(a) Notice of acceptance of application for consideration; required
recruitment. If the RA determines that the H-2A application meets the
requirements of Secs. 655.101-655.103 of this part, the RA shall
promptly notify the employer (by means normally assuring next-day
delivery) in writing with copies to the State agency. The notice shall
inform
the employer and the State agency of the specific efforts which will be
expected from them during the following weeks to carry out the
assurances contained in Sec. 655.103 with respect to the recruitment of
U.S. workers. The notice shall require that the job order be laced into
intrastate clearance and into interstate clearance to such States as the
RA shall determine to be potential sources of U.S. workers. The notice
may require the employer to engage in positive recruitment efforts
within a multi-State region of traditional or expected labor supply
where the RA finds, based on current information provided by a State
agency and such information as may be offered and provided by other
sources, that there are a significant number of able and qualified U.S.
workers who, if recruited, would likely be willing to make themselves
available for work at the time and place needed. In making such a
finding, the RA shall take into account other recent recruiting efforts
in those areas and will attempt to avoid requiring employers to futilely
recruit in areas where there are a significant number of local employers
recruiting for U.S. workers for the same types of occupations. Positive
recruitment is in addition to, and shall be conducted within the same
time period as, the circulation through the interstate clearance system
of an agricultural clearance order. The obligation to engage in such
positive recruitment shall terminate on the date H-2A workers depart for
the employer's place of work. In determining what positive recruitment
shall be required, the RA will ascertain the normal recruitment
practices of non-H-2A agricultural employers in the area and the kind
and degree of recruitment efforts which the potential H-2A employer made
to obtain H-2A workers. The RA shall ensure that the effort, including
the location(s) of the positive recruitment required of the potential H-
2A employer, during the period after filing the application and before
the date the H-2A workers depart their prior location to come to the
place of employment, shall be no less than: (1) The recruitment efforts
of non-H-2A agricultural employers of comparable or smaller size in the
area of employment; and (2) the kind and degree of recruitment efforts
which the potential H-2A employer made to obtain H-2A workers.
(b) Recruitment of U.S. workers. After an application for temporary
alien agricultural labor certification is accepted for processing
pursuant to paragraph (a) of this section, the RA, under the direction
of the ETA national office and with the assistance of other RAs with
respect to areas outside the region, shall provide overall direction to
the employer and the State agency with respect to the recruitment of
U.S. workers.
(c) Modifications. At any time during the recruitment effort, the
RA, with the Director's concurrence, may require modifications to a job
offer when the RA determines that the job offer does not contain all the
provisions relating to minimum benefits, wages, and working conditions,
required by Sec. 655.102(b) of this part. If any such modifications are
required after an application has been accepted for consideration by the
RA, the modifications must be made; however, the certification
determination shall not be delayed beyond the 20 calendar days prior to
the date of need as a result of such modification.
(d) Final determination. By 20 calendar days before the date of need
specified in the application, except as provided for under
Secs. 655.101(c)(2) and 655.104(e) of this part for untimely modified
applications, the RA, when making a determination of the availability of
U.S. workers, shall also make a determination as to whether the employer
has satisfied the recruitment assurances in Sec. 655.103 of this part.
If the RA concludes that the employer has not satisfied the requirements
for recruitment of U.S. workers, the RA shall deny the temporary alien
agricultural labor certification, and shall immediately notify the
employer in writing with a copy to the State agency and local office.
The notice shall contain the statements specified in Sec. 655.104(d) of
this part.
(e) Appeal procedure. With respect to determinations by the RA
pursuant to this section, if the employer timely requests an expedited
administrative review or a de novo hearing before an administrative law
judge, the procedures
in Sec. 655.112 of this part shall be followed.
