[Federal Register: May 22, 2008 (Volume 73, Number 100)]
[Proposed Rules]               
[Page 29941-29975]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22my08-20]                         


[[Page 29941]]

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Part V





Department of Labor





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 Employment and Training Administration



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20 CFR Parts 655 and 656



 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; Proposed 
Rule


[[Page 29942]]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Parts 655 and 656

RIN 1205-AB54

 
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

AGENCY: Employment and Training Administration, Labor, in concurrence 
with the Wage and Hour Division, Employment Standards Administration, 
Labor.

ACTION: Proposed rule; request for comments.

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SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (DOL or the Department) are proposing changes to 
modernize procedures for the issuance of labor certifications issued in 
connection with H-2B nonimmigrants admitted to perform temporary 
nonagricultural labor or services, and procedures to enforce compliance 
with attestations made by sponsoring employers. Specifically, the 
proposed rule re-engineers the application filing and review process by 
centralizing processing and by enabling employers to conduct pre-filing 
United States (U.S.) worker recruitment activities. In addition, the 
proposed rule makes changes that will enhance the integrity of the 
program through the introduction of post-adjudication audits and 
procedures for penalizing employers who fail to meet the requirements 
of the H-2B Program. In addition, through this proposed rule technical 
changes are being made to both the H-1B and the permanent labor 
certification regulations to reflect operational changes stemming from 
this regulation. Finally, although Congress has vested the Department 
of Homeland Security (DHS) with the statutory authority to enforce the 
H-2B Program requirements and the Department possesses no independent 
authority for such enforcement, this proposed rule describes potential 
H-2B enforcement procedures the Department could institute in the event 
that DHS and the Department work out a mutually agreeable delegation of 
enforcement authority from DHS to the Department.

DATES: Interested persons are invited to submit written comments on the 
proposed rule. Such comments must be received on or before July 7, 
2008. Interested persons are invited to submit comments on the proposed 
forms mentioned herein; such comments must be received on or before 
July 21, 2008.

ADDRESSES: You may submit comments, identified by Regulatory 
Information Number (RIN) 1205-AB54, by only one of the following 
methods only:
     Federal e-Rulemaking Portal www.regulations.gov. Follow 
the Web site instructions for submitting comments.
     Mail/Hand Delivery/Courier: Please address all written 
comments (including disk and CD-ROM submissions) to Thomas Dowd, 
Administrator, Office of Policy Development and Research, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Room N-5641, 
Washington, DC 20210.
    Please submit your comments by only one method. The Department will 
post all comments received on http://www.regulations.gov without making 
any change to the comments, including any personal information 
provided. The http://www.regulations.gov Web site is the Federal e-
rulemaking portal and all comments posted there will be available and 
accessible to the public. The Department cautions commenters not to 
include their personal information such as Social Security Numbers, 
personal addresses, telephone numbers, and e-mail addresses in their 
comments as such submitted information will become viewable by the 
public via the http://www.regulations.gov Web site. It is the 
responsibility of the commenter to safeguard his or her information. 
Comments submitted through http://www.regulations.gov will not include 
the commenter's e-mail address unless the commenter chooses to include 
that information as part of his or her comment.
    Postal delivery in Washington, DC, may be delayed due to security 
concerns. Therefore, the Department encourages the public to submit 
comments via the Web site indicated above.
    Docket: For access to the docket to read background documents or 
comments received, go the Federal eRulemaking portal at http://
www.regulations.gov. The Department will also make all the comments it 
receives available for public inspection during normal business hours 
at the Office of Policy Development and Research at the above address. 
If you need assistance to review the comments, the Department will 
provide you with appropriate aids such as readers or print magnifiers. 
The Department will make copies of the rule available, upon request, in 
large print and as electronic file on computer disk. The Department 
will consider providing the proposed rule in other formats upon 
request. To schedule an appointment to review the comments and/or 
obtain the rule in an alternate format, contact the Office of Policy 
Development and Research at (202) 693-3700 (VOICE) (this is not a toll-
free number) or 1-877-889-5627 (TTY/TDD).

FOR FURTHER INFORMATION CONTACT: For information on the H-2B labor 
certification process proposed in 20 CFR 655.1 to 655.35 contact 
Sherril Hurd, Acting Team Leader, Regulations Unit, Employment and 
Training, Administration (ETA), U.S. Department of Labor, 200 
Constitution Avenue, NW., Room N-5641, Washington, DC 20210; Telephone 
(202) 693-3700 (this is not a toll-free number).
    For information on the H-2B enforcement process proposed in 20 CFR 
655.50 to 655.80 contact Michael Ginley, Office of Enforcement Policy, 
Wage and Hour Division, Employment Standards Administration, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Room S-3502, 
Washington, DC 20210. Telephone (202) 693-0745 (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. Background

A. Statutory Standard and Current Department of Labor Regulations

    Section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act 
(INA or the Act) defines an H-2B worker as a nonimmigrant admitted to 
the U.S. on a temporary basis to perform temporary nonagricultural 
labor or services. 8 U.S.C. 1101(a)(15)(H)(ii)(b). The Department's 
role in the H-2B visa program stems from its obligation, outlined in 
the statute and the regulations of DHS, to certify--upon application 
and sufficient demonstration by a U.S. employer intending to petition 
DHS to allow it to hire H-2B workers--that there are not enough able 
and qualified U.S. workers available for the position sought to be 
filled and that the employment of the foreign worker(s) will not 
adversely affect the wages and working conditions of similarly employed 
U.S. workers. 8 U.S.C. 1101(a)(15)(H)(ii)(b); 8 U.S.C. 1184(c)(1); see 
also 8 CFR 214.2(h)(6).
    Section 214(c)(1) of the INA requires DHS to consult with 
appropriate

[[Page 29943]]

agencies of the Government before granting any H-2B visa petition 
submitted by an employer. 8 U.S.C. 1184(c)(1). The DHS regulations for 
the U.S. Citizenship and Immigration Services (USCIS), the agency in 
DHS charged with the adjudication of immigration benefits such as H-2B 
petitions, currently require, at 8 CFR 214.2(h)(6), that the intending 
employer (other than in the Territory of Guam) first apply for a 
temporary labor certification from the Secretary of Labor (the 
Secretary) advising USCIS whether U.S. workers capable of performing 
the services or labor are available, and whether the employment of the 
foreign worker(s) will adversely affect the wages and working 
conditions of similarly employed U.S. workers.
    The Department's role in the H-2B process is currently advisory to 
DHS. 8 CFR 214.2(h)(6)(iii)(A). The INA and DHS regulations govern the 
H-2B petition process and set the broad parameters for labor 
certification pursuant to which the Department issues its own H-2B 
regulations and guidance. DHS H-2B regulations provide that an employer 
may not file a petition with DHS for an H-2B temporary worker unless it 
has received a labor certification from the Department (or the Governor 
of Guam, as appropriate), or received a notice from either that a 
certification cannot be issued. 8 CFR 214.2(h)(6)(iii)(C), (iv)(A), 
(vi)(A).
    Currently, DOL regulations at 20 CFR Part 655, Subpart A, ``Labor 
Certification Process for Temporary Employment in Occupations other 
than Agriculture, Logging or Registered Nursing in the United States 
(H-2B Workers),'' govern the H-2B labor certification. Applications 
received by the Office of Foreign Labor Certification (OFLC) in the 
Department's ETA, the office to which the Secretary has delegated her 
advisory responsibilities described in the DHS H-2B regulations, are 
processed first through the State Workforce Agency (SWA) having 
jurisdiction over the area of intended employment.\1\ The SWAs review 
the application and job offer, compare the wage offer against the 
prevailing wage for the position, supervise U.S. worker recruitment, 
and forward the completed applications to OFLC for further review and 
final determination.
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    \1\ The SWAs comprise agencies of State Government that receive 
Federal Workforce Investment Act (WIA), Wagner-Peyser Act, and other 
funds to administer our nation's one-stop career system and, through 
those grants, perform certain activities on behalf of the Federal 
Government, such as administration of the job clearance system. With 
respect to this NPRM, they currently accept applications by 
employers for processing prior to their transmittal to the 
Department.
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    To obtain a temporary labor certification, the employer must 
demonstrate their need for the temporary services or labor meets one of 
the regulatory standards of (1) a one-time occurrence, (2) a seasonal 
need, (3) a peakload need, or (4) an intermittent need. 8 CFR 
214.2(h)(6)(ii)(B). The employer or its authorized representative must 
submit to the SWA a detailed statement of temporary need and supporting 
documentation with the application for H-2B labor certification. Such 
documentation provides a description of the employer's business 
activities and schedule of operations throughout the year, explains why 
the job opportunity and the number of workers requested reflects its 
temporary need, and demonstrates how the employer's need meets one of 
these four regulatory ``need'' standards. The petitioning employer must 
also establish that the temporary position is full-time, and the period 
of need is less than three years (although a labor market test and 
certification must be obtained each year).
    Additionally, the requesting employer must adequately test the U.S. 
labor market to determine if a qualified U.S. worker is available for 
the position. In order to ensure an adequate test of the labor market, 
the employer must offer and subsequently pay for the entire period of 
employment a wage that is equal to or higher than the prevailing wage 
for the occupation at the skill level and in the area of intended 
employment, and provide terms and conditions of employment that are not 
less favorable than those offered to the foreign worker(s) or otherwise 
inhibit the effective recruitment and consideration of U.S. workers for 
the job.
    Historically, the Department's review and adjudication took place 
through ETA's Regional Offices. However, in December 2004, the 
Department opened two new National Processing Centers (NPCs), one each 
located in Atlanta, Georgia, and Chicago, Illinois, to centralize 
processing of permanent and temporary foreign labor certification cases 
at the Federal level. The Department published a notice in the Federal 
Register at 70 FR 41430 (Jul. 19, 2005), clarifying that employers 
seeking H-2B certifications must file two originals of Form ETA 750, 
Part A, directly with the SWA serving the area of intended employment. 
Once the application is reviewed by the SWA and after the employer 
conducts its required recruitment, the SWA sends the complete 
application to the appropriate NPC. The NPC Certifying Officer (CO), on 
behalf of the Secretary, either issues a labor certification for 
temporary employment under the H-2B Program, denies the certification, 
or issues a notice that such certification cannot be made.
    Currently, the Department has no enforcement authority or process 
to ensure H-2B workers are employed in compliance with the H-2B 
certification requirements. Congress vested DHS with that enforcement 
authority in 2005. 8 U.S.C. 1184, Public Law 109-13, 119 Stat. 231, 
318. As described more fully below, the Department in this NPRM 
proposes an H-2B regulatory enforcement regime in the event that the 
Department and DHS are able, pursuant to 8 U.S.C. 1184(c)(14)(B), to 
work out a mutually agreeable delegation of enforcement authority from 
DHS to the Department.

B. Earlier Efforts To Reform the H-2B Regulatory Process

    On January 27, 2005, DHS and the Department issued companion NPRMs 
to significantly alter H-2B procedures. 70 FR 3984, Jan. 27, 2005, 70 
FR 3993, Jan. 27, 2005. As proposed, combined changes to both sets of 
regulations would have eliminated in whole the Department's 
adjudicatory role, ending the current labor certification process for 
most H-2B occupations and permitting employers to submit labor-related 
attestations directly to USCIS as part of a revised Supplement 
accompanying the H-2B petition. The Department's proposed rule would 
have authorized the Department to conduct random or selected audits of 
labor attestations approved by USCIS and to recommend debarment of 
employers from participation in the H-2B Program upon findings of 
misrepresentation or violations of those attestations. The Department 
would have established a new audit and debarment process at the 
Department, and USCIS would have established its own procedures to 
debar employers based on independent information. DHS regulations, as 
proposed in 2005, also would have required filing directly by 
employers, disallowing the filing of H-2B petitions by agents. Id.
    The two agencies received numerous comments on the joint NPRMs. 
Most commenters opposed the proposals to move the program to a USCIS-
based attestation system and to eliminate the Department's role in 
reviewing the need of employers and the recruitment of U.S. workers 
except in the context of a post-adjudication audit. These concerns 
focused in part on the loss of the Department's experience in 
adjudicating

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issues of temporary need and the potential adverse impact on U.S. 
workers. Based on the significant concerns posed in these comments, and 
after further deliberation within each agency, the Department and DHS 
have not pursued their original proposal to streamline the program in 
the manner suggested by the two companion NPRMs. Consequently, that 
NPRM published by the Department on January 27, 2005 (RIN 1205-AB36) 
was withdrawn in the Department of Labor Fall 2007 Regulatory Agenda. 
See http://www.reginfo.gov/public/do/eAgendaViewRule?ruleID=221117.
    The Department has, however, continued to closely review its H-2B 
Program procedures in order to determine appropriate revisions to the 
H-2B labor certification process. This ongoing and systematic review 
has been accelerated in light of considerable workload increases for 
both the Department and the SWAs (an approximate 30 percent increase in 
applications in Fiscal Year (FY) 2007 over those received in FY 2006, 
and a comparable number during the first half of FY 2008) and limited 
appropriations. On April 4, 2007, ETA issued Training and Employment 
Guidance Letter (TEGL) No. 21-06, published in the Federal Register, 
Apr. 20, 2007, 72 FR 19961, to replace its previous guidance for the 
processing of H-2B applications (General Administration Letter No. 1-
95, 60 FR 7216, Feb. 7, 1995) and updated procedures for SWAs and NPCs 
to use in the processing of temporary labor certification applications. 
The Department then held national briefing sessions in Chicago and 
Atlanta on May 1 and May 4, 2007, respectively, to inform employers and 
other stakeholders of the updated processing guidance contained in TEGL 
21-06. Attendees at those briefing sessions raised important questions 
and concerns with regard to the effective implementation of TEGL 21-06 
by the SWAs and NPCs. In response to the substantive concerns raised, 
the Department further refined the process of reviewing applications in 
TEGL 27-06 (June 12, 2007) providing special procedures for dealing 
with forestry related occupations, and TEGL No. 21-06, Change 1 (June 
25, 2007) updating procedures by allowing the NPC CO to request 
additional information from employers to facilitate the processing of 
applications. 72 FR 36501, Jul. 3, 2007; 72 FR 38621, Jul. 13, 2007. 
Issues that were not addressed by these refinements, including those 
requiring regulatory changes, namely issues of increasing workload and 
processing delays, remain of concern to the Department.

C. Current Process Involving Temporary Labor Certifications and the 
Need for a Redesigned System

    The process for obtaining a temporary labor certification has been 
described to the Department as complicated, time-consuming, 
inefficient, and dependent upon the expenditure of considerable 
resources by employers. In the H-2B Program, and particularly in recent 
years, the sequential process for filing a temporary labor 
certification first at the SWA, which reviews the application, compares 
the wage offer to the prevailing wage for the occupation, oversees the 
recruitment of U.S. workers, and then transfers the application to the 
applicable ETA NPC, has been criticized for its length, overlap of 
effort, and resulting delays. Application processing delays, regardless 
of origin, can lead to adverse results with serious repercussions for a 
business, especially given the cap on visas under this program, where 
any delay may prevent an employer from obtaining H-2B workers that 
year. This occurs because employer demand for the limited number of 
visas greatly exceeds their supply and all visas are typically 
allocated in the early weeks of availability. See 8 U.S.C. 
1184(g)(1)(B) (setting H-2B annual visa cap at 66,000).
    In addition, the Department's increasing workload poses a growing 
challenge to efficient and timely processing of applications. The H-2B 
foreign labor certification program continues to increase in popularity 
among employers. While the annual number of visas available is limited 
by statute, the number of certifications is not. The number of H-2B 
labor certification applications has increased 129 percent since FY 
2000. In FY 2007, the Department experienced a nearly 30 percent 
increase in H-2B temporary labor certification application filings over 
the previous fiscal year. The INA does not authorize the Department to 
charge a fee to employers for processing H-2B applications \2\. At the 
same time, appropriated funds have not kept pace with the increased 
workload at the State or Federal level. This has resulted in 
disparities in processing rates--some significant--among SWAs receiving 
the initial H-2B employer applications. Some observers have noted these 
disparities among States unfairly advantage one set of employers (those 
in which the SWAs are able to timely process applications) over others 
(those in which SWAs experience delays because of backlogs, inadequate 
staffing or funding, or for other reasons).\3\
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    \2\ The Department will be transmitting draft legislation to 
Congress that would amend the INA to provide the Department with 
authority to charge and retain a fee to recoup the costs of 
administering the H-2B program.
    \3\ The growth in the number of applications is explained in 
part by the increasing desire of employers for a legal temporary 
workforce and by legislation that permitted greater numbers of H-2B 
workers into the U.S. by exempting from the 66,000 annual cap any H-
2B worker who had been counted against the numerical cap in previous 
years. See, e.g., Save Our Small and Seasonal Businesses Act of 2005 
(SOSSBA), Public Law 109-13, Div. B, Title IV, 119 Stat. 318 (May 
11, 2005); see also Public Law 108-287 Sec.  14006, 118 Stat 951, 
1014 (August 6, 2004) (exempting some fish roe occupations from the 
cap).
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    In light of these recurring experiences, the Department is 
proposing several significant measures to re-engineer our 
administration of the program. These changes do not alter, in any 
substantive way, the current obligations and requirements of employers 
who file an application for H-2B. Rather, these proposals are designed 
to improve the process by which employers obtain labor certification in 
areas where our program experience has demonstrated that such 
efficiencies will not impair the integrity of the process or the 
Department's role in protecting the job opportunities and wages of U.S. 
workers. These proposals will also provide greater accountability for 
employers through penalties, up to and including debarment, to further 
protect against program abuse.
    The redesigned process will require employers to complete 
recruitment steps similar to those now required, but will enable them 
to do so prior to filing the application for labor certification. Once 
the recruitment is complete, the paper application will be submitted 
directly to ETA instead of being filed with a SWA. To appropriately 
test the labor market, employers will be required to first obtain a 
prevailing wage rate from the appropriate NPC that will be used as the 
wage to be offered in the recruitment of U.S. and foreign workers. The 
employer will then follow recruitment steps similar to those required 
under the current program. The employer will be required to attest to 
and enumerate its recruitment efforts, but need not submit the 
documentation supporting those efforts with its application. To ensure 
the integrity of the process, the employer will be expected to retain 
evidence of its recruitment, as well as other documentation specified 
in the regulations, for 5 years from the date of certification, and 
will be required to provide it in response to a request by the CO for 
additional information made

