 655.11 does not 

constitute good and substantial cause 

necessitating a waiver under this 

section. 

(c) Processing of emergency 

applications. The CO will process the 

emergency H–2B Registration and/or 

Application for Temporary Employment 

Certification and job order in a manner 

consistent with the provisions of this 

subpart and make a determination on 

the Application for Temporary 

Employment Certification in accordance 

with § 655.50. If the CO grants the 

waiver request, the CO will forward a 

Notice of Acceptance and the approved 

job order to the SWA serving the area 

of intended employment identified by 

the employer in the job order. If the CO 

determines that the certification cannot 

be granted because, under paragraph (a) 

of this section, the request for 

emergency filing is not justified and/or 

there is not sufficient time to make a 

determination of temporary need or 

ensure compliance with the criteria for 

certification contained in § 655.51, the 

CO will send a Final Determination 

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letter to the employer in accordance 

with § 655.53. 

§ 655.18 Job order assurances and 

contents. 

(a) General. Each job order placed in 

connection with an Application for 

Temporary Employment Certification 

must at a minimum include the 

information contained in paragraph (b) 

of this section. In addition, by 

submitting the Application for 

Temporary Employment Certification, 

an employer agrees to comply with the 

following assurances with respect to 

each job order: 

(1) Prohibition against preferential 

treatment. The employer’s job order 

must offer to U.S. workers no less than 

the same benefits, wages, and working 

conditions that the employer is offering, 

intends to offer, or will provide to H– 

2B workers. Job offers may not impose 

on U.S. workers any restrictions or 

obligations that will not be imposed on 

the employer’s H–2B workers. This does 

not relieve the employer from providing 

to H–2B workers at least the minimum 

benefits, wages, and working conditions 

which must be offered to U.S. workers 

consistent with this section. 

(2) Bona fide job requirements. Each 

job qualification and requirement must 

be listed in the job order and must be 

bona fide and consistent with the 

normal and accepted qualifications and 

requirements imposed by non-H–2B 

employers in the same occupation and 

area of intended employment. 

(b) Contents. In addition to complying 

with the assurances in paragraph (a) of 

this section, the employer’s job order 

must meet the following requirements: 

(1) State the employer’s name and 

contact information; 

(2) Indicate that the job opportunity is 

a temporary, full-time position, 

including the total number of job 

openings the employer intends to fill; 

(3) Describe the job opportunity for 

which certification is sought with 

sufficient information to apprise U.S. 

workers of the services or labor to be 

performed, including the duties, the 

minimum education and experience 

requirements, the work hours and days, 

and the anticipated start and end dates 

of the job opportunity; 

(4) Indicate the geographic area of 

intended employment with enough 

specificity to apprise applicants of any 

travel requirements and where 

applicants will likely have to reside to 

perform the services or labor; 

(5) Specify the wage that the employer 

is offering, intends to offer, or will 

provide to H–2B workers, or, in the 

event that there are multiple wage 

offers, the range of wage offers, and 

ensure that the wage offer equals or 

exceeds the highest of the prevailing 

wage or the Federal, State, or local 

minimum wage; 

(6) If applicable, specify that overtime 

will be available to the worker and the 

wage offer(s) for working any overtime 

hours; 

(7) If applicable, state that on-the-job 

training will be provided to the worker; 

(8) State that the employer will use a 

single workweek as its standard for 

computing wages due; 

(9) Specify the frequency with which 

the worker will be paid, which must be 

at least every 2 weeks or according to 

the prevailing practice in the area of 

intended employment, whichever is 

more frequent; 

(10) If the employer provides the 

worker with the option of board, 

lodging, or other facilities, including 

fringe benefits, or intends to assist 

workers to secure such lodging, disclose 

the provision and cost of the board, 

lodging, or other facilities, including 

fringe benefits or assistance to be 

provided; 

(11) State that the employer will make 

all deductions from the worker’s 

paycheck required by law. Specify any 

deductions the employer intends to 

make from the worker’s paycheck which 

are not required by law, including, if 

applicable, any deductions for the 

reasonable cost of board, lodging, or 

other facilities; 

(12) Detail how the worker will be 

provided with or reimbursed for 

transportation and subsistence from the 

place from which the worker has come 

to work for the employer, whether in the 

U.S. or abroad, to the place of 

employment, if the worker completes 50 

percent of the period of employment 

covered by the job order, consistent 

with § 655.20(j)(1)(i); 

(13) State that the employer will 

provide or pay for the worker’s cost of 

return transportation and daily 

subsistence from the place of 

employment to the place from which 

the worker, disregarding intervening 

employment, departed to work for the 

employer, if the worker completes the 

certified period of employment or is 

dismissed from employment for any 

reason by the employer before the end 

of the period, consistent with 

§ 655.20(j)(1)(ii); 

(14) If applicable, state that the 

employer will provide daily 

transportation to and from the worksite; 

(15) State that the employer will 

reimburse the H–2B worker in the first 

workweek for all visa, visa processing, 

border crossing, and other related fees, 

including those mandated by the 

government, incurred by the H–2B 

worker (but need not include passport 

expenses or other charges primarily for 

the benefit of the worker); 

(16) State that the employer will 

provide to the worker, without charge or 

deposit charge, all tools, supplies, and 

equipment required to perform the 

duties assigned, in accordance with 

§ 655.20(k); 

(17) State the applicability of the 

three-fourths guarantee, offering the 

worker employment for a total number 

of work hours equal to at least threefourths of the workdays of each 12-week 

period, if the period of employment 

covered by the job order is 120 or more 

days, or each 6-week period, if the 

period of employment covered by the 

job order is less than 120 days, in 

accordance with § 655.20(f); and 

(18) Instruct applicants to inquire 

about the job opportunity or send 

applications, indications of availability, 

and/or resumes directly to the nearest 

office of the SWA in the State in which 

the advertisement appeared and include 

the SWA contact information. 

§ 655.19 Job contractor filing 

requirements. 

(a) Provided that a job contractor and 

any employer-client are joint employers, 

a job contractor may submit an 

Application for Temporary Employment 

Certification on behalf of itself and that 

employer-client. 

(b) A job contractor must have 

separate contracts with each different 

employer-client. Each contract or 

agreement may support only one 

Application for Temporary Employment 

Certification for each employer-client 

job opportunity within a single area of 

intended employment. 

(c) Either the job contractor or its 

employer-client may submit an ETA 

Form 9141, Application for Prevailing 

Wage Determination, describing the job 

opportunity to the NPWC. However, 

each of the joint employers is separately 

responsible for ensuring that the wage 

offer listed on the Application for 

Temporary Employment Certification, 

ETA Form 9142B, and related 

recruitment at least equals the 

prevailing wage rate determined by the 

NPWC and that all other wage 

obligations are met. 

(d)(1) A job contractor that is filing as 

a joint employer with its employerclient must submit to the NPC a 

completed Application for Temporary 

Employment Certification, ETA Form 

9142, that clearly identifies the joint 

employers (the job contractor and its 

employer-client) and the employment 

relationship (including the actual 

worksite), in accordance with the 

instructions provided by the 

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Department of Labor. The Application 

for Temporary Employment 

Certification must bear the original 

signature of the job contractor and the 

employer-client and be accompanied by 

the contract or agreement establishing 

the employers’ relationship related to 

the workers sought. 

(2) By signing the Application for 

Temporary Employment Certification, 

each employer independently attests to 

the conditions of employment required 

of an employer participating in the H– 

2B program and assumes full 

responsibility for the accuracy of the 

representations made in the application 

and for all of the responsibilities of an 

employer in the H–2B program. 

(e)(1) Either the job contractor or its 

employer-client may place the required 

job order and conduct recruitment as 

described in § 655.16 and §§ 655.42 

through 655.46. Also, either one of the 

joint employers may assume 

responsibility for interviewing 

applicants. However, both of the joint 

employers must sign the recruitment 

report that is submitted to the NPC with 

the Application for Temporary 

Employment Certification, ETA Form 

9142B. 

(2) The job order and all recruitment 

conducted by joint employers must 

satisfy the content requirements 

identified in §§ 655.18 and 655.41. 

Additionally, in order to fully apprise 

applicants of the job opportunity and 

avoid potential confusion inherent in a 

job opportunity involving two 

employers, joint employer recruitment 

must clearly identify both employers 

(the job contractor and its employerclient) by name and must clearly 

identify the worksite location(s) where 

workers will perform labor or services. 

(3)(i) Provided that all of the 

employer-clients’ job opportunities are 

in the same occupation and area of 

intended employment and have the 

same requirements and terms and 

conditions of employment, including 

dates of employment, a job contractor 

may combine more than one of its joint 

employer employer-clients’ job 

opportunities in a single advertisement. 

Each advertisement must fully apprise 

potential workers of the job opportunity 

available with each employer-client and 

otherwise satisfy the advertising content 

requirements required for all H–2Brelated advertisements, as identified in 

§ 655.41. Such a shared advertisement 

must clearly identify the job contractor 

by name, the joint employment 

relationship, and the number of workers 

sought for each job opportunity, 

identified by employer-client name and 

location (e.g. 5 openings with EmployerClient 1 (worksite location), 3 openings 

with Employer-Client 2 (worksite 

location)). 

(ii) In addition, the advertisement 

must contain the following statement: 

‘‘Applicants may apply for any or all of 

the jobs listed. When applying, please 

identify the job(s) (by company and 

work location) you are applying to for 

the entire period of employment 

specified.’’ If an applicant fails to 

identify one or more specific work 

location(s), that applicant is presumed 

to have applied to all work locations 

listed in the advertisement. 

(f) If an application for joint 

employers is approved, the NPC will 

issue one certification and send it to the 

job contractor. In order to ensure notice 

to both employers, a courtesy copy of 

the certification cover letter will be sent 

to the employer-client. (g) When 

submitting a certified Application for 

Temporary Employment Certification to 

USCIS, the job contractor should submit 

the complete ETA Form 9142B 

containing the original signatures of 

both the job contractor and employerclient. 

Assurances and Obligations 

§ 655.20 Assurances and obligations of H– 

2B employers. 

An employer employing H–2B 

workers and/or workers in 

corresponding employment under an 

Application for Temporary Employment 

Certification has agreed as part of the 

Application for Temporary Employment 

Certification that it will abide by the 

following conditions with respect to its 

H–2B workers and any workers in 

corresponding employment: 

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

in the job order equals or exceeds the 

highest of the prevailing wage or 

Federal minimum wage, State minimum 

wage, or local minimum wage. The 

employer must pay at least the offered 

wage, free and clear, during the entire 

period of the Application for Temporary 

Employment Certification granted by 

OFLC. 

(2) The offered wage is not based on 

commissions, bonuses, or other 

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

guarantees a wage earned every 

workweek that equals or exceeds the 

offered wage. 

(3) If the employer requires one or 

more minimum productivity standards 

of workers as a condition of job 

retention, the standards must be 

specified in the job order and the 

employer must demonstrate that they 

are normal and usual for non-H–2B 

employers for the same occupation in 

the area of intended employment. 

(4) An employer that pays on a piecerate basis must demonstrate that the 

piece rate is no less than the normal rate 

paid by non-H–2B employers to workers 

performing the same activity in the area 

of intended employment. The average 

hourly piece rate earnings must result in 

an amount at least equal to the offered 

wage. If the worker is paid on a piece 

rate basis and at the end of the 

workweek the piece rate does not result 

in average hourly piece rate earnings 

during the workweek at least equal to 

the amount the worker would have 

earned had the worker been paid at the 

offered hourly wage, then the employer 

must supplement the worker’s pay at 

that time so that the worker’s earnings 

are at least as much as the worker would 

have earned during the workweek if the 

worker had instead been paid at the 

offered hourly wage for each hour 

worked. 

(b) Wages free and clear. The payment 

requirements for wages in this section 

will be satisfied by the timely payment 

of such wages to the worker either in 

cash or negotiable instrument payable at 

par. The payment must be made finally 

and unconditionally and ‘‘free and 

clear.’’ The principles applied in 

determining whether deductions are 

reasonable and payments are received 

free and clear and the permissibility of 

deductions for payments to third 

persons are explained in more detail in 

29 CFR part 531. 

(c) Deductions. The employer must 

make all deductions from the worker’s 

paycheck required by law. The job order 

must specify all deductions not required 

by law which the employer will make 

from the worker’s pay; any such 

deductions not disclosed in the job 

order are prohibited. The wage payment 

requirements of paragraph (b) of this 

section are not met where unauthorized 

deductions, rebates, or refunds reduce 

the wage payment made to the worker 

below the minimum amounts required 

by the offered wage or where the worker 

fails to receive such amounts free and 

clear because the worker ‘‘kicks back’’ 

directly or indirectly to the employer or 

to another person for the employer’s 

benefit the whole or part of the wages 

delivered to the worker. Authorized 

deductions are limited to: Those 

required by law, such as taxes payable 

by workers that are required to be 

withheld by the employer and amounts 

due workers which the employer is 

required by court order to pay to 

another; deductions for the reasonable 

cost or fair value of board, lodging, and 

facilities furnished; and deductions of 

amounts which are authorized to be 

paid to third persons for the worker’s 

account and benefit through his or her 

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voluntary assignment or order or which 

are authorized by a collective bargaining 

agreement with bona fide 

representatives of workers which covers 

the employer. Deductions for amounts 

paid to third persons for the worker’s 

account and benefit which are not so 

authorized or are contrary to law or 

from which the employer, agent or 

recruiter including any agents or 

employees of these entities, or any 

affiliated person derives any payment, 

rebate, commission, profit, or benefit 

directly or indirectly, may not be made 

if they reduce the actual wage paid to 

the worker below the offered wage 

indicated on the Application for 

Temporary Employment Certification. 

(d) Job opportunity is full-time. The 

job opportunity is a full-time temporary 

position, consistent with § 655.5, and 

the employer must use a single 

workweek as its standard for computing 

wages due. An employee’s workweek 

must be a fixed and regularly recurring 

period of 168 hours—seven consecutive 

24-hour periods. It need not coincide 

with the calendar week but may begin 

on any day and at any hour of the day. 

(e) Job qualifications and 

requirements. Each job qualification and 

requirement must be listed in the job 

order and must be bona fide and 

consistent with the normal and accepted 

qualifications and requirements 

imposed by non-H–2B employers in the 

same occupation and area of intended 

employment. The employer’s job 

qualifications and requirements 

imposed on U.S. workers must not be 

less favorable than the qualifications 

and requirements that the employer is 

imposing or will impose on H–2B 

workers. A qualification means a 

characteristic that is necessary to the 

individual’s ability to perform the job in 

question. A requirement means a term 

or condition of employment which a 

worker is required to accept in order to 

obtain the job opportunity. The CO may 

require the employer to submit 

documentation to substantiate the 

appropriateness of any job qualification 

and/or requirement specified in the job 

order. 

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

employer must guarantee to offer the 

worker employment for a total number 

of work hours equal to at least threefourths of the workdays in each 12-week 

period (each 6-week period if the period 

of employment covered by the job order 

is less than 120 days) beginning with 

the first workday after the arrival of the 

worker at the place of employment or 

the advertised first date of need, 

whichever is later, and ending on the 

expiration date specified in the job 

order or in its extensions, if any. See the 

exception in paragraph (y) of this 

section. 

(2) For purposes of this paragraph (f) 

a workday means the number of hours 

in a workday as stated in the job order. 

The employer must offer a total number 

of hours of work to ensure the provision 

of sufficient work to reach the threefourths guarantee in each 12-week 

period (each 6-week period if the period 

of employment covered by the job order 

is less than 120 days) during the work 

period specified in the job order, or 

during any modified job order period to 

which the worker and employer have 

mutually agreed and that has been 

approved by the CO. 

(3) In the event the worker begins 

working later than the specified 

beginning date the guarantee period 

begins with the first workday after the 

arrival of the worker at the place of 

employment, and continues until the 

last day during which the job order and 

all extensions thereof are in effect. 

(4) The 12-week periods (6-week 

periods if the period of employment 

covered by the job order is less than 120 

days) to which the guarantee applies are 

based upon the workweek used by the 

employer for pay purposes. The first 12- 

week period (or 6-week period, as 

appropriate) also includes any partial 

workweek, if the first workday after the 

worker’s arrival at the place of 

employment is not the beginning of the 

employer’s workweek, with the 

guaranteed number of hours increased 

on a pro rata basis (thus, the first period 

may include up to 12 weeks and 6 days 

(or 6 weeks and 6 days, as appropriate)). 

The final 12-week period (or 6-week 

period, as appropriate) includes any 

time remaining after the last full 12- 

week period (or 6-week period) ends, 

and thus may be as short as 1 day, with 

the guaranteed number of hours 

decreased on a pro rata basis. 

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

order is for a 32-week period (a period 

greater than 120 days), during which the 

normal workdays and work hours for 

the workweek are specified as 5 days a 

week, 7 hours per day, the worker 

would have to be guaranteed 

employment for at least 315 hours in the 

first 12-week period (12 weeks × 35 

hours/week = 420 hours × 75 percent = 

315), at least 315 hours in the second 

12-week period, and at least 210 hours 

(8 weeks × 35 hours/week = 280 hours 

× 75 percent = 210) in the final partial 

period. If the job order is for a 16-week 

period (less than 120 days), during 

which the normal workdays and work 

hours for the workweek are specified as 

5 days a week, 7 hours per day, the 

worker would have to be guaranteed 

employment for at least 157.5 hours (6 

weeks × 35 hours/week = 210 hours × 

75 percent = 157.5) in the first 6-week 

period, at least 157.5 hours in the 

second 6-week period, and at least 105 

hours (4 weeks × 35 hours/week = 140 

hours × 75 percent = 105) in the final 

partial period. 

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

basis, the employer must use the 

worker’s average hourly piece rate 

earnings or the offered wage, whichever 

is higher, to calculate the amount due 

under the guarantee. 

(7) A worker may be offered more 

than the specified hours of work on a 

single workday. For purposes of meeting 

the guarantee, however, the worker will 

not be required to work for more than 

the number of hours specified in the job 

order for a workday. The employer, 

however, may count all hours actually 

worked in calculating whether the 

guarantee has been met. If during any 

12-week period (6-week period if the 

period of employment covered by the 

job order is less than 120 days) during 

the period of the job order the employer 

affords the U.S. or H–2B worker less 

employment than that required under 

paragraph (f)(1) of this section, the 

employer must pay such worker the 

amount the worker would have earned 

had the worker, in fact, worked for the 

guaranteed number of days. An 

employer has not met the work 

guarantee if the employer has merely 

offered work on three-fourths of the 

workdays in an 12-week period (or 6- 

week period, as appropriate) if each 

workday did not consist of a full 

number of hours of work time as 

specified in the job order. 

(8) Any hours the worker fails to 

work, up to a maximum of the number 

of hours specified in the job order for a 

workday, when the worker has been 

offered an opportunity to work in 

accordance with paragraph (f)(1) of this 

section, and all hours of work actually 

performed (including voluntary work 

over 8 hours in a workday), may be 

counted by the employer in calculating 

whether each 12-week period (or 6-week 

period, as appropriate) of guaranteed 

employment has been met. An employer 

seeking to calculate whether the 

guaranteed number of hours has been 

met must maintain the payroll records 

in accordance with this part. 

(g) Impossibility of fulfillment. If, 

before the expiration date specified in 

the job order, the services of the worker 

are no longer required for reasons 

beyond the control of the employer due 

to fire, weather, or other Act of God, or 

similar unforeseeable man-made 

catastrophic event (such as an oil spill 

or controlled flooding) that is wholly 

outside the employer’s control that 

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24120 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

makes the fulfillment of the job order 

impossible, the employer may terminate 

the job order with the approval of the 

CO. In the event of such termination of 

a job order, the employer must fulfill a 

three-fourths guarantee, as described in 

paragraph (f) of this section, for the time 

that has elapsed from the start date 

listed in the job order or the first 

workday after the arrival of the worker 

at the place of employment, whichever 

is later, to the time of its termination. 

The employer must make efforts to 

transfer the H–2B worker or worker in 

corresponding employment to other 

comparable employment acceptable to 

the worker and consistent with the INA, 

as applicable. If a transfer is not 

effected, the employer must return the 

worker, at the employer’s expense, to 

the place from which the worker 

(disregarding intervening employment) 

came to work for the employer, or 

transport the worker to the worker’s 

next certified H–2B employer, 

whichever the worker prefers. 

(h) Frequency of pay. The employer 

must state in the job order the frequency 

with which the worker will be paid, 

which must be at least every 2 weeks or 

according to the prevailing practice in 

the area of intended employment, 

whichever is more frequent. Employers 

must pay wages when due. 

(i) Earnings statements. (1) The 

employer must keep accurate and 

adequate records with respect to the 

workers’ earnings, including but not 

limited to: Records showing the nature, 

amount and location(s) of the work 

performed; the number of hours of work 

offered each day by the employer 

(broken out by hours offered both in 

accordance with and over and above the 

three-fourths guarantee in paragraph (f) 

of this section); the hours actually 

worked each day by the worker; if the 

number of hours worked by the worker 

is less than the number of hours offered, 

the reason(s) the worker did not work; 

the time the worker began and ended 

each workday; the rate of pay (both 

piece rate and hourly, if applicable); the 

worker’s earnings per pay period; the 

worker’s home address; and the amount 

of and reasons for any and all 

deductions taken from or additions 

made to the worker’s wages. 

(2) The employer must furnish to the 

worker on or before each payday in one 

or more written statements the 

following information: 

(i) The worker’s total earnings for 

each workweek in the pay period; 

(ii) The worker’s hourly rate and/or 

piece rate of pay; 

(iii) For each workweek in the pay 

period the hours of employment offered 

to the worker (showing offers in 

accordance with the three-fourths 

guarantee as determined in paragraph (f) 

of this section, separate from any hours 

offered over and above the guarantee); 

(iv) For each workweek in the pay 

period the hours actually worked by the 

worker; 

(v) An itemization of all deductions 

made from or additions made to the 

worker’s wages; 

(vi) If piece rates are used, the units 

produced daily; 

(vii) The beginning and ending dates 

of the pay period; and 

(viii) The employer’s name, address 

and FEIN. 

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

Transportation to the place of 

employment. The employer must 

provide or reimburse the worker for 

transportation and subsistence from the 

place from which the worker has come 

to work for the employer, whether in the 

U.S. or abroad, to the place of 

employment if the worker completes 50 

percent of the period of employment 

covered by the job order (not counting 

any extensions). The employer may 

arrange and pay for the transportation 

and subsistence directly, advance at a 

minimum the most economical and 

reasonable common carrier cost of the 

transportation and subsistence to the 

worker before the worker’s departure, or 

pay the worker for the reasonable costs 

incurred by the worker. When it is the 

prevailing practice of non-H–2B 

employers in the occupation in the area 

to do so or when the employer extends 

such benefits to similarly situated H–2B 

workers, the employer must advance the 

required transportation and subsistence 

costs (or otherwise provide them) to 

workers in corresponding employment 

who are traveling to the employer’s 

worksite. The amount of the 

transportation payment must be no less 

(and is not required to be more) than the 

most economical and reasonable 

common carrier transportation charges 

for the distances involved. The amount 

of the daily subsistence must be at least 

the amount permitted in § 655.173. 

Where the employer will reimburse the 

reasonable costs incurred by the worker, 

it must keep accurate and adequate 

records of: The costs of transportation 

and subsistence incurred by the worker; 

the amount reimbursed; and the date(s) 

of reimbursement. Note that the FLSA 

applies independently of the H–2B 

requirements and imposes obligations 

on employers regarding payment of 

wages. 

(ii) Transportation from the place of 

employment. If the worker completes 

the period of employment covered by 

the job order (not counting any 

extensions), or if the worker is 

dismissed from employment for any 

reason by the employer before the end 

of the period, and the worker has no 

immediate subsequent H–2B 

employment, the employer must 

provide or pay at the time of departure 

for the worker’s cost of return 

transportation and daily subsistence 

from the place of employment to the 

place from which the worker, 

disregarding intervening employment, 

departed to work for the employer. If the 

worker has contracted with a 

subsequent employer that has not 

agreed in the job order to provide or pay 

for the worker’s transportation from the 

employer’s worksite to such subsequent 

employer’s worksite, the employer must 

provide or pay for that transportation 

and subsistence. If the worker has 

contracted with a subsequent employer 

that has agreed in the job order to 

provide or pay for the worker’s 

transportation from the employer’s 

worksite to such subsequent employer’s 

worksite, the subsequent employer must 

provide or pay for such expenses. 

(iii) Employer-provided 

transportation. All employer-provided 

transportation must comply with all 

applicable Federal, State, and local laws 

and regulations and must provide, at a 

minimum, the same vehicle safety 

standards, driver licensure 

requirements, and vehicle insurance as 

required under 49 CFR parts 390, 393, 

and 396. 

(iv) Disclosure. All transportation and 

subsistence costs that the employer will 

pay must be disclosed in the job order. 

(2) The employer must pay or 

reimburse the worker in the first 

workweek for all visa, visa processing, 

border crossing, and other related fees 

(including those mandated by the 

government) incurred by the H–2B 

worker, but not for passport expenses or 

other charges primarily for the benefit of 

the worker. 

(k) Employer-provided items. The 

employer must provide to the worker, 

without charge or deposit charge, all 

tools, supplies, and equipment required 

to perform the duties assigned. 

(l) Disclosure of job order. The 

employer must provide to an H–2B 

worker outside of the U.S. no later than 

the time at which the worker applies for 

the visa, or to a worker in corresponding 

employment no later than on the day 

work commences, a copy of the job 

order including any subsequent 

approved modifications. For an H–2B 

worker changing employment from an 

H–2B employer to a subsequent H–2B 

employer, the copy must be provided no 

later than the time an offer of 

employment is made by the subsequent 

H–2B employer. The disclosure of all 

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documents required by this paragraph 

(l) must be provided in a language 

understood by the worker, as necessary 

or reasonable. 

(m) Notice of worker rights. The 

employer must post and maintain in a 

conspicuous location at the place of 

employment a poster provided by the 

Department of Labor that sets out the 

rights and protections for H–2B workers 

and workers in corresponding 

employment. The employer must post 

the poster in English. To the extent 

necessary, the employer must request 

and post additional posters, as made 

available by the Department of Labor, in 

any language common to a significant 

portion of the workers if they are not 

fluent in English. 

(n) No unfair treatment. The employer 

has not and will not intimidate, 

threaten, restrain, coerce, blacklist, 

discharge or in any manner discriminate 

against, and has not and will not cause 

any person to intimidate, threaten, 

restrain, coerce, blacklist, discharge, or 

in any manner discriminate against, any 

person who has: 

(1) Filed a complaint under or related 

to 8 U.S.C. 1184(c), section 214(c) of the 

INA, 29 CFR part 503, or this subpart, 

or any other regulation promulgated 

thereunder; 

(2) Instituted or caused to be 

instituted any proceeding under or 

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

214(c) of the INA, 29 CFR part 503, or 

this subpart or any other regulation 

promulgated thereunder; 

(3) Testified or is about to testify in 

any proceeding under or related to 8 

U.S.C. 1184(c), section 214(c) of the 

INA, 29 CFR part 503, or this subpart or 

any other regulation promulgated 

thereunder; 

(4) Consulted with a workers’ center, 

community organization, labor union, 

legal assistance program, or an attorney 

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

section 214(c) of the INA, 29 CFR part 

503, or this subpart or any other 

regulation promulgated thereunder; or 

(5) Exercised or asserted on behalf of 

himself/herself or others any right or 

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

section 214(c) of the INA, 29 CFR part 

503, or this subpart or any other 

regulation promulgated thereunder. 

(o) Comply with the prohibitions 

against employees paying fees. The 

employer and its attorney, agents, or 

employees have not sought or received 

payment of any kind from the worker 

for any activity related to obtaining H– 

2B labor certification or employment, 

including payment of the employer’s 

attorney or agent fees, application and 

H–2B Petition fees, recruitment costs, or 

any fees attributed to obtaining the 

approved Application for Temporary 

Employment Certification. For purposes 

of this paragraph (o), payment includes, 

but is not limited to, monetary 

payments, wage concessions (including 

deductions from wages, salary, or 

benefits), kickbacks, bribes, tributes, inkind payments, and free labor. All 

wages must be paid free and clear. This 

provision does not prohibit employers 

or their agents from receiving 

reimbursement for costs that are the 

responsibility and primarily for the 

benefit of the worker, such as 

government-required passport fees. 

(p) Contracts with third parties to 

comply with prohibitions. The employer 

must contractually prohibit in writing 

any agent or recruiter (or any agent or 

employee of such agent or recruiter) 

whom the employer engages, either 

directly or indirectly, in recruitment of 

H–2B workers to seek or receive 

payments or other compensation from 

prospective workers. The contract must 

include the following statement: ‘‘Under 

this agreement, [name of agent, 

recruiter] and any agent of or employee 

of [name of agent or recruiter] are 

prohibited from seeking or receiving 

payments from any prospective 

employee of [employer name] at any 

time, including before or after the 

worker obtains employment. Payments 

include but are not limited to, any direct 

or indirect fees paid by such employees 

for recruitment, job placement, 

processing, maintenance, attorneys’ 

fees, agent fees, application fees, or 

petition fees.’’ 

(q) Prohibition against preferential 

treatment of foreign workers. The 

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

workers no less than the same benefits, 

wages, and working conditions that the 

employer is offering, intends to offer, or 

will provide to H–2B workers. Job offers 

may not impose on U.S. workers any 

restrictions or obligations that will not 

be imposed on the employer’s H–2B 

workers. This does not relieve the 

employer from providing to H–2B 

workers at least the minimum benefits, 

wages, and working conditions which 

must be offered to U.S. workers 

consistent with this section. 

(r) Non-discriminatory hiring 

practices. The job opportunity is, and 

through the period set forth in 

paragraph (t) of this section must 

continue to be, open to any qualified 

U.S. worker regardless of race, color, 

national origin, age, sex, religion, 

disability, or citizenship. Rejections of 

any U.S. workers who applied or apply 

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

on this basis have been or will be hired. 

In addition, the employer has and will 

continue to retain records of all hired 

workers and rejected applicants as 

required by § 655.56. 

(s) Recruitment requirements. The 

employer must conduct all required 

recruitment activities, including any 

additional employer-conducted 

recruitment activities as directed by the 

CO, and as specified in §§ 655.40 

through 655.46. 

(t) Continuing requirement to hire 

U.S. workers. The employer has and 

will continue to cooperate with the 

SWA by accepting referrals of all 

qualified U.S. workers who apply (or on 

whose behalf a job application is made) 

for the job opportunity, and must 

provide employment to any qualified 

U.S. worker who applies to the 

employer for the job opportunity, until 

21 days before the date of need. 

(u) No strike or lockout. There is no 

strike or lockout at any of the 

employer’s worksites within the area of 

intended employment for which the 

employer is requesting H–2B 

certification at the time the Application 

for Temporary Employment 

Certification is filed. 

(v) No recent or future layoffs. The 

employer has not laid off and will not 

lay off any similarly employed U.S. 

worker in the occupation that is the 

subject of the Application for 

Temporary Employment Certification in 

the area of intended employment within 

the period beginning 120 calendar days 

before the date of need through the end 

of the period of certification. A layoff for 

lawful, job-related reasons such as lack 

of work or the end of a season is 

permissible if all H–2B workers are laid 

off before any U.S. worker in 

corresponding employment. 

(w) Contact with former U.S. 

employees. The employer will contact 

(by mail or other effective means) its 

former U.S. workers, including those 

who have been laid off within 120 

calendar days before the date of need 

(except those who were dismissed for 

cause or who abandoned the worksite), 

employed by the employer in the 

occupation at the place of employment 

during the previous year, disclose the 

terms of the job order, and solicit their 

return to the job. 

(x) Area of intended employment and 

job opportunity. The employer must not 

place any H–2B workers employed 

under the approved Application for 

Temporary Employment Certification 

outside the area of intended 

employment or in a job opportunity not 

listed on the approved Application for 

Temporary Employment Certification 

unless the employer has obtained a new 

approved Application for Temporary 

Employment Certification. 

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(y) Abandonment/termination of 

employment. Upon the separation from 

employment of worker(s) employed 

under the Application for Temporary 

Employment Certification or workers in 

corresponding employment, if such 

separation occurs before the end date of 

the employment specified in the 

Application for Temporary Employment 

Certification, the employer must notify 

OFLC in writing of the separation from 

employment not later than 2 work days 

after such separation is discovered by 

the employer. In addition, the employer 

must notify DHS in writing (or any other 

method specified by the Department of 

Labor or DHS in the Federal Register or 

the Code of Federal Regulations) of such 

separation of an H–2B worker. An 

abandonment or abscondment is 

deemed to begin after a worker fails to 

report for work at the regularly 

scheduled time for 5 consecutive 

working days without the consent of the 

employer. If the separation is due to the 

voluntary abandonment of employment 

by the H–2B worker or worker in 

corresponding employment, and the 

employer provides appropriate 

notification specified under this 

paragraph (y), the employer will not be 

responsible for providing or paying for 

the subsequent transportation and 

subsistence expenses of that worker 

under this section, and that worker is 

not entitled to the three-fourths 

guarantee described in paragraph (f) of 

this section. The employer’s obligation 

to guarantee three-fourths of the work 

described in paragraph (f) ends with the 

last full 12-week period (or 6-week 

period, as appropriate) preceding the 

worker’s voluntary abandonment or 

termination for cause. 

(z) Compliance with applicable laws. 

During the period of employment 

specified on the Application for 

Temporary Employment Certification, 

the employer must comply with all 

applicable Federal, State and local 

employment-related laws and 

regulations, including health and safety 

laws. This includes compliance with 18 

U.S.C. 1592(a), with respect to 

prohibitions against employers, the 

employer’s agents or their attorneys 

knowingly holding, destroying or 

confiscating workers’ passports, visas, 

or other immigration documents. 

(aa) Disclosure of foreign worker 

recruitment. The employer, and its 

attorney or agent, as applicable, must 

comply with § 655.9 by providing a 

copy of all agreements with any agent or 

recruiter whom it engages or plans to 

engage in the recruitment of H–2B 

workers, and the identity and location 

of the persons or entities hired by or 

working for the agent or recruiter and 

any of the agents or employees of those 

persons and entities, to recruit foreign 

workers. Pursuant to § 655.15(a), the 

agreements and information must be 

filed with the Application for 

Temporary Employment Certification. 

(bb) Cooperation with investigators. 

The employer must cooperate with any 

employee of the Secretary who is 

exercising or attempting to exercise the 

Department’s authority pursuant to 8 

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

214(c)(14)(B) of the INA. 

§§ 655.21–655.29 [Reserved] 

Processing of an Application for 

Temporary Employment Certification 

§ 655.30 Processing of an application and 

job order. 

(a) NPC review. The CO will review 

the Application for Temporary 

Employment Certification and job order 

for compliance with all applicable 

program requirements. 

(b) Mailing and postmark 

requirements. Any notice or request sent 

by the CO to an employer requiring a 

response will be mailed to the address 

provided in the Application for 

Temporary Employment Certification 

using methods to assure next day 

delivery, including electronic mail. The 

employer’s response to such a notice or 

request must be mailed using methods 

to assure next day delivery, including 

electronic mail, and be sent by the due 

date or the next business day if the due 

date falls on a Saturday, Sunday or 

Federal holiday. 

(c) Information dissemination. OFLC 

may forward information received in the 

course of processing an Application for 

Temporary Employment Certification 

and program integrity measures to 

WHD, or any other Federal agency, as 

appropriate, for investigation and/or 

enforcement purposes. 

§ 655.31 Notice of deficiency. 

(a) Notification timeline. If the CO 

determines the Application for 

Temporary Employment Certification 

and/or job order is incomplete, contains 

errors or inaccuracies, or does not meet 

the requirements set forth in this 

subpart, the CO will notify the employer 

within 7 business days from the CO’s 

receipt of the Application for 

Temporary Employment Certification. If 

applicable, the Notice of Deficiency will 

include job order deficiencies identified 

by the SWA under § 655.16. The CO 

will send a copy of the Notice of 

Deficiency to the SWA serving the area 

of intended employment identified by 

the employer on its job order, and if 

applicable, to the employer’s attorney or 

agent. 

(b) Notice content. The Notice of 

Deficiency will: 

(1) State the reason(s) why the 

Application for Temporary Employment 

Certification or job order fails to meet 

the criteria for acceptance and state the 

modification needed for the CO to issue 

a Notice of Acceptance; 

(2) Offer the employer an opportunity 

to submit a modified Application for 

Temporary Employment Certification or 

job order within 10 business days from 

the date of the Notice of Deficiency. The 

Notice will state the modification 

needed for the CO to issue a Notice of 

Acceptance; 

(3) Offer the employer an opportunity 

to request administrative review of the 

Notice of Deficiency before an ALJ 

under provisions set forth in § 655.61. 

The Notice will inform the employer 

that it must submit a written request for 

review to the Chief ALJ of DOL within 

10 business days from the date the 

Notice of Deficiency is issued by 

facsimile or other means normally 

assuring next day delivery, and that the 

employer must simultaneously serve a 

copy on the CO. The Notice will also 

state that the employer may submit any 

legal arguments that the employer 

believes will rebut the basis of the CO’s 

action; and 

(4) State that if the employer does not 

comply with the requirements of this 

section by either submitting a modified 

application within 10 business days or 

requesting administrative review before 

an ALJ under § 655.61, the CO will deny 

the Application for Temporary 

Employment Certification. The Notice 

will inform the employer that the denial 

of the Application for Temporary 

Employment Certification is final, and 

cannot be appealed. The Department of 

Labor will not further consider that 

Application for Temporary Employment 

Certification. 

§ 655.32 Submission of a modified 

application or job order. 

(a) Review of a modified Application 

for Temporary Employment 

Certification or job order. Upon receipt 

of a response to a Notice of Deficiency, 

including any modifications, the CO 

will review the response. The CO may 

issue one or more additional Notices of 

Deficiency before issuing a decision. 

The employer’s failure to comply with 

a Notice of Deficiency, including not 

responding in a timely manner or not 

providing all required documentation, 

will result in a denial of the Application 

for Temporary Employment 

Certification. 

(b) Acceptance of a modified 

Application for Temporary Employment 

Certification or job order. If the CO 

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accepts the modification(s) to the 

Application for Temporary Employment 

Certification and/or job order, the CO 

will issue a Notice of Acceptance to the 

employer. The CO will send a copy of 

the Notice of Acceptance to the SWA 

instructing it to make any necessary 

modifications to the not yet posted job 

order and, if applicable, to the 

employer’s attorney or agent, and follow 

the procedure set forth in § 655.33. 

(c) Denial of a modified Application 

for Temporary Employment 

Certification or job order. If the CO finds 

the response to Notice of Deficiency 

unacceptable, the CO will deny the 

Application for Temporary Employment 

Certification in accordance with the 

labor certification determination 

provisions in § 655.51. 

(d) Appeal from denial of a modified 

Application for Temporary Employment 

Certification or job order. The 

procedures for appealing a denial of a 

modified Application for Temporary 

Employment Certification and/or job 

order are the same as for appealing the 

denial of a non-modified Application 

for Temporary Employment 

Certification outlined in § 655.61. 

(e) Post acceptance modifications. 

Irrespective of the decision to accept the 

Application for Temporary Employment 

Certification, the CO may require 

modifications to the job order at any 

time before the final determination to 

grant or deny the Application for 

Temporary Employment Certification if 

the CO determines that the offer of 

employment does not contain all the 

minimum benefits, wages, and working 

condition provisions as set forth in 

§ 655.18. The employer must make such 

modification, or certification will be 

denied under § 655.53. The employer 

must provide all workers recruited in 

connection with the job opportunity in 

the Application for Temporary 

Employment Certification with a copy of 

the modified job order no later than the 

date work commences, as approved by 

the CO. 

§ 655.33 Notice of acceptance. 

(a) Notification timeline. If the CO 

determines the Application for 

Temporary Employment Certification 

and job order are complete and meet the 

requirements of this subpart, the CO 

will notify the employer in writing 

within 7 business days from the date the 

CO received the Application for 

Temporary Employment Certification 

and job order or modification thereof. A 

copy of the Notice of Acceptance will be 

sent to the SWA serving the area of 

intended employment identified by the 

employer on its job order and, if 

applicable, to the employer’s attorney or 

agent. 

(b) Notice content. The notice will: 

(1) Direct the employer to engage in 

recruitment of U.S. workers as provided 

in §§ 655.40 through 655.46, including 

any additional recruitment ordered by 

the CO under § 655.46; 

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

the job order being circulated by the 

SWA(s) and that the employer must 

conduct recruitment within 14 calendar 

days from the date the Notice of 

Acceptance is issued, consistent with 

§ 655.40; 

(3) Direct the SWA to place the job 

order into intra- and interstate clearance 

as set forth in § 655.16 and to commence 

such clearance by: 

(i) Sending a copy of the job order to 

other States listed as anticipated 

worksites in the Application for 

Temporary Employment Certification 

and job order, if applicable; and 

(ii) Sending a copy of the job order to 

the SWAs for all States designated by 

the CO for interstate clearance; 

(4) Instruct the SWA to keep the 

approved job order on its active file 

until the end of the recruitment period 

as defined in § 655.40(c), and to 

transmit the same instruction to other 

SWAs to which it circulates the job 

order in the course of interstate 

clearance; 

(5) Where the occupation or industry 

is traditionally or customarily 

unionized, direct the SWA to circulate 

a copy of the job order to the following 

labor organizations: 

(i) The central office of the State 

Federation of Labor in the State(s) in 

which work will be performed; and 

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

representing employees in the same or 

substantially equivalent job 

classification in the area(s) in which 

work will be performed; 

(6) Advise the employer, as 

appropriate, that it must contact the 

appropriate designated communitybased organization(s) with notice of the 

job opportunity; and 

(7) Require the employer to submit a 

report of its recruitment efforts as 

specified in § 655.48. 