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either prior to certification or, in the event the application is 
selected for audit or for investigation by the Wage and Hour Division 
(WHD), after a determination on the application has been issued.
    Employers or their authorized representatives (attorneys or agents) 
will be required to submit applications by U.S. Mail using a new form 
designed to evidence the employer's compliance with the obligations of 
the H-2B Program. The application form will collect, in the form of 
attestations, information similar to that required by--and that in 
given cases may be exchanged with SWA or NPC staff as part of--the 
current H-2B labor certification process. As we modernize the process, 
these additional attestations will be required from the employer to 
ensure adherence to program requirements and firmly establish 
accountability. As with recruitment, employers will be required to keep 
records reflecting their compliance with all program requirements. 
Assuming an application is complete and therefore accepted by the NPC 
for processing, it will undergo substantive Federal review by the 
Department.
    In order to further protect the integrity of the program in light 
of the elimination of SWA oversight of recruitment, specific 
verification steps, such as verifying the employer's Federal Employer 
Identification Number (FEIN) to ensure the employer is a bona fide 
business entity, will be collected during processing to ensure the 
accuracy of the information supplied by the employer and the employer's 
compliance with program requirements. If an application does not appear 
to be approvable on its face but requires additional information in 
order to be adjudicated, the NPC will issue a Request for Further 
Information (RFI), a process the program already employs. After full 
Departmental review, an application will be certified or denied.
    The introduction of new post-adjudication audits will serve as both 
a quality control measure and as a means of ensuring program 
compliance, along with WHD investigations. Audits will be conducted on 
adjudicated applications that meet certain criteria, as well as on 
randomly-selected applications. In the event of an audit (or WHD 
investigation), employers will be required to provide information 
supporting the attestations made in the application. Failure to meet 
the required standards or to provide information in response to an 
audit (or investigation) may result in an adverse finding for the 
application in question, and that could lead either to Departmental 
supervised recruitment in future applications or WHD investigations or 
debarment from the program.\4\
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    \4\ Further sanctions may be imposed by DHS under 8 U.S.C. 
1184(c)(14):
    ``(14)(A) If the Secretary of Homeland Security finds, after 
notice and an opportunity for a hearing, a substantial failure to 
meet any of the conditions of the petition to admit or otherwise 
provide status to a nonimmigrant worker under section 
101(a)(15)(H)(ii)(b) or a willful misrepresentation of a material 
fact in such petition--
    ``(i) The Secretary of Homeland Security may, in addition to any 
other remedy authorized by law, impose such administrative remedies 
(including civil monetary penalties in an amount not to exceed 
$10,000 per violation) as the Secretary of Homeland Security 
determines to be appropriate; and
    ``(ii) the Secretary of Homeland Security may deny petitions 
filed with respect to that employer under section 204 or paragraph 
(1) of this subsection during a period of at least 1 year but not 
more than 5 years for aliens to be employed by the employer.
    ``(B) The Secretary of Homeland Security may delegate to the 
Secretary of Labor, with the agreement of the Secretary of Labor, 
any of the authority given to the Secretary of Homeland Security 
under subparagraph (A)(i).
    ``(C) In determining the level of penalties to be assessed under 
subparagraph (A), the highest penalties shall be reserved for 
willful failures to meet any of the conditions of the petition that 
involve harm to United States workers.
    ``(D) In this paragraph, the term `substantial failure' means 
the willful failure to comply with the requirements of this section 
that constitutes a significant deviation from the terms and 
conditions of a petition.''
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    The combination of modernized processing of applications, and 
replacement of the SWAs' current role in the recruitment and referral 
of U.S. workers with pre-filing recruitment by the employer and audits 
by the Department, should yield a considerable reduction in the overall 
average time needed to process H-2B labor certification applications. 
This process will reduce past processing times which have exceeded our 
historical 60-day combined State and Federal processing window 
timeframe.

D. Compliance Investigations and Remedies for Violations

    Finally, this NPRM outlines a process to impose remedies for 
violations in the event that the Department and DHS are able to work 
out a mutually agreeable delegation of enforcement authority. The INA 
and its implementing regulations provide the Department no direct 
authority to enforce any conditions concerning the employment of H-2B 
workers, including the prevailing wage attestation. Consequently, 
current DOL H-2B regulations provide no substantive protections to 
ensure that employers fulfill their obligations concerning the terms 
and conditions of employment once the H-2B workers are employed.
    Section 404 of Save Our Small and Seasonal Businesses Act of 2005, 
Public Law 109-13, 119 Stat. 231, 318, amended the INA to provide the 
Secretary of DHS with authority to impose certain sanctions when a 
sponsoring employer has been found, after notice and an opportunity for 
a hearing, to have committed ``a substantial failure to meet any of the 
conditions of the petition to admit or otherwise provide status to a 
nonimmigrant [H-2B] worker * * * or a willful misrepresentation of a 
material fact in such petition''. 8 U.S.C. 1184(c)(14)(A). When such 
violations are found, the Secretary of Homeland Security ``may, in 
addition to any other remedy authorized by law, impose such 
administrative remedies (including civil monetary penalties in an 
amount not to exceed $10,000 per violation) as the Secretary of DHS 
determines to be appropriate.'' Id. at 1184(c)(14)(A)(i). The statute 
provides that the ``highest penalties shall be reserved for willful 
failures to meet any of the conditions of the petition (which includes 
the labor certification) that involve harm to United States workers.'' 
Id. at 1184(c)(14)(C). In addition, the Secretary of DHS is authorized 
to ``deny petitions filed with respect to that employer under section 
1154 of this title or paragraph (1) of this subsection during a period 
of at least 1 year but not more than 5 years for aliens to be employed 
by the employer.'' Id. at 1184(c)(14)(A)(ii). These enforcement 
provisions became effective October 1, 2005.
    The authority given to the Secretary of DHS under 8 U.S.C. 
1184(c)(14)(A)(i) may be delegated to the Secretary of the Department, 
with the agreement of the Secretary of the Department. Id. at 
1184(c)(14)(B). In addition, the INA contains other authority for the 
Secretary of DHS to delegate these functions. Under 8 U.S.C. 1103(a)(1) 
and (a)(3) the Secretary of DHS is ``charged with the administration 
and enforcement of [INA] and all laws relating to the immigration and 
naturalization of aliens'' and is authorized to ``establish such 
regulations; prescribe such forms of bond, reports, entries, and other 
papers; issue such instructions; and perform such other acts as he 
deems necessary for carrying out his authority under the provisions of 
[INA].'' The Secretary of DHS ``is authorized to confer or impose upon 
any employee of the United States, with the consent of the head of the 
Department * * * under whose jurisdiction the employee is serving, any 
powers, privileges, or duties conferred or imposed by [the INA] or 
regulations issued thereunder upon officers or

[[Page 29946]]

employees of the Service.'' Id. at 1103(a)(6).
    Pursuant to authority in 8 U.S.C. 1103(a)(6) and 1184(c)(14)(B), 
the Department of Labor is currently in discussions with the Department 
of DHS regarding whether the two Departments can work out a mutually 
agreeable delegation of authority that would enable the Department to 
enforce the terms of an H-2B certification and petition. In the event 
such a delegation of authority can be worked out, the Department would 
like to be prepared to begin enforcement of the H-2B Program and 
accordingly this NPRM contains the Department's proposed regulations 
implementing the enforcement of employer's H-2B attestations, as well 
as the authority to impose appropriate sanctions. This NPRM proposes an 
enforcement process by which the Department will investigate employer 
compliance with H-2B attestations and impose remedies for violations 
that are found, if that delegation occurs.
    As noted above, section 214(c)(14)(A) of the INA uses broad 
language in providing authority to impose ``such administrative 
remedies (including civil money penalties in an amount not to exceed 
$10,000 per violation) as the Secretary of Homeland Security determines 
to be appropriate * * *.'' The Department is considering the scope of 
remedies that may be assessed under this H-2B provision of the INA in 
the event a delegation is issued. For instance, although the assessment 
of back wage liability for the failure to pay the appropriate wage is a 
common remedy in Federal statutes that protect the rights of workers, 
see, e.g., 29 U.S.C. 216 (Fair Labor Standards Act); 29 U.S.C. 1854(c) 
(Migrant and Seasonal Agricultural Worker Protection Act); 29 U.S.C. 
2617 (Family and Medical Leave Act), the H-2B statutory provisions do 
not provide explicit authority to require the payment of back wages. It 
may be argued that an explicit statutory delegation of authority to 
award back pay is unnecessary where back pay is required to enforce the 
statute as Congress intended. See Albemarle Paper Co. v. Moody, 422 
U.S. 405, 417-418 (1975) (back pay award consistent with purposes of, 
and a necessary component of remedy for violations of Title VII of the 
Civil Rights Act of 1964); United States v. Duquesne Light Co., 423 F. 
Supp. 507, 509 (W.D. Pa. 1976) (back pay appropriate remedy under 
Executive Order 11,246). On the other hand, the H-1B provisions of the 
INA contain language that is nearly identical to the language found in 
H-2B,\5\ and unlike the H-2B provisions, H-1B also contains explicit 
authorization for the assessment of back pay, Id. at 1182(n)(2)(D). It 
may be that where Congress intended the assessment of back wages under 
the INA, it said so explicitly and the lack of such explicit authority 
under the H-2B statute might preclude such an assessment. See Beverly 
Enterprises v. Herman, 119 F. Supp. 2d1 (D.D.C. 2000) (regulation 
requiring payment of prevailing wage in the absence of a statutory 
requirement found invalid). The Department solicits comments on the 
appropriateness of assessing back wages and other remedies under the H-
2B provisions.
---------------------------------------------------------------------------

    \5\ 8 U.S.C. 1182(n)(2)(C)(i)(I)(H-1B) (``the Secretary * * * 
may * * * impose such other administrative remedies (including civil 
monetary penalties in an amount not to exceed $1,000 per violation) 
as the Secretary determines to be appropriate * * *)
---------------------------------------------------------------------------

II. Proposed Redesign To Achieve a Modern Attestation-Based Program

A. Prevailing Wage Obtained Prior To Commencing Recruitment

    In order for the Secretary to be able to certify that U.S. workers 
would not be adversely affected by the employment of H-2B workers, an 
adequate test of the labor market must be conducted. Such a test must 
include the employer offering and paying a wage that is equal to or 
higher than the available position's prevailing wage, where the terms, 
duties and conditions of employment are normal and promote the 
effective recruitment and consideration of U.S. workers.
    For many years, the Department has required H-2B employers to 
submit their applications for certification to the SWAs. The SWA then 
filled in the applicable prevailing wage for the job opportunity. 
Department regulations at 20 CFR 656.40, which the Department applies 
to prevailing wage determinations (PWD) for occupations under its 
permanent and temporary non-agricultural foreign labor certification 
programs, instructs SWAs to apply wage rates from the Bureau of Labor 
Statistics (BLS), Occupational Employment Statistics (OES) Survey to 
determine the prevailing wage rate, unless superseded by a wage set by 
a collective bargaining agreement or other statute. The BLS OES Survey 
results of prevailing wages have for several years been available to 
the SWAs and the public on the Department's Web site at http://
www.foreignlaborcert.doleta.gov/. Under current regulations and the 
Department's prevailing wage guidance, SWAs may also accept employer-
provided alternatives from legitimate sources. See 20 CFR 656.40; see 
also Employment and Training Administration, Prevailing Wage 
Determination Policy Guidance, Nonagricultural Immigration Programs 
(May 9, 2005), at http://www.foreignlaborcert.doleta.gov/pdf/Policy_
Nonag_Progs.pdf.
    As part of the proposed reengineered process, employers will obtain 
the prevailing wage for the job opportunity directly from OFLC. The 
Department is proposing to allow employers to file prevailing wage 
requests no more than 90 days in advance of the recruitment process and 
to clarify the validity period for the wage determination. The OES 
database is updated annually for use in the foreign labor programs. 
Depending on the time of year that the PWD is obtained from the 
Department, relative to the date of the most recent update, the wage 
determination provided could be valid from several months up to 1 year.
    Our program experience indicates that by federalizing the 
prevailing wage application component we can institute a high level of 
efficiency and consistency in the determination and provision of 
prevailing wages which has been a past problem. This increased 
efficiency and consistency will help ensure more accurate wage 
determinations, which result in improved protections for U.S. workers. 
The Department is especially interested in comments from employers who 
have utilized the program in the past on the efficacy of this proposed 
action.
    The new system would federalize the issuance of prevailing wages, 
and delegate the authority for determining prevailing wage rates to the 
ETA NPCs. It is the Department's goal to eventually allow this activity 
to be performed electronically between the NPC and the employer. 
However, initially it will be a manual paper process.
    Shifting wage determination activities to NPC staff would reduce 
the risk of job misclassification because of centralized staff 
experience and consistency, thereby not only strengthening program 
integrity, but also ensuring consistency in classification across 
States, resulting in improved protections for U.S. workers. Until the 
new process can be implemented, the SWAs would continue to be 
responsible for providing prevailing wage determinations (PWDs).
    The Department has received numerous reports that in cases where 
job descriptions are complex and contain more than one different and 
definable job opportunity, some SWAs have made inconsistent 
classifications, thereby resulting in inconsistent PWDs.

[[Page 29947]]

Furthermore, where H-2B workers need to work in several different 
geographic areas which may be in the jurisdiction of several different 
SWAs (examples include the New York, New Jersey, Connecticut ``Tri-
state Region'' or the Washington, DC-Maryland-Virginia metropolitan 
area), questions have arisen about where to file a prevailing wage 
request and how that wage should be determined. Utilizing the 
federalized system discussed above would alleviate such confusion.
    For consistency and greater efficiency across non-agricultural 
programs, the Department is proposing extending this new wage request 
processing model to the permanent labor certification program, as well 
as to the attestations required under the H-1B, H-1B1 and E-3 specialty 
occupation nonimmigrant programs. The new process will in no way alter 
the substantive requirements of foreign labor certification programs, 
and we anticipate that, at least in the foreseeable future, the 
methodology for determining an appropriate non-agricultural wage rate 
will remain much the same as it stands today; our intent is simply to 
modernize, centralize, and make more consistent the mechanics and 
analysis behind wage determination. Much as the SWAs do now, the NPCs 
will evaluate the particulars of the employer's job offer, such as the 
job duties and requirements for the position and the geographic area in 
which the job is located, to arrive at the correct PWD. In the near 
term, the Department will update and formalize its guidance for making 
prevailing wage determinations to confirm existing procedures. As our 
program experience administering the PWD process grows, the Department 
may revise its guidance to reflect improved processes or methodology.
    To implement and standardize the new process, ETA has developed a 
new Prevailing Wage Determination Request (PWDR) form employers can use 
to make their respective requests regardless of program or job 
classification. The Department is considering means by which 
eventually--resources permitting--such a request could be submitted, 
and a prevailing wage provided, electronically.
    For purposes of the permanent labor certification (PERM) program, 
the regulations at 20 CFR part 656 will be amended to reflect the 
transfer of prevailing wage determination functions from the SWAs to 
the NPCs. Currently, Department regulations governing permanent labor 
certification require an employer to obtain a PWD from the SWA before 
filing a labor certification application with the Department or an I-
140 immigrant worker petition with DHS under Schedule A or for 
sheepherders. In addition to technical changes required in part 656--
for example, we propose to change the definitions of ``prevailing wage 
determination'' and ``State Workforce Agency'' under Sec.  656.3--
Subpart D, ``Determination of Prevailing Wage'', to require that 
employers now seek a PWD directly from the NPC with jurisdiction over 
the area of intended employment and with which they will be filing 
their permanent labor certification application.
    For purposes of the H-1B Program, the regulations at 20 CFR part 
655 will be amended to reflect the transfer of PWD functions from the 
SWAs to the NPCs. Department regulations covering the H-1B Program (and 
by extension and reference both H-1B1 and E-3, which both utilize the 
filing and approval of a Labor Condition Application, or LCA) permit an 
employer to obtain a PWD from the SWA before filing an LCA with the 
Department in order to obtain a ``safe harbor'' from a determination of 
the validity of the prevailing wage. This proposal requires technical 
changes to Sec.  655.731(a)(2) to permit employers to utilize a 
prevailing wage obtained from the NPC rather than the SWA. These 
changes would enable employers to seek a PWD directly from the NPC with 
jurisdiction over the area of intended employment and with which they 
will be filing their Labor Condition Application.
    Under the new process, for purposes of H-2B job classifications, 
NPC staff will follow the requirements outlined under proposed 
Sec. Sec.  655.10 and 655.11 when reviewing each position and 
determining the appropriate wage rate. These new regulatory sections 
are consistent with existing regulations at 20 CFR 656.40 and the 
Department's May 2005 Prevailing Wage Determination Policy Guidance, 
Nonagricultural Immigration Programs, but would supersede current 
regulations and guidance for the H-2B Program to the extent there are 
any perceived inconsistencies.
    In those cases where a job opportunity involves multiple worksites 
in an area of intended employment and crosses multiple counties or 
States and different prevailing wage rates exist because the worksites 
are located in different Metropolitan Statistical Areas (MSA), the NPC 
will analyze the different prevailing wage rates and determine the 
appropriate wage as the highest wage rate among all applicable MSAs. In 
these cases, the employer will not pay different wage rates depending 
on the location of the work. The U.S. worker and the foreign worker are 
both entitled to know and rely on the wage to be paid for the entire 
period of temporary employment, and that wage will be the highest among 
the application wages for the various locations of work.
    The NPRM continues the Department's policy of permitting employers 
to provide an independent wage survey under certain guidelines 
delineated in the proposed rule. It also continues to provide for an 
appeal process in the event of a dispute over the applicable prevailing 
wage (but makes that process easier to use).
    The Department welcomes comments, especially from potential users 
of the system, on the proposals being presented. We are particularly 
interested in comments regarding the required use of an online 
prevailing wage system and form for interaction with the NPC.

B. Direct Filing With the NPC

    Under the NPRM, the Department will continue to administer the 
application process for H-2B temporary foreign labor certification. 
However, the Department proposes to eliminate the role of the SWAs in 
accepting and reviewing H-2B applications, overseeing recruitment, and 
forwarding completed applications to the appropriate NPC. Instead, as 
with the permanent labor certification process, the employer will file 
applications directly with the Chicago NPC, as the Department will be 
specializing its two centers effective June 1, 2008. However, each 
employer will still be required to place a job order with the 
appropriate SWA as part of the pre-filing recruitment, and we expect 
SWAs will continue to place H-2B associated job orders in their 
respective Employment Service systems.
    This re-engineered filing process should reduce the time it takes 
to process each application to conclusion. Under the current H-2B 
process, employers initially file with the appropriate SWA, which 
subsequently reviews the application, determines the prevailing wage, 
and authorizes the employer to undertake recruitment of U.S. workers. 
The SWA also places a job order in its Employment Service system and 
makes referrals of interested U.S. workers to the employer. The SWA 
receives the recruitment report and reviews it, forwarding the 
completed application on to the NPC with an adjudication 
recommendation. This last process of review is then duplicated at the 
Federal level.