§ 655.34 Electronic job registry. 

(a) Location of and placement in the 

electronic job registry. Upon acceptance 

of the Application for Temporary 

Employment Certification under 

§ 655.33, the CO will place for public 

examination a copy of the job order 

posted by the SWA on the Department’s 

electronic job registry, including any 

amendments or required modifications 

approved by the CO. 

(b) Length of posting on electronic job 

registry. The Department of Labor will 

keep the job order posted on the 

electronic job registry until the end of 

the recruitment period, as set forth in 

§ 655.40(c). 

(c) Conclusion of active posting. Once 

the recruitment period has concluded 

the job order will be placed in inactive 

status on the electronic job registry. 

§ 655.35 Amendments to an application or 

job order. 

(a) Increases in number of workers. 

The employer may request to increase 

the number of workers noted in the H– 

2B Registration by no more than 20 

percent (50 percent for employers 

requesting fewer than 10 workers). All 

requests for increasing the number of 

workers must be made in writing and 

will not be effective until approved by 

the CO. In considering whether to 

approve the request, the CO will 

determine whether the proposed 

amendment(s) are sufficiently justified 

and must take into account the effect of 

the changes on the underlying labor 

market test for the job opportunity. 

Upon acceptance of an amendment, the 

CO will submit to the SWA any 

necessary changes to the job order and 

update the electronic job registry. The 

employer must promptly provide copies 

of any approved amendments to all U.S. 

workers hired under the original job 

order. 

(b) Minor changes to the period of 

employment. The employer may request 

minor changes to the total period of 

employment listed on its Application 

for Temporary Employment 

Certification and job order, for a period 

of up to 14 days, but the period of 

employment may not exceed a total of 

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

changes to the total period of 

employment must be made in writing 

and will not be effective until approved 

by the CO. In considering whether to 

approve the request, the CO will 

determine whether the proposed 

amendment(s) are sufficiently justified 

and must take into account the effect of 

the changes on the underlying labor 

market test for the job opportunity. 

Upon acceptance of an amendment, the 

CO will submit to the SWA any 

necessary changes to the job order and 

update the electronic job registry. The 

employer must promptly provide copies 

of any approved amendments to all U.S. 

workers hired under the original job 

order 

(c) Other amendments to the 

Application for Temporary Employment 

Certification and job order. The 

employer may request other 

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amendments to the Application for 

Temporary Employment Certification 

and job order. All such requests must be 

made in writing and will not be 

effective until approved by the CO. In 

considering whether to approve the 

request, the CO will determine whether 

the proposed amendment(s) are 

sufficiently justified and must take into 

account the effect of the changes on the 

underlying labor market test for the job 

opportunity. Upon acceptance of an 

amendment, the CO will submit to the 

SWA any necessary changes to the job 

order and update the electronic job 

registry. 

(d) Amendments after certification are 

not permitted. The employer must 

promptly provide copies of any 

approved amendments to all U.S. 

workers hired under the original job 

order. 

§§ 655.36–655.39 [Reserved] 

Post-Acceptance Requirements 

§ 655.40 Employer-conducted recruitment. 

(a) Employer obligations. Employers 

must conduct recruitment of U.S. 

workers to ensure that there are not 

qualified U.S. workers who will be 

available for the positions listed in the 

Application for Temporary Employment 

Certification. U.S. Applicants can be 

rejected only for lawful job-related 

reasons. 

(b) Employer-conducted recruitment 

period. Unless otherwise instructed by 

the CO, the employer must conduct the 

recruitment described in §§ 655.42 

through 655.46 within 14 calendar days 

from the date the Notice of Acceptance 

is issued. All employer-conducted 

recruitment must be completed before 

the employer submits the recruitment 

report as required in § 655.48. 

(c) U.S. workers. Employers must 

continue to accept referrals and 

applications of all U.S. applicants 

interested in the position until 21 days 

before the date of need. 

(d) Interviewing U.S. workers. 

Employers that wish to require 

interviews must conduct those 

interviews by phone or provide a 

procedure for the interviews to be 

conducted in the location where the 

worker is being recruited so that the 

worker incurs little or no cost. 

Employers cannot provide potential H– 

2B workers with more favorable 

treatment with respect to the 

requirement for, and conduct of, 

interviews. 

(e) Qualified and available U.S. 

workers. The employer must consider 

all U.S. applicants for the job 

opportunity. The employer must accept 

and hire any applicants who are 

qualified and who will be available. 

(f) Recruitment report. The employer 

must prepare a recruitment report 

meeting the requirements of § 655.48. 

§ 655.41 Advertising requirements. 

(a) All recruitment conducted under 

§§ 655.42 through 655.46 must contain 

terms and conditions of employment 

that are not less favorable than those 

offered to the H–2B workers and, at a 

minimum, must comply with the 

assurances applicable to job orders as 

set forth in § 655.18(a). 

(b) All advertising must contain the 

following information: 

(1) The employer’s name and contact 

information; 

(2) The geographic area of intended 

employment with enough specificity to 

apprise applicants of any travel 

requirements and where applicants will 

likely have to reside to perform the 

services or labor; 

(3) A description of the job 

opportunity for which certification is 

sought with sufficient information to 

apprise U.S. workers of the services or 

labor to be performed, including the 

duties, the minimum education and 

experience requirements, the work 

hours and days, and the anticipated 

start and end dates of the job 

opportunity; 

(4) A statement that the job 

opportunity is a temporary, full-time 

position including the total number of 

job openings the employer intends to 

fill; 

(5) If applicable, a statement that 

overtime will be available to the worker 

and the wage offer(s) for working any 

overtime hours; 

(6) If applicable, a statement 

indicating that on-the-job training will 

be provided to the worker; 

(7) The wage that the employer is 

offering, intends to offer or will provide 

to the H–2B workers or, in the event that 

there are multiple wage offers, the range 

of applicable wage offers, each of which 

must equal or exceed the highest of the 

prevailing wage or the Federal, State, or 

local minimum wage; 

(8) If applicable, any board, lodging, 

or other facilities the employer will offer 

to workers or intends to assist workers 

in securing; 

(9) All deductions not required by law 

that the employer will make from the 

worker’s paycheck, including, if 

applicable, reasonable deduction for 

board, lodging, and other facilities 

offered to the workers; 

(10) A statement that transportation 

and subsistence from the place where 

the worker has come to work for the 

employer to the place of employment 

and return transportation and 

subsistence will be provided, as 

required by § 655.20(j)(1); 

(11) If applicable, a statement that 

work tools, supplies, and equipment 

will be provided to the worker without 

charge; 

(12) If applicable, a statement that 

daily transportation to and from the 

worksite will be provided by the 

employer; 

(13) A statement summarizing the 

three-fourths guarantee as required by 

§ 655.20(f); and 

(14) A statement directing applicants 

to apply for the job opportunity at the 

nearest office of the SWA in the State in 

which the advertisement appeared, the 

SWA contact information, and, if 

applicable, the job order number. 

§ 655.42 Newspaper advertisements. 

(a) The employer must place an 

advertisement (which must be in a 

language other than English, where the 

CO determines appropriate) on 2 

separate days, which may be 

consecutive, one of which must be a 

Sunday (except as provided in 

paragraph (b) of this section), in a 

newspaper of general circulation serving 

the area of intended employment and 

appropriate to the occupation and the 

workers likely to apply for the job 

opportunity. 

(b) If the job opportunity is located in 

a rural area that does not have a 

newspaper with a Sunday edition, the 

CO may direct the employer, in place of 

a Sunday edition, to advertise in the 

regularly published daily edition with 

the widest circulation in the area of 

intended employment. 

(c) The newspaper advertisements 

must satisfy the requirements in 

§ 655.41. 

(d) The employer must maintain 

copies of newspaper pages (with date of 

publication and full copy of the 

advertisement), or tear sheets of the 

pages of the publication in which the 

advertisements appeared, or other proof 

of publication furnished by the 

newspaper containing the text of the 

printed advertisements and the dates of 

publication, consistent with the 

document retention requirements in 

§ 655.56. If the advertisement was 

required to be placed in a language 

other than English, the employer must 

maintain a translation and retain it in 

accordance with § 655.56. 

§ 655.43 Contact with former U.S. 

employees. 

The employer must contact (by mail 

or other effective means) its former U.S. 

workers, including those who have been 

laid off within 120 calendar days before 

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the date of need, employed by the 

employer in the occupation at the place 

of employment during the previous year 

(except those who were dismissed for 

cause or who abandoned the worksite), 

disclose the terms of the job order, and 

solicit their return to the job. The 

employer must maintain documentation 

sufficient to prove such contact in 

accordance with § 655.56. 

§ 655.44 [Reserved] 

§ 655.45 Contact with bargaining 

representative, posting and other contact 

requirements. 

(a) If there is a bargaining 

representative for any of the employer’s 

employees in the occupation and area of 

intended employment, the employer 

must provide written notice of the job 

opportunity, by providing a copy of the 

Application for Temporary Employment 

Certification and the job order, and 

maintain documentation that it was sent 

to the bargaining representative(s). An 

employer governed by this paragraph (a) 

must include information in its 

recruitment report that confirms that the 

bargaining representative(s) was 

contacted and notified of the position 

openings and whether the organization 

referred qualified U.S. worker(s), 

including the number of referrals, or 

was non-responsive to the employer’s 

requests. 

(b) If there is no bargaining 

representative, the employer must post 

the availability of the job opportunity in 

at least 2 conspicuous locations at the 

place(s) of anticipated employment or in 

some other manner that provides 

reasonable notification to all employees 

in the job classification and area in 

which the work will be performed by 

the H–2B workers. Electronic posting, 

such as displaying the notice 

prominently on any internal or external 

Web site that is maintained by the 

employer and customarily used for 

notices to employees about terms and 

conditions of employment, is sufficient 

to meet this posting requirement as long 

as it otherwise meets the requirements 

of this section. The notice must meet the 

requirements under § 655.41 and be 

posted for at least 15 consecutive 

business days. The employer must 

maintain a copy of the posted notice 

and identify where and when it was 

posted in accordance with § 655.56. 

(c) If appropriate to the occupation 

and area of intended employment, as 

indicated by the CO in the Notice of 

Acceptance, the employer must provide 

written notice of the job opportunity to 

a community-based organization, and 

maintain documentation that it was sent 

to any designated community-based 

organization. An employer governed by 

this paragraph (c) must include 

information in its recruitment report 

that confirms that the community-based 

organization was contacted and notified 

of the position openings and whether 

the organization referred qualified U.S. 

worker(s), including the number of 

referrals, or was non-responsive to the 

employer’s requests. 

§ 655.46 Additional employer-conducted 

recruitment. 

(a) Requirement to conduct additional 

recruitment. The employer may be 

instructed by the CO to conduct 

additional reasonable recruitment. Such 

recruitment may be required at the 

discretion of the CO where the CO has 

determined that there is a likelihood 

that U.S. workers who are qualified and 

will be available for the work, including 

but not limited to where the job 

opportunity is located in an Area of 

Substantial Unemployment. 

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

describe the precise number and nature 

of the additional recruitment efforts. 

Additional recruitment may include, 

but is not limited to, posting on the 

employer’s Web site or another Web 

site, contact with additional 

community-based organizations, 

additional contact with State One-Stop 

Career Centers, and other print 

advertising, such as using a 

professional, trade or ethnic publication 

where such a publication is appropriate 

for the occupation and the workers 

likely to apply for the job opportunity. 

When assessing the appropriateness of a 

particular recruitment method, the CO 

will consider the cost of the additional 

recruitment and the likelihood that the 

additional recruitment method(s) will 

identify qualified and available U.S. 

workers. 

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

specify the documentation or other 

supporting evidence that must be 

maintained by the employer as proof 

that the additional recruitment 

requirements were met. Documentation 

must be maintained as required in 

§ 655.56. 

§ 655.47 Referrals of U.S. workers. 

SWAs may only refer for employment 

individuals who have been apprised of 

all the material terms and conditions of 

employment and who are qualified and 

will be available for employment. 

§ 655.48 Recruitment report. 

(a) Requirements of the recruitment 

report. The employer must prepare, 

sign, and date a recruitment report. 

Where recruitment was conducted by a 

job contractor or its employer-client, 

both joint employers must sign the 

recruitment report in accordance with 

§ 655.19(e). The recruitment report must 

be submitted by a date specified by the 

CO in the Notice of Acceptance and 

contain the following information: 

(1) The name of each recruitment 

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

name of the newspaper); 

(2) The name and contact information 

of each U.S. worker who applied or was 

referred to the job opportunity up to the 

date of the preparation of the 

recruitment report, and the disposition 

of each worker’s application. The 

employer must clearly indicate whether 

the job opportunity was offered to the 

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

worker accepted or declined; 

(3) Confirmation that former U.S. 

employees were contacted, if applicable, 

and by what means; 

(4) Confirmation that the bargaining 

representative was contacted, if 

applicable, and by what means, or that 

the employer posted the availability of 

the job opportunity to all employees in 

the job classification and area in which 

the work will be performed by the H– 

2B workers; 

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

was contacted, if applicable; 

(6) If applicable, confirmation that 

additional recruitment was conducted 

as directed by the CO; and 

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

who applied for the position but was 

not hired, the lawful job-related 

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

(b) Duty to update recruitment report. 

The employer must continue to update 

the recruitment report throughout the 

recruitment period. In a joint 

employment situation, either the job 

contractor or the employer-client may 

update the recruitment report. The 

updated report must be signed, dated 

and need not be submitted to the 

Department of Labor, but must be made 

available in the event of a postcertification audit or upon request by 

DOL. 

§ 655.49 [Reserved] 

Labor Certification Determinations 

§ 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 

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classification. If the Administrator, 

OFLC directs that certain types of 

temporary labor certification 

applications or a specific Application 

for Temporary Employment 

Certification under the H–2B 

nonimmigrant classification be handled 

by the OFLC’s National Office, the 

Director of the NPC will refer such 

applications to the Administrator, 

OFLC. 

(b) Determination. Except as 

otherwise provided in this paragraph 

(b), the CO will make a determination 

either to certify or deny the Application 

for Temporary Employment 

Certification. The CO will certify the 

application only if the employer has met 

all the requirements of this subpart, 

including the criteria for certification in 

§ 655.51, thus demonstrating that there 

is an insufficient number of U.S. 

workers who are qualified and who will 

be available for the job opportunity for 

which certification is sought and that 

the employment of the H–2B workers 

will not adversely affect the wages and 

working conditions of similarly 

employed U.S. workers. 

§ 655.51 Criteria for certification. 

(a) The criteria for certification 

include whether the employer has a 

valid H–2B Registration to participate in 

the H–2B program and has complied 

with all of the requirements necessary to 

grant the labor certification. 

(b) In making a determination 

whether there are insufficient U.S. 

workers to fill the employer’s job 

opportunity, the CO will count as 

available any U.S. worker referred by 

the SWA or any U.S. worker who 

applied (or on whose behalf an 

application is made) directly to the 

employer, but who was rejected by the 

employer for other than a lawful jobrelated reason. 

(c) A certification will not be granted 

to an employer that has failed to comply 

with one or more sanctions or remedies 

imposed by final agency actions under 

the H–2B program. 

§ 655.52 Approved certification. 

If a temporary labor certification is 

granted, the CO will send the approved 

Application for Temporary Employment 

Certification and a Final Determination 

letter to the employer by means 

normally assuring next day delivery, 

including electronic mail, and a copy, if 

applicable, to the employer’s attorney or 

agent. If the Application for Temporary 

Employment Certification is 

electronically filed, the employer must 

sign the certified Application for 

Temporary Employment Certification as 

directed by the CO. The employer must 

retain a signed copy of the Application 

for Temporary Employment 

Certification and the original signed 

Appendix B of the Application, as 

required by § 655.56. 

§ 655.53 Denied certification. 

If a temporary labor certification is 

denied, the CO will send the Final 

Determination letter to the employer by 

means normally assuring next day 

delivery, including electronic mail, and 

a copy, if applicable, to the employer’s 

attorney or agent. The Final 

Determination letter will: 

(a) State the reason(s) certification is 

denied, citing the relevant regulatory 

standards; 

(b) Offer the employer an opportunity 

to request administrative review of the 

denial under § 655.61; and 

(c) State that if the employer does not 

request administrative review in 

accordance with § 655.61, the denial is 

final and the Department of Labor will 

not accept any appeal on that 

Application for Temporary Employment 

Certification. 

§ 655.54 Partial certification. 

The CO may issue a partial 

certification, reducing either the period 

of need or the number of H–2B workers 

or both for certification, based upon 

information the CO receives during the 

course of processing the Application for 

Temporary Employment Certification. 

The number of workers certified will be 

reduced by one for each U.S. worker 

who is qualified and who will be 

available at the time and place needed 

to perform the services or labor and who 

has not been rejected for lawful jobrelated reasons. If a partial labor 

certification is issued, the CO will 

amend the Application for Temporary 

Employment Certification and then 

return it to the employer with a Final 

Determination letter, with a copy to the 

employer’s attorney or agent, if 

applicable. The Final Determination 

letter will: 

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

period of need and/or the number of H– 

2B workers requested has been reduced, 

citing the relevant regulatory standards; 

(b) If applicable, address the 

availability of U.S. workers in the 

occupation; 

(c) Offer the employer an opportunity 

to request administrative review of the 

partial certification under § 655.61; and 

(d) State that if the employer does not 

request administrative review in 

accordance with § 655.61, the partial 

certification is final and the Department 

of Labor will not accept any appeal on 

that Application for Temporary 

Employment Certification. 

§ 655.55 Validity of temporary labor 

certification. 

(a) Validity period. A temporary labor 

certification is valid only for the period 

as approved on the Application for 

Temporary Employment Certification. 

The certification expires on the last day 

of authorized employment. 

(b) Scope of validity. A temporary 

labor certification is valid only for the 

number of H–2B positions, the area of 

intended employment, the job 

classification and specific services or 

labor to be performed, and the employer 

specified on the approved Application 

for Temporary Employment 

Certification, including any approved 

modifications. The temporary labor 

certification may not be transferred from 

one employer to another unless the 

employer to which it is transferred is a 

successor in interest to the employer to 

which it was issued. 

§ 655.56 Document retention requirements 

of H–2B employers. 

(a) Entities required to retain 

documents. All employers filing an 

Application for Temporary Employment 

Certification requesting H–2B workers 

are required to retain the documents 

and records proving compliance with 29 

CFR part 503 and this subpart, 

including but not limited to those 

specified in paragraph (c) of this 

section. 

(b) Period of required retention. The 

employer must retain records and 

documents for 3 years from the date of 

certification of the Application for 

Temporary Employment Certification, 

or from the date of adjudication if the 

Application for Temporary Employment 

Certification is denied, or 3 years from 

the day the Department of Labor 

receives the letter of withdrawal 

provided in accordance with § 655.62. 

For the purposes of this section, records 

and documents required to be retained 

in connection with an H–2B Registration 

must be retained in connection with all 

of the Applications for Temporary 

Employment Certification that are 

supported by it. 

(c) Documents and records to be 

retained by all employer applicants. All 

employers filing an H–2B Registration 

and an Application for Temporary 

Employment Certification must retain 

the following documents and records 

and must provide the documents and 

records to the Department of Labor and 

other Federal agencies in the event of an 

audit or investigation: 

(1) Documents and records not 

previously submitted during the 

registration process that substantiate 

temporary need; 

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(2) Proof of recruitment efforts, as 

applicable, including: 

(i) Job order placement as specified in 

§ 655.16; 

(ii) Advertising as specified in 

§§ 655.41 and 655.42; 

(iii) Contact with former U.S. workers 

as specified in § 655.43; 

(iv) Contact with bargaining 

representative(s), or a copy of the 

posting of the job opportunity, if 

applicable, as specified in § 655.45(a) or 

(b); and 

(v) Additional employer-conducted 

recruitment efforts as specified in 

§ 655.46; 

(3) Substantiation of the information 

submitted in the recruitment report 

prepared in accordance with § 655.48, 

such as evidence of nonapplicability of 

contact with former workers as specified 

in § 655.43; 

(4) The final recruitment report and 

any supporting resumes and contact 

information as specified in § 655.48; 

(5) Records of each worker’s earnings, 

hours offered and worked, location(s) of 

work performed, and other information 

as specified in § 655.20(i); 

(6) If appropriate, records of 

reimbursement of transportation and 

subsistence costs incurred by the 

workers, as specified in § 655.20(j). 

(7) Evidence of contact with U.S. 

workers who applied for the job 

opportunity in the Application for 

Temporary Employment Certification, 

including documents demonstrating 

that any rejections of U.S. workers were 

for lawful, job-related reasons, as 

specified in § 655.20(r); 

(8) Evidence of contact with any 

former U.S. worker in the occupation at 

the place of employment in the 

Application for Temporary Employment 

Certification, including documents 

demonstrating that the U.S. worker had 

been offered the job opportunity in the 

Application for Temporary Employment 

Certification, as specified in 

§ 655.20(w), and that the U.S. worker 

either refused the job opportunity or 

was rejected only for lawful, job-related 

reasons, as specified in § 655.20(r); 

(9) The written contracts with agents 

or recruiters as specified in §§ 655.8 and 

655.9, and the list of the identities and 

locations of persons hired by or working 

for the agent or recruiter and these 

entities’ agents or employees, as 

specified in § 655.9; 

(10) Written notice provided to and 

informing OFLC that an H–2B worker or 

worker in corresponding employment 

has separated from employment before 

the end date of employment specified in 

the Application for Temporary 

Employment Certification, as specified 

in § 655.20(y); 

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

and a copy of the Application for 

Temporary Employment Certification 

and the original signed Appendix B of 

the Application. If the Application for 

Temporary Employment Certification 

and H–2B Registration is electronically 

filed, a printed copy of each adjudicated 

Application for Temporary Employment 

Certification, including any 

modifications, amendments or 

extensions must be signed by the 

employer as directed by the CO and 

retained; 

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

accompanying documents; and 

(13) Any collective bargaining 

agreement(s), individual employment 

contract(s), or payroll records from the 

previous year necessary to substantiate 

any claim that certain incumbent 

workers are not included in 

corresponding employment, as specified 

in § 655.5. 

(d) Availability of documents for 

enforcement purposes. An employer 

must make available to the 

Administrator, WHD within 72 hours 

following a request by the WHD the 

documents and records required under 

29 CFR part 503 and this section so that 

the Administrator, WHD may copy, 

transcribe, or inspect them. 

§ 655.57 Request for determination based 

on nonavailability of U.S. workers. 

(a) Standards for requests. If a 

temporary labor certification has been 

partially granted or denied, based on the 

CO’s determination that qualified U.S. 

workers are available, and, on or after 21 

calendar days before the date of need, 

some or all of those qualified U.S. 

workers are, in fact no longer available, 

the employer may request a new 

temporary labor certification 

determination from the CO. Prior to 

making a new determination the CO 

will promptly ascertain (which may be 

through the SWA or other sources of 

information on U.S. worker availability) 

whether specific qualified replacement 

U.S. workers are available or can be 

reasonably expected to be present at the 

employer’s establishment within 72 

hours from the date the employer’s 

request was received. The CO will 

expeditiously, but in no case later than 

72 hours after the time a complete 

request (including the signed statement 

included in paragraph (b) of this 

section) is received, make a 

determination on the request. An 

employer may appeal a denial of such 

a determination in accordance with 

procedures contained in § 655.61. 

(b) Unavailability of U.S. workers. The 

employer’s request for a new 

determination must be made directly to 

the CO by electronic mail or other 

appropriate means and must be 

accompanied by a signed statement 

confirming the employer’s assertion. In 

addition, unless the employer has 

provided to the CO notification of 

abandonment or termination of 

employment as required by § 655.20(y), 

the employer’s signed statement must 

include the name and contact 

information of each U.S. worker who 

became unavailable and must supply 

the reason why the worker has become 

unavailable. 

(c) Notification of determination. If 

the CO determines that U.S. workers 

have become unavailable and cannot 

identify sufficient available U.S. 

workers who are qualified or who are 

likely to become available, the CO will 

grant the employer’s request for a new 

determination. However, this does not 

preclude an employer from submitting 

subsequent requests for new 

determinations, if warranted, based on 

subsequent facts concerning purported 

nonavailability of U.S. workers or 

referred workers not being qualified 

because of lawful job-related reasons. 

§§ 655.58–655.59 [Reserved] 

Post Certification Activities 

§ 655.60 Extensions. 

An employer may apply for 

extensions of the period of employment 

in the following circumstances. A 

request for extension must be related to 

weather conditions or other factors 

beyond the control of the employer 

(which may include unforeseeable 

changes in market conditions), and must 

be supported in writing, with 

documentation showing why the 

extension is needed and that the need 

could not have been reasonably foreseen 

by the employer. The CO will notify the 

employer of the decision in writing. 

Except in extraordinary circumstances, 

the CO will not grant an extension 

where the total work period under that 

Application for Temporary Employment 

Certification and the authorized 

extension would exceed 9 months for 

employers whose temporary need is 

seasonal, peakload, or intermittent, or 3 

years for employers that have a one-time 

occurrence of temporary need. The 

employer may appeal a denial of a 

request for an extension by following 

the procedures in § 655.61. The H–2B 

employer’s assurances and obligations 

under the temporary labor certification 

will continue to apply during the 

extended period of employment. The 

employer must immediately provide to 

its workers a copy of any approved 

extension. 

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24128 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

§ 655.61 Administrative review. 

(a) Request for review. Where 

authorized in this subpart, employers 

may request an administrative review 

before the BALCA of a determination by 

the CO. In such cases, the request for 

review: 

(1) Must be sent to the BALCA, with 

a copy simultaneously sent to the CO 

who issued the determination, within 

10 business days from the date of 

determination; 

(2) Must clearly identify the particular 

determination for which review is 

sought; 

(3) Must set forth the particular 

grounds for the request; 

(4) Must include a copy of the CO’s 

determination; and 

(5) May contain only legal argument 

and such evidence as was actually 

submitted to the CO before the date the 

CO’s determination was issued. 

(b) Appeal file. Upon the receipt of a 

request for review, the CO will, within 

7 business days, assemble and submit 

the Appeal File using means to ensure 

same day or next day delivery, to the 

BALCA, the employer, and the 

Associate Solicitor for Employment and 

Training Legal Services, Office of the 

Solicitor, U.S. Department of Labor. 

(c) Briefing schedule. Within 7 

business days of receipt of the Appeal 

File, the counsel for the CO may submit, 

using means to ensure same day or next 

day delivery, a brief in support of the 

CO’s decision. 

(d) Assignment. The Chief ALJ may 

designate a single member or a three 

member panel of the BALCA to consider 

a particular case. 

(e) Review. The BALCA must review 

the CO’s determination only on the 

basis of the Appeal File, the request for 

review, and any legal briefs submitted 

and must: 

(1) Affirm the CO’s determination; or 

(2) Reverse or modify the CO’s 

determination; or 

(3) Remand to the CO for further 

action. 

(f) Decision. The BALCA should 

notify the employer, the CO, and 

counsel for the CO of its decision within 

7 business days of the submission of the 

CO’s brief or 10 business days after 

receipt of the Appeal File, whichever is 

later, using means to ensure same day 

or next day delivery. 

§ 655.62 Withdrawal of an Application for 

Temporary Employment Certification. 

Employers may withdraw an 

Application for Temporary Employment 

Certification after it has been accepted 

and before it is adjudicated. The 

employer must request such withdrawal 

in writing. 

§ 655.63 Public disclosure. 

The Department of Labor will 

maintain an electronic file accessible to 

the public with information on all 

employers applying for temporary 

nonagricultural labor certifications. The 

database will include such information 

as the number of workers requested, the 

date filed, the date decided, and the 

final disposition. 

§ 655.64–655.69 [Reserved] 

Integrity Measures 

§ 655.70 Audits. 

The CO may conduct audits of 

adjudicated temporary employment 

certification applications. 

(a) Discretion. The CO has the sole 

discretion to choose the applications 

selected for audit. 

(b) Audit letter. Where an application 

is selected for audit, the CO will send 

an audit letter to the employer and a 

copy, if appropriate, to the employer’s 

attorney or agent. The audit letter will: 

(1) Specify the documentation that 

must be submitted by the employer; 

(2) Specify a date, no more than 30 

calendar days from the date the audit 

letter is issued, by which the required 

documentation must be sent to the CO; 

and 

(3) Advise that failure to fully comply 

with the audit process may result: 

(i) In the requirement that the 

employer undergo the assisted 

recruitment procedures in § 655.71 in 

future filings of H–2B temporary 

employment certification applications 

for a period of up to 2 years, or 

(ii) In a revocation of the certification 

and/or debarment from the H–2B 

program and any other foreign labor 

certification program administered by 

the Department Labor. 

(c) Supplemental information request. 

During the course of the audit 

examination, the CO may request 

supplemental information and/or 

documentation from the employer in 

order to complete the audit. If 

circumstances warrant, the CO can issue 

one or more requests for supplemental 

information. 

(d) Potential referrals. In addition to 

measures in this subpart, the CO may 

decide to provide the audit findings and 

underlying documentation to DHS, 

WHD, or other appropriate enforcement 

agencies. The CO may refer any findings 

that an employer discouraged a 

qualified U.S. worker from applying, or 

failed to hire, discharged, or otherwise 

discriminated against a qualified U.S. 

worker to the Department of Justice, 

Civil Rights Division, Office of Special 

Counsel for Unfair Immigration Related 

Employment Practices. 

§ 655.71 CO-ordered assisted recruitment. 

(a) Requirement of assisted 

recruitment. If, as a result of audit or 

otherwise, the CO determines that a 

violation has occurred that does not 

warrant debarment, the CO may require 

the employer to engage in assisted 

recruitment for a defined period of time 

for any future Application for 

Temporary Employment Certification. 

(b) Notification of assisted 

recruitment. The CO will notify the 

employer (and its attorney or agent, if 

applicable) in writing of the assisted 

recruitment that will be required of the 

employer for a period of up to 2 years 

from the date the notice is issued. The 

notification will state the reasons for the 

imposition of the additional 

requirements, state that the employer’s 

agreement to accept the conditions will 

constitute their inclusion as bona fide 

conditions and terms of an application 

for temporary employment certification, 

and offer the employer an opportunity 

to request an administrative review. If 

administrative review is requested, the 

procedures in § 655.61 apply. 

(c) Assisted recruitment. The assisted 

recruitment process will be in addition 

to any recruitment required of the 

employer by §§ 655.41 through 655.46 

and may consist of, but is not limited to, 

one or more of the following: 

(1) Requiring the employer to submit 

a draft advertisement to the CO for 

review and approval at the time of filing 

the Application for Temporary 

Employment Certification; 

(2) Designating the sources where the 

employer must recruit for U.S. workers, 

including newspapers and other 

publications, and directing the 

employer to place the advertisement(s) 

in such sources; 

(3) Extending the length of the 

placement of the advertisement and/or 

job order; 

(4) Requiring the employer to notify 

the CO and the SWA in writing when 

the advertisement(s) are placed; 

(5) Requiring an employer to perform 

any additional assisted recruitment 

directed by the CO; 

(6) Requiring the employer to provide 

proof of the publication of all 

advertisements as directed by the CO, in 

addition to providing a copy of the job 

order; 

(7) Requiring the employer to provide 

proof of all SWA referrals made in 

response to the job order; 

(8) Requiring the employer to submit 

any proof of contact with all referrals 

and past U.S. workers; and/or 

(9) Requiring the employer to provide 

any additional documentation verifying 

it conducted the assisted recruitment as 

directed by the CO. 

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Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 24129 

(d) Failure to comply. If an employer 

materially fails to comply with 

requirements ordered by the CO under 

this section, the certification will be 

denied and the employer and/or its 

attorney or agent may be debarred under 

§ 655.73. 

§ 655.72 Revocation. 

(a) Basis for DOL revocation. The 

Administrator, OFLC may revoke a 

temporary labor certification approved 

under this subpart, if the Administrator, 

OFLC finds: 

(1) The issuance of the temporary 

labor certification was not justified due 

to fraud or willful misrepresentation of 

a material fact in the application 

process, as defined in § 655.73(d); 

(2) The employer substantially failed 

to comply with any of the terms or 

conditions of the approved temporary 

labor certification. A substantial failure 

is a willful failure to comply that 

constitutes a significant deviation from 

the terms and conditions of the 

approved certification and is further 

defined in § 655.73(d) and (e); 

(3) The employer failed to cooperate 

with a DOL investigation or with a DOL 

official performing an investigation, 

inspection, audit (under § 655.73), or 

law enforcement function under 29 CFR 

part 503 or this subpart; or 

(4) The employer failed to comply 

with one or more sanctions or remedies 

imposed by WHD, or with one or more 

decisions or orders of the Secretary with 

the respect to the H–2B program. 

(b) DOL procedures for revocation— 

(1) Notice of Revocation. If the 

Administrator, OFLC makes a 

determination to revoke an employer’s 

temporary labor certification, the 

Administrator, OFLC will send to the 

employer (and its attorney or agent, if 

applicable) a Notice of Revocation. The 

notice will contain a detailed statement 

of the grounds for the revocation and 

inform the employer of its right to 

submit rebuttal evidence or to appeal. If 

the employer does not file rebuttal 

evidence or an appeal within 10 

business days from the date the Notice 

of Revocation is issued, the notice is the 

final agency action and will take effect 

immediately at the end of the 10-day 

period. 

(2) Rebuttal. If the employer timely 

submits rebuttal evidence, the 

Administrator, OFLC will inform the 

employer of the final determination on 

the revocation within 10 business days 

of receiving the rebuttal evidence. If the 

Administrator, OFLC determines that 

the certification should be revoked, the 

Administrator, OFLC will inform the 

employer of its right to appeal according 

to the procedures of § 655.61. If the 

employer does not appeal the final 

determination, it will become the final 

agency action. 

(3) Appeal. An employer may appeal 

a Notice of Revocation, or a final 

determination of the Administrator, 

OFLC after the review of rebuttal 

evidence, according to the appeal 

procedures of § 655.61. The ALJ’s 

decision is the final agency action. 

(4) Stay. The timely filing of rebuttal 

evidence or an administrative appeal 

will stay the revocation pending the 

outcome of those proceedings. 

(5) Decision. If the temporary labor 

certification is revoked, the 

Administrator, OFLC will send a copy 

of the final agency action to DHS and 

the Department of State. 

(c) Employer’s obligations in the event 

of revocation. If an employer’s 

temporary labor certification is revoked, 

the employer is responsible for: 

(1) Reimbursement of actual inbound 

transportation and other expenses; 

(2) The workers’ outbound 

transportation expenses; 

(3) Payment to the workers of the 

amount due under the three-fourths 

guarantee; and 

(4) Any other wages, benefits, and 

working conditions due or owing to the 

workers under this subpart. 

§ 655.73 Debarment. 

(a) Debarment of an employer. The 

Administrator, OFLC may not issue 

future labor certifications under this 

subpart to an employer or any successor 

in interest to that employer, subject to 

the time limits set forth in paragraph (c) 

of this section, if the Administrator, 

OFLC finds that the employer 

committed the following violations: 

(1) Willful misrepresentation of a 

material fact in its H–2B Registration, 

Application for Prevailing Wage 

Determination, Application for 

Temporary Employment Certification, 

or H–2B Petition; 

(2) Substantial failure to meet any of 

the terms and conditions of its H–2B 

Registration, Application for Prevailing 

Wage Determination, Application for 

Temporary Employment Certification, 

or H–2B Petition. A substantial failure is 

a willful failure to comply that 

constitutes a significant deviation from 

the terms and conditions of such 

documents; or 

(3) Willful misrepresentation of a 

material fact to the DOS during the visa 

application process. 

(b) Debarment of an agent or attorney. 

If the Administrator, OFLC finds, under 

this section, that an attorney or agent 

committed a violation as described in 

paragraphs (a)(1) through (3) of this 

section or participated in an employer’s 

violation, the Administrator, OFLC may 

not issue future labor certifications to an 

employer represented by such agent or 

attorney, subject to the time limits set 

forth in paragraph (c) of this section. 

(c) Period of debarment. Debarment 

under this subpart may not be for less 

than 1 year or more than 5 years from 

the date of the final agency decision. 

(d) Determining whether a violation is 

willful. A willful misrepresentation of a 

material fact or a willful failure to meet 

the required terms and conditions 

occurs when the employer, attorney, or 

agent knows a statement is false or that 

the conduct is in violation, or shows 

reckless disregard for the truthfulness of 

its representation or for whether its 

conduct satisfies the required 

conditions. 

(e) Determining whether a violation is 

significant. In determining whether a 

violation is a significant deviation from 

the terms and conditions of the H–2B 

Registration, Application for Prevailing 

Wage Determination, Application for 

Temporary Employment Certification, 

or H–2B Petition, the factors that the 

Administrator, OFLC may consider 

include, but are not limited to, the 

following: 

(1) Previous history of violation(s) 

under the H–2B program; 

(2) The number of H–2B workers, 

workers in corresponding employment, 

or improperly rejected U.S. applicants 

who were and/or are affected by the 

violation(s); 

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

(4) The extent to which the violator 

achieved a financial gain due to the 

violation(s), or the potential financial 

loss or potential injury to the worker(s); 

and 

(5) Whether U.S. workers have been 

harmed by the violation. 

(f) Violations. Where the standards set 

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

section are met, debarrable violations 

would include but would not be limited 

to one or more acts of commission or 

omission which involve: 

(1) Failure to pay or provide the 

required wages, benefits or working 

conditions to the employer’s H–2B 

workers and/or workers in 

corresponding employment; 

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

qualified U.S. workers who applied for 

the job opportunity for which 

certification was sought; 

(3) Failure to comply with the 

employer’s obligations to recruit U.S. 

workers; 

(4) Improper layoff or displacement of 

U.S. workers or workers in 

corresponding employment; 

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(5) Failure to comply with one or 

more sanctions or remedies imposed by 

the Administrator, WHD for violation(s) 

of obligations under the job order or 

other H–2B obligations, or with one or 

more decisions or orders of the 

Secretary or a court under this subpart 

or 29 CFR part 503; 

(6) Failure to comply with the Notice 

of Deficiency process under this 

subpart; 

(7) Failure to comply with the assisted 

recruitment process under this subpart; 

(8) Impeding an investigation of an 

employer under 29 CFR part 503 or an 

audit under this subpart; 

(9) Employing an H–2B worker 

outside the area of intended 

employment, in an activity/activities 

not listed in the job order, or outside the 

validity period of employment of the job 

order, including any approved 

extension thereof; 

(10) A violation of the requirements of 

§ 655.20(o) or (p); 

(11) A violation of any of the 

provisions listed in § 655.20(r); 

(12) Any other act showing such 

flagrant disregard for the law that future 

compliance with program requirements 

cannot reasonably be expected; 

(13) Fraud involving the H–2B 

Registration, Application for Prevailing 

Wage Determination, Application for 

Temporary Employment Certification, 

or the H–2B Petition; or 

(14) A material misrepresentation of 

fact during the registration or 

application process. 

(g) Debarment procedure—(1) Notice 

of Debarment. If the Administrator, 

OFLC makes a determination to debar 

an employer, attorney, or agent, the 

Administrator, OFLC will send the party 

a Notice of Debarment. The Notice will 

state the reason for the debarment 

finding, including a detailed 

explanation of the grounds for and the 

duration of the debarment and inform 

the party subject to the notice of its right 

to submit rebuttal evidence or to request 

a debarment hearing. If the party does 

not file rebuttal evidence or request a 

hearing within 30 calendar days of the 

date of the Notice of Debarment, the 

notice is the final agency action and the 

debarment will take effect at the end of 

the 30-day period. The timely filing of 

an rebuttal evidence or a request for a 

hearing stays the debarment pending the 

outcome of the appeal as provided in 

paragraphs (g)(2) through (6) of this 

section. 

(2) Rebuttal. The party who received 

the Notice of Debarment may choose to 

submit evidence to rebut the grounds 

stated in the notice within 30 calendar 

days of the date the notice is issued. If 

rebuttal evidence is timely filed, the 

Administrator, OFLC will issue a final 

determination on the debarment within 

30 calendar days of receiving the 

rebuttal evidence. If the Administrator, 

OFLC determines that the party should 

be debarred, the Administrator, OFLC 

will inform the party of its right to 

request a debarment hearing according 

to the procedures in this section. The 

party must request a hearing within 30 

calendar days after the date of the 

Administrator, OFLC’s final 

determination, or the Administrator 

OFLC’s determination will be the final 

agency order and the debarment will 

take effect at the end of the 30-day 

period. 

(3) Hearing. The recipient of a Notice 

of Debarment seeking to challenge the 

debarment must request a debarment 

hearing within 30 calendar days of the 

date of a Notice of Debarment or the 

date of a final determination of the 

Administrator, OFLC after review of 

rebuttal evidence submitted under 

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

obtain a debarment hearing, the 

recipient must, within 30 days of the 

date of the Notice or the final 

determination, file a written request 

with the Chief ALJ, United States 

Department of Labor, 800 K Street NW., 

Suite 400–N, Washington, DC 20001– 

8002, and simultaneously serve a copy 

on the Administrator, OFLC. The 

debarment will take effect 30 calendar 

days from the date the Notice of 

Debarment or final determination is 

issued, unless a request for review is 

timely filed. Within 10 business days of 

receipt of the request for a hearing, the 

Administrator, OFLC will send a 

certified copy of the ETA case file to the 

Chief ALJ by means normally assuring 

next day delivery. The Chief ALJ will 

immediately assign an ALJ to conduct 

the hearing. The procedures in 29 CFR 

part 18 apply to such hearings, except 

that the request for a hearing will not be 

considered to be a complaint to which 

an answer is required. 