[[Page 29948]]

    Given these current multiple levels of Government review, any 
delays early in the process can have a ripple effect resulting in 
delays at the NPCs. For example, due to differing and increasing 
workload levels, local filing cycles, and declining resources, SWAs 
vary considerably in the amount of time required, to review 
applications, tell employers to initiate recruitment, review 
recruitment results and, finally, forward the application to the NPC. 
Consequently, the State (or even SWA jurisdiction) in which an 
application is filed can significantly impact the application's 
processing time. Employers can be disadvantaged through no fault of 
their own simply based on their location, depending upon a SWA's 
workload and available resources.
    The disparity between demand for program services and processing 
resources has increased in recent years, sometimes significantly, the 
amount of time required to process even the most basic of applications. 
In FY 2007, the average processing time for the SWA portion of an H-2B 
labor certification application was 64 days, as compared to an average 
of 31 days at the NPC level. As our recent program experience shows, 
these delays have serious repercussions at the Federal level. The NPCs 
must attempt to compensate for State delays by borrowing staff from 
other non-H-2B processing activities. Shifting these finite resources 
has created new backlogs in one or more of the other labor 
certification programs. This is exacerbated by statutorily-mandated 
processing times in some of the other programs.
    By focusing the SWAs' role in the initial stages of processing H-2B 
labor certification applications to the placement of job orders and 
handling referrals, the Department anticipates being able to sustain 
the processing of all applications on a first-in, first-out basis and 
more effectively and efficiently oversee the adjudication of 
applications. As a result of this proposed modernized and more 
efficient application procedure, processing times will be significantly 
more uniform across work locations.
    We expect that the time savings gained from a process that removes 
duplicative functions and ensures adjudication by the NPC will improve 
the total time an employer must wait to obtain a labor certification 
from the Federal Government. Moreover, the Department's centralization 
of application review in its NPCs will permit greater consistency of 
adjudication with respect to substantive issues. All major 
determinations made as part of the certification process will be 
consolidated from 53 agencies in the States and territories (except 
Guam) to one federally-run NPC, thereby gaining efficiency of scale and 
greater uniformity and accountability in training adjudicators and for 
consistently applying relevant law and policy.

C. Employer Conducted Pre-Filing Recruitment

    This NPRM proposes, under new Sec.  655.15, that employers be 
required to conduct recruitment for U.S. workers prior to filing the 
new form currently in development, to be styled on the Application for 
Temporary Employment Certification. The purpose of the recruitment 
process is to fulfill the Department's obligation to ensure an adequate 
test of the availability of qualified U.S. workers to perform the work 
and to ensure foreign workers are not employed under conditions that 
adversely affect the wages and working conditions of similarly employed 
U.S. workers. Employers will continue to be required to test the labor 
market for qualified U.S. workers, at prevailing wages and working 
conditions, no more than 120 days before the date the work must begin 
(``date of need''), thus ensuring these jobs are made available, with 
notice, to the U.S. workers who are most likely to qualify.
    The Department further proposes that prevailing wages be obtained 
from the NPC in advance of recruitment. The NPCs will issue prevailing 
wages valid for the duration of the described need up to 1 year. The 
employer will be obligated to ensure that the prevailing wage is valid 
upon commencement of recruitment or on the date it files the 
application with the Chicago NPC and that the appropriate wage is 
listed in all recruitment documents. Obtaining the prevailing wage in 
advance of initiating recruitment will help enable employers to begin 
their recruitment obligations in a timely manner and will ensure that 
the job is advertised and offered to U.S. workers at the appropriate 
wage.
    U.S. worker recruitment will continue to consist of prescribed 
steps designed to reflect what the Department has determined, based on 
program experience, are most appropriate to the occupations that are 
the usual subjects of H-2B applications. These steps, which are 
discussed in more detail below, will include the placement of a job 
order with the SWA serving the area of intended employment; the 
placement of three advertisements, one of which must be on a Sunday, in 
the newspaper most appropriate for the occupation and most likely to 
reach the U.S. workers who would apply and qualify for the job 
opportunity; and preparation of a recruitment report outlining the 
results of the recruitment to be submitted with the application. If the 
employer determines in good faith that use of a professional, trade or 
ethnic publication is more appropriate to the occupation, that 
qualified workers likely to apply for the job opportunity would be more 
likely to read that publication than a newspaper of general 
circulation, and that it is the most likely source to bring responses 
from qualified and available U.S. workers, the employer may use such a 
publication in place of two of the daily (but not Sunday) 
advertisements. This option would offer employers greater flexibility 
in meeting recruitment requirements for those jobs that are 
traditionally advertised in professional or trade journals 
(particularly for those unionized jobs for which publications are most 
likely to exist). In addition, in circumstances where it is appropriate 
for the occupation and customary to the industry, the use of union 
organizations as a recruitment source will continue to be required. 
Employers will have to attest under penalty of perjury that (1) they 
did, in fact, attempt to recruit U.S. workers in the manner described 
above, and (2) any potentially qualified U.S. workers that applied were 
rejected because in fact they were not qualified or for other lawful, 
job-related reasons.
    These steps are very similar to those currently required under the 
current H-2B Program. The rule maintains the requirement that employers 
must conduct recruitment and consider potential U.S. workers. By having 
employers engage in these steps under their own direction rather than 
the SWA's, and by having the employer forward their recruitment report 
to the Department for review, we expect to improve application 
processing and consistency while ensuring protections for U.S. workers. 
Maintaining the Department's current requirement that recruitment take 
place no more than 120 days before the date of need continues to ensure 
jobs are advertised to U.S. workers with adequate notice given the 
temporary nature of the employment.
    Employer recruitment efforts must be documented and preserved for 
production to the Department or other Federal agencies--for example, in 
the event of either a post-adjudication audit or a pre-adjudication RFI 
or an investigation by the WHD or another body. For purposes of this 
regulation, the recruitment documentation requirements will be 
satisfied by copies of the pages containing the advertisement from the 
newspapers in

[[Page 29949]]

which the job opportunity appeared and, if appropriate, correspondence 
signed by the employer demonstrating that labor or trade organizations 
were contacted and were either unable to refer qualified U.S. workers 
or non-responsive to the employer's request. Documentation of a SWA job 
order will be satisfied by copies of the job order downloaded from the 
Internet on the first and last day of the posting, or a copy of the job 
order provided by the SWA with the dates of posting listed.
    Newspapers remain a potential recruitment source for U.S. workers 
likely to be affected by the introduction of H-2B labor. Permitting 
employers to place their own newspaper advertisements pursuant to the 
requirements outlined in the proposed regulation acknowledges industry 
practice and needs, while maintaining accountability and worker 
protection. One of the newspaper advertisements will be required to 
appear on a Sunday, unless the job opportunity is in an area in which 
the newspaper most likely to reach the most appropriate potential pool 
of U.S. workers does not have a Sunday edition. Employers will be 
required to list the specifics of the newspaper advertisement on the 
application but will not be required to submit tear sheets or other 
documentary evidence of that recruitment when the application is 
submitted. However, the employer will be required to maintain 
documentation of the actual advertisement(s) published and the results 
of the recruitment effort in the event of an audit or other review. Our 
recent program experience under the re-engineered PERM program has 
demonstrated the viability of this approach. See 20 CFR part 656.
    At the same time, our program experience has shown that while most 
employers seek to comply with recruitment requirements, not all may do 
so. For example, the Department's experience has long demonstrated that 
there are employers who, if not provided with specific instructions, 
will seek to demonstrate apparent compliance with advertising 
requirements by placing the required newspaper advertisements in 
newspapers having low circulations and which are the least likely 
publications to be read by potentially available U.S. workers. In order 
for the employer's job opening to receive appropriate exposure to the 
widest pool of potentially available U.S. workers, the proposed 
regulation at new Sec.  655.15(f) requires that the mandatory 
advertisements (now including a Sunday edition) appear in the newspaper 
of general circulation that the employer believes in good faith is most 
appropriate to the occupation in the area of intended employment and 
the most likely to be read by workers who will apply for the job 
opportunity in the area of intended employment.
    Under proposed Sec.  655.17, the advertisements must: (1) Identify 
the employer with sufficient clarity to identify the employer to the 
potential pool of U.S. workers (by legal and trade name, for example); 
(2) provide a specific job location or geographic area of employment 
with enough specificity to apprise applicants of travel or commuting 
requirements, if any, and where applicants will likely have to reside 
to perform the services or labor; (3) provide a description of the job 
with sufficient particularity to apprise U.S. workers of the duties or 
services to be performed and whether any overtime will be available; 
(4) list minimum education and experience requirements for the 
position, if any, or state that no experience is required; (5) list the 
benefits, if any, and the wage for the position, which must equal or 
exceed the applicable prevailing wage as provided by the NPC; (6) 
contain the word ``temporary'' to clearly identify the temporary nature 
of the position; (7) list the total number of job openings that are 
available, which must be no less than the number of openings the 
employer lists on the ETA application; and (8) provide clear contact 
information to enable U.S. workers to apply for the job opportunity. 
The advertisement cannot contain a job description or duties which are 
in addition to or exceed the duties listed on the PWDR or on the 
application, and must not contain terms and conditions of employment 
which are less favorable than those that would be offered to an H-2B 
worker.
    If the job opportunity is in an industry, region and occupation in 
which union recruitment is customary, the appropriate union 
organization must be contacted. 72 FR 38621, 38624, Jul. 13, 2007. This 
is a continuation of the current practice under TEGL 21-06, Ch. 1. 72 
FR 382621, 38624, Jul. 13, 2007. Employer diligence will be required to 
determine whether the job opportunity is one which has traditionally 
been the subject of collective bargaining and whether it is therefore 
appropriate and customary to contact the union. Some positions, such as 
welders and drillers, have had a long history of collective bargaining 
interaction. Others, such as landscapers, are not traditionally 
unionized and there simply may be no collective bargaining unit to 
contact. Those jobs in which union contact has been customary will 
continue to be so; those in which there is no applicable union to 
contact would fall outside of the job opportunities for which union 
contact is ``appropriate to the occupation and customary to the 
industry.'' The nature of the employment, not the employer, will be the 
primary guide. Employers with uncertainties are invited to request 
guidance from the Chicago NPC regarding the applicability of union 
contact to their occupation during the recruitment period.
    The SWA will continue to play an active role in the recruitment 
process by posting an employer's job order. The employer will need to 
contact the SWA to place the job order in its job posting system, 
rather than rely on the SWA to place it in the course of adjudicating 
the application, as is the case now. The job order will provide the 
same information as the newspaper advertisements contemplated by this 
NPRM. Under proposed Sec.  655.15(e), employers whose applications 
involve worksites in multiple SWAs will place the job order with the 
SWA having jurisdiction over the place where the work is contemplated 
to begin. That SWA will post the job order and ensure the job order is 
circulated to other SWAs covering other worksites as required.
    The Department proposes to maintain the length of time the SWA 
keeps the job order open to its current 10 consecutive calendar days. 
We consider this amount of time the minimum necessary to provide 
sufficient local involvement in placement and referrals.
    To strengthen the integrity of the Secretary's determination of the 
availability of U.S. workers, and to help bolster employers' confidence 
in their local SWAs and the larger H-2B Program, the proposed rule 
states that SWAs are required to verify the employment eligibility of 
prospective U.S. workers before referring them under an H-2B job order. 
That such a process is appropriate under the INA is evident from the 
contemplation in section 274A(a)(5) (8 U.S.C. 1324a(a)(5)) of the 
ability of an employer to rely upon the employment eligibility 
verification conducted by a state employment agency (e.g., the SWA), if 
that agency conducts the verification and provides to the employer a 
certification that the agency has complied with the procedures required 
for verification.
    The INA clearly contemplates that workers who are competing for 
jobs with H-2B foreign workers must be eligible to be employed in such 
positions. The INA provisions governing admission of foreign workers 
under the H-2B Program make employment eligibility of U.S. workers a 
core element of their availability for such

[[Page 29950]]

jobs. By statute, the Secretary is consulted as to the availability of 
persons in the U.S. ``capable of performing such service or labor''. 8 
U.S.C. 1101(a)(15)(H)(ii)(b). USCIS regulations require, at 8 CFR 
214.2(h)(6), that the intending employer must first apply for a 
temporary labor certification from the Secretary demonstrating that 
U.S. workers capable of performing the services or labor are 
unavailable, and that the employment of the foreign worker(s) will not 
adversely affect the wages and working conditions of similarly employed 
U.S. workers. Employers are therefore not penalized for turning away 
U.S.-based applicants who are not authorized to work, and referred 
workers who are refused employment on the basis of not having work 
authorization are not counted as available for purposes of H-2B labor 
certification.
    The Department notes that DHS regulations at 8 CFR 274a.6 provide 
the verification procedures for SWAs pursuant to INA section 
274A(a)(5). The CIS regulations set out the procedures by which a SWA 
may verify and certify to the employer the employment eligibility of 
any referred worker. To confirm its continued eligibility to receive 
Alien Labor Certification grant funding, each State agency will be 
asked to submit proof of these procedures to the Department prior to 
the beginning of the 2009 fiscal year. The SWA's responsibility to 
perform threshold, pre-referral verification exists separate from each 
employer's independent obligation under the INA to verify the 
employment eligibility of every worker to whom it has extended a job 
offer. The INA provides that employers who accept referrals from SWAs 
that verify employment eligibility in compliance with the DHS process 
and provide referred employees with appropriate documentation 
certifying that employment eligibility verification has taken place are 
entitled to ``safe harbor'' in the event it is later discovered a 
referred worker was not authorized to work in the U.S. INA section 
274A(a)(5); 8 U.S.C. 1324a(a)(5). To simplify the recruiting process 
and avoid unnecessary duplication of functions, SWAs are directed to 
provide all employers with adequate documentation that employment 
verification of a referred employee has taken place.
    The Department is not insensitive to the resource and time 
constraints facing SWAs in their administration of H-2B activities and 
the difficulties inherent in making informed referrals on a population 
of workers that may be itinerant and difficult to contact. However, we 
do not believe that this requirement has resulted or will result in a 
significant workload increase or administrative burden. Further, the 
mechanisms available for verification--including the E-Verify Web-based 
system operated by DHS--allow SWA staff to perform this function 
relatively quickly after training. Further, the performance of this 
duty is an allowable activity under Wagner-Peyser funding each SWA 
receives from ETA.
    E-Verify is a program administered by USCIS. E-Verify 
electronically verifies a person's employment eligibility after the 
Employment Eligibility Verification Form (Form I-9) has been completed. 
SWAs that choose to use E-Verify refer a job seeker to an H-2B-related 
job only after job seekers complete a Form I-9 and SWAs submit 
information via E-Verify. The SWA will be required to follow the terms 
and conditions in the Memorandum of Understanding (MOU) that must be 
signed by the SWA and USCIS in order to gain access to E-Verify. The 
SWA may not refuse to make a referral and the employer may not refuse 
to accept a referral because of an E-Verify tentative nonconfirmation 
(TNC) of the employee's employment eligibility, unless the job seeker 
decides not to contest the TNC. SWAs and employers may not take any 
adverse action, such as delaying a referral or start date, against a 
job seeker or referred worker based on the fact that E-Verify may not 
have generated a final confirmation of employment eligibility. The SWA 
will be required to advise the employer when E-verify generates a final 
confirmation or nonconfirmation.
    The requirement that SWAs verify employment eligibility prior to 
referral is designed to strengthen the integrity of the temporary labor 
certification process, afford employers a legal pool of applicants, 
protect U.S. workers, and improve confidence in and use of the H-2B 
Program. The policy is fully consistent with the Secretary's statutory 
authority to administer H-2B labor certification and the SWA's 
statutory responsibility to refer only eligible individuals.
    The NPRM also clarifies the amount of time that U.S. workers should 
be considered after the closing of the job order and the end of 
recruitment before an employer is permitted to file an application. 
Under the current program, SWAs differ considerably in their 
instructions to employers (based on local practices) as to when 
recruitment, particularly recruitment under the job order, may end. The 
NPRM will make consistent such periods by requiring an employer to wait 
at least 2 calendar days after the job order is closed and at least 5 
calendar days after the last newspaper or journal advertisement to 
complete the recruitment process, and prepare a written recruitment 
report, listing the recruitment conducted, the applicants who came 
forward seeking the job opportunity, and the reasons for rejection, to 
be submitted with the application. By instituting a uniform time period 
for the consideration of referrals, the Department intends to permit 
employers an equitable time to complete their review of all referred 
U.S. workers and prepare the required recruitment report.

D. Form Submission

    The Department proposes initially to require employers to submit 
applications on paper, through an information collection (form) to be 
modified significantly from the current form to reflect an attestation-
based filing process. The use of a redesigned form would provide the 
necessary assurances for the Department to verify program compliance. 
The Department is considering, should resources become available, an 
eventual electronic submission system similar to that employed in other 
programs administered by the OFLC, such as the electronic-submission 
system in PERM.
    The Department is proposing to eventually require electronic 
submission in explicit recognition of the fact that such a process will 
significantly modernize the application filing and review process. An 
electronic submission process will also improve the collection of key 
program data and better allow the Department to anticipate trends, 
investigate areas of concern, and focus on areas of needed program 
improvement. Improved data collection will also enable the Department 
to capture information regarding noncompliance and potential fraud that 
may lead to future administrative, civil, or criminal enforcement 
actions against unscrupulous or non-performing employers.
    The Department recognizes that some H-2B employers may be concerned 
about their ability to comply with the requirements through use of an 
Internet-based submission process once it is implemented. The 
Department is committed to providing, based upon its previous 
experience and at the appropriate time, user-friendly electronic 
registration and filing processes that enable use by any employer with 
computer and Internet access. The Department invites comments, in 
particular from H-2B employers, on the concept of an electronic filing 
process.