(4) Decision. After the hearing, the 

ALJ must affirm, reverse, or modify the 

Administrator, OFLC’s determination. 

The ALJ will prepare the decision 

within 60 calendar days after 

completion of the hearing and closing of 

the record. The ALJ’s decision will be 

provided to the parties to the debarment 

hearing by means normally assuring 

next day delivery. The ALJ’s decision is 

the final agency action, unless either 

party, within 30 calendar days of the 

ALJ’s decision, seeks review of the 

decision with the Administrative 

Review Board (ARB). 

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

wishing review of the decision of an ALJ 

must, within 30 calendar days of the 

decision of the ALJ, petition the ARB to 

review the decision. Copies of the 

petition must be served on all parties 

and on the ALJ. The ARB will decide 

whether to accept the petition within 30 

calendar days of receipt. If the ARB 

declines to accept the petition, or if the 

ARB does not issue a notice accepting 

a petition within 30 calendar days after 

the receipt of a timely filing of the 

petition, the decision of the ALJ is the 

final agency action. If a petition for 

review is accepted, the decision of the 

ALJ will be stayed unless and until the 

ARB issues an order affirming the 

decision. The ARB must serve notice of 

its decision to accept or not to accept 

the petition upon the ALJ and upon all 

parties to the proceeding. 

(ii) Upon receipt of the ARB’s notice 

to accept the petition, the Office of 

Administrative Law Judges will 

promptly forward a copy of the 

complete hearing record to the ARB. 

(iii) Where the ARB has determined to 

review the decision and order, the ARB 

will notify each party of the issue(s) 

raised, the form in which submissions 

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

argument), and the time within which 

the presentation must be submitted. 

(6) ARB Decision. The ARB’s final 

decision must be issued within 90 

calendar days from the notice granting 

the petition and served upon all parties 

and the ALJ. 

(h) Concurrent debarment 

jurisdiction. OFLC and the WHD have 

concurrent jurisdiction to debar under 

this section or under 29 CFR 503.24. 

When considering debarment, OFLC 

and the WHD will coordinate their 

activities. A specific violation for which 

debarment is imposed will be cited in 

a single debarment proceeding. Copies 

of final debarment decisions will be 

forwarded to DHS and DOS promptly. 

(i) Debarment from other foreign labor 

programs. Upon debarment under this 

subpart or 29 CFR 503.24, the debarred 

party will be disqualified from filing 

any labor certification applications or 

labor condition applications with the 

Department of Labor by, or on behalf of, 

the debarred party for the same period 

of time set forth in the final debarment 

decision. 

§§ 655.74–655.76 [Reserved] 

§§ 655.80–655.99 [Reserved] 

Title 29—Labor 

■ 6. Revise part 503 to read as follows: 

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Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 24131 

PART 503—ENFORCEMENT OF 

OBLIGATIONS FOR TEMPORARY 

NONIMMIGRANT NON– 

AGRICULTURAL WORKERS 

DESCRIBED IN THE IMMIGRATION 

AND NATIONALITY ACT 

Subpart A—General Provisions 

Sec. 

503.0 Introduction. 

503.1 Scope and purpose. 

503.2 Territory of Guam. 

503.3 Coordination among Governmental 

agencies. 

503.4 Definition of terms. 

503.5 Temporary need. 

503.6 Waiver of rights prohibited. 

503.7 Investigation authority of Secretary. 

503.8 Accuracy of information, statements, 

data. 

Subpart B—Enforcement 

503.15 Enforcement. 

503.16 Assurances and obligations of H–2B 

employers. 

503.17 Documentation retention 

requirements of H–2B employers. 

503.18 Validity of temporary labor 

certification. 

503.19 Violations. 

503.20 Sanctions and remedies—general. 

503.21 Concurrent actions within the 

Department of Labor. 

503.22 Representation of the Secretary. 

503.23 Civil money penalty assessment. 

503.24 Debarment. 

503.25 Failure to cooperate with 

investigators. 

503.26 Civil money penalties—payment 

and collection. 

Subpart C—Administrative Proceedings 

503.40 Applicability of procedures and 

rules. 

Procedures Related to Hearing 

503.41 Administrator, WHD’s 

determination. 

503.42 Contents of notice of determination. 

503.43 Request for hearing. 

Rules of Practice 

503.44 General. 

503.45 Service of pleadings. 

503.46 Commencement of proceeding. 

503.47 Caption of proceeding. 

503.48 Conduct of proceeding. 

Procedures Before Administrative Law Judge 

503.49 Consent findings and order. 

Post-Hearing Procedures 

503.50 Decision and order of 

Administrative Law Judge. 

Review of Administrative Law Judge’s 

Decision 

503.51 Procedures for initiating and 

undertaking review. 

503.52 Responsibility of the Office of 

Administrative Law Judges (OALJ). 

503.53 Additional information, if required. 

503.54 Submission of documents to the 

Administrative Review Board. 

503.55 Final decision of the Administrative 

Review Board. 

Record 

503.56 Retention of official record. 

Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(b); 8 

U.S.C. 1184(c); 8 CFR 214.2(h). 

Subpart A—General Provisions 

§ 503.0 Introduction. 

The regulations in this part cover the 

enforcement of all statutory and 

regulatory obligations, including 

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

section 214(c) of the INA and 20 CFR 

part 655, subpart A, applicable to the 

employment of H–2B workers in 

nonimmigrant status under the 

Immigration and Nationality Act (INA), 

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

101(a)(15)(H)(ii)(b) of the INA, and 

workers in corresponding employment, 

including obligations to offer 

employment to eligible United States 

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

displace U.S. workers in a manner 

prohibited by the regulations in this part 

or 20 CFR part 655, subpart A. 

§ 503.1 Scope and purpose. 

(a) Consultation standard. Section 

214(c)(1) of the INA, 8 U.S.C. 1184(c)(1), 

requires the Secretary of Homeland 

Security to consult with appropriate 

agencies before authorizing the 

classification of aliens as H–2B workers. 

Department of Homeland Security 

(DHS) regulations at 8 CFR 

214.2(h)(6)(iii)(D) recognize the 

Secretary of Labor as the appropriate 

authority with whom DHS consults 

regarding the H–2B program, and 

recognize the Secretary of Labor’s 

authority in carrying out the Secretary 

of Labor’s consultative function to issue 

regulations regarding the issuance of 

temporary labor certifications. DHS 

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

provide that an employer’s petition to 

employ nonimmigrant workers on H–2B 

visas for temporary non-agricultural 

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

except for Guam, must be accompanied 

by an approved temporary labor 

certification from the Secretary of Labor. 

The temporary labor certification 

reflects a determination by the Secretary 

that: 

(1) There are not sufficient U.S. 

workers who are qualified and who will 

be available to perform the temporary 

services or labor for which an employer 

desires to hire foreign workers; and 

(2) The employment of the foreign 

worker will not adversely affect the 

wages and working conditions of U.S. 

workers similarly employed. 

(b) Role of the Employment and 

Training Administration (ETA). The 

issuance and denial of labor 

certifications for purposes of satisfying 

the consultation requirement in 8 U.S.C. 

1184(c), INA section 214(c), has been 

delegated by the Secretary to ETA, an 

agency within the U.S. Department of 

Labor (DOL), which in turn has 

delegated that authority to the Office of 

Foreign Labor Certification (OFLC). In 

general, matters concerning the 

obligations of an H–2B employer related 

to the temporary labor certification 

process are administered by OFLC, 

including obligations and assurances 

made by employers, overseeing 

employer recruitment, and assuring 

program integrity. The regulations 

pertaining to the issuance, denial, and 

revocation of labor certification for 

temporary foreign workers by the OFLC 

are found in 20 CFR part 655, subpart 

A. 

(c) Role of the Wage and Hour 

Division (WHD). Effective January 18, 

2009, DHS has delegated to the 

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

section 214(c)(14)(B) of the INA, certain 

investigatory and law enforcement 

functions to carry out the provisions 

under 8 U.S.C. 1184(c), INA section 

214(c). The Secretary has delegated 

these functions to the WHD. In general, 

matters concerning the rights of H–2B 

workers and workers in corresponding 

employment under this part and the 

employer’s obligations are enforced by 

the WHD, including whether 

employment was offered to U.S. workers 

as required under 20 CFR part 655, 

subpart A, or whether U.S. workers 

were laid off or displaced in violation of 

program requirements. The WHD has 

the responsibility to carry out 

investigations, inspections, and law 

enforcement functions and in 

appropriate instances to impose 

penalties, to debar from future 

certifications, to recommend revocation 

of existing certifications, and to seek 

remedies for violations, including 

recovery of unpaid wages and 

reinstatement of improperly laid off or 

displaced U.S. workers. 

(d) Effect of regulations. The 

enforcement functions carried out by 

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

section 214(c), 20 CFR part 655, subpart 

A, and the regulations in this part apply 

to the employment of any H–2B worker 

and any worker in corresponding 

employment as the result of an 

Application for Temporary Employment 

Certification filed with the Department 

of Labor on or after April 29, 2015. 

§ 503.2 Territory of Guam. 

This part does not apply to temporary 

employment in the Territory of Guam. 

The Department of Labor does not 

certify to DHS the temporary 

employment of nonimmigrant foreign 

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24132 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

workers or enforce compliance with the 

provisions of the H–2B visa program in 

the Territory of Guam. 

§ 503.3 Coordination among Governmental 

agencies. 

(a) Complaints received by ETA or 

any State Workforce Agency (SWA) 

regarding noncompliance with H–2B 

statutory or regulatory labor standards 

will be immediately forwarded to the 

appropriate WHD office for suitable 

action under the regulations in this part. 

(b) Information received in the course 

of processing registrations and 

applications, program integrity 

measures, or enforcement actions may 

be shared between OFLC and WHD or, 

where applicable to employer 

enforcement under the H–2B program, 

may be forwarded to other agencies as 

appropriate, including the Department 

of State (DOS) and DHS. 

(c) A specific violation for which 

debarment is sought will be cited in a 

single debarment proceeding. OFLC and 

the WHD will coordinate their activities 

to achieve this result. Copies of final 

debarment decisions will be forwarded 

to DHS promptly. 

§ 503.4 Definition of terms. 

For purposes of this part: 

Act means the Immigration and 

Nationality Act or INA, as amended, 8 

U.S.C. 1101 et seq. 

Administrative Law Judge (ALJ) means 

a person within the Department’s Office 

of Administrative Law Judges appointed 

under 5 U.S.C. 3105. 

Administrator, Office of Foreign Labor 

Certification (OFLC) means the primary 

official of the Office of Foreign Labor 

Certification, ETA, or the 

Administrator’s designee. 

Administrator, Wage and Hour 

Division (WHD) means the primary 

official of the WHD, or the 

Administrator’s designee. 

Agent means: 

(1) A legal entity or person who: 

(i) Is authorized to act on behalf of an 

employer for temporary nonagricultural 

labor certification purposes; 

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

employer, as defined in this part with 

respect to a specific application; and 

(iii) Is not an association or other 

organization of employers. 

(2) No agent who is under suspension, 

debarment, expulsion, disbarment, or 

otherwise restricted from practice before 

any court, the Department of Labor, the 

Executive Office for Immigration 

Review under 8 CFR 1003.101, or DHS 

under 8 CFR 292.3 may represent an 

employer under this part. 

Agricultural labor or services means 

those duties and occupations defined in 

20 CFR part 655, subpart B. 

Applicant means a U.S. worker who 

is applying for a job opportunity for 

which an employer has filed an 

Application for Temporary Employment 

Certification (ETA Form 9142B and the 

appropriate appendices). 

Application for Temporary 

Employment Certification means the 

Office of Management and Budget 

(OMB)-approved ETA Form 9142B and 

the appropriate appendices, a valid 

wage determination, as required by 20 

CFR 655.10, and a subsequently-filed 

U.S. worker recruitment report, 

submitted by an employer to secure a 

temporary labor certification 

determination from DOL. 

Area of intended employment means 

the geographic area within normal 

commuting distance of the place 

(worksite address) of the job 

opportunity for which the certification 

is sought. There is no rigid measure of 

distance that constitutes a normal 

commuting distance or normal 

commuting area, because there may be 

widely varying factual circumstances 

among different areas (e.g., average 

commuting times, barriers to reaching 

the worksite, or quality of the regional 

transportation network). If the place of 

intended employment is within a 

Metropolitan Statistical Area (MSA), 

including a multistate MSA, any place 

within the MSA is deemed to be within 

normal commuting distance of the place 

of intended employment. The borders of 

MSAs are not controlling in the 

identification of the normal commuting 

area; a location outside of an MSA may 

be within normal commuting distance 

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

border of) the MSA. 

Attorney means any person who is a 

member in good standing of the bar of 

the highest court of any State, 

possession, territory, or commonwealth 

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

No attorney who is under suspension, 

debarment, expulsion, disbarment, or 

otherwise restricted from practice before 

any court, the Department of Labor, the 

Executive Office for Immigration 

Review under 8 CFR 1003.101, or DHS 

under 8 CFR 292.3 may represent an 

employer under this part. 

Certifying Officer (CO) means an 

OFLC official designated by the 

Administrator, OFLC to make 

determinations on applications under 

the H–2B program. The Administrator, 

OFLC is the National CO. Other COs 

may also be designated by the 

Administrator, OFLC to make the 

determinations required under 20 CFR 

part 655, subpart A. 

Chief Administrative Law Judge (Chief 

ALJ) means the chief official of the 

Department’s Office of Administrative 

Law Judges or the Chief Administrative 

Law Judge’s designee. 

Corresponding employment means: 

(1) The employment of workers who 

are not H–2B workers by an employer 

that has a certified H–2B Application for 

Temporary Employment Certification 

when those workers are performing 

either substantially the same work 

included in the job order or 

substantially the same work performed 

by the H–2B workers, except that 

workers in the following two categories 

are not included in corresponding 

employment: 

(i) Incumbent employees 

continuously employed by the H–2B 

employer to perform substantially the 

same work included in the job order or 

substantially the same work performed 

by the H–2B workers during the 52 

weeks prior to the period of 

employment certified on the 

Application for Temporary Employment 

Certification and who have worked or 

been paid for at least 35 hours in at least 

48 of the prior 52 workweeks, and who 

have worked or been paid for an average 

of at least 35 hours per week over the 

prior 52 weeks, as demonstrated on the 

employer’s payroll records, provided 

that the terms and working conditions 

of their employment are not 

substantially reduced during the period 

of employment covered by the job order. 

In determining whether this standard 

was met, the employer may take credit 

for any hours that were reduced by the 

employee voluntarily choosing not to 

work due to personal reasons such as 

illness or vacation; or 

(ii) Incumbent employees covered by 

a collective bargaining agreement or an 

individual employment contract that 

guarantees both an offer of at least 35 

hours of work each workweek and 

continued employment with the H–2B 

employer at least through the period of 

employment covered by the job order, 

except that the employee may be 

dismissed for cause. 

(2) To qualify as corresponding 

employment, the work must be 

performed during the period of the job 

order, including any approved 

extension thereof. 

Date of need means the first date the 

employer requires services of the H–2B 

workers as listed on the Application for 

Temporary Employment Certification. 

Department of Homeland Security 

(DHS) means the Federal Department 

having jurisdiction over certain 

immigration-related functions, acting 

through its component agencies, 

including U.S. Citizenship and 

Immigration Services (USCIS). 

Employee means a person who is 

engaged to perform work for an 

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employer, as defined under the general 

common law. Some of the factors 

relevant to the determination of 

employee status include: The hiring 

party’s right to control the manner and 

means by which the work is 

accomplished; the skill required to 

perform the work; the source of the 

instrumentalities and tools for 

accomplishing the work; the location of 

the work; the hiring party’s discretion 

over when and how long to work; and 

whether the work is part of the regular 

business of the hiring party. Other 

applicable factors may be considered 

and no one factor is dispositive. The 

terms employee and worker are used 

interchangeably in this part. 

Employer means a person (including 

any individual, partnership, association, 

corporation, cooperative, firm, joint 

stock company, trust, or other 

organization with legal rights and 

duties) that: 

(1) Has a place of business (physical 

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

which it may be contacted for 

employment; 

(2) Has an employer relationship 

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

supervise or otherwise control the work 

of employees) with respect to an H–2B 

worker or a worker in corresponding 

employment; and 

(3) Possesses, for purposes of filing an 

Application for Temporary Employment 

Certification, a valid Federal Employer 

Identification Number (FEIN). 

Employment and Training 

Administration (ETA) means the agency 

within the Department of Labor that 

includes OFLC and has been delegated 

authority by the Secretary to fulfill the 

Secretary’s mandate under the DHS 

regulations for the administration and 

adjudication of an Application for 

Temporary Employment Certification 

and related functions. 

Federal holiday means a legal public 

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

Full-time means 35 or more hours of 

work per week. 

H–2B Petition means the DHS Form I– 

129 Petition for a Nonimmigrant 

Worker, with H Supplement, or 

successor form or supplement, and 

accompanying documentation required 

by DHS for employers seeking to 

employ foreign persons as H–2B 

nonimmigrant workers. 

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

an employer to register its intent to hire 

H–2B workers and to file an Application 

for Temporary Employment 

Certification. 

H–2B worker means any temporary 

foreign worker who is lawfully present 

in the U.S. and authorized by DHS to 

perform nonagricultural labor or 

services of a temporary or seasonal 

nature under 8 U.S.C. 

1101(a)(15)(H)(ii)(b), INA section 

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

Job contractor means a person, 

association, firm, or a corporation that 

meets the definition of an employer and 

that contracts services or labor on a 

temporary basis to one or more 

employers, which is not an affiliate, 

branch or subsidiary of the job 

contractor and where the job contractor 

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

performance of the services or labor to 

be performed other than hiring, paying 

and firing the workers. 

Job offer means the offer made by an 

employer or potential employer of H–2B 

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

describing all the material terms and 

conditions of employment, including 

those relating to wages, working 

conditions, and other benefits. 

Job opportunity means one or more 

openings for full-time employment with 

the petitioning employer within a 

specified area(s) of intended 

employment for which the petitioning 

employer is seeking workers. 

Job order means the document 

containing the material terms and 

conditions of employment relating to 

wages, hours, working conditions, 

worksite and other benefits, including 

obligations and assurances under 29 

CFR part 655, subpart A and this 

subpart that is posted between and 

among the SWAs on their job clearance 

systems. 

Joint employment means that where 

two or more employers each have 

sufficient definitional indicia of being 

an employer to be considered the 

employer of a worker, those employers 

will be considered to jointly employ 

that worker. Each employer in a joint 

employment relationship to a worker is 

considered a joint employer of that 

worker. 

Layoff means any involuntary 

separation of one or more U.S. 

employees without cause. 

Metropolitan Statistical Area (MSA) 

means a geographic entity defined by 

OMB for use by Federal statistical 

agencies in collecting, tabulating, and 

publishing Federal statistics. A metro 

area contains a core urban area of 50,000 

or more population, and a micro area 

contains an urban core of at least 10,000 

(but fewer than 50,000) population. 

Each metro or micro area consists of one 

or more counties and includes the 

counties containing the core urban area, 

as well as any adjacent counties that 

have a high degree of social and 

economic integration (as measured by 

commuting to work) with the urban 

core. 

National Processing Center (NPC) 

means the office within OFLC which is 

charged with the adjudication of an 

Application for Temporary Employment 

Certification or other applications. 

Non-agricultural labor and services 

means any labor or services not 

considered to be agricultural labor or 

services as defined in 20 CFR part 655, 

subpart B. It does not include the 

provision of services as members of the 

medical profession by graduates of 

medical schools. 

Offered wage means the wage offered 

by an employer in an H–2B job order. 

The offered wage must equal or exceed 

the highest of the prevailing wage or 

Federal, State or local minimum wage. 

Office of Foreign Labor Certification 

(OFLC) means the organizational 

component of the ETA that provides 

national leadership and policy guidance 

and develops regulations to carry out 

the Secretary’s responsibilities, 

including determinations related to an 

employer’s request for H–2B 

Registration, Application for Prevailing 

Wage Determination, or Application for 

Temporary Employment Certification. 

Prevailing wage determination (PWD) 

means the prevailing wage for the 

position, as described in 20 CFR 655.10, 

that is the subject of the Application for 

Temporary Employment Certification. 

Secretary means the Secretary of 

Labor, the chief official of the U.S. 

Department of Labor, or the Secretary’s 

designee. 

Secretary of Homeland Security 

means the chief official of the U.S. 

Department of Homeland Security 

(DHS) or the Secretary of Homeland 

Security’s designee. 