[[Page 29951]]

E. Attestation-Based Process

    The Department is proposing to require employers to submit the new 
application directly to the Department by U.S. Mail or private mail 
courier to the Chicago NPC. The application will contain certain 
attestations to confirm employers' adherence to their obligations under 
the H-2B Program. The employer will be required to retain documentation 
confirming the contents of the attestations for the Department's review 
in audits or investigations. An employer will be required to attest, 
under penalty of perjury, that it has conducted the required 
recruitment, it has not found sufficient qualified U.S. workers, and it 
meets all of the requirements and obligations of the program, including 
temporary need and payment of the prevailing wages.
1. Benefits From an Attestation-Based Process
    The Department anticipates the shift to an attestation-based 
process will reduce processing times while maintaining program 
integrity. Employers will be expected to comply with all requirements 
and obligations of the program and maintain appropriate documentation 
evidencing their compliance. The Department retains for itself the 
right to request such documentation made either in the course of 
application consideration, after the adjudication of an application, or 
through other permitted investigative means such as an investigation by 
the WHD.\6\ These attestations and other information required by the 
application form will elicit information similar to that required by 
the current H-2B labor certification process showing the employer has 
performed the necessary activities to establish eligibility for labor 
certification.
---------------------------------------------------------------------------

    \6\ The ability for the WHD, rather the Department of Homeland 
Security, to investigate is contingent upon the Department and DHS 
agreeing on a delegation of enforcement authority.
---------------------------------------------------------------------------

    The proposed application form will require specific attestations 
from the employer consistent with new Sec.  655.22 and similar to the 
attestations made on the Form ETA-750 currently in use. For example, 
the employer will have to attest that it is offering and will provide 
wages and working conditions normal to workers similarly employed in 
the area of intended employment; that it will offer and pay wages equal 
to or in excess of the higher of the prevailing and applicable minimum 
wages for the entire period of employment under the labor 
certification; there is no strike, lockout, displacement, or work 
stoppage in the course of a labor dispute in the occupational 
classification in the place of employment; and, during the period of 
certified employment, the employer will comply with all Federal, State 
and local laws applicable to the employment opportunity.
    An employer seeking to employ H-2B workers will attest that the 
wage is not based on commission, bonuses or other incentives, unless 
the employer guarantees a wage paid on a weekly, bi-weekly, or monthly 
basis that equals or exceeds the prevailing wage for the duration of 
the certified employment.
    Several attestations will be added to those found on the current 
form. As a companion to enabling employers to conduct recruitment prior 
to filing the application, an employer will have to attest that it 
conducted the required recruitment before filing the application and 
was unsuccessful in locating sufficient numbers of qualified U.S. 
applicants and, moreover, it has rejected any U.S. workers only for 
lawful, job-related reasons. In the event of an RFI or audit, a CO may 
review the employer's documentation regarding U.S. applicants and 
determine whether these applicants were rejected only for lawful, job-
related reasons.
    As an additional condition of program participation, an employer 
will be required to attest that, upon the separation from employment of 
H-2B worker(s) employed under the certification, if such separation is 
prior to the end date of the employment as listed on the proposed 
Application for Temporary Employment Certification, the employer will 
notify the Department and DHS in writing of the separation from 
employment not later than 48 hours after the separation occurs. The 
notification is also required if an H-2B worker absconds from the 
employment prior to the end date of the employment on the application. 
The rationale for such notice is to ensure that when the basis for the 
foreign worker's status terminates, both the Department and DHS can 
take appropriate action.
    Employers will, moreover, be required to inform foreign workers 
that they too have responsibilities under the H-2B Program. While most 
of the responsibilities attached to a foreign worker's status in the 
U.S. fall within the purview of DHS, it is within the Department's 
authority to establish employer requirements related to information to 
be provided new workers. To that end, with respect to foreign workers 
being employed under the H-2B Program, we find it warranted that 
employees be informed that a separation from employment triggers the 
requirement of departure, absent possession by the employee of 
continued valid status consistent with DHS regulations. DHS will 
establish a new land-border exit system for H-2B and other foreign 
workers to help ensure that departure follows the end of work 
authorization, regardless of whether it flows from a premature end or 
from the end of the authorized labor certification.
    In addition, under new Sec. Sec.  655.21 and 655.22(j), an employer 
seeking to employ H-2B workers will be required to attest that the job 
opportunity is for a full-time, temporary position. The H-2B Program 
has always required that the positions being offered be temporary and 
full-time in nature. The Department recognizes that some industries, 
occupations and States have differing definitions of what constitutes 
full-time employment. For example, certain landscaping positions are 
often classified as full-time for a 35-hour work week. The Department 
under new Sec.  655.4 has provided a basic definition of full-time 
employment, but will continue to use its considerable experience in 
determining whether work is full-time for foreign labor certification 
purposes, based upon the customary practice in the industry in any 
investigation of this attestation.
    Under new Sec.  655.22(k), an employer seeking to employ H-2B 
workers will attest that it is not displacing any similarly employed 
permanent U.S. worker(s) in the occupation in the area of intended 
employment within the period beginning 120 days before the date of need 
and throughout the entire employment of the H-2B worker(s). Again, this 
is a new attestation, but the Department has historically considered an 
employer's layoffs of permanent U.S. workers in determining the 
availability of workers in a given job opportunity. Considering the 
effect of a layoff in the area of intended employment, particularly in 
positions which require little or no experience and which are temporary 
(and thus could be filled on a transitional basis by a laid-off worker 
seeking new opportunities), is a long-standing practice in evaluating 
applications in the H-2B Program. The integrity of the program depends 
on legitimate employer need. An employer cannot lay off a permanent 
U.S. worker in an occupation and then attest with any truthfulness that 
it has a need for a foreign temporary worker for a position which the 
laid-off U.S. worker could possibly fill. If there has been a layoff by 
the employer in the area of intended employment within 120 days of the 
date of need (evidenced by the requested date for certification on the 
application), the employer must document, in writing, it has notified 
and considered each of its own laid-off U.S. workers in

[[Page 29952]]

the occupation and area of intended employment and the results of the 
notification and consideration. By requiring an employer to consider 
laid-off former employees in the area of intended employment and in the 
very occupation which the employer now seeks to fill, the Department 
considers this attestation requirement a necessary obligation for any 
employer seeking to hire workers under the H-2B Program. An employer 
may reject a U.S. worker, including potential workers from the pool of 
laid-off workers, but only for lawful, job-related reasons.
    Under new Sec.  655.22(m), an employer must attest that if it will 
place its employees at the job sites of other employers, it has made a 
bona fide inquiry into whether the other employer has displaced or 
intends to displace a similarly employed U.S. worker within the area of 
intended employment within the period beginning 120 days before and 
throughout the entire placement of the H-2B worker. In order to be able 
to honestly attest to this condition, the Department believes that the 
employer should inquire in writing to and receive a response in writing 
from the employer where the H-2B worker(s) will be placed. This can be 
done by exchange of correspondence or attested to by the secondary 
employer in the contract for labor services with the employer 
petitioning to bring in H-2B workers. This attestation at Sec.  
655.22(m) also requires the employer to attest that all worksites where 
the H-2B employee will work are listed on the Application for Temporary 
Employment Certification.
    Under new Sec.  655.22(l), an employer must attest that it has not 
and will not shift the costs of preparing or filing the application to 
the temporary worker, including the costs of domestic recruitment or 
attorneys' fees. The Department will continue to permit employers, 
consistent with the Fair Labor Standards Act (FLSA), to make reasonable 
housing and transportation deductions from a worker's pay for the 
reasonable cost of furnishing housing and transportation. The domestic 
recruitment, legal, and other costs associated with obtaining the labor 
certification are, however, business expenses necessary for or, in the 
case of legal fees, desired by, the employer to complete the labor 
certification application and labor market test. The employer's 
responsibility to pay these costs exists separate and apart from any 
benefit that may accrue to the foreign worker. Prohibiting the employer 
from passing these costs on to foreign workers allows the Department to 
protect the integrity of the process, protect the wage of the foreign 
worker from deterioration by deduction and protect the wages of U.S. 
workers from depression.
    An employer seeking to employ H-2B workers will be required to 
attest that it will not place any H-2B workers employed pursuant to a 
certification outside the area of intended employment as listed on the 
proposed ETA Application for Temporary Employment Certification. The 
required testing of the availability of U.S. workers and the effect on 
their wages and working conditions would be rendered meaningless if an 
employer could move an H-2B worker to a new worksite outside the area 
of intended employment certified on the application. Employers may file 
H-2B applications based upon more than one worksite; in fact, 
applications listing multiple worksites are a common occurrence. 
However, moving an H-2B worker to a worksite outside the area of 
intended employment specified on the application negates the test of 
the labor market undertaken with respect to that job opportunity, 
leaving the U.S. workers in the area of employment without the benefit 
of the opportunity to apply for that position. Further, to the extent 
that such relocation is not provided for or is inconsistent with the 
terms of entry authorized by DHS and the Department of State (DOS)--
terms built on the original labor certification--such activity calls 
into question the continued admissibility of the foreign worker.
    As part of its role in H-2B labor certification determinations, the 
Department will continue to determine whether the employer has 
demonstrated that it has a need for foreign labor, and that the need is 
temporary. The employer will be required to attest and provide a short 
narrative demonstrating its temporary need. Congress has mandated the 
H-2B Program be used to fill only the temporary needs of employers 
where no unemployed U.S. workers capable of performing the work can be 
found. 8 U.S.C. 1101(a)(15)(H)(ii)(b). Therefore, job opportunities 
that are permanent in nature do not qualify for the H-2B Program. In 
this NPRM, the Department is proposing to consider a position to be 
temporary as long as the employer's need for the duties to be performed 
is temporary or finite, regardless of whether the underlying job is 
temporary or permanent in nature, as long as the temporary need is less 
than 3 years. The controlling factor is the employer's temporary need 
and not the nature of the job duties. Matter of Artee Corp., 18 I&N 
Dec. 366 (Comm. 1982); Cf. Global Horizons, Inc. v. DOL, 2007-TLC-1 
(November 30, 2006)(upheld the Department's position that a failure to 
prove a specific temporary need precludes acceptance of temporary H-2A 
application); see also 11 U.S. Op. Off. Legal Counsel 39 (1987).
    Determining ``temporariness'' within the context of labor 
certification is fundamental to the Department's statutory function. 
DHS regulations make the temporary nature of the services or labor to 
be performed a threshold requirement for eligibility in the H-2B 
Program, and a core element in the definition each foreign worker must 
meet to be admissible under the visa. By definition, an H-2B worker 
must: (1) Be entering the U.S. temporarily to perform temporary 
services or labor; (2) not displace U.S. workers capable of performing 
such services or labor, and (3) not, by virtue of the employment, 
adversely affect the wages and working conditions of U.S. workers.
    The definition of H-2B temporary need, as defined by DHS 
regulations, sets the general situational criteria and conditions under 
which an employer is permitted to seek a foreign worker. The employer 
may have only one of four types of temporary need: (1) A one-time 
occurrence, in which an employer demonstrates it has not had a need in 
the past for the labor or service and will not need it in the future, 
but needs it at the present time; (2) seasonal need, in which the 
employer establishes that the services or labor is recurring and is 
traditionally tied to a season of the year; (3) peakload, in which the 
employer needs to supplement its permanent staff on a temporary basis 
due to a short-term demand; or (4) an intermittent need, in which the 
employer demonstrates it occasionally or intermittently needs temporary 
workers to perform services or labor for short periods.
    The proposed regulation leaves to the employer the ability to 
choose the documentation that best demonstrates its chosen standard of 
temporary need, to be retained by the employer and submitted in the 
event of an RFI, a post-adjudication audit or a WHD investigation. For 
most employers participating in the H-2B Program, demonstrating a 
seasonal or peakload temporary need can best be evidenced by summarized 
monthly payroll reports for a minimum of one previous calendar year 
that identify, for each month and separately for full-time permanent 
and temporary employment in the requested occupation, the total number 
of workers employed, the total hours worked, and total earnings 
received. Such reports, however, are not the only means by

[[Page 29953]]

which employers can choose to document their temporary need. The 
proposed regulation accordingly leaves it to the employer to retain 
other types of documentation, including but not limited to work 
contracts, invoices, client letters of intent, and other evidence that 
demonstrates that the job opportunity that is the subject of the 
application is temporary. Contracts and other documents used to 
demonstrate temporary need would be required to plainly show the finite 
nature of that need by clearly indicating an end date to the activity 
requested.
    The proposed Department application form will be designed to 
require both a short narrative of the nature of the temporary need and 
responses to questions to determine the time of need and the basis for 
the need. The narrative will enable the employer to demonstrate in its 
own words the scope and basis of the need in a way that will enable the 
Department to confirm the need meets the regulatory standard, with 
additional questions on the form providing context and clarification. 
If further clarification is still required, the RFI process will be 
employed. The form will also contain an attestation that will be signed 
under penalty of perjury to confirm the employer's temporary H-2B need.
    Employers should be wary, however, of using documents demonstrating 
a ``season'' in general terms (hotel occupancy rates, weather charts, 
newspaper accounts); in the Department's experience, such generalized 
statements fail to link a season to a specific position sought to be 
filled by the employer, which is required under the program. The 
Department also recognizes that conventional evidence such as payroll 
information may not be sufficient to demonstrate a one-time or 
intermittent need, or seasonal or peakload need in cases in which the 
employer's need has changed significantly from the previous year. In 
such cases, the employer should retain other kinds of documentation 
with the application that demonstrates the temporary need.
    The Department has explored means to ensure the continuing validity 
of the labor market test in those situations in which an employer's 
need is temporary but may be longer than one year. We readily recognize 
the importance of protecting U.S. worker access to such jobs. We have 
examined a number of approaches to operationalize the retesting of 
labor markets and the impact not only on the Department's 
administration of the program but the effect across Government 
agencies. We propose in this NPRM to require those employers having 
multiple-year temporary needs (up to three years) to retest the labor 
market annually. We believe this is the best method by which to ensure 
U.S. worker access to these job opportunities while recognizing an 
employer's need, in some cases for workers to fill positions on a 
multi-year basis. However, we invite comment on whether an alternative 
approach that would not require annual retesting of the labor market in 
situations where an employer has a multi-year temporary need for labor, 
would be appropriate.
2. Retention of Supporting Documentation
    Employers will be required to retain the documentation outlined in 
the proposed regulations for 5 years from the date of adjudication to 
demonstrate compliance with the requirements of the program and to 
provide it in the event of an RFI, post-adjudication audit, WHD 
investigation or other similar activity. The Department proposes a 5 
year document retention requirement in the event a post-adjudication 
audit is necessary, or another agency (such as DHS) requires the 
documentation. The documents to be retained include proof of 
advertising and posting, PWD, resumes/applications received, contact 
made with applicants, and a copy of the written recruitment report 
submitted with the application with recruitment results and reasons for 
not hiring U.S. workers. The employer will also need to retain records 
to prove temporary need such as monthly payroll records, invoices, 
multi-year contracts, and other documents which can justify each month 
of the temporary need. It is to the benefit of the employer to retain 
the documents for a sufficient period to enable the employer to 
demonstrate full compliance in the program, but no less than 5 years.
    The Department proposes to counteract potential fraud or abuse in 
the attestation-based process through a combination of approaches, 
including post-adjudication audit, supervised recruitment and/or 
debarment from future participation in the H-2B Program. All of these 
proposals are discussed below, as well as various other mechanisms for 
fraud detection and prevention, some of which are envisioned to be 
automated and some of which rely on human review. In addition, 
employers are reminded that any submission of materially false, 
fictitious, or fraudulent statements to any Federal Government agency 
constitutes a criminal violation under 18 U.S.C. 1001, subjecting 
anyone convicted of a violation to fines and/or imprisonment for up to 
5 years.

F. The RFI Process

    The Department shall continue to employ the use of RFIs with some 
adjustments. If an application is deficient or unclear or does not 
appear to comply with Departmental policy, the CO will issue an RFI. 
The RFI could be for something as simple as correction of typographical 
errors or as complex as substantiation of temporary need or recruitment 
results.
    The RFI process is explained in TEGL 21-06, change 1. The 
Department recognizes an RFI requires additional effort and may cause a 
delay in the issuance of a certification, and therefore intends, to the 
extent feasible, to make any such requests within 14 days of receiving 
a fully completed application. After full review of the documentation 
received in response to the RFI, an application will be certified and 
returned to the employer, or denied for failure to overcome the 
identified deficiencies.
    Given the nature of the program, the limited time frame in which 
employers must advertise in relation to their dates of need, and the 
limited number of H-2B visas available under the INA, employers are 
cautioned to review carefully the application before filing with the 
Department. The Department expects that the RFI process and other tools 
available to ETA will educate employers on the requirements of the H-2B 
temporary labor certification program, and deter fraud and abuse. The 
Department will strive to conduct such reviews in a timely manner, 
recognizing that time is of the essence in the H-2B application 
process. When necessary the CO may issue an additional RFI before 
issuing a Final Determination.

G. Appeals

    In a separate H-2B rulemaking, USCIS may propose to no longer 
consider any H-2B petition filed without an approved labor 
certification application from the Department. Accordingly, the 
Department is amending its regulations to eliminate references to so-
called ``non-determinations,'' or a finding from the Department that no 
finding of unavailability and adverse impact can be made with respect 
to a particular Application for Temporary Labor Certification. In 
addition, the Department is creating an appeal process whereby 
employers receiving application denials can file a request for review 
with the Department's Board of Alien Labor Certification Appeals 
(BALCA). The BALCA's determination will be based exclusively on the 
record available to the CO. No further evidence will be considered. In 
order to ensure

[[Page 29954]]

expeditious adjudication of appeals, the proposed regulation provides 
relatively short time frames for the various parts of the appeal 
process.

H. Amendments

    The Department recognizes a need to be flexible with regard to 
minor amendments of submitted and even certified applications. Such 
flexibility, however, must be measured against an increasing tendency 
by some employers to apparently artificially realign their true date of 
need with visa availability. The Department has noted with some 
consternation the apparent movement of ``need'' dates in recent years 
to correspond more closely with Congressionally-imposed visa 
availability dates. This apparent shift, however well-intentioned on 
the part of the employer, does a substantial disservice to U.S. workers 
who might otherwise take positions but may not be available for what 
actually may be incorrect employment start dates. The Department's 
mandate in the H-2B process, which is to ensure the selection and 
admission of the H-2B worker does not adversely affect U.S. workers, 
cannot permit an artificial movement of an employer's actual date of 
need for workers in order to suit visa availability.
    The Department therefore proposes in this NPRM to accommodate an 
employer's requests for amendments to labor certification applications, 
including minor adjustments to a date of need. Any such requests for an 
amendment must be approved by the Department. In other words, 
unilateral amendments by other Federal agencies to the representations 
on the labor certification form will no longer be permitted.
    In order to maintain the integrity of the labor market test and the 
Secretary's mandate under the INA, substantial adjustments in the date 
of need specified on an Application will not be granted after the 
certification of the Application. To do so would invalidate the 
validity of the test of the availability of U.S. workers central to the 
Application, compromising the offer of the job opportunity to U.S. 
workers and calling into question the recruitment process. The 
Department invites comment on the appropriate window of time between 
``minor'' and ``substantial'' adjustments to an employer's date of need 
that would allow changes for legitimate unforeseen circumstances while 
preventing the potential gaming of visa limits by proposing 
artificially early dates of need that are later changed to reflect 
actual dates of need.

III. Maintaining and Enhancing Program Integrity

A. The Use of Post-Adjudication Audits

    The Department will, based upon various selection criteria, 
identify applications for audit review after the application has been 
adjudicated. The use of post-adjudication audits will permit the 
Department to ensure an employer's compliance with the terms and 
conditions of the H-2B Program and to fulfill the Department's 
statutory mandate to certify applications only where unemployed U.S. 
workers capable of performing such services cannot be found. INA 
section 101(15)(H)(ii)(b), 8 U.S.C. 1101(15)(H)(ii)(b). The 
attestations made by the employer and the information supplied on the 
form supporting the attestations will be the primary criteria used in 
the auditing program. Additionally, applications will also be randomly 
selected for audit without regard to any triggering criteria. The 
proposed rule will enable the Department to perform directed and random 
audits on any application after it has been adjudicated, regardless of 
whether the Department issued a certification or denial of the 
application. This model is based upon our successful program experience 
in administering the PERM Program, which was reengineered in 2005.
    If an application is selected for audit, the employer will be 
notified in writing and required to submit, within 30 days, the 
documentation specified in the audit request to verify the information 
stated in or attested to on the application. Upon timely receipt of an 
employer's audit documentation, the audit information will be reviewed 
by the CO who will then determine whether the employer has complied 
with its obligations. Employers will be notified in writing of all 
outcomes.
    If a completed audit reveals evidence of non-compliance with 
required attestations and/or other program requirements, the proposed 
rule provides the CO the authority to order supervised recruitment, 
initiate debarment proceedings, or refer the application to the Wage 
and Hour Division for investigation. In addition, other Government 
agencies may be notified, as appropriate, of the audit findings.

B. Supervised Recruitment

    Supervised recruitment may be ordered for a specified period for 
future applications submitted by that employer or on its behalf as a 
sanction for prior violations of the H-2B Program. This could include 
cases previously selected for audit where a deficient response was 
provided, as well as cases where an employer's test of the labor market 
for the availability of U.S. workers is found to be deficient. 
Supervised recruitment will be applied in such cases to ensure that 
such employers accurately and adequately test the labor market to 
demonstrate a lack of U.S. workers capable of performing such services. 
INA section 101(15)(H)(ii)(b), 8 U.S.C. 1101(15)(H)(ii)(b). As 
proposed, advertising requirements under supervised recruitment will be 
similar to those for non-supervised recruitment. Under supervised 
recruitment, however, the advertisements will instruct applicants to 
send resumes or applications to the CO for referral to the employer, 
and will include an identification number and an address designated by 
the CO. The employer will notify the CO of the date when the 
advertisement will be published in accordance with the time frame 
established by the CO.
    At the completion of the supervised recruitment efforts, the 
employer will be required to provide to the CO a written and signed 
report of the employer's supervised recruitment. The recruitment report 
must detail each recruitment source by name, the number of workers who 
responded to the employer's recruitment, each applicant's contact 
information, and an explanation, with specificity, of the lawful, job-
related reasons for not hiring each U.S. worker who applied. Failure to 
provide the CO with the required recruitment report will result in 
denial of the application and possible subsequent supervised 
recruitment and/or program debarment.

C. Debarment

    The Department is proposing a mechanism allowing it to debar an 
employer/attorney/agent from the H-2B Program for a period of up to 3 
calendar years. Debarment from the program is a necessary and 
reasonable mechanism to enforce H-2B labor certification requirements 
and ensure compliance with the Secretary's statutory objectives. The 
proposed rule would permit the Department to debar an employer, 
attorney, and/or agent for a period of up to 3 calendar years for 
misrepresenting a material fact or to making a fraudulent statement on 
an H-2B application, for a material or substantial failure to comply 
with the terms of the attestations, for failure to cooperate with the 
audit process or ordered supervised recruitment, or if the employer/
attorney/agent has been found by a court of law, WHD, DHS, or the DOS 
to have committed fraud or willful misrepresentation involving any OFLC

[[Page 29955]]

employment-based immigration program. The OFLC Administrator will 
notify the debarred employer/attorney/agent in writing and will state 
the reason for the debarment findings. The notification will also state 
the start and termination date of the debarment, and offer the 
employer/attorney/agent an opportunity to request review before BALCA.
    The employer will be accorded 30 calendar days from the date of 
notice of debarment to file a request for review before BALCA. Upon 
request for review, the OFLC will assemble an indexed Appeal File and 
send a copy to BALCA. The BALCA will affirm, reverse, or modify the 
OFLC's debarment determination. The BALCA decision will be the final 
decision of the Department. After the appeal process is completed, if a 
debarment determination is affirmed, the Department will inform DHS of 
its findings, and add the debarred entity to a list available upon 
request for public review that contains the names and addresses of the 
debarred entities. A notification of debarment is not the same as a 
denial of an application.
    The Department acknowledges that the proposed sanctions of 
supervised recruitment or debarment may not be proportionate to some 
violations, and accordingly, has authority to impose lesser sanctions 
(such as requirements to submit documentation) as appropriate. The 
Department encourages comments on this issue to be considered in the 
potential implementation of such additional sanctions in a final rule.

IV. Investigating Compliance With H-2B Attestations

A. Delegation of Enforcement Authority

    The INA and its implementing regulations provide DOL no direct 
authority to enforce any conditions concerning the employment of H-2B 
workers, including the prevailing wage attestation. Pursuant to 
authority vested in the Secretary of Homeland Security under sections 
103(a)(6) and 214(c)(14)(B) of the INA, 8 U.S.C.1103(a)(6), 
1184(c)(14)(B), the Department and DHS are discussing whether to 
delegate authority to the Department to establish an enforcement 
process to investigate employers' compliance with H-2B requirements and 
to seek remedies for violations discovered by any resulting 
investigations.
    Assuming such a delegation of enforcement could successfully be 
worked out between the agencies, the Department proposes here and seeks 
public comment on the enforcement regime that tracks the limited 
statutory enforcement authority Congress provided DHS. The Department 
notes, however, that DHS's statutory authority to enforce the terms and 
conditions of the H-2B Program is significantly narrower than the 
Department's authority to enforce the terms and conditions of other 
temporary worker programs such as H-2A and H-1B. Congressional action 
to change the limited statutory grant of authority currently provided 
to DHS, or to provide statutory authority to the Department, would be 
required in order for the Department to have investigative and remedial 
authority comparable to what the Department possesses with regard to 
the other temporary worker programs, such as H-1B.

B. Compliance With Application Attestations

    DOL proposes a WHD enforcement program addressing an H-2B 
employer's compliance with employer attestations made as a condition of 
securing authorization to employ H-2B workers. Additionally, the 
proposed enforcement program will also cover statements made to DHS as 
part of the petition for an H-2B worker on the DHS Form I-129, Petition 
for a Nonimmigrant Worker. Compliance with attestations and the DHS 
petition are designed to protect U.S. workers and will be reviewed in 
WHD enforcement actions.

C. Remedies for Violations of H-2B Attestations

    Assessment of civil money penalties. Under this proposed rule, the 
WHD may assess civil money penalties in an amount not to exceed $10,000 
per violation for a willful failure to meet conditions of the H-2B 
labor condition application or of the DHS Form I-129, Petition for a 
Nonimmigrant Worker for an H-2B worker or for a willful 
misrepresentation of a material fact on the application or DHS 
petition, or a failure to cooperate with a Department of Labor audit or 
investigation.
    Reinstatement of illegally displaced U.S. workers. The WHD will 
seek reinstatement of similarly employed, permanent U.S. workers who 
were illegally laid off by the employer in the area of intended 
employment. Such unlawful terminations are prohibited if they occur 
less than 120 days before the date of requested need for the H-2B 
workers or during the entire period of employment of the H-2B workers.
    Other appropriate remedies. WHD may seek remedies under other laws 
that may be applicable to the work situation including, but not limited 
to, remedies available under the FLSA (29 U.S.C. 201 et seq.), the 
Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 
1801, et seq.), and the McNamara-O'Hara Service Contract Act (41 U.S.C. 
351 et seq.). WHD also may seek other appropriate remedies for 
violations as it determines to be necessary. As noted above, the 
Department requests public comments on what other remedies might be 
appropriate under the H-2B provisions including, for instance, back 
wages for failures to pay the prevailing wage rate.

E. Debarment

    Under proposed Sec.  655.80, the Wage and Hour Administrator will 
notify DHS and ETA of any final determination where the appropriate 
remedy is for the Department to recommend to DHS that it not approve 
petitions filed by an employer. The Wage and Hour Administrator's 
notification will address the type of violation committed by the 
employer and the appropriate statutory period for disqualification of 
the employer from approval of petitions. The Wage and Hour 
Administrator will notify DHS and ETA upon the earliest of the 
following events: (1) Where the Administrator determines that there is 
a basis for a finding of a violation by an employer, and no timely 
request for a hearing is made; (2) where, after a hearing, the 
administrative law judge issues a decision and order finding a 
violation by an employer, and no timely petition for review is filed 
with the Department's Administrative Review Board (Board); (3) where a 
timely petition for review is filed from an administrative law judge's 
decision finding a violation and the Board either declines within 30 
days to entertain the appeal, or the Board reviews and affirms the 
administrative law judge's determination; or (4) where the 
administrative law judge finds that there was no violation by an 
employer, and the Board, upon review, issues a decision, holding that a 
violation was committed by an employer.
    DHS, upon receipt of notification from the Administrator pursuant 
to this section, shall determine whether to deny petitions filed with 
respect to that employer under sections 204 or 214(c) of the INA (8 
U.S.C. 1154 and 1184(c)) and, if so, the time period of such denials. 
Additionally, DHS may pursue additional investigations to determine if 
additional penalties within DHS jurisdiction are appropriate.

[[Page 29956]]

V. Other Regulatory Changes

A. Special Procedures

    The proposed revisions to 20 CFR Part 655, Subpart A--the 
redesigned H-2B Program--do not apply to temporary employment in the 
Territory of Guam, because the Department does not certify to DHS the 
temporary employment of nonimmigrant foreign workers under H-2B visas 
in the Territory of Guam. Pursuant to regulations issued by DHS, that 
function is performed by the Governor of Guam, or the Governor's 
designated representative within the Territorial Government of Guam. 
Hence, the Department does not intend for these regulations to reach 
the H-2B Program as it exists in Guam. 8 CFR 214.2(h)(6)(iii).
    There are other special longstanding situations where the 
Department recognizes that special procedures for H-2B labor 
certification are appropriate, specific to the industry and/or 
occupation. These include, for example, occupations in sports, 
logging\7\, reforestation and entertainment, as well as certain 
international freight rail activities in northern New England, and 
employment in small U.S. exclaves. Accordingly, the Department reserves 
the right to, in its discretion, develop and implement special 
procedures for H-2B applications relating to specific occupations. Such 
special procedures will supplement the procedures herein described for 
all H-2B applications.
---------------------------------------------------------------------------

    \7\ A recent Notice of Proposed Rulemaking issued by the 
Department contemplates the effective transfer of logging activities 
from H-2B to H-2A by expanding the definition of agricultural 
activities. 73 FR 8538 (Feb. 13, 2008).
---------------------------------------------------------------------------

B. Definitions

    We have added definitions of the terms used in Part 655, Subpart A, 
in an effort to ensure consistent use of terms in the H-2B Program. 
Many definitions in that section are similar to the definition of terms 
used throughout the labor certification process, specifically the H-1B, 
H-2A and PERM Programs.
    The definition of ``agent'' has been historically used in the H-2B 
Program for those representatives of H-2B employers. It includes any 
person, other than the employer, representing and authorized by the 
employer to act on behalf of the employer during the H-2B processing of 
a labor certification application. The term ``agent'' specifically 
excludes associations or other organizations of employers.
    The terms ``employed by an employer'' and ``employee'' are as 
defined under common law standards have the same meaning given them in 
section 203 of the FLSA. ``Employer'' has the same meaning provided in 
regulations pertaining to other OFLC programs, specifically those found 
at 20 CFR 656.3 regarding the PERM Program. The Department recognizes 
the distinct need for the employer filing the application to have an 
actual employment relationship with the H-2B employee, again to 
maximize protection to the U.S. workers who must first be recruited and 
considered by the employer for the job opportunity. In the past, job 
contractors' demonstration of this relationship to potential employees 
has been of concern to the Department. While many job contractors or 
consulting firms maintain a legitimate employment relationship with 
their H-2B employees, with other job contractors the employment 
relationship may all but disappear once the worker arrives at the 
worksite. A labor certification cannot be granted when filed on behalf 
of an independent contractor, rather than an employee, as that term is 
defined in the Internal Revenue Code.
    The definition of ``job contractor'' proposed by the NPRM is the 
same that has been historically used throughout the H-2B Program. Job 
contractors, which typically supply labor to one or more clients under 
contract, may file applications as employers. However, the Department 
recognizes that job contracting entities may seek large numbers of H-2B 
workers without providing a defined temporary need for such workers. A 
job contractor will by definition have an ongoing need on behalf of all 
of its clients. Therefore, the Department's position continues to be 
that the temporary or permanent nature of the work of a job contractor 
will be determined by examining the job contractor's need for such 
workers, rather than the needs of its employer customers. A job 
contractor that has an ongoing need for workers in the occupation, 
spanning one or more contracts, most likely will be determined to have 
a permanent need, resulting in a denial of the H-2B labor certification 
application. A job contractor applying for certification for H-2B 
workers must demonstrate that the employment is not speculative, that 
is, it must demonstrate it has the need before it has the workers, by 
demonstrating its own need to supply such workers (by signed work 
contracts and other verification). The practice known in the industry 
as ``benching'' of workers will not be permitted. In other words, jobs 
must be real and available in a specified area of intended employment 
in order that a legitimate test of the labor market may be conducted.
    ``Job opportunity'' has been a term historically used throughout 
the H-2B Program. A job opportunity is considered temporary under the 
H-2B classification only if the employer's need for the duties to be 
performed is temporary, whether or not the underlying job is permanent 
or temporary. It is the nature of the employer's need, not the nature 
of the duties, which is controlling.
    The definition of ``layoff'' has been a term historically used 
throughout the H-2B Program. A layoff shall be considered any 
involuntary separation of one or more employees without cause or 
prejudice. It has been the Department's traditional position that COs 
have the authority to consider the availability of laid-off workers 
under the employer's mandate to test the labor market for qualified 
U.S. workers. The proposed rule requires employers, if there has been a 
layoff by the employer in the occupation in area of intended employment 
within 120 days prior to the date of need for an H-2B worker, to attest 
to and document notification and consideration of potentially qualified 
U.S. workers involved in the layoff and the results of such 
notification.
    The Department has defined in this rulemaking the term 
``professional athlete'' to track the meaning given the term in the 
INA. The Department intends to issue guidance detailing the procedures 
to be followed in filing applications on behalf of foreign workers to 
be employed in professional team sports. Those positions that do not 
meet the definitional criteria of professional athletes will not be 
able to avail themselves of these special procedures.

C. Other Changes

    The Department in this NPRM has also removed the requirement that 
DHS submit back to the Department copies of the submitted approved 
application or Schedule A occupations. These applications are handled 
by DHS rather than by the Department. We have been sent a copy of each 
application by DHS, pursuant to regulation. The Department no longer 
sees any justification for this duplication of effort and seeks to 
streamline the filing process for employers with this change.

V. Administrative Information

A. Executive Order 12866--Regulatory Planning and Review

    The Department has determined that this rule is not an 
``economically significant regulatory action'' within the

[[Page 29957]]

meaning of Executive Order 12866. The procedures for filing an 
Application for Temporary Employment Certification under the H-2B visa 
category on behalf of nonimmigrant temporary workers, as proposed under 
this regulation, will not have an economic impact of $100 million or 
more.
    The direct incremental costs employers will incur because of this 
proposed rule, above and beyond the current costs required by the 
program as it is currently implemented, are not economically 
significant. The only additional costs on employers resulting from this 
proposed rule are those involved in the placement of a Sunday 
advertisement rather than one daily advertisement. The cost range for 
advertising and recruitment is taken from a recent (August 2007) sample 
of newspapers in various urban and rural U.S. cities, and reflects 
approximate costs for placing one 10-line advertisement in those 
newspapers. The increased cost of advertising in a Sunday paper instead 
of during the week is approximately $130. The additional total cost for 
the 12,000 employers utilizing the H-2B Program of one Sunday ad would 
average approximately $1,500,000 assuming that such ads would not have 
been placed by the business as part of its normal practices to recruit 
U.S. workers. Any additional record retention costs are minimal, as 
records will require a burden of approximately 10 minutes per year per 
application to retain an application and required supporting 
documentation in the 4 years following the 1 year mandated for 
companies already subject to such burdens. This will result in a total 
cumulative burden of 2,000 hours, at a total cost of $114,940.
    The Department anticipates that the increase in recruitment and 
recordkeeping costs associated with the proposed rule will be offset by 
cost savings from eliminating the time employers currently spend 
working directly with SWAs to meet regulatory requirements. For 
example, the additional half hour spent by a human resources 
professional or office manager working with the SWA will be a 
quantifiable cost saving; based on the median hourly wage rate for a 
Human Resources Manager ($40.47), as published by the Department's 
Occupational Information Network, O*Net OnLine, and increased by a 
factor of 1.42 to account for employee benefits and other compensation, 
employers could expect to save approximately $344,880. Further, the 
expected reduction in average processing time for applications will 
lead to a reduction in the resources employers currently spend for 
expedited processing of applications with USCIS, and may eliminate, for 
most employers, the need to file petitions with USCIS with an 
additional expedite fee, for a savings of $9,120,000.\8\
---------------------------------------------------------------------------

    \8\ USCIS has informed the Department, for example, 
approximately 76 percent of all employers filed H-2B petitions in FY 
2007 using the USCIS premium processing option, at the additional 
cost of $1000 per petition.
---------------------------------------------------------------------------

    Employers will also experience significant time savings as a result 
of the streamlining of the process. The Department estimates the 
average time savings to employers will be at least 28 days from the 
current process, based on the current average H-2B application 
processing time of 73 days in the last fiscal year. While the 
Department cannot estimate the cost savings as a result of this time 
saved, it acknowledges employers will experience a variety of economic 
benefits, including benefits from predictability of workforce size of 
given dates and workforce availability regardless of geographic area, 
as a result of this streamlining of the application process. These 
benefits could be partially offset, however, by the effect on 
employment due to the cap on H-2B visas being reached early in the 
season, which leaves employers requiring workers in the latter part of 
the season without needed access to H-2B foreign workers, except those 
who are present in the U.S. and who could be transferred pursuant to a 
new petition until the maximum stay is reached. The Department welcomes 
comments on the costs and benefits of this reengineered approach.