State Workforce Agency (SWA) means 

a State government agency that receives 

funds under the Wagner-Peyser Act (29 

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

State’s public labor exchange activities. 

Strike means a concerted stoppage of 

work by employees as a result of a labor 

dispute, or any concerted slowdown or 

other concerted interruption of 

operation (including stoppage by reason 

of the expiration of a collective 

bargaining agreement). 

Successor in interest means: 

(1) Where an employer has violated 

20 CFR part 655, subpart A, or this part, 

and has ceased doing business or cannot 

be located for purposes of enforcement, 

a successor in interest to that employer 

may be held liable for the duties and 

obligations of the violating employer in 

certain circumstances. The following 

factors, as used under Title VII of the 

Civil Rights Act and the Vietnam Era 

Veterans’ Readjustment Assistance Act, 

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may be considered in determining 

whether an employer is a successor in 

interest; no one factor is dispositive, but 

all of the circumstances will be 

considered as a whole: 

(i) Substantial continuity of the same 

business operations; 

(ii) Use of the same facilities; 

(iii) Continuity of the work force; 

(iv) Similarity of jobs and working 

conditions; 

(v) Similarity of supervisory 

personnel; 

(vi) Whether the former management 

or owner retains a direct or indirect 

interest in the new enterprise; 

(vii) Similarity in machinery, 

equipment, and production methods; 

(viii) Similarity of products and 

services; and 

(ix) The ability of the predecessor to 

provide relief. 

(2) For purposes of debarment only, 

the primary consideration will be the 

personal involvement of the firm’s 

ownership, management, supervisors, 

and others associated with the firm in 

the violation(s) at issue. 

United States (U.S.) means the 

continental United States, Alaska, 

Hawaii, the Commonwealth of Puerto 

Rico, Guam, the U.S. Virgin Islands, and 

the Commonwealth of the Northern 

Mariana Islands (CNMI). 

U.S. Citizenship and Immigration 

Services (USCIS) means the Federal 

agency within DHS that makes the 

determination under the INA whether to 

grant petitions filed by employers 

seeking H–2B workers to perform 

temporary non-agricultural work in the 

U.S. 

United States worker (U.S. worker) 

means a worker who is: 

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

(2) An alien who is lawfully admitted 

for permanent residence in the U.S., is 

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

1157, section 207 of the INA, is granted 

asylum under 8 U.S.C. 1158, section 208 

of the INA, or is an alien otherwise 

authorized under the immigration laws 

to be employed in the U.S.; or 

(3) An individual who is not an 

unauthorized alien (as defined in 8 

U.S.C. 1324a(h)(3), section 274a(h)(3) of 

the INA) with respect to the 

employment in which the worker is 

engaging. 

Wage and Hour Division (WHD) 

means the agency within the 

Department of Labor with investigatory 

and law enforcement authority, as 

delegated from DHS, to carry out the 

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

section 214(c) of the INA. 

Wages mean all forms of cash 

remuneration to a worker by an 

employer in payment for personal 

services. 

§ 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. 

(b) The employer’s need is considered 

temporary if justified to the CO as one 

of the following: A one-time occurrence; 

a seasonal need; a peakload need; or an 

intermittent need, as defined by DHS 

regulations. 

§ 503.6 Waiver of rights prohibited. 

A person may not seek to have an H– 

2B worker, a worker in corresponding 

employment, or any other person, 

including but not limited to a U.S. 

worker improperly rejected for 

employment or improperly laid off or 

displaced, waive or modify any rights 

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

section 214(c), 20 CFR part 655, subpart 

A, or the regulations in this part. Any 

agreement by an employee purporting to 

waive or modify any rights given to said 

person under these provisions will be 

void as contrary to public policy except 

as follows: 

(a) Waivers or modifications of rights 

or obligations hereunder in favor of the 

Secretary will be valid for purposes of 

enforcement; and 

(b) Agreements in settlement of 

private litigation are permitted. 

§ 503.7 Investigation authority of 

Secretary. 

(a) Authority of the Administrator, 

WHD. The Secretary of Homeland 

Security has delegated to the Secretary, 

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

section 214(c)(14)(B), authority to 

perform investigative and enforcement 

functions. Within the Department of 

Labor, the Administrator, WHD will 

perform all such functions. 

(b) Conduct of investigations. The 

Secretary, through the WHD, may 

investigate to determine compliance 

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

INA section 214(c), 20 CFR part 655, 

subpart A, or the regulations in this 

part, either under a complaint or 

otherwise, as may be appropriate. In 

connection with such an investigation, 

WHD may enter and inspect any 

premises, land, property, worksite, 

vehicles, structure, facility, place and 

records (and make transcriptions, 

photographs, scans, videos, 

photocopies, or use any other means to 

record the content of the records or 

preserve images of places or objects), 

question any person, or gather any 

information, in whatever form, as may 

be appropriate. 

(c) Confidential investigation. The 

WHD will conduct investigations in a 

manner that protects the confidentiality 

of any complainant or other person who 

provides information to the Secretary in 

good faith. 

(d) Report of violations. Any person 

may report a violation of the obligations 

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

section 214(c), 20 CFR part 655, subpart 

A, or the regulations in this part to the 

Secretary by advising any local office of 

the SWA, ETA, WHD or any other 

authorized representative of the 

Secretary. The office or person receiving 

such a report will refer it to the 

appropriate office of WHD for the 

geographic area in which the reported 

violation is alleged to have occurred. 

§ 503.8 Accuracy of information, 

statements, data. 

Information, statements, and data 

submitted in compliance with 8 U.S.C. 

1184(c), INA section 214(c), or the 

regulations in this part are subject to 18 

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

regard to statements or entries generally, 

that whoever, in any matter within the 

jurisdiction of any department or agency 

of the U.S., knowingly and willfully 

falsifies, conceals, or covers up a 

material fact by any trick, scheme, or 

device, or makes any false, fictitious, or 

fraudulent statements or 

representations, or makes or uses any 

false writing or document knowing the 

same to contain any false, fictitious, or 

fraudulent statement or entry, will be 

fined not more than $250,000 or 

imprisoned not more than 5 years, or 

both. 

Subpart B—Enforcement 

§ 503.15 Enforcement. 

The investigation, inspection, and law 

enforcement functions that carry out the 

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

section 214(c), 20 CFR part 655, subpart 

A, or the regulations in this part pertain 

to the employment of any H–2B worker, 

any worker in corresponding 

employment, or any U.S. worker 

improperly rejected for employment or 

improperly laid off or displaced. 

§ 503.16 Assurances and obligations of H– 

2B employers. 

An employer employing H–2B 

workers and/or workers in 

corresponding employment under an 

Application for Temporary Employment 

Certification has agreed as part of the 

Application for Temporary Employment 

Certification that it will abide by the 

following conditions with respect to its 

H–2B workers and any workers in 

corresponding employment: 

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

in the job order equals or exceeds the 

highest of the prevailing wage or 

Federal minimum wage, State minimum 

wage, or local minimum wage. The 

employer must pay at least the offered 

wage, free and clear, during the entire 

period of the Application for Temporary 

Employment Certification granted by 

OFLC. 

(2) The offered wage is not based on 

commissions, bonuses, or other 

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

guarantees a wage earned every 

workweek that equals or exceeds the 

offered wage. 

(3) If the employer requires one or 

more minimum productivity standards 

of workers as a condition of job 

retention, the standards must be 

specified in the job order and the 

employer must demonstrate that they 

are normal and usual for non-H–2B 

employers for the same occupation in 

the area of intended employment. 

(4) An employer that pays on a piecerate basis must demonstrate that the 

piece rate is no less than the normal rate 

paid by non-H–2B employers to workers 

performing the same activity in the area 

of intended employment. The average 

hourly piece rate earnings must result in 

an amount at least equal to the offered 

wage. If the worker is paid on a piece 

rate basis and at the end of the 

workweek the piece rate does not result 

in average hourly piece rate earnings 

during the workweek at least equal to 

the amount the worker would have 

earned had the worker been paid at the 

offered hourly wage, then the employer 

must supplement the worker’s pay at 

that time so that the worker’s earnings 

are at least as much as the worker would 

have earned during the workweek if the 

worker had instead been paid at the 

offered hourly wage for each hour 

worked. 

(b) Wages free and clear. The payment 

requirements for wages in this section 

will be satisfied by the timely payment 

of such wages to the worker either in 

cash or negotiable instrument payable at 

par. The payment must be made finally 

and unconditionally and ‘‘free and 

clear.’’ The principles applied in 

determining whether deductions are 

reasonable and payments are received 

free and clear and the permissibility of 

deductions for payments to third 

persons are explained in more detail in 

29 CFR part 531. 

(c) Deductions. The employer must 

make all deductions from the worker’s 

paycheck required by law. The job order 

must specify all deductions not required 

by law which the employer will make 

from the worker’s pay; any such 

deductions not disclosed in the job 

order are prohibited. The wage payment 

requirements of paragraph (b) of this 

section are not met where unauthorized 

deductions, rebates, or refunds reduce 

the wage payment made to the worker 

below the minimum amounts required 

by the offered wage or where the worker 

fails to receive such amounts free and 

clear because the worker ‘‘kicks back’’ 

directly or indirectly to the employer or 

to another person for the employer’s 

benefit the whole or part of the wages 

delivered to the worker. Authorized 

deductions are limited to: those 

required by law, such as taxes payable 

by workers that are required to be 

withheld by the employer and amounts 

due workers which the employer is 

required by court order to pay to 

another; deductions for the reasonable 

cost or fair value of board, lodging, and 

facilities furnished; and deductions of 

amounts which are authorized to be 

paid to third persons for the worker’s 

account and benefit through his or her 

voluntary assignment or order or which 

are authorized by a collective bargaining 

agreement with bona fide 

representatives of workers which covers 

the employer. Deductions for amounts 

paid to third persons for the worker’s 

account and benefit which are not so 

authorized or are contrary to law or 

from which the employer, agent or 

recruiter, including any agents or 

employees of these entities, or any 

affiliated person derives any payment, 

rebate, commission, profit, or benefit 

directly or indirectly, may not be made 

if they reduce the actual wage paid to 

the worker below the offered wage 

indicated on the Application for 

Temporary Employment Certification. 

(d) Job opportunity is full-time. The 

job opportunity is a full-time temporary 

position, consistent with § 503.4, and 

the employer must use a single 

workweek as its standard for computing 

wages due. An employee’s workweek 

must be a fixed and regularly recurring 

period of 168 hours—seven consecutive 

24-hour periods. It need not coincide 

with the calendar week but may begin 

on any day and at any hour of the day. 

(e) Job qualifications and 

requirements. Each job qualification and 

requirement must be listed in the job 

order and must be bona fide and 

consistent with the normal and accepted 

qualifications and requirements 

imposed by non-H–2B employers in the 

same occupation and area of intended 

employment. The employer’s job 

qualifications and requirements 

imposed on U.S. workers must not be 

less favorable than the qualifications 

and requirements that the employer is 

imposing or will impose on H–2B 

workers. A qualification means a 

characteristic that is necessary to the 

individual’s ability to perform the job in 

question. A requirement means a term 

or condition of employment which a 

worker is required to accept in order to 

obtain the job opportunity. The CO may 

require the employer to submit 

documentation to substantiate the 

appropriateness of any job qualification 

and/or requirement specified in the job 

order. 

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

employer must guarantee to offer the 

worker employment for a total number 

of work hours equal to at least threefourths of the workdays in each 12-week 

period (each 6-week period if the period 

of employment covered by the job order 

is less than 120 days) beginning with 

the first workday after the arrival of the 

worker at the place of employment or 

the advertised first date of need, 

whichever is later, and ending on the 

expiration date specified in the job 

order or in its extensions, if any. See the 

exception in paragraph (y) of this 

section. 

(2) For purposes of this paragraph (f) 

a workday means the number of hours 

in a workday as stated in the job order. 

The employer must offer a total number 

of hours of work to ensure the provision 

of sufficient work to reach the threefourths guarantee in each 12-week 

period (each 6-week period if the period 

of employment covered by the job order 

is less than 120 days) during the work 

period specified in the job order, or 

during any modified job order period to 

which the worker and employer have 

mutually agreed and that has been 

approved by the CO. 

(3) In the event the worker begins 

working later than the specified 

beginning date the guarantee period 

begins with the first workday after the 

arrival of the worker at the place of 

employment, and continues until the 

last day during which the job order and 

all extensions thereof are in effect. 

(4) The 12-week periods (6-week 

periods if the period of employment 

covered by the job order is less than 120 

days) to which the guarantee applies are 

based upon the workweek used by the 

employer for pay purposes. The first 12- 

week period (or 6-week period, as 

appropriate) also includes any partial 

workweek, if the first workday after the 

worker’s arrival at the place of 

employment is not the beginning of the 

employer’s workweek, with the 

guaranteed number of hours increased 

on a pro rata basis (thus, the first period 

may include up to 12 weeks and 6 days 

(or 6 weeks and 6 days, as appropriate)). 

The final 12-week period (or 6-week 

period, as appropriate) includes any 

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time remaining after the last full 12- 

week period (or 6-week period) ends, 

and thus may be as short as 1 day, with 

the guaranteed number of hours 

decreased on a pro rata basis. 

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

order is for a 32-week period (a period 

greater than 120 days), during which the 

normal workdays and work hours for 

the workweek are specified as 5 days a 

week, 7 hours per day, the worker 

would have to be guaranteed 

employment for at least 315 hours in the 

first 12-week period (12 weeks × 35 

hours/week = 420 hours × 75 percent = 

315), at least 315 hours in the second 

12-week period, and at least 210 hours 

(8 weeks x 35 hours/week = 280 hours 

x 75 percent = 210) in the final partial 

period. If the job order is for a 16-week 

period (less than 120 days), during 

which the normal workdays and work 

hours for the workweek are specified as 

5 days a week, 7 hours per day, the 

worker would have to be guaranteed 

employment for at least 157.5 hours (6 

weeks × 35 hours/week = 210 hours × 

75 percent = 157.5) in the first 6-week 

period, at least 157.5 hours in the 

second 6-week period, and at least 105 

hours (4 weeks × 35 hours/week = 140 

hours × 75 percent = 105) in the final 

partial period. 

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

basis, the employer must use the 

worker’s average hourly piece rate 

earnings or the offered wage, whichever 

is higher, to calculate the amount due 

under the guarantee. 

(7) A worker may be offered more 

than the specified hours of work on a 

single workday. For purposes of meeting 

the guarantee, however, the worker will 

not be required to work for more than 

the number of hours specified in the job 

order for a workday. The employer, 

however, may count all hours actually 

worked in calculating whether the 

guarantee has been met. If during any 

12-week period (6-week period if the 

period of employment covered by the 

job order is less than 120 days) during 

the period of the job order the employer 

affords the U.S. or H–2B worker less 

employment than that required under 

paragraph (f)(1) of this section, the 

employer must pay such worker the 

amount the worker would have earned 

had the worker, in fact, worked for the 

guaranteed number of days. An 

employer has not met the work 

guarantee if the employer has merely 

offered work on three-fourths of the 

workdays in an 12-week period (or 6- 

week period, as appropriate) if each 

workday did not consist of a full 

number of hours of work time as 

specified in the job order. 

(8) Any hours the worker fails to 

work, up to a maximum of the number 

of hours specified in the job order for a 

workday, when the worker has been 

offered an opportunity to work in 

accordance with paragraph (f)(1) of this 

section, and all hours of work actually 

performed (including voluntary work 

over 8 hours in a workday), may be 

counted by the employer in calculating 

whether each 12-week period (or 6-week 

period, as appropriate) of guaranteed 

employment has been met. An employer 

seeking to calculate whether the 

guaranteed number of hours has been 

met must maintain the payroll records 

in accordance with this part. 

(g) Impossibility of fulfillment. If, 

before the expiration date specified in 

the job order, the services of the worker 

are no longer required for reasons 

beyond the control of the employer due 

to fire, weather, or other Act of God, or 

similar unforeseeable man-made 

catastrophic event (such as an oil spill 

or controlled flooding) that is wholly 

outside the employer’s control that 

makes the fulfillment of the job order 

impossible, the employer may terminate 

the job order with the approval of the 

CO. In the event of such termination of 

a job order, the employer must fulfill a 

three-fourths guarantee, as described in 

paragraph (f) of this section, for the time 

that has elapsed from the start date 

listed in the job order or the first 

workday after the arrival of the worker 

at the place of employment, whichever 

is later, to the time of its termination. 

The employer must make efforts to 

transfer the H–2B worker or worker in 

corresponding employment to other 

comparable employment acceptable to 

the worker and consistent with the INA, 

as applicable. If a transfer is not 

effected, the employer must return the 

worker, at the employer’s expense, to 

the place from which the worker 

(disregarding intervening employment) 

came to work for the employer, or 

transport the worker to the worker’s 

next certified H–2B employer, 

whichever the worker prefers. 

(h) Frequency of pay. The employer 

must state in the job order the frequency 

with which the worker will be paid, 

which must be at least every 2 weeks or 

according to the prevailing practice in 

the area of intended employment, 

whichever is more frequent. Employers 

must pay wages when due. 

(i) Earnings statements. (1) The 

employer must keep accurate and 

adequate records with respect to the 

workers’ earnings, including but not 

limited to: records showing the nature, 

amount and location(s) of the work 

performed; the number of hours of work 

offered each day by the employer 

(broken out by hours offered both in 

accordance with and over and above the 

three-fourths guarantee in paragraph (f) 

of this section); the hours actually 

worked each day by the worker; if the 

number of hours worked by the worker 

is less than the number of hours offered, 

the reason(s) the worker did not work; 

the time the worker began and ended 

each workday; the rate of pay (both 

piece rate and hourly, if applicable); the 

worker’s earnings per pay period; the 

worker’s home address; and the amount 

of and reasons for any and all 

deductions taken from or additions 

made to the worker’s wages. 

(2) The employer must furnish to the 

worker on or before each payday in one 

or more written statements the 

following information: 

(i) The worker’s total earnings for 

each workweek in the pay period; 

(ii) The worker’s hourly rate and/or 

piece rate of pay; 

(iii) For each workweek in the pay 

period the hours of employment offered 

to the worker (showing offers in 

accordance with the three-fourths 

guarantee as determined in paragraph (f) 

of this section, separate from any hours 

offered over and above the guarantee); 

(iv) For each workweek in the pay 

period the hours actually worked by the 

worker; 

(v) An itemization of all deductions 

made from or additions made to the 

worker’s wages; 

(vi) If piece rates are used, the units 

produced daily; 

(vii) The beginning and ending dates 

of the pay period; and 

(viii) The employer’s name, address 

and FEIN. 

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

Transportation to the place of 

employment. The employer must 

provide or reimburse the worker for 

transportation and subsistence from the 

place from which the worker has come 

to work for the employer, whether in the 

U.S. or abroad, to the place of 

employment if the worker completes 50 

percent of the period of employment 

covered by the job order (not counting 

any extensions). The employer may 

arrange and pay for the transportation 

and subsistence directly, advance at a 

minimum the most economical and 

reasonable common carrier cost of the 

transportation and subsistence to the 

worker before the worker’s departure, or 

pay the worker for the reasonable costs 

incurred by the worker. When it is the 

prevailing practice of non-H–2B 

employers in the occupation in the area 

to do so or when the employer extends 

such benefits to similarly situated H–2B 

workers, the employer must advance the 

required transportation and subsistence 

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costs (or otherwise provide them) to 

workers in corresponding employment 

who are traveling to the employer’s 

worksite. The amount of the 

transportation payment must be no less 

(and is not required to be more) than the 

most economical and reasonable 

common carrier transportation charges 

for the distances involved. The amount 

of the daily subsistence must be at least 

the amount permitted in 20 CFR 

655.173. Where the employer will 

reimburse the reasonable costs incurred 

by the worker, it must keep accurate and 

adequate records of: the costs of 

transportation and subsistence incurred 

by the worker; the amount reimbursed; 

and the date(s) of reimbursement. Note 

that the Fair Labor Standards Act 

(FLSA) applies independently of the H– 

2B requirements and imposes 

obligations on employers regarding 

payment of wages. 

(ii) Transportation from the place of 

employment. If the worker completes 

the period of employment covered by 

the job order (not counting any 

extensions), or if the worker is 

dismissed from employment for any 

reason by the employer before the end 

of the period, and the worker has no 

immediate subsequent H–2B 

employment, the employer must 

provide or pay at the time of departure 

for the worker’s cost of return 

transportation and daily subsistence 

from the place of employment to the 

place from which the worker, 

disregarding intervening employment, 

departed to work for the employer. If the 

worker has contracted with a 

subsequent employer that has not 

agreed in the job order to provide or pay 

for the worker’s transportation from the 

employer’s worksite to such subsequent 

employer’s worksite, the employer must 

provide or pay for that transportation 

and subsistence. If the worker has 

contracted with a subsequent employer 

that has agreed in the job order to 

provide or pay for the worker’s 

transportation from the employer’s 

worksite to such subsequent employer’s 

worksite, the subsequent employer must 

provide or pay for such expenses. 