B. Regulatory Flexibility Analysis

    When an agency issues a rulemaking proposal, the Regulatory 
Flexibility Act (RFA) requires the agency to prepare a regulatory 
flexibility analysis and make it available for public comment. The RFA 
must describe the impact of the proposed rule on small entities. (5 
U.S.C. 603(a)). Section 605 of the RFA allows an agency to certify a 
rule, in lieu of preparing an analysis, if the proposed rulemaking is 
not expected to have significant economic impact on a substantial 
number of small entities. ETA has notified the Chief Counsel for 
Advocacy, Small Business Administration (SBA), and certifies under the 
RFA at 5 U.S.C. 605(b), that this proposed rule will not have a 
significant economic impact on a substantial number of small entities.
    The factual basis for such a certification is that, even though 
this proposed rule can and does affect a substantial number of small 
entities, there will not be a significant economic impact on them. The 
Department receives more than 10,000 applications a year under this 
program. In FY 2006 (October 1, 2005-September 30, 2006), ETA received 
from SWAs 11,267 applications from employers seeking temporary labor 
certification under the H-2B Program. According to the SBA, there were 
approximately 25.7 million small businesses in the U.S. in 2005. The 
Department does not maintain statistics on the size of the businesses 
requesting H-2B workers, therefore, for the purposes of this analysis 
the Department is willing to assume that all applicants are small 
businesses.\9\
---------------------------------------------------------------------------

    \9\ Even though the Department is assuming it is not required to 
perform the analysis, the Department is unable to classify the 
employers by industry or by the two methods used by the SBA to 
determine whether or not a business is a small entity as defined in 
13 CFR 121.201. The RFA requires the Department to perform its RFA 
analysis based on the size standards defined in 13 CFR 121.201. The 
SBA utilizes annual revenue in some industries, while utilizing 
number of employees in others to determine whether or not a business 
is considered a small business. However, the Department has 
historically not collected information about an employer's industry 
classification, annual revenues, or number of employees currently on 
payroll in the H-2B Program, and therefore cannot accurately and 
comprehensively categorize each applicant-employer for the purpose 
of conducting the RFA analysis by industry and size standard. In 
lieu of the industry and size standard analysis, the Department 
based the estimated costs of the reformed H-2B process assuming all 
employers-applicants were small entities.
---------------------------------------------------------------------------

    The Department believes, however, that the costs incurred by 
employers under the proposed rule will not be substantially different 
from those incurred under the current application filing process. 
Employers seeking to hire foreign workers on a temporary basis under 
the H-2B Program must continue to establish to the Secretary's 
satisfaction that their recruitment attempts have not yielded enough 
qualified and available U.S. workers. Similar to the current process, 
employers under this proposed H-2B process will file a standardized 
application but will retain recruitment documentation, a recruitment 
report, and any supporting evidence or documentation justifying the 
temporary need for the services or labor to be performed. To estimate 
the cost of this reformed H-2B process on employers, the Department 
calculated each employer will likely pay in the range of $500 to $1,850 
to meet the advertising and recruitment requirements for a job 
opportunity, and spend 2 hours and 40 minutes of staff time preparing 
the standardized application, narrative statement of temporary need, 
final

[[Page 29958]]

recruitment report, and retaining all other required documentation 
(e.g., newspaper ads, business necessity) for audit purposes. In 
estimating employer staff time costs, the Department used the median 
hourly wage rate for a Human Resources Manager ($40.47), as published 
by the Department's Occupational Information Network, O*Net OnLine, and 
increased by a factor of 1.42 to account for employee benefits and 
other compensation.
    The overall costs of the H-2B program, which the Department 
estimates to average $1,200 for advertising and personnel, will rarely 
eliminate more than 10 percent of the businesses' profits; exceed one 
percent of the gross revenue of the entities in a particular sector; or 
exceed five percent of the labor costs of the entities in the sector. 
The Regulatory Flexibility Act and the Small Business Regulatory 
Enforcement Fairness Act (SBREFA), which amended the RFA, require that 
an agency promulgating regulations segment and analyze industrial 
sectors into several appropriate size categories for the industry being 
regulated. However, the foreign labor certification programs are open 
to all industries. In this particular instance it is the H-2B Program 
that is being regulated, not a particular industry. Therefore, in 
analyzing the number of small businesses that might be affected, the 
Department looked at all small entities that had gross receipts of 
$120,000 or less and profits of $12,000 or less and determined that 
they do not make up a substantial number of small entities.
    The Department acknowledges that there might be some extremely 
small businesses, such as bed & breakfast establishments, which may 
incur additional costs in order to file their application online as 
envisioned in the future by this rule. However, employers physically 
unable to file electronically (again in the envisioned future), who 
might face a greater cost to arrange electronic filing, will be able to 
request permission to engage in manual filings.
    In summary, the total costs for any small entities affected by this 
program will be reduced or stay the same as the costs for participating 
in the current program. Even assuming that all entities who file H-2B 
labor certification applications qualify as small businesses, there 
will be no net negative economic effect.
    The Department invites comments from members of the public who 
believe there will be a significant impact on a substantial number of 
small entities or who disagree with the size standard used by the 
Department in certifying that this rule will not have significant 
impact on a substantial number of small entities.

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. This proposed rule has no ``Federal mandate,'' which is defined 
in 2 U.S.C. 658(6) to include either a ``Federal intergovernmental 
mandate'' or a ``Federal private sector mandate.'' A Federal mandate is 
any provision in a regulation that imposes an enforceable duty upon 
State, local, or tribal governments, or imposes a duty upon the private 
sector which is not voluntary. A decision by a private entity to obtain 
an H-2B worker is purely voluntary and is, therefore, excluded from any 
reporting requirement under the Act.
    The SWAs will experience a direct impact on their foreign labor 
certification activities in the elimination of certain H-2B activities, 
which are proposed to be eliminated under the NPRM. These activities 
are currently funded by the Department pursuant to grants provided 
under the Wagner-Peyser Act. 29 U.S.C. 49 et seq. The net effect of 
this NPRM will likely be to reduce the amounts of such grants available 
to each State in an amount corresponding to its relative workload under 
the H-2B Program in the receipt, processing and monitoring of each 
application, to be reduced on a transitional basis upon implementation 
of a final rule. Such reduction will be offset by a reduction in the 
actual workload involved.

D. Small Business Regulatory Enforcement Fairness Act of 1996

    The Department was not required to produce a Regulatory Flexibility 
analysis; therefore, it is also not required to produce any Compliance 
Guides for Small Entities as mandated by SBREFA (5 U.S.C. 801). The 
Department has similarly concluded that this rule is not a ``major 
rule'' requiring review by the Congress under SBREFA because it will 
not likely result in: (1) An annual effect on the economy of $100 
million or more; (2) a major increase in costs or prices for consumers, 
individual industries, Federal, State or local government agencies, or 
geographic regions; or (3) significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
U.S.-based enterprises to compete with foreign-based enterprises in 
domestic or export markets.

E. Executive Order 13132--Federalism

    This proposed rule will not have a substantial direct effect on the 
States, on the relationship between the Federal Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of Government as described by Executive Order 13132. 
Therefore, the Department has determined that this proposed rule will 
not have a sufficient federalism implication to warrant the preparation 
of a summary impact statement.

F. Assessment of Federal Regulations and Policies on Families

    This proposed rule does not affect family well-being.

G. Executive Order 12630

    The Department certifies that this proposed rule does not have 
property taking implications, i.e., eminent domain.

H. Executive Order 12988

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12988, Civil Justice Reform, and will not unduly burden 
the Federal court system. The regulation has been written so as to 
minimize litigation and provide clear legal standards for affected 
conduct, and has been reviewed carefully to eliminate drafting errors 
and ambiguities.

I. Plain Language

    The Department drafted this NPRM in plain language.

J. Paperwork Reduction Act

    This NPRM proposes to significantly change the method of collecting 
information for the H-2B Program for which the current collection 
instruments do not suffice. Employers are currently required to file a 
Form ETA 750A (Office of Management and Budget (OMB) Control Number 
1205-0015) when requesting a labor certification for temporary non-
agricultural workers. Additionally, each SWA has its own form for its 
offered wage rate determinations. This proposed rule revises the 
current process for applying by requiring petitioners to file a revised 
form by U.S. Mail and envisions a future electronic filing requirement 
where employers will attest to certain terms, conditions, and 
obligations. These attestations are made to the U.S. Government in 
accordance with these proposed regulations streamlining the processing. 
To further

[[Page 29959]]

re-engineer the process, the proposed rule mandates the offered wage 
rate determination requests be filed with the Department instead of the 
individual SWAs. Under the Paperwork Reduction Act (PRA) of 1995, the 
Office of Management and Budget (OMB) considers the attestations and 
the wage rate determination requests an information collection 
requirement subject to review. Accordingly, this information collection 
in this proposed rule has been submitted to OMB for review under 
section 3507(d) of the PRA. Copies of the proposed information 
collection request (ICR) can be obtained by contacting the office 
listed below in the addressee section of this notice or at this Web 
site: http://www.doleta.gov/OMBCN/OMBControlNumber.cfm or http://
www.reginfo.gov/public/dol/pramain. Written comments are encouraged and 
will be accepted until July 21, 2008.
    When submitting comments on the two information collections, your 
comments should address one or more of the following four points.
    Review Focus: The Department of Labor is particularly interested in 
comments which:
     Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
     Evaluate the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used;
     Enhance the quality, utility, and clarity of the 
information to be collected; and
     Minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submissions of responses.

I. Overview of Information Collection Form Number 1

    Type of Review: New.
    Agency: Employment and Training Administration.
    Title: Application for Temporary Employment Certification.
    OMB Number: 1205-NEW1.
    Agency Number(s): (Proposed) Form ETA 9142.
    Recordkeeping: On occasion.
    Affected Public: Individuals, households, businesses, farms, 
Federal, State, local and tribal governments.
    Total Respondents: 12,000.
    Estimated Total Burden Hours: 33,200.
    Total Burden Cost (capital/startup): 0.
    Total Burden Cost (operating/maintaining): 0.

II. Overview of Information Collection Form Number 2

    Type of Review: New.
    Agency: Employment and Training Administration.
    Title: Job Offer and Required Wage Request Form.
    OMB Number: 1205-NEW2.
    Agency Number(s): (Proposed) Form ETA 9141.
    Recordkeeping: On occasion.
    Affected Public: Individuals, households, businesses, farms, 
Federal, State, local and tribal governments.
    Total Respondents: 12,000.
    Estimated Total Burden Hours: 9,675.
    Total Burden Cost (capital/startup): 0.
    Total Burden Cost (operating/maintaining): 0.
    Comments submitted in response to this comment request will be 
summarized and/or included in the request for OMB approval of the ICR; 
they will also become a matter of public record.
    All comments and suggestions or questions regarding additional 
information should be directed to the Federal e-Rulemaking Portal at: 
http://www.regulations.gov and a copy sent to the Office of Information 
and Regulatory Affairs of the Office of Management and Budget, 
Washington, DC 20503, Attention: Desk Officer for Employment and 
Training Administration, and to Darrin King, Departmental Clearance 
Officer, Department of Labor, 200 Constitution Ave., NW., Washington, 
DC 20210 or e-mail: King.Darrin@dol.gov. The information collection 
aspects of the proposed rulemaking will not take effect until published 
in a final rule and approved by OMB. Persons are not required to 
respond to a collection of information unless it displays a currently 
valid OMB control number as required in 5 CFR 1320.11(k)(1).

K. Catalog of Federal Domestic Assistance Number

    This program is listed in the Catalog of Federal Domestic 
Assistance at Number 17-273, ``Temporary Labor Certification for 
Foreign Workers.''

List of Subjects

20 CFR Part 655

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

20 CFR Part 656

    Administrative practice and procedure, Agriculture, Aliens, 
Employment, Employment and training, Enforcement, Forest and forest 
products, Fraud, Guam, Health professions, Immigration, Labor, 
Passports and visas, Penalties, Reporting and recordkeeping 
requirements, Students, Unemployment, Wages, Working conditions.
    For reasons stated in the preamble, the Department of Labor 
proposes that 20 CFR Parts 655 and 656 be amended as follows:

PART 655--[AMENDED]

    1. 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)(H)(i) 
and (ii), 1182(n) and (t), 1184(c), (g), and (j), 1188, and 1288(c) 
and (d); Sec.  3(c)(1), Public Law 101-238, 103 Stat. 2099, 2102 (8 
U.S.C. 1182 note); Sec.  221(a), Public Law 101-649, 104 Stat. 4978, 
5027 (8 U.S.C. 1184 note); Sec.  303(a)(8), Public Law 102-232, 105 
Stat. 1733, 1748 (8 U.S.C. 1101 note); Sec.  323(c), Public Law 103-
206, 107 Stat. 2428; Sec.  412(e), Public Law 105-277, 112 Stat. 
2681; and 8 CFR 214.2(h)(4)(i).
    Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 
1184(c), and 1188; and 8 CFR 214.2(h).
    Subpart A issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b), 1103(a), 
and 1184(a) and (c); and 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).
    Subpart C issued under 8 CFR 214.2(h).
    Subparts D and E authority repealed.
    Subparts F and G issued under 8 U.S.C. 1288(c) and (d); and 
Sec.  323(c), Public Law 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), 
Public Law 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); Sec.  
412(e), Public Law 105-277, 112 Stat. 2681; and 8 CFR 214.2(h).
    Subparts J and K issued under Sec.  221(a), Public Law 101-649, 
104 Stat. 4978, 5027 (8 U.S.C. 1184 note).
    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 
1182(m); Sec.  2(d), Public Law 106-95, 113 Stat. 1312, 1316 (8 
U.S.C. 1182 note); Public Law 109-423, 120 Stat. 2900; and 8 CFR 
214.2(h).
    2. Revise the heading of Part 655 to read as follows:

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

    3. Revise subpart A to read as follows:

[[Page 29960]]

Subpart A--Labor Certification Process and Enforcement of Attestations 
for Temporary Employment in Occupations Other Than Agriculture or 
Registered Nursing in the United States (H-2B Workers)
Sec.
655.1 Purpose and scope of subpart A.
655.2 Territory of Guam.
655.3 Special procedures.
655.4 Definitions of terms used in this subpart.
655.5 [Reserved]
655.6 Temporary need.
655.7-655.9 [Reserved]
655.10 Determination of prevailing wage for temporary labor 
certification purposes.
655.11 Certifying officer review of prevailing wage determinations.
655.12-655.14 [Reserved]
655.15 Required pre-filing recruitment.
655.17 Advertising requirements.
655.18-655.19 [Reserved]
655.20 Applications for temporary employment certification.
655.21 Supporting evidence for temporary need.
655.22 Obligations of H-2B employers.
655.23 Receipt and processing of applications.
655.24 Audits.
655.25-655.29 [Reserved]
655.30 Supervised recruitment.
655.31 Debarment.
655.32 Labor certification determinations.
655.33 Administrative.
655.34 Validity of temporary labor certifications.
655.35 Required departure.
655.50 Enforcement process.
655.55 [Reserved]
655.60 Violations.
655.65 Remedies for violations.
655.70 Administrator's determination.
655.71 Request for hearing.
655.72 Hearing rules of practice.
655.73 Service of pleadings.
655.74 Conduct of proceedings.
655.75 Decision and order of administrative law judge.
655.76 Appeal of administrative law judge decision.
655.80 Notice to ETA and DHS.

Subpart A--Labor Certification Process and Enforcement of 
Attestations for Temporary Employment in Occupations Other Than 
Agriculture or Registered Nursing in the United States (H-2B 
Workers)


Sec.  655.1  Purpose and scope of subpart A.

    (a) Before granting the petition of an employer to import 
nonimmigrant workers on H-2B visas for temporary nonagricultural 
employment in the United States (U.S.), the Secretary of Homeland 
Security is required to consult with appropriate agencies regarding the 
availability of U.S. workers. Immigration and Nationality Act of 1952 
(INA), as amended, sections 101(a)(15)(H)(ii)(b) and 214(c)(1), 8 
U.S.C. 1101(a)(15)(H)(ii)(b) and 1184(c)(1).
    (b) Regulations of the Department of Homeland Security (DHS) for 
the U.S. Citizenship and Immigration Services (USCIS) at 8 CFR 
214.2(h)(6) require that the petitioning H-2B employer attach to its 
visa petition a determination from the Secretary of Labor (Secretary) 
that:
    (1) There are not sufficient U.S. workers available who are capable 
of performing the temporary services or labor at the time of 
application for a visa and admission into the U.S. and at the place 
where the foreign worker is to perform the work; and
    (2) The employment of the foreign worker will not adversely affect 
the wages and working conditions of U.S. workers similarly employed.
    (c)(1) The regulations under this subpart set forth the procedures 
through which employers may apply for H-2B labor certifications, how 
such applications are considered and how they are granted or denied. 
This subpart sets forth the procedures governing the labor 
certification process for the temporary employment of nonimmigrant 
foreign workers in the U.S. in occupations other than agriculture and 
registered nursing.
    (2) Certain investigatory, inspection, and law enforcement 
functions to assure compliance with the terms and conditions of 
employment under the H-2B program have been delegated by the Secretary 
of DHS to the Secretary of Labor and re-delegated to the Employment 
Standards Administration (ESA) Wage and Hour Division (WHD). This 
subpart sets forth the Wage and Hour Division's investigation and 
enforcement actions.


Sec.  655.2  Territory of Guam.

    Subpart A of this part does not apply to temporary employment in 
the Territory of Guam, and the Department of Labor (Department or DOL) 
does not certify to the USCIS of DHS the temporary employment of 
nonimmigrant foreign workers under H-2B visas in the Territory of Guam. 
Pursuant to DHS regulations, that function is performed by the Governor 
of Guam, or the Governor's designated representative.


Sec.  655.3  Special procedures.

    (a) Systematic process. This subpart provides systematic and 
accessible procedures for the processing of applications from employers 
for the certification of non-agricultural employment of nonimmigrant 
workers on a temporary basis, usually in relation to certain classes of 
occupations within an industry.
    (b) Establishment of special procedures. To provide for a limited 
degree of flexibility in carrying out the Secretary's responsibilities 
under the INA, while not deviating from statutory requirements to 
determine U.S. worker availability and make a determination as to 
adverse effect, the Administrator of the Office of Foreign Labor 
Certification (OFLC) has the authority to establish or to revise 
special procedures in the form of variances for processing certain H-2B 
applications when employers can demonstrate upon written application to 
and consultation with the OFLC Administrator that special procedures 
are necessary. Special procedures have been used to augment the filing 
of applications for H-2B foreign workers, for example, in certain tree 
planting and related reforestation activities, in professional 
athletics, for boilermakers coming to the U.S. on an emergency basis, 
and professional entertainers. Prior to making determinations under 
this section, the OFLC Administrator may consult with employer 
representatives and worker representatives.
    (c) Construction. This section shall be construed to permit the 
OFLC Administrator, where the OFLC Administrator deems appropriate, to 
devise, continue, revise, or revoke special procedures where 
circumstances warrant. These include procedures previously in effect 
for the handling of applications for tree planting and related 
reforestation activities, sports and professional entertainment, cross-
border freight rail transportation in northern New England, in small 
U.S. exclaves, and other programs.


Sec.  655.4  Definitions of terms used in this subpart.

    For the purposes of this subpart:
    Act means the Immigration and Nationality Act or INA, as amended, 8 
U.S.C. 1101 et. seq.
    Administrator, Office of Foreign Labor Certification (OFLC) means 
the primary official of the Office of Foreign Labor Certification, or 
the Administrator's designee.
    Agent means a legal entity or person which is authorized to act on 
behalf of the employer for temporary agricultural labor certification 
purposes, and is not itself an employer as defined in this subpart. The 
term ``agent'' specifically excludes associations or other 
organizations of employers.
    Applicant means a U.S. worker who is applying for a job opportunity 
for which an employer has filed an

[[Page 29961]]

Application for Temporary Employment Certification (Form ETA 9142).
    Application for Temporary Employment Certification means the form 
submitted by an employer to secure a temporary non-agricultural labor 
certification determination from DOL.
    Area of intended employment means the geographic area within normal 
commuting distance of the place (worksite address) of intended 
employment of the job opportunity for which the certification is 
sought. There is no rigid measure of distance which 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, quality of 
regional transportation network, etc.). 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, and who is not 
under suspension or disbarment from practice before any court or before 
DHS or the U.S. Department of Justice's Executive Office for 
Immigration Review. Such a person is permitted to act as an attorney or 
representative for an employer under this part; however, an attorney 
who acts as a representative must do so only in accordance with the 
definition of ``representative'' in this section.
    Board of Alien Labor Certification Appeals (BALCA or Board) means 
the permanent Board established by Part 656 of this chapter, chaired by 
the Chief Administrative Law Judge, and consisting of Administrative 
Law Judges assigned to the Department and designated by the Chief 
Administrative Law Judge to be members of BALCA. The Board is located 
in Washington, DC, and reviews and decides appeals in Washington, DC.
    Center Director means a DOL official to whom the Administrator has 
delegated his authority for purposes of National Processing Center 
(NPC) operations and functions.
    Certifying Officer (CO) means the person designated by the 
Administrator, OFLC with making programmatic determinations on 
employer-filed applications under the H-2B Program.
    Date of need means the first date the employer requires services of 
the H-2B workers.
    Employ means to suffer or permit to work.
    Employee means employee 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; 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 should be considered and no one factor 
is dispositive.
    Employer means
    (1) A person, firm, corporation or other association or 
organization:
    (i) Which has a physical location within the U.S. to which U.S. 
workers may be referred for employment;
    (ii) Which has an employer relationship with respect to employees 
employed pursuant to the part as indicated by the fact that it may 
hire, pay, fire, supervise or otherwise control the work of any such 
employee; and
    (iii) Which possesses a valid Federal Employer Identification 
Number (FEIN).
    (2) Where two or more employers each have the definitional indicia 
of employment with respect to an employee, those employers shall be 
considered to jointly employ that employee.
    (3) Persons who are temporarily in the U.S., including but not 
limited to, foreign diplomats, intra-company transferees, students, and 
exchange visitors, visitors for business or pleasure, and 
representatives of foreign information media can not be employers for 
the purpose of obtaining a labor certification.
    Employment and Training Administration or ETA means the agency 
within the Department which includes the OFLC and has been delegated 
authority by the Secretary to fulfill the Secretary's mandate under the 
Act.
    ETA National Processing Center (NPC) means a National Processing 
Center established under the OFLC for the processing of applications 
submitted in connection with the Department's mandate pursuant to the 
INA.
    Full time, for purposes of temporary labor certification 
employment, means 35 or more hours per week, except where a State or an 
established practice in an industry has developed a definition of full-
time employment for any occupation that is less than 35 hours per week, 
that definition shall have precedence.
    Job Contractor means a person, association, firm, or a corporation 
that meets the definition of an employer and who contracts services or 
labor on a temporary basis to one or more employers unaffiliated with 
the job contractor as part of signed work contracts or labor services 
agreements. A job contractor may be responsible for hiring, paying, and 
firing the foreign worker but then places that worker with one or more 
unaffiliated employers.
    Job opportunity means one or more job openings with the petitioning 
employer for temporary employment at a place in the U.S. to which U.S. 
workers can be referred. Job opportunities consisting solely of job 
duties that will be performed totally outside the U.S., its 
territories, possessions, or commonwealths cannot be the subject of an 
Application for Temporary Employment Certification.
    Layoff means any involuntary separation of one or more U.S. 
employees without cause or prejudice.
    Metropolitan Statistical Area (MSA) means those geographic entities 
defined by the U.S. Office of Management and Budget (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 less 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.
    Offered wage means the highest of the prevailing wage, Federal 
minimum wage, the State minimum wage, and local minimum wage.
    Office of Foreign Labor Certification (OFLC) means the 
organizational component within ETA that provides national leadership 
and policy guidance and develops regulations and procedures by which it 
carries out the responsibilities of the Secretary under the INA, as 
amended, concerning foreign workers seeking admission to the U.S. in 
order to work under section 101(a)(15)(H)(ii)(b) of the INA, as 
amended.
    Occupational Employment Statistics Survey (OES) means that program 
under the jurisdiction of the Bureau of Labor Statistics (BLS) that 
provides annual

[[Page 29962]]

wage estimates for occupations at the state and MSA levels.
    Prevailing Wage Determination (PWD) means the prevailing wage for 
the position that is the subject of the Application for Temporary 
Employment Certification.
    Professional Athlete shall have the meaning ascribed to it in INA 
section 212(a)(5)(A)(iii)(II), which defines ``professional athlete'' 
as 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.
    Representative means the official employed by or authorized to act 
on behalf of the employer with respect to the recruitment activities 
entered into for and attestations made with respect to the Application 
for Temporary Employment Certification. In the case of an attorney who 
acts as the employer's representative and who interviews and/or 
considers U.S. workers for the job offered to the foreign worker, such 
individual must be the person who normally interviews or considers, on 
behalf of the employer, applicants for job opportunities such as that 
offered in the application, but which do not involve labor 
certifications.
    Secretary means the Secretary of Labor, the chief official of the 
U.S. Department of Labor (Department or DOL), or the Secretary's 
designee.
    Secretary of Homeland Security means the chief official of the 
Department of Homeland Security or the Secretary of Homeland Security's 
designee.
    Secretary of State means the chief official of the U.S. Department 
of State (DOS) or the Secretary of State's designee.
    State Workforce Agency (SWA), formerly known as State Employment 
Security Agency, means the State government agency that receives funds 
pursuant to the Wagner-Peyser Act to administer the public labor 
exchange delivered through the State's one-stop delivery system in 
accordance with the Wagner-Peyser Act. 29 U.S.C. 49 et. seq.
    United States, when used in a geographic sense, means the 
continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the 
Virgin Islands of the United States.
    United States worker means any worker who is:
    (1) A U.S. citizen;
    (2) A U.S. national;
    (3) Lawfully admitted for permanent residence;
    (4) Granted the status of an foreign worker lawfully admitted for 
temporary residence under 8 U.S.C. 1160(a) or 1255a(a)(1);
    (5) Admitted as a refugee under 8 U.S.C. 1157; or
    (6) Granted asylum under 8 U.S.C. 1158.


Sec.  655.5  [Reserved]


Sec.  655.6  Temporary need.

    (a) To utilize the H-2B Program, the employer's need for non-
agricultural services or labor described in an Application for 
Temporary Employment Certification must be temporary. Temporary 
employment is full-time employment that is not permanent in nature. A 
job opportunity is considered temporary under this subpart if the 
employer's need for the duties to be performed is temporary, regardless 
of whether the underlying job is permanent or temporary.
    (b) The temporary need must be justified to the Secretary under one 
of the following standards:
    (1) One-Time Occurrence. The employer must establish that either it 
has not employed workers to perform the services or labor in the past 
and that it will not need workers to perform the services or labor in 
the future, or it has an employment situation that is otherwise 
permanent, but a temporary event of less than 3 years in duration has 
created the need for a temporary worker(s);
    (2) Seasonal Need. The employer must establish that the services or 
labor is traditionally tied to a season of the year by an event or 
pattern and is of a recurring nature. The employment is not seasonal if 
the period during which the services or labor is not needed is 
unpredictable or subject to change or is considered a vacation period 
for the petitioner's permanent employees;
    (3) Peakload Need. The employer must establish that it regularly 
employs permanent workers to perform the services or labor at the place 
of employment and that it needs to supplement its permanent staff at 
the place of employment on a temporary basis due to a seasonal or 
short-term demand, and the temporary additions to staff will not become 
a part of the petitioner's regular operation; or
    (4) Intermittent Need. The employer must establish that it has not 
employed permanent or full-time workers to perform the services or 
labor, but occasionally or intermittently needs temporary workers to 
perform services or labor for short periods.
    (c) Except in the case of a One-Time Occurrence, an employer's need 
cannot exceed 10 months.
    (d) The temporary nature of the work or services to be performed in 
applications filed by job contractors will be determined by examining 
the job contractor's own need for the services or labor to be 
performed, rather than the needs of each individual employer with whom 
the job contractor has agreed to provide workers as part of a signed 
work contract or labor services agreement.
    (e) The employer filing the application must maintain documentation 
evidencing the temporary need and be prepared to submit this 
documentation in response to a Request for Further Information (RFI) 
from the CO prior to rendering a Final Determination or in the event of 
an audit examination. The documentation required in this section to be 
retained by the employer must be retained for a period of no less than 
5 years from the date of the certification or, if such application was 
denied or the Department could not make a determination, no less than 5 
years from the date of notification from the Department of such denial 
or no finding.


Sec. Sec.  655.7-655.9  [Reserved]


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

    (a) Application process. (1) The employer must request a prevailing 
wage determination from the Chicago NPC before commencing any 
recruitment under this part.
    (2) The employer must obtain a prevailing wage determination that 
is valid either on the date recruitment begins or the date of filing 
the Application for Temporary Employment Certification with the 
Department.
    (3) The employer must offer and advertise the position to all 
potential workers at a wage at least equal to the prevailing wage 
obtained from the NPC.
    (b) Determinations. The Chicago NPC shall determine the prevailing 
wage as follows:
    (1) Except as provided in paragraph (e) of this section, if the job 
opportunity is covered by a collective bargaining agreement (CBA) that 
was negotiated at arms' length between the union and the employer, the 
wage rate set forth in the CBA is considered as not adversely affecting 
the wages of U.S. workers, that is, it is considered the ``prevailing 
wage'' for labor certification purposes.
    (2) If the job opportunity is not covered by a CBA, the prevailing 
wage for labor certification purposes shall be the arithmetic mean, 
except as provided

[[Page 29963]]

in paragraph (b)(4) of this section, of the wages of workers similarly 
employed at the skill level in the area of intended employment. The 
wage component of the DOL Occupational Employment Statistics Survey 
(OES) shall be used to determine the arithmetic mean, unless the 
employer provides an acceptable survey under paragraph (f) of this 
section. The wage shall be determined in accordance with section 212(t) 
of the INA.
    (3) If the job opportunity involves multiple worksites within an 
area of intended employment and different prevailing wage rates exist, 
i.e. multiple MSAs, the Chicago NPC will determine the prevailing wage 
based on the highest wage among all applicable MSAs.
    (4) If the employer provides a survey acceptable under paragraph 
(f) of this section that provides a median but does not provide an 
arithmetic mean, the prevailing wage applicable to the employer's job 
opportunity shall be the median of the wages of U.S. workers similarly 
employed in the area of intended employment.
    (5) The employer may utilize a current wage determination in the 
area determined under the Davis-Bacon Act, 40 U.S.C. 276a et seq., 29 
CFR part 1, or the McNamara-O'Hara Service Contract Act, 41 U.S.C. 351 
et seq.
    (6) The Chicago NPC must enter its wage determination on the form 
it uses for these purposes, indicate the source, and return the form 
with its endorsement to the employer. The employer must offer this wage 
(or higher) to both its U.S. and H-2B workers.
    (c) Similarly employed. For purposes of this section, similarly 
employed means having substantially comparable jobs in the occupational 
category in the area of intended employment, except that, if a 
representative sample of workers in the occupational category cannot be 
obtained in the area of intended employment, similarly employed means:
    (1) Having jobs requiring a substantially similar level of skills 
within the area of intended employment; or
    (2) If there are no substantially comparable jobs in the area of 
intended employment, having substantially comparable jobs with 
employers outside of the area of intended employment.
    (d) Validity period. The Chicago NPC must specify the validity 
period of the prevailing wage, which in no event may be more than 1 
year and no less than 3 months from the determination date.
    (e) Professional athletes. In computing the prevailing wage for a 
professional athlete (defined in section 212(a)(5)(A)(iii)(II) of the 
INA) when the job opportunity is covered by professional sports league 
rules or regulations, the wage set forth in those rules or regulations 
is considered the prevailing wage (see section 212(p)(2) of the INA).
    (f) Employer-provided wage information. (1) If the job opportunity 
is not covered by a CBA, or by a professional sports league's rules or 
regulations, the Chicago NPC will consider wage information provided by 
the employer in making a PWD. An employer survey can be submitted 
either initially or after NPC issuance of a PWD derived from the OES 
survey.
    (2) In each case where the employer submits a survey or other wage 
data for which it seeks acceptance, the employer must provide the 
Chicago NPC with enough information about the survey methodology, 
including such items as sample size and source, sample selection 
procedures, and survey job descriptions, to allow the Chicago NPC to 
make a determination about the adequacy of the data provided and 
validity of the statistical methodology used in conducting the survey 
in accordance with guidance issued by the ETA OFLC national office.
    (3) The survey submitted to the Chicago NPC must be based upon 
recently collected data:
    (i) The published survey must have been published within 24 months 
of the date of submission to the Chicago NPC, must be the most current 
edition of the survey, and the data upon which the survey is based must 
have been collected within 24 months of the publication date of the 
survey.
    (ii) A survey conducted by the employer must be based on data 
collected within 24 months of the date it is submitted to the Chicago 
NPC.
    (4) If the employer-provided survey is found not to be acceptable, 
the Chicago NPC must inform the employer in writing of the reasons the 
survey was not accepted.
    (5) The employer, after receiving notification that the survey it 
provided for the Chicago NPC's consideration is not acceptable, may 
file supplemental information as provided in paragraph (g) of this 
section, file a new request for a PWD, appeal under Sec.  655.11, or, 
if the initial PWD was requested prior to submission of the employer 
survey, acquiesce to the initial PWD.
    (g) Submission of supplemental information by employer. (1) If the 
employer disagrees with the skill level assigned to its job 
opportunity, or if the Chicago NPC informs the employer its survey is 
not acceptable, or if there are other legitimate bases for such a 
review, the employer may submit supplemental information to the Chicago 
NPC.
    (2) The Chicago NPC must consider one supplemental submission about 
the employer's survey or the skill level assigned to the job 
opportunity or any other legitimate basis for the employer to request 
such a review. If the Chicago NPC does not accept the employer's survey 
after considering the supplemental information, or affirms its 
determination concerning the skill level, it must inform the employer 
of the reasons for its decision.
    (3) The employer may then apply for a new wage determination, 
appeal under Sec.  655.11, or acquiesce to the initial PWD provided if 
one was requested prior to submission of the employer survey.
    (h) Wage cannot be lower than required by any other law. No PWD for 
labor certification purposes made under this section permits an 
employer to pay a wage lower than the highest wage required by any 
applicable Federal, State, or local law.
    (i) Retention of Documentation. The PWD shall be retained by the 
employer for 5 years and submitted to a CO in the event it is requested 
in the course of an RFI or an audit or a Wage and Hour representative 
in the event of a Wage and Hour investigation.


Sec.  655.11  Certifying officer review of prevailing wage 
determinations.

    (a) Review of NPC prevailing wage determinations. Any employer 
desiring review of a Chicago NPC PWD must make a request for such 
review within 10 days of the date from when the PWD was issued. The 
request for review must be sent (postmarked) to the Chicago NPC no 
later than 10 days after determination, which begins with the date of 
issuance listed on the PWD; clearly identify the PWD for which review 
is sought; set forth the particular grounds for the request; and 
include all the materials pertaining to the PWD submitted to the 
Chicago NPC up to the date that the PWD was issued.
    (b) Transmission of request to processing center. Upon the receipt 
of a request for review, the Chicago NPC prevailing wage unit must 
review the employer's request and accompanying documentation, and add 
any supplementary material submitted by the employer, including any 
material sent to the employer up to the date the PWD was issued
    (c) Designations. The Director of the Chicago NPC will determine 
which CO will review the employer's request for review.
    (d) Review on the record. The CO shall review the PWD solely on the 
basis

[[Page 29964]]

upon which the PWD was made and after review may:
    (1) Affirm the PWD issued by the Chicago NPC; or
    (2) Modify the PWD.
    (e) Request for review by BALCA. Any employer desiring review of a 
Certifying Officer PWD must make a request for review of the 
determination by BALCA within 30 days of the date of the decision of 
the CO. The CO must receive the request for BALCA review no later than 
the 30th day after its final determination including the date of the 
final determination.
    (1) The request for review, statements, briefs, and other 
submissions of the parties and amicus curiae must contain only legal 
arguments and only such evidence that was within the record upon which 
the affirmation of the PWD by the Chicago NPC was based.
    (2) The request for review must be in writing and addressed to the 
CO who made the determination. Upon receipt of a request for a review, 
the CO must immediately assemble an indexed appeal file in reverse 
chronological order, with the index on top followed by the most recent 
document.
    (3) The CO must send the Appeal File to the Office of 
Administrative Law Judges, Board of Alien Labor Certification Appeals, 
800 K Street, NW., Suite 400-N, Washington, DC 20001-8002.
    (4) The BALCA shall handle appeals in accordance with Sec.  655.31 
of this part.