(iii) Employer-provided 

transportation. All employer-provided 

transportation must comply with all 

applicable Federal, State, and local laws 

and regulations and must provide, at a 

minimum, the same vehicle safety 

standards, driver licensure 

requirements, and vehicle insurance as 

required under 49 CFR parts 390, 393, 

and 396. 

(iv) Disclosure. All transportation and 

subsistence costs that the employer will 

pay must be disclosed in the job order. 

(2) The employer must pay or 

reimburse the worker in the first 

workweek for all visa, visa processing, 

border crossing, and other related fees 

(including those mandated by the 

government) incurred by the H–2B 

worker, but not for passport expenses or 

other charges primarily for the benefit of 

the worker. 

(k) Employer-provided items. The 

employer must provide to the worker, 

without charge or deposit charge, all 

tools, supplies, and equipment required 

to perform the duties assigned. 

(l) Disclosure of job order. The 

employer must provide to an H–2B 

worker outside of the U.S. no later than 

the time at which the worker applies for 

the visa, or to a worker in corresponding 

employment no later than on the day 

work commences, a copy of the job 

order including any subsequent 

approved modifications. For an H–2B 

worker changing employment from an 

H–2B employer to a subsequent H–2B 

employer, the copy must be provided no 

later than the time an offer of 

employment is made by the subsequent 

H–2B employer. The disclosure of all 

documents required by this paragraph 

(l) must be provided in a language 

understood by the worker, as necessary 

or reasonable. 

(m) Notice of worker rights. The 

employer must post and maintain in a 

conspicuous location at the place of 

employment a poster provided by the 

Department of Labor that sets out the 

rights and protections for H–2B workers 

and workers in corresponding 

employment. The employer must post 

the poster in English. To the extent 

necessary, the employer must request 

and post additional posters, as made 

available by the Department of Labor, in 

any language common to a significant 

portion of the workers if they are not 

fluent in English. 

(n) No unfair treatment. The employer 

has not and will not intimidate, 

threaten, restrain, coerce, blacklist, 

discharge or in any manner discriminate 

against, and has not and will not cause 

any person to intimidate, threaten, 

restrain, coerce, blacklist, discharge, or 

in any manner discriminate against, any 

person who has: 

(1) Filed a complaint under or related 

to 8 U.S.C. 1184(c), section 214(c) of the 

INA, 20 CFR part 655, subpart A, or this 

part or any other regulation 

promulgated thereunder; 

(2) Instituted or caused to be 

instituted any proceeding under or 

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

214(c) of the INA, 20 CFR part 655, 

subpart A, or this part or any other 

regulation promulgated thereunder; 

(3) Testified or is about to testify in 

any proceeding under or related to 8 

U.S.C. 1184(c), section 214(c) of the 

INA, 20 CFR part 655, subpart A, or this 

part or any other regulation 

promulgated thereunder; 

(4) Consulted with a workers’ center, 

community organization, labor union, 

legal assistance program, or an attorney 

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

section 214(c) of the INA, 20 CFR part 

655, subpart A, or this part or any other 

regulation promulgated thereunder; or 

(5) Exercised or asserted on behalf of 

himself or herself or others any right or 

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

section 214(c) of the INA, 20 CFR part 

655, subpart A, or this part or any other 

regulation promulgated thereunder. 

(o) Comply with the prohibitions 

against employees paying fees. The 

employer and its attorney, agents, or 

employees have not sought or received 

payment of any kind from the worker 

for any activity related to obtaining H– 

2B labor certification or employment, 

including payment of the employer’s 

attorney or agent fees, application and 

H–2B Petition fees, recruitment costs, or 

any fees attributed to obtaining the 

approved Application for Temporary 

Employment Certification. For purposes 

of this paragraph (o), payment includes, 

but is not limited to, monetary 

payments, wage concessions (including 

deductions from wages, salary, or 

benefits), kickbacks, bribes, tributes, inkind payments, and free labor. All 

wages must be paid free and clear. This 

provision does not prohibit employers 

or their agents from receiving 

reimbursement for costs that are the 

responsibility and primarily for the 

benefit of the worker, such as 

government-required passport fees. 

(p) Contracts with third parties to 

comply with prohibitions. The employer 

must contractually prohibit in writing 

any agent or recruiter (or any agent or 

employee of such agent or recruiter) 

whom the employer engages, either 

directly or indirectly, in recruitment of 

H–2B workers to seek or receive 

payments or other compensation from 

prospective workers. The contract must 

include the following statement: ‘‘Under 

this agreement, [name of agent, 

recruiter] and any agent of or employee 

of [name of agent or recruiter] are 

prohibited from seeking or receiving 

payments from any prospective 

employee of [employer name] at any 

time, including before or after the 

worker obtains employment. Payments 

include but are not limited to, any direct 

or indirect fees paid by such employees 

for recruitment, job placement, 

processing, maintenance, attorneys’ 

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fees, agent fees, application fees, or 

petition fees.’’ 

(q) Prohibition against preferential 

treatment of foreign workers. The 

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

workers no less than the same benefits, 

wages, and working conditions that the 

employer is offering, intends to offer, or 

will provide to H–2B workers. Job offers 

may not impose on U.S. workers any 

restrictions or obligations that will not 

be imposed on the employer’s H–2B 

workers. This does not relieve the 

employer from providing to H–2B 

workers at least the minimum benefits, 

wages, and working conditions which 

must be offered to U.S. workers 

consistent with this section. 

(r) Non-discriminatory hiring 

practices. The job opportunity is, and 

through the period set forth in 

paragraph (t) of this section must 

continue to be, open to any qualified 

U.S. worker regardless of race, color, 

national origin, age, sex, religion, 

disability, or citizenship. Rejections of 

any U.S. workers who applied or apply 

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

on this basis have been or will be hired. 

In addition, the employer has and will 

continue to retain records of all hired 

workers and rejected applicants as 

required by § 503.17. 

(s) Recruitment requirements. The 

employer must conduct all required 

recruitment activities, including any 

additional employer-conducted 

recruitment activities as directed by the 

CO, and as specified in 20 CFR 655.40 

through 655.46. 

(t) Continuing requirement to hire 

U.S. workers. The employer has and 

will continue to cooperate with the 

SWA by accepting referrals of all 

qualified U.S. workers who apply (or on 

whose behalf a job application is made) 

for the job opportunity, and must 

provide employment to any qualified 

U.S. worker who applies to the 

employer for the job opportunity, until 

21 days before the date of need. 

(u) No strike or lockout. There is no 

strike or lockout at any of the 

employer’s worksites within the area of 

intended employment for which the 

employer is requesting H–2B 

certification at the time the Application 

for Temporary Employment 

Certification is filed. 

(v) No recent or future layoffs. The 

employer has not laid off and will not 

lay off any similarly employed U.S. 

worker in the occupation that is the 

subject of the Application for 

Temporary Employment Certification in 

the area of intended employment within 

the period beginning 120 calendar days 

before the date of need through the end 

of the period of certification. A layoff for 

lawful, job-related reasons such as lack 

of work or the end of a season is 

permissible if all H–2B workers are laid 

off before any U.S. worker in 

corresponding employment. 

(w) Contact with former U.S. 

employees. The employer will contact 

(by mail or other effective means) its 

former U.S. workers, including those 

who have been laid off within 120 

calendar days before the date of need 

(except those who were dismissed for 

cause or who abandoned the worksite), 

employed by the employer in the 

occupation at the place of employment 

during the previous year, disclose the 

terms of the job order, and solicit their 

return to the job. 

(x) Area of intended employment and 

job opportunity. The employer must not 

place any H–2B workers employed 

under the approved Application for 

Temporary Employment Certification 

outside the area of intended 

employment or in a job opportunity not 

listed on the approved Application for 

Temporary Employment Certification 

unless the employer has obtained a new 

approved Application for Temporary 

Employment Certification. 

(y) Abandonment/termination of 

employment. Upon the separation from 

employment of worker(s) employed 

under the Application for Temporary 

Employment Certification or workers in 

corresponding employment, if such 

separation occurs before the end date of 

the employment specified in the 

Application for Temporary Employment 

Certification, the employer must notify 

OFLC in writing of the separation from 

employment not later than 2 work days 

after such separation is discovered by 

the employer. In addition, the employer 

must notify DHS in writing (or any other 

method specified by the Department of 

Labor or DHS in the Federal Register or 

the Code of Federal Regulations) of such 

separation of an H–2B worker. An 

abandonment or abscondment is 

deemed to begin after a worker fails to 

report for work at the regularly 

scheduled time for 5 consecutive 

working days without the consent of the 

employer. If the separation is due to the 

voluntary abandonment of employment 

by the H–2B worker or worker in 

corresponding employment, and the 

employer provides appropriate 

notification specified under this 

paragraph (y), the employer will not be 

responsible for providing or paying for 

the subsequent transportation and 

subsistence expenses of that worker 

under this section, and that worker is 

not entitled to the three-fourths 

guarantee described in paragraph (f) of 

this section. The employer’s obligation 

to guarantee three-fourths of the work 

described in paragraph (f) ends with the 

last full 12-week period (or 6-week 

period, as appropriate) preceding the 

worker’s voluntary abandonment or 

termination for cause. 

(z) Compliance with applicable laws. 

During the period of employment 

specified on the Application for 

Temporary Employment Certification, 

the employer must comply with all 

applicable Federal, State and local 

employment-related laws and 

regulations, including health and safety 

laws. This includes compliance with 18 

U.S.C. 1592(a), with respect to 

prohibitions against employers, the 

employer’s agents or their attorneys 

knowingly holding, destroying or 

confiscating workers’ passports, visas, 

or other immigration documents. 

(aa) Disclosure of foreign worker 

recruitment. The employer, and its 

attorney or agent, as applicable, must 

comply with 20 CFR 655.9 by providing 

a copy of all agreements with any agent 

or recruiter whom it engages or plans to 

engage in the recruitment of H–2B 

workers, and the identity and location 

of the persons or entities hired by or 

working for the agent or recruiter, and 

any of the agents or employees of those 

persons and entities, to recruit foreign 

workers. Pursuant to 20 CFR 655.15(a), 

the agreements and information must be 

filed with the Application for 

Temporary Employment Certification. 

(bb) Cooperation with investigators. 

The employer must cooperate with any 

employee of the Secretary who is 

exercising or attempting to exercise the 

Department’s authority pursuant to 8 

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

214(c)(14)(B) of the INA. 

§ 503.17 Document retention requirements 

of H–2B employers. 

(a) Entities required to retain 

documents. All employers filing an 

Application for Temporary Employment 

Certification requesting H–2B workers 

are required to retain the documents 

and records proving compliance with 20 

CFR part 655, subpart A and this part, 

including but not limited to those 

specified in paragraph (c) of this 

section. 

(b) Period of required retention. The 

employer must retain records and 

documents for 3 years from the date of 

certification of the Application for 

Temporary Employment Certification or 

from the date of adjudication if the 

Application for Temporary Employment 

Certification is denied or 3 years from 

the day the Department of Labor 

receives the letter of withdrawal 

provided in accordance with 20 CFR 

655.62. 

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(c) Documents and records to be 

retained by all employer applicants. All 

employers filing an H–2B Registration 

and an Application for Temporary 

Employment Certification must retain 

the following documents and records 

and must provide the documents and 

records in the event of an audit or 

investigation: 

(1) Documents and records not 

previously submitted during the 

registration process that substantiate 

temporary need; 

(2) Proof of recruitment efforts, as 

applicable, including: 

(i) Job order placement as specified in 

20 CFR 655.16; 

(ii) Advertising as specified in 20 CFR 

655.41 and 655.42; 

(iii) Contact with former U.S. workers 

as specified in 20 CFR 655.43; 

(iv) Contact with bargaining 

representative(s), copy of the posting of 

the job opportunity, and contact with 

community-based organizations, if 

applicable, as specified in 20 CFR 

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

(v) Additional employer-conducted 

recruitment efforts as specified in 20 

CFR 655.46; 

(3) Substantiation of the information 

submitted in the recruitment report 

prepared in accordance with 20 CFR 

655.48, such as evidence of 

nonapplicability of contact with former 

workers as specified in 20 CFR 655.43; 

(4) The final recruitment report and 

any supporting resumes and contact 

information as specified in 20 CFR 

655.48; 

(5) Records of each worker’s earnings, 

hours offered and worked, and other 

information as specified in § 503.16(i); 

(6) If appropriate, records of 

reimbursement of transportation and 

subsistence costs incurred by the 

workers, as specified in § 503.16(j). 

(7) Evidence of contact with U.S. 

workers who applied for the job 

opportunity in the Application for 

Temporary Employment Certification, 

including documents demonstrating 

that any rejections of U.S. workers were 

for lawful, job-related reasons, as 

specified in § 503.16(r); 

(8) Evidence of contact with any 

former U.S. worker in the occupation 

and the area of intended employment in 

the Application for Temporary 

Employment Certification, including 

documents demonstrating that the U.S. 

worker had been offered the job 

opportunity in the Application for 

Temporary Employment Certification, 

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

U.S. worker either refused the job 

opportunity or was rejected only for 

lawful, job-related reasons, as specified 

in § 503.16(r); 

(9) The written contracts with agents 

or recruiters, as specified in 20 CFR 

655.8 and 655.9, and the list of the 

identities and locations of persons hired 

by or working for the agent or recruiter 

and these entities’ agents or employees, 

as specified in 20 CFR 655.9; 

(10) Written notice provided to and 

informing OFLC that an H–2B worker or 

worker in corresponding employment 

has separated from employment before 

the end date of employment specified in 

the Application for Temporary 

Employment Certification, as specified 

in § 503.16(y); 

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

and a copy of the Application for 

Temporary Employment Certification 

and the original signed Appendix B of 

the Application. 

(12) The approved H–2B Petition, 

including all accompanying documents; 

and 

(13) Any collective bargaining 

agreement(s), individual employment 

contract(s), or payroll records from the 

previous year necessary to substantiate 

any claim that certain incumbent 

workers are not included in 

corresponding employment, as specified 

in § 503.4. 

(d) Availability of documents for 

enforcement purposes. An employer 

must make available to the 

Administrator, WHD within 72 hours 

following a request by the WHD the 

documents and records required under 

20 CFR part 655, subpart A and this 

section so that the Administrator, WHD 

may copy, transcribe, or inspect them. 

§ 503.18 Validity of temporary labor 

certification. 

(a) Validity period. A temporary labor 

certification is valid only for the period 

of time between the beginning and 

ending dates of employment, as 

approved on the Application for 

Temporary Employment Certification. 

The certification expires on the last day 

of authorized employment. 

(b) Scope of validity. A temporary 

labor certification is valid only for the 

number of H–2B positions, the area of 

intended employment, the job 

classification and specific services or 

labor to be performed, and the employer 

specified on the approved Application 

for Temporary Employment 

Certification. The temporary labor 

certification may not be transferred from 

one employer to another unless the 

employer to which it is transferred is a 

successor in interest to the employer to 

which it was issued. 

§ 503.19 Violations. 

(a) Types of violations. Pursuant to 

the statutory provisions governing 

enforcement of the H–2B program, 8 

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

under this part where the 

Administrator, WHD determines that 

there has been a: 

(1) Willful misrepresentation of a 

material fact on the H–2B Registration, 

Application for Prevailing Wage 

Determination, Application for 

Temporary Employment Certification, 

or H–2B Petition; 

(2) Substantial failure to meet any of 

the terms and conditions of the H–2B 

Registration, Application for Prevailing 

Wage Determination, Application for 

Temporary Employment Certification, 

or H–2B Petition. A substantial failure is 

a willful failure to comply that 

constitutes a significant deviation from 

the terms and conditions of such 

documents; or 

(3) Willful misrepresentation of a 

material fact to the Department of State 

during the H–2B nonimmigrant visa 

application process. 

(b) Determining whether a violation is 

willful. A willful misrepresentation of a 

material fact or a willful failure to meet 

the required terms and conditions 

occurs when the employer, attorney, or 

agent knows its statement is false or that 

its conduct is in violation, or shows 

reckless disregard for the truthfulness of 

its representation or for whether its 

conduct satisfies the required 

conditions. 

(c) Determining whether a violation is 

significant. In determining whether a 

violation is a significant deviation from 

the terms and conditions of the H–2B 

Registration, Application for Prevailing 

Wage Determination, Application for 

Temporary Employment Certification, 

or H–2B Petition, the factors that the 

Administrator, WHD may consider 

include, but are not limited to, the 

following: 

(1) Previous history of violation(s) 

under the H–2B program; 

(2) The number of H–2B workers, 

workers in corresponding employment, 

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

affected by the violation(s); 

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

(4) The extent to which the violator 

achieved a financial gain due to the 

violation(s), or the potential financial 

loss or potential injury to the worker(s); 

and 

(5) Whether U.S. workers have been 

harmed by the violation. 

(d) Employer acceptance of 

obligations. The provisions of this part 

become applicable upon the date that 

the employer’s Application for 

Temporary Employment Certification is 

accepted. The employer’s submission of 

the approved H–2B Registration, 

Application for Prevailing Wage 

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Determination, the employer’s survey 

attestation (Form ETA–9165), Appendix 

B of the Application for Temporary 

Employment Certification, and H–2B 

Petition constitute the employer’s 

representation that the statements on 

the forms are accurate and that it knows 

and accepts the obligations of the 

program. 

§ 503.20 Sanctions and remedies— 

general. 

Whenever the Administrator, WHD 

determines that there has been a 

violation(s), as described in § 503.19, 

such action will be taken and such 

proceedings instituted as deemed 

appropriate, including (but not limited 

to) the following: 

(a) Institute administrative 

proceedings, including for: the recovery 

of unpaid wages (including recovery of 

prohibited recruitment fees paid or 

impermissible deductions from pay, and 

recovery of wages due for improperly 

placing workers in areas of employment 

or in occupations other than those 

identified on the Application for 

Temporary Employment Certification 

and for which a prevailing wage was not 

obtained); the enforcement of provisions 

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

CFR part 655, subpart A, or the 

regulations in this part; the assessment 

of a civil money penalty; make whole 

relief for any person who has been 

discriminated against; reinstatement 

and make whole relief for any U.S. 

worker who has been improperly 

rejected for employment, laid off or 

displaced; or debarment for no less than 

1 or no more than 5 years. 

(b) The remedies referenced in 

paragraph (a) of this section will be 

sought either directly from the 

employer, or from its successor in 

interest, or from the employer’s agent or 

attorney, as appropriate. 

§ 503.21 Concurrent actions within the 

Department of Labor. 

OFLC has primary responsibility to 

make all determinations regarding the 

issuance, denial, or revocation of a labor 

certification as described in § 503.1(b) 

and in 20 CFR part 655, subpart A. The 

WHD has primary responsibility to 

make all determinations regarding the 

enforcement functions as described in 

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

actions referred to above will not be a 

bar to the concurrent taking of any other 

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

20 CFR part 655, subpart A, or the 

regulations in this part. OFLC and the 

WHD have concurrent jurisdiction to 

impose a debarment remedy under 20 

CFR 655.73 or under § 503.24. 

§ 503.22 Representation of the Secretary. 

The Solicitor of Labor, through 

authorized representatives, will 

represent the Administrator, WHD and 

the Secretary in all administrative 

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

the regulations in this part. 

§ 503.23 Civil money penalty assessment. 

(a) A civil money penalty may be 

assessed by the Administrator, WHD for 

each violation that meets the standards 

described in § 503.19. Each such 

violation involving the failure to pay an 

individual worker properly or to honor 

the terms or conditions of a worker’s 

employment required by the H–2B 

Registration, Application for Prevailing 

Wage Determination, Application for 

Temporary Employment Certification, 

or H–2B Petition, constitutes a separate 

violation. Civil money penalty amounts 

for such violations are determined as set 

forth in paragraphs (b) to (e) of this 

section. 

(b) Upon determining that an 

employer has violated any provisions of 

§ 503.16 related to wages, impermissible 

deductions or prohibited fees and 

expenses, the Administrator, WHD may 

assess civil money penalties that are 

equal to the difference between the 

amount that should have been paid and 

the amount that actually was paid to 

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

per violation. 

(c) Upon determining that an 

employer has terminated by layoff or 

otherwise or has refused to employ any 

worker in violation of § 503.16(r), (t), or 

(v), within the periods described in 

those sections, the Administrator, WHD 

may assess civil money penalties that 

are equal to the wages that would have 

been earned but for the layoff or failure 

to hire, not to exceed $10,000 per 

violation. No civil money penalty will 

be assessed, however, if the employee 

refused the job opportunity, or was 

terminated for lawful, job-related 

reasons. 

(d) The Administrator, WHD may 

assess civil money penalties in an 

amount not to exceed $10,000 per 

violation for any other violation that 

meets the standards described in 

§ 503.19. 

(e) In determining the amount of the 

civil money penalty to be assessed 

under paragraph (d) of this section, the 

Administrator, WHD will consider the 

type of violation committed and other 

relevant factors. In determining the level 

of penalties to be assessed, the highest 

penalties will be reserved for willful 

failures to meet any of the conditions of 

the Application for Temporary 

Employment Certification and H–2B 

Petition that involve harm to U.S. 

workers. Other factors which may be 

considered include, but are not limited 

to, the following: 

(1) Previous history of violation(s) of 

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

subpart A, or the regulations in this 

part; 

(2) The number of H–2B workers, 

workers in corresponding employment, 

or improperly rejected U.S. applicants 

who were and/or are affected by the 

violation(s); 

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

(4) Efforts made in good faith to 

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

part 655, subpart A, and the regulations 

in this part; 

(5) Explanation from the person 

charged with the violation(s); 

(6) Commitment to future compliance, 

taking into account the public health, 

interest or safety; and 

(7) The extent to which the violator 

achieved a financial gain due to the 

violation, or the potential financial loss 

or potential injury to the workers. 

§ 503.24 Debarment. 

(a) Debarment of an employer. The 

Administrator, OFLC may not issue 

future labor certifications under 20 CFR 

part 655, subpart A to an employer or 

any successor in interest to that 

employer, subject to the time limits set 

forth in paragraph (c) of this section, if 

the Administrator, WHD finds that the 

employer committed a violation that 

meets the standards of § 503.19. Where 

these standards are met, debarrable 

violations would include but not be 

limited to one or more acts of 

commission or omission which involve: 

(1) Failure to pay or provide the 

required wages, benefits, or working 

conditions to the employer’s H–2B 

workers and/or workers in 

corresponding employment; 

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

qualified U.S. workers who applied for 

the job opportunity for which 

certification was sought; 

(3) Failure to comply with the 

employer’s obligations to recruit U.S. 

workers; 

(4) Improper layoff or displacement of 

U.S. workers or workers in 

corresponding employment; 

(5) Failure to comply with one or 

more sanctions or remedies imposed by 

the Administrator, WHD for violation(s) 

of obligations under the job order or 

other H–2B obligations, or with one or 

more decisions or orders of the 

Secretary or a court under 20 CFR part 

655, subpart A or this part; 

(6) Impeding an investigation of an 

employer under this part; 

(7) Employing an H–2B worker 

outside the area of intended 

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employment, in an activity/activities 

not listed in the job order, or outside the 

validity period of employment of the job 

order, including any approved 

extension thereof; 

(8) A violation of the requirements of 

§ 503.16(o) or (p); 

(9) A violation of any of the 

provisions listed in § 503.16(r); 

(10) Any other act showing such 

flagrant disregard for the law that future 

compliance with program requirements 

cannot reasonably be expected; 

(11) Fraud involving the H–2B 

Registration, Application for Prevailing 

Wage Determination, Application for 

Temporary Employment Certification, 

or H–2B Petition; or 

(12) A material misrepresentation of 

fact during the registration or 

application process. 

(b) Debarment of an agent or attorney. 

If the Administrator, WHD finds, under 

this section, that an agent or attorney 

committed a violation as described in 

paragraph (a) of this section or 

participated in an employer’s violation, 

the Administrator, OFLC may not issue 

future labor certifications to an 

employer represented by such agent or 

attorney, subject to the time limits set 

forth in paragraph (c) of this section. 

(c) Period of debarment. Debarment 

under this subpart may not be for less 

than 1 year or more than 5 years from 

the date of the final agency decision. 

(d) Debarment procedure. If the 

Administrator, WHD makes a 

determination to debar an employer, 

attorney, or agent, the Administrator, 

WHD will send the party a Notice of 

Debarment. The notice will state the 

reason for the debarment finding, 

including a detailed explanation of the 

grounds for and the duration of the 

debarment and inform the party subject 

to the notice of its right to request a 

debarment hearing and the timeframe 

under which such rights must be 

exercised under § 503.43. If the party 

does not request a hearing within 30 

calendar days of the date of the Notice 

of Debarment, the notice is the final 

agency action and the debarment will 

take effect at the end of the 30-day 

period. The timely filing of an 

administrative appeal stays the 

debarment pending the outcome of the 

appeal as provided in § 503.43(e). 

(e) Concurrent debarment jurisdiction. 

OFLC and the WHD have concurrent 

jurisdiction debar under 20 CFR 655.73 

or under this part. When considering 

debarment, OFLC and the WHD will 

coordinate their activities. A specific 

violation for which debarment is 

imposed will be cited in a single 

debarment proceeding. Copies of final 

debarment decisions will be forwarded 

to DHS and DOS promptly. 

(f) Debarment from other labor 

certification programs. Upon debarment 

under this part or 20 CFR 655.73, the 

debarred party will be disqualified from 

filing any labor certification 

applications or labor condition 

applications with the Department of 

Labor by, or on behalf of, the debarred 

party for the same period of time set 

forth in the final debarment decision. 

§ 503.25 Failure to cooperate with 

investigators. 

(a) No person will interfere or refuse 

to cooperate with any employee of the 

Secretary who is exercising or 

attempting to exercise the Department’s 

investigative or enforcement authority 

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

prohibiting persons from interfering 

with a Federal officer in the course of 

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

and 18 U.S.C. 114. 

(b) Where an employer (or employer’s 

agent or attorney) interferes or does not 

cooperate with an investigation 

concerning the employment of an H–2B 

worker or a worker in corresponding 

employment, or a U.S. worker who has 

been improperly rejected for 

employment or improperly laid off or 

displaced, WHD may make such 

information available to OFLC and may 

recommend that OFLC revoke the 

existing certification that is the basis for 

the employment of the H–2B workers 

giving rise to the investigation. In 

addition, WHD may take such action as 

appropriate where the failure to 

cooperate meets the standards in 

§ 503.19, including initiating 

proceedings for the debarment of the 

employer from future certification for 

up to 5 years, and/or assessing civil 

money penalties against any person who 

has failed to cooperate with a WHD 

investigation. The taking of any one 

action will not bar the taking of any 

additional action. 

§ 503.26 Civil money penalties—payment 

and collection. 

Where a civil money penalty is 

assessed in a final order by the 

Administrator, WHD, by an ALJ, or by 

the ARB, the amount of the penalty 

must be received by the Administrator, 

WHD within 30 calendar days of the 

date of the final order. The person 

assessed the penalty will remit the 

amount ordered to the Administrator, 

WHD by certified check or by money 

order, made payable to the Wage and 

Hour Division, United States 

Department of Labor. The remittance 

will be delivered or mailed to the WHD 

Regional Office for the area in which the 

violations occurred. 

Subpart C—Administrative 

Proceedings 

§ 503.40 Applicability of procedures and 

rules. 

(a) The procedures and rules 

contained in this subpart prescribe the 

administrative appeal process that will 

be applied with respect to a 

determination to assess civil money 

penalties, to debar, to enforce provisions 

of the job order or provisions under 8 

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

A, or the regulations in this part, or to 

the collection of monetary relief due as 

a result of any violation. 

(b) With respect to determinations as 

listed in paragraph (a) involving 

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

procedures and rules contained in this 

subpart will apply regardless of the date 

of violation. 

Procedures Related to Hearing 

§ 503.41 Administrator, WHD’s 

determination. 

(a) Whenever the Administrator, WHD 

decides to assess a civil money penalty, 

to debar, or to impose other appropriate 

administrative remedies, including for 

the recovery of monetary relief, the 

party against which such action is taken 

will be notified in writing of such 

determination. 

(b) The Administrator, WHD’s 

determination will be served on the 

party by personal service or by certified 

mail at the party’s last known address. 

Where service by certified mail is not 

accepted by the party, the Administrator 

may exercise discretion to serve the 

determination by regular mail. 

§ 503.42 Contents of notice of 

determination. 

The notice of determination required 

by § 503.41 will: 

(a) Set forth the determination of the 

Administrator, WHD, including: 

(1) The amount of any monetary relief 

due; or 

(2) Other appropriate administrative 

remedies; or 

(3) The amount of any civil money 

penalty assessment; or 

(4) Whether debarment is sought and 

the term; and 

(5) The reason or reasons for such 

determination. 

(b) Set forth the right to request a 

hearing on such determination; 

(c) Inform the recipient(s) of the 

notice that in the absence of a timely 

request for a hearing, received by the 

Chief ALJ within 30 calendar days of the 

date of the determination, the 

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determination of the Administrator, 

WHD will become final and not 

appealable; 

(d) Set forth the time and method for 

requesting a hearing, and the related 

procedures for doing so, as set forth in 

§ 503.43, and give the addresses of the 

Chief ALJ (with whom the request must 

be filed) and the representative(s) of the 

Solicitor of Labor (upon whom copies of 

the request must be served); and 

(e) Where appropriate, inform the 

recipient(s) of the notice that the 

Administrator, WHD will notify OFLC 

and DHS of the occurrence of a violation 

by the employer. 

§ 503.43 Request for hearing. 

(a) Any party desiring review of a 

determination issued under § 503.41, 

including judicial review, must make a 

request for such an administrative 

hearing in writing to the Chief ALJ at 

the address stated in the notice of 

determination. In such a proceeding, the 

Administrator will be the plaintiff, and 

the party will be the respondent. If such 

a request for an administrative hearing 

is timely filed, the Administrator, 

WHD’s determination will be 

inoperative unless and until the case is 

dismissed or the ALJ issues an order 

affirming the decision. 

(b) No particular form is prescribed 

for any request for hearing permitted by 

this section. However, any such request 

will: 

(1) Be dated; 

(2) Be typewritten or legibly written; 

(3) Specify the issue or issues stated 

in the notice of determination giving 

rise to such request; 

(4) State the specific reason or reasons 

why the party believes such 

determination is in error; 

(5) Be signed by the party making the 

request or by the agent or attorney of 

such party; and 

(6) Include the address at which such 

party or agent or attorney desires to 

receive further communications relating 

thereto. 

(c) The request for such hearing must 

be received by the Chief ALJ, at the 

address stated in the Administrator, 

WHD’s notice of determination, no later 

than 30 calendar days after the date of 

the determination. A party which fails 

to meet this 30-day deadline for 

requesting a hearing may thereafter 

participate in the proceedings only by 

consent of the ALJ. 

(d) The request may be filed in 

person, by facsimile transmission, by 

certified or regular mail, or by courier 

service within the time set forth in 

paragraph (c) of this section. For the 

requesting party’s protection, if the 

request is by mail, it should be by 

certified mail. If the request is by 

facsimile transmission, the original of 

the request, signed by the party or its 

attorney or agent, must be filed within 

25 days. 

(e) The determination will take effect 

on the start date identified in the 

written notice of determination, unless 

an administrative appeal is properly 

filed. The timely filing of an 

administrative appeal stays the 

determination pending the outcome of 

the appeal proceedings. 

(f) Copies of the request for a hearing 

will be sent by the party or attorney or 

agent to the WHD official who issued 

the notice of determination on behalf of 

the Administrator, WHD, and to the 

representative(s) of the Solicitor of 

Labor identified in the notice of 

determination. 

Rules of Practice 

§ 503.44 General. 

(a) Except as specifically provided in 

the regulations in this part and to the 

extent they do not conflict with the 

provisions of this part, the Rules of 

Practice and Procedure for 

Administrative Hearings Before the 

Office of Administrative Law Judges 

established by the Secretary at 29 CFR 

part 18 will apply to administrative 

proceedings described in this part. 

(b) As provided in the Administrative 

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

documentary evidence may be received 

in proceedings under this part. The 

Federal Rules of Evidence and subpart 

B of the Rules of Practice and Procedure 

for Administrative Hearings Before the 

Office of Administrative Law Judges (29 

CFR part 18, subpart B) will not apply, 

but principles designed to ensure 

production of relevant and probative 

evidence will guide the admission of 

evidence. The ALJ may exclude 

evidence which is immaterial, 

irrelevant, or unduly repetitive. 

§ 503.45 Service of pleadings. 

(a) Under this part, a party may serve 

any pleading or document by regular 

mail. Service on a party is complete 

upon mailing to the last known address. 

No additional time for filing or response 

is authorized where service is by mail. 

In the interest of expeditious 

proceedings, the ALJ may direct the 

parties to serve pleadings or documents 

by a method other than regular mail. 

(b) Two copies of all pleadings and 

other documents in any ALJ proceeding 

must be served on the attorneys for the 

Administrator, WHD. One copy must be 

served on the Associate Solicitor, 

Division of Fair Labor Standards, Office 

of the Solicitor, U.S. Department of 

Labor, 200 Constitution Avenue NW., 

Room N–2716, Washington, DC 20210, 

and one copy must be served on the 

attorney representing the Administrator 

in the proceeding. 

(c) Time will be computed beginning 

with the day following service and 

includes the last day of the period 

unless it is a Saturday, Sunday, or 

Federally-observed holiday, in which 

case the time period includes the next 

business day. 

§ 503.46 Commencement of proceeding. 

Each administrative proceeding 

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

and the regulations in this part will be 

commenced upon receipt of a timely 

request for hearing filed in accordance 

with § 503.43. 

§ 503.47 Caption of proceeding. 

(a) Each administrative proceeding 

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

INA section 214(c)(14) and the 

regulations in this part will be 

captioned in the name of the person 

requesting such hearing, and will be 

styled as follows: 

In the Matter of llllllllll, 

Respondent. 

(b) For the purposes of such 

administrative proceedings the 

Administrator, WHD will be identified 

as plaintiff and the person requesting 

such hearing will be named as 

respondent. 

§ 503.48 Conduct of proceeding. 

(a) Upon receipt of a timely request 

for a hearing filed under and in 

accordance with § 503.43, the Chief ALJ 

will promptly appoint an ALJ to hear 

the case. 

(b) The ALJ will notify all parties of 

the date, time and place of the hearing. 

Parties will be given at least 30 calendar 

days’ notice of such hearing. 

(c) The ALJ may prescribe a schedule 

by which the parties are permitted to 

file a prehearing brief or other written 

statement of fact or law. Any such brief 

or statement must be served upon each 

other party. Post-hearing briefs will not 

be permitted except at the request of the 

ALJ. When permitted, any such brief 

must be limited to the issue or issues 

specified by the ALJ, will be due within 

the time prescribed by the ALJ, and 

must be served on each other party. 

Procedures Before Administrative Law 

Judge 

§ 503.49 Consent findings and order. 

(a) General. At any time after the 

commencement of a proceeding under 

this part, but before the reception of 

evidence in any such proceeding, a 

party may move to defer the receipt of 

any evidence for a reasonable time to 

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permit negotiation of an agreement 

containing consent findings and an 

order disposing of the whole or any part 

of the proceeding. The allowance of 

such deferment and the duration thereof 

will be at the discretion of the ALJ, after 

consideration of the nature of the 

proceeding, the requirements of the 

public interest, the representations of 

the parties, and the probability of an 

agreement being reached which will 

result in a just disposition of the issues 

involved. 

(b) Content. Any agreement 

containing consent findings and an 

order disposing of a proceeding or any 

part thereof will also provide: 

(1) That the order will have the same 

force and effect as an order made after 

full hearing; 

(2) That the entire record on which 

any order may be based will consist 

solely of the notice of administrative 

determination (or amended notice, if 

one is filed), and the agreement; 

(3) A waiver of any further procedural 

steps before the ALJ; and 

(4) A waiver of any right to challenge 

or contest the validity of the findings 

and order entered into in accordance 

with the agreement. 

(c) Submission. On or before the 

expiration of the time granted for 

negotiations, the parties or their 

attorney or agent may: 

(1) Submit the proposed agreement for 

consideration by the ALJ; or 

(2) Inform the ALJ that agreement 

cannot be reached. 

(d) Disposition. In the event an 

agreement containing consent findings 

and an order is submitted within the 

time allowed therefore, the ALJ, within 

30 days thereafter, will, if satisfied with 

its form and substance, accept such 

agreement by issuing a decision based 

upon the agreed findings. 

Post-Hearing Procedures 

§ 503.50 Decision and order of 

Administrative Law Judge. 

(a) The ALJ will prepare, within 60 

days after completion of the hearing and 

closing of the record, a decision on the 

issues referred by the Administrator, 

WHD. 

(b) The decision of the ALJ will 

include a statement of the findings and 

conclusions, with reasons and basis 

therefore, upon each material issue 

presented on the record. The decision 

will also include an appropriate order 

which may affirm, deny, reverse, or 

modify, in whole or in part, the 

determination of the Administrator, 

WHD. The reason or reasons for such 

order will be stated in the decision. 

(c) In the event that the 

Administrator, WHD assesses back 

wages for wage violation(s) of § 503.16 

based upon a PWD obtained by the 

Administrator from OFLC during the 

investigation and the ALJ determines 

that the Administrator’s request was not 

warranted, the ALJ will remand the 

matter to the Administrator for further 

proceedings on the Administrator’s 

determination. If there is no such 

determination and remand by the ALJ, 

the ALJ will accept as final and accurate 

the wage determination obtained from 

OFLC or, in the event the party filed a 

timely appeal under 20 CFR 655.13 the 

final wage determination resulting from 

that process. Under no circumstances 

will the ALJ determine the validity of 

the wage determination or require 

submission into evidence or disclosure 

of source data or the names of 

establishments contacted in developing 

the survey which is the basis for the 

PWD. 

(d) The decision will be served on all 

parties. 

(e) The decision concerning civil 

money penalties, debarment, monetary 

relief, and/or other administrative 

remedies, when served by the ALJ will 

constitute the final agency order unless 

the ARB, as provided for in § 503.51, 

determines to review the decision. 

Review of Administrative Law Judge’s 

Decision 

§ 503.51 Procedures for initiating and 

undertaking review. 

(a) A respondent, the WHD, or any 

other party wishing review, including 

judicial review, of the decision of an 

ALJ will, within 30 days of the decision 

of the ALJ, petition the ARB to review 

the decision. Copies of the petition will 

be served on all parties and on the ALJ. 

(b) No particular form is prescribed 

for any petition for the ARB’s review 

permitted by this part. However, any 

such petition will: 

(1) Be dated; 

(2) Be typewritten or legibly written; 

(3) Specify the issue or issues stated 

in the ALJ decision and order giving rise 

to such petition; 

(4) State the specific reason or reasons 

why the party petitioning for review 

believes such decision and order are in 

error; 

(5) Be signed by the party filing the 

petition or by an authorized 

representative of such party; 

(6) Include the address at which such 

party or authorized representative 

desires to receive further 

communications relating thereto; and 

(7) Include as an attachment the ALJ’s 

decision and order, and any other 

record documents which would assist 

the ARB in determining whether review 

is warranted. 

(c) If the ARB does not issue a notice 

accepting a petition for review of the 

decision within 30 days after receipt of 

a timely filing of the petition, or within 

30 days of the date of the decision if no 

petition has been received, the decision 

of the ALJ will be deemed the final 

agency action. 

(d) Whenever the ARB, either on the 

ARB’s own motion or by acceptance of 

a party’s petition, determines to review 

the decision of an ALJ, a notice of the 

same will be served upon the ALJ and 

upon all parties to the proceeding. 

§ 503.52 Responsibility of the Office of 

Administrative Law Judges (OALJ). 

Upon receipt of the ARB’s notice 

under § 503.51, the OALJ will promptly 

forward a copy of the complete hearing 

record to the ARB. 

§ 503.53 Additional information, if 

required. 

Where the ARB has determined to 

review such decision and order, the 

ARB will notify the parties of: 

(a) The issue or issues raised; 

(b) The form in which submissions 

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

and 

(c) The time within which such 

presentation will be submitted. 

§ 503.54 Submission of documents to the 

Administrative Review Board. 

All documents submitted to the ARB 

will be filed with the Administrative 

Review Board, U.S. Department of 

Labor, 200 Constitution Avenue NW., 

Room S–5220, Washington, DC 20210. 

An original and two copies of all 

documents must be filed. Documents 

are not deemed filed with the ARB until 

actually received by the ARB. All 

documents, including documents filed 

by mail, must be received by the ARB 

either on or before the due date. Copies 

of all documents filed with the ARB 

must be served upon all other parties 

involved in the proceeding. 

§ 503.55 Final decision of the 

Administrative Review Board. 

The ARB’s final decision will be 

issued within 90 days from the notice 

granting the petition and served upon 

all parties and the ALJ. 

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Record 

§ 503.56 Retention of official record. 

The official record of every completed 

administrative hearing provided by the 

regulations in this part will be 

maintained and filed under the custody 

and control of the Chief ALJ, or, where 

the case has been the subject of 

administrative review, the ARB. 

Signed: at Washington, DC this 22nd of 

April 2015. 

Thomas E. Perez, 

Secretary of Labor. 

Signed: at Washington, DC this 22nd of 

April 2015. 

Jeh Charles Johnson, 

Secretary of Homeland Security. 

[FR Doc. 2015–09694 Filed 4–28–15; 8:45 am] 

BILLING CODE 4510–FP–P; 4510–27–P; 9111–97–P 

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