Sec. Sec.  655.12-655.14  [Reserved]


Sec.  655.15  Required Pre-filing Recruitment.

    (a) Time of Filing of Application. An employer may not file an 
Application for Temporary Employment Certification before all of the 
pre-filing recruitment steps set forth in this section have been fully 
satisfied. The employer must conduct all required recruitment no more 
than 120 days before the date of its need for foreign workers.
    (b) General Attestation Obligation. An employer must document 
recruitment efforts, must provide evidence of these efforts on the 
application form, and must attest to performing all necessary steps of 
the recruitment process as specified in this section and having 
rejected any eligible U.S. workers who have applied only for lawful 
reasons.
    (c) Retention of documentation. The employer filing the Application 
for Temporary Employment Certification must maintain documentation of 
its advertising and recruitment efforts as required in this subpart and 
be prepared to submit this documentation in response to a RFI from the 
CO prior to rendering a Final Determination or in the event of an audit 
examination. The documentation required in this section to be retained 
by the employer must be retained for a period of no less than 5 years 
from the date of the certification or, if such application was denied 
no less than 5 years from the date of notification from the Department 
of such denial.
    (d) Recruitment Steps. (1) An employer filing an application must:
    (i) Post a job order with the SWA; and
    (ii) Run three print advertisements on three separate days, except 
as indicated in paragraph (f)(4) (one of which must be on a Sunday, 
except as outlined in paragraph (f)(4)).
    (iii) The start date of advertising for the steps outlined in (1) 
and (2) must be no more than 120 days before the date of need.
    (2) The use of union organizations as a recruitment source is also 
required, in addition to the mandatory recruitment steps, if it is 
appropriate for the occupation and customary to the industry and area 
of intended employment.
    (e) SWA Posting. (1) The employer shall place an active job order 
with the SWA serving the area of intended employment for a period of no 
less than 10 days. The job order cannot be placed more than 120 days 
before the date of need. Documentation of this step shall be satisfied 
by maintaining a copy of the SWA job order downloaded from the SWA 
Internet job listing site, a copy of the job order provided by the SWA, 
or other proof of publication from the SWA containing the text of the 
job order and the start and end dates of posting. If the job 
opportunity contains multiple work locations within the same area of 
intended employment and the area of intended employment is found in 
more than one State, the employer shall place a job order with the SWA 
having jurisdiction over the place where the work is contemplated to 
begin. Upon placing a job order, the SWA receiving the job offer under 
this paragraph shall promptly transmit, on behalf of the employer, a 
copy of its active job order to all States listed in the application as 
anticipated worksites.
    (2) The job order contents submitted by the employer to the SWA 
must satisfy all the requirements for newspaper advertisements 
contained in Sec.  655.17(a). In the job order, the SWA shall disclose 
that only eligible workers shall be referred and list the name of the 
employer and location(s) of work with as much geographic specificity as 
possible to apprise U.S. workers of where the work will be performed 
and any travel requirements.
    (3) SWAs shall refer for employment only those individuals whom 
they have verified are employment-eligible U.S. workers.
    (f) Newspaper Advertisements.
    (1) Within the same period of time the job order is actively posted 
by the SWA serving the area of intended employment, the employer shall 
place an advertisement on three separate days, which may be 
consecutive, one of which is to be a Sunday advertisement (except as 
provided in paragraph (g)(2) of this section), in a newspaper of 
general circulation serving the area of intended employment, which may 
be a daily local newspaper, that the employer believes in good faith is 
most appropriate to the occupation and the workers likely to apply for 
the job opportunity and most likely to bring responses from able, 
available, and qualified U.S. workers. The first newspaper 
advertisement must be printed no more than 120 days before the date of 
need.
    (2) If the job opportunity is located in a rural area that does not 
have a newspaper with a Sunday edition, the employer shall use, in 
place of a Sunday edition advertisement, the regularly published 
edition with the widest circulation in the area of intended employment.
    (3) The newspaper advertisements must satisfy the requirements 
under Sec.  655.17(a) of this part. Documentation of this step shall be 
satisfied by maintaining copies of newspaper pages (with date of 
publication and full copy of ad), tear sheets of the pages of the 
publication in which the advertisements appeared, or other proof of 
publication containing the text of the printed advertisements furnished 
by the newspaper for each day in which the advertisement appeared.
    (4) If the employer believes in good faith that the use of a 
professional, trade or ethnic publication is more appropriate to the 
occupation and the workers likely to apply for the job opportunity than 
the use of a general circulation newspaper and is the most likely 
source to bring responses from able, willing, qualified, and available 
U.S. workers, the employer may use a professional, trade or ethnic 
publication in place of two of the newspaper advertisements, but shall 
not replace the Sunday advertisement, or the substitute outlined in 
(f)(1), as appropriate.
    (g) Labor Organizations. Within the same period of time the job 
order is actively posted by the SWA serving the area of intended 
employment and where the position typically or traditionally is 
represented by organized labor (union) in the area of intended 
employment, the

[[Page 29965]]

required union contact can be documented by providing copies of pages 
from newsletters or trade journals in which the job opportunity 
appeared or copies of official correspondence signed and dated by the 
employer demonstrating such organizations were contacted and either 
unable to refer a qualified U.S. worker or non-responsive to the 
employer's request.
    (h) Layoff. If there has been a layoff of U.S. workers by the 
importing employer in the occupation in the area of intended employment 
within 120 days of the first date on which a foreign worker is needed 
as indicated on the submitted Application for Temporary Employment 
Certification and throughout the entire employment of the H-2B 
worker(s), the employer must document it has notified and considered, 
or will notify and consider, each laid-off worker of the job 
opportunity involved in the application and the result of the 
notification and consideration.
    (i) Recruitment Report. No earlier than 2 calendar days after the 
last date on which the job order was posted and no earlier than 5 
calendar days after the date on which the last newspaper or journal 
advertisement appeared, the employer must prepare, sign, and date a 
written recruitment report. The employer may not submit the application 
until the recruitment report is completed. The recruitment report must 
be submitted to the Department with the application. The employer must 
retain a copy of the recruitment report for a period of no les than 5 
years and must provide that copy to the Department upon request. The CO 
may share the recruitment report with the Office of Special Counsel for 
Immigration-related Unfair Employment Practices of the Department of 
Justice Civil Rights Division, if there is any reason to believe that 
the employer has deterred eligible U.S. workers to apply for the 
position filled by an H-2B worker, or discriminated against the 
eligible U.S. worker in the hiring process. The recruitment report 
must:
    (1) Identify each recruitment source (place where advertisement 
appeared) by name;
    (2) State 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 for consideration by the 
employer, and the disposition of each U.S. worker who applied or was 
referred to the job opportunity;
    (3) If applicable, explain the lawful job-related reason(s) for not 
hiring each U.S. worker.
    (4) The employer shall retain resumes of and evidence of contact 
with each U.S. worker who applied or was referred to the job 
opportunity. Such documentation may be required in response to an RFI 
from the CO prior to rendering a Final Determination or in the event of 
an audit or a Wage and Hour investigation.


Sec.  655.17  Advertising requirements.

    All advertising conducted to satisfy the required recruitment steps 
under Sec.  655.15 before filing the Application for Temporary 
Employment Certification must:
    (a) Identify the employer's name and appropriate contact 
information for applicants to report or send resumes directly to the 
employer;
    (b) Indicate the geographic area of employment with enough 
specificity to apprise applicants of any travel requirements or whether 
transportation to work will be provided in order to perform the 
services or labor;
    (c) Describe the job opportunity (including the job duties and 
responsibilities) with particularity to apprise U.S. workers of 
services or labor to be performed for which certification is sought and 
which do not exceed the duties listed on the Application for Temporary 
Employment Certification;
    (d) State the employer's minimum education and experience 
requirements and whether or not on-the-job training will be available;
    (e) State the work hours and days, and the start and end dates of 
employment as listed on the Application for Temporary Employment 
Certification and indicate whether or not overtime and/or benefits will 
be available;
    (f) Offer a rate of pay that is no less than the prevailing wage, 
the Federal minimum wage, State minimum wage, or local minimum wage 
applicable throughout the duration of the certified employment;
    (g) Indicate that the position is temporary and the total number of 
job openings the employer intends to fill as listed on the Application 
for Temporary Employment Certification;
    (h) Contain benefits, terms and conditions of employment which are 
not less favorable than those offered to the foreign worker(s); and
    (i) Contain no unduly restrictive job requirements.


Sec. Sec.  655.18-655.19  [Reserved]


Sec.  655.20  Applications for temporary employment certification.

    (a) An employer who desires to apply for certification of temporary 
employment of one or more nonimmigrant foreign workers may file a 
completed Application for Temporary Employment Certification form and 
send it by U.S. Mail or private mail courier to the Chicago NPC. The 
Department shall publish a Notice in the Federal Register identifying 
the address, and any future address changes, to which paper 
applications must be mailed, and shall also post these addresses on the 
DOL Internet Web site at http://www.foreignlaborcert.doleta.gov/. The 
form must bear the original signature of the employer (and that of the 
employer's authorized agent or representative) at the time it is 
submitted.
    (b) Except where otherwise permitted under Sec.  655.3, an 
association or other organization of employers is not permitted to file 
master applications on behalf of its membership under the H-2B Program.
    (c) More than one foreign worker may be requested on the 
application as long as all foreign workers will perform the same 
services or labor on the same terms and conditions, in the same 
occupation, in the same area of intended employment, and during the 
same period of employment. In circumstances where the job opportunity 
requires the services or labor to be performed at multiple work 
locations, the employer must include the names, physical addresses and 
appropriate periods of employment of each work location on the 
Application for Temporary Employment Certification.
    (d) Except where otherwise permitted under Sec.  655.3, only one 
Application may be filed for worksite(s) within one area of intended 
employment for each job opportunity.


Sec.  655.21  Supporting evidence for temporary need.

    (a) Each Application for Temporary Employment Certification must 
include attestations regarding temporary need in the appropriate 
section of the Application for Temporary Employment Certification. The 
employer must include a detailed statement of temporary need, which 
must contain the following:
    (1) A description of the employer's business history and activities 
(i.e., primary products or services) and schedule of operations 
throughout the year;
    (2) An explanation regarding why the nature of the employer's job 
opportunity and number of foreign workers being requested for 
certification reflect a temporary need; and
    (3) An explanation regarding how the request for temporary labor 
certification meets one of the standards of a one-time occurrence, 
seasonal, peakload, or

[[Page 29966]]

intermittent need defined under Sec.  655.6(b).
    (b) Supplemental information request. In circumstances where the CO 
requests supplemental information through an RFI under Sec.  655.23(c) 
to support a Final Determination, or notifies the employer that its 
application is to be audited under Sec.  655.24, the employer must 
furnish the requested supplemental information or required supporting 
documentation. Such documentation becomes part of the record of the 
application.
    (c) Retention of documentation. The documentation required in this 
section and any other supporting evidence justifying the temporary need 
required to be retained by the employer filing the Application for 
Temporary Employment Certification must be retained for a period of no 
less than 5 years from the date of the certification or, if such 
application was denied, the date of notification from the Department of 
such denial.


Sec.  655.22  Obligations of H-2B employers.

    An employer seeking to employ H-2B foreign workers shall attest to 
the following:
    (a) There are no U.S. workers available in the areas of intended 
employment capable of performing the temporary services or labor in the 
job opportunity.
    (b) It is offering terms and working conditions normal to workers 
similarly employed in the area of intended employment and which are not 
less favorable than those offered to the foreign worker(s), and that it 
is offering a job that contains no unduly restrictive job requirements.
    (c) There is not, at the time the labor certification application 
is filed, a strike, lockout, or work stoppage in the course of a labor 
dispute in the occupational classification at the place of employment.
    (d) The job opportunity is clearly open to any U.S. worker and that 
it conducted the required recruitment prior to filing the labor 
certification application and was unsuccessful in locating qualified 
U.S. applicants for the job opportunity for which certification is 
sought and has rejected any U.S. worker applicants only for lawful, 
job-related reasons.
    (e) During the entire period of employment that is the subject of 
the labor certification application, it will comply with all Federal, 
State or local laws applicable to the employment opportunity.
    (f) Upon the separation from employment of any H-2B worker(s) 
employed under the labor certification application, if such separation 
occurs prior to the end date of the employment specified in the 
application, the employer will notify the Department and DHS in writing 
of the separation from employment not later than 48 hours after such 
separation is effective.
    (g) The offered wage equals or exceeds the highest of the 
prevailing wage, the applicable Federal minimum wage, the State minimum 
wage, and local minimum wage and the employer will pay the offered wage 
to the foreign worker(s) during the entire time the foreign worker is 
employed under the labor certification application. Failure to pay the 
offered wage will be considered a willful failure to comply with the 
requirements of the labor certification application and a deviation 
from the terms and conditions of the certification.
    (h) The offered wage is not based on commissions, bonuses or other 
incentives, unless the employer guarantees a wage paid on a weekly, bi-
weekly, or monthly basis that equals or exceeds the prevailing wage. 
For purposes of this provision, the offered wage shall be held to 
exclude any deductions for reimbursement of the employer or any third 
party by the employee for expenses in connection with obtaining or 
maintaining the H-2B employment including but not limited to 
international recruitment, legal fees not otherwise prohibited by this 
section, visa fees, items such as tools of the trade, and other items 
not expressly permitted by law.
    (i) The job opportunity is open to all qualified individuals 
regardless of race, creed, color, national origin, age, sex, religion, 
handicap, or citizenship.
    (j) The job opportunity is a bona fide, full-time temporary 
position.
    (k) The employer has not laid off and will not lay off any 
similarly employed U.S. worker(s) in the occupation that is the subject 
of the application in the area of intended employment within the period 
beginning 120 days before the date of requested need of the first H-2B 
worker(s) and throughout the entire employment of the H-2B worker(s), 
except that such layoff shall be permitted where the employer also 
attests that it offered the opportunity to the laid-off U.S. worker(s) 
and said U.S. worker(s) either refused the job opportunity or were 
rejected for the job opportunity for lawful, job-related reasons.
    (l) The employer has not sought or received payment of any kind for 
any activity related to obtaining the labor certification, including 
payment of the employer's attorneys' fees, whether as an incentive or 
inducement to filing, or as a reimbursement for costs incurred in 
recruiting the foreign worker or in preparing or filing the 
application, from the employee or any other party. For purposes of this 
paragraph (l), payment includes, but is not limited to, monetary 
payments, wage concessions (including deductions from wages, salary, or 
benefits), kickbacks, bribes, tributes, in kind payments, and free 
labor.
    (m) If the employer is a job contractor, it will not place any H-2B 
workers employed pursuant to the labor certification application with 
any other employer or at another employer's worksite unless:
    (1) The employer applicant first makes a bona fide inquiry as to 
whether the other employer has displaced or intends to displace a 
similarly employed U.S. worker within the area of intended employment 
within the period beginning 120 days before and throughout the entire 
placement of the H-2B worker, the other employer provides written 
confirmation that it has not so displaced and does not intend to 
displace such U.S. workers, and
    (2) the worksite is listed on the certified Application for 
Temporary Employment Certification.
    (n) It will not place any H-2B workers employed pursuant to this 
application outside the area of intended employment listed on the 
Application for Temporary Employment Certification unless the employer 
has obtained a new temporary labor certification from the Department.
    (o) It will inform foreign workers of the requirement that they 
leave the U.S. at the end of the period certified by the Department or 
separation from the employer, whichever is earlier, as required in 
Sec.  655.35 and that if dismissed by the employer prior to the end of 
the period, the employer is liable for return transportation.
    (p) The dates of temporary need, reason for temporary need, and 
number of workers needed have been truly and accurately stated on the 
application.


Sec.  655.23  Receipt and processing of applications.

    (a) Filing Date. Applications received by U.S. Mail shall be 
considered filed when determined by the Chicago NPC to be complete. 
Incomplete applications shall not be accepted for processing or 
assigned a receipt date, but shall be returned to the employer or the 
employer's representative as incomplete.
    (b) Processing. (1) The CO will review applications for 
completeness and for compliance with the requirements of the program.

[[Page 29967]]

    (2) Each Application for Temporary Employment Certification shall 
be screened and will be certified or denied.
    (c) Request for Further Information. (1) Upon review of the 
application, if the CO determines that the application appears 
ineligible for temporary labor certification because the employer's 
description of need for the services or labor to be performed is 
insufficient or because the employer did not comply with a specific DOL 
policy or procedure, the CO must issue an RFI to the employer. The CO 
will issue the RFI within 14 days of the receipt of the application.
    (2) The RFI must:
    (i) Specify the reason(s) why the application is not sufficient to 
grant temporary labor certification;
    (ii) Indicate the specific DOL policy(ies) with which the employer 
does not appear to have complied;
    (iii) Specify a date, no later than 14 calendar days from the date 
of the written RFI, by which the supplemental information and 
documentation must be received by the CO to be considered. Employers 
must provide all evidence on which they intend to rely in their 
response to the RFI, as their response will be their only opportunity 
to submit additional evidence; and
    (iv) Advise that, upon receipt of a response to the written RFI, or 
expiration of the stated deadline for receipt of the response, the CO 
will review the existing application as well as any supplemental 
materials submitted by the employer and issue a Final Determination. If 
circumstances warrant, the CO may issue one or more additional RFIs 
prior to issuing a Final Determination.
    (3) The CO should issue the Final Determination or the additional 
RFI within 14 days of receipt of the employer's response.
    (4) Compliance with an RFI does not guarantee that the employer's 
application will be certified after submitting the information. The 
employer's documentation must justify its chosen standard of temporary 
need or otherwise overcome the stated deficiency in the application.
    (d) Failure to comply with an RFI, including not providing 
documentation within the specified time period, will result in a denial 
of the application. Such failure to comply with an RFI may also result 
in a finding by the CO requiring supervised recruitment under Sec.  
655.30 in future filings of temporary labor certification applications.


Sec.  655.24  Audits.

    (a) The Department may, in its discretion, conduct audits of 
temporary labor certification applications, regardless of whether the 
Department has issued a certification, denial or non-determination on 
the application.
    (b) In circumstances where an application is selected for audit, 
the CO shall issue an audit letter. The audit letter will:
    (1) State the documentation that must be submitted by the employer;
    (2) Specify a date, no more than 30 days from the date of the audit 
letter, by which the required documentation must be received by the CO; 
and
    (3) Advise that failure to comply with the audit process, including 
providing documentation within the specified time period, may result in 
a finding by the CO to (i) requiring the employer to conduct supervised 
recruitment under Sec.  655.30 in future filings of H-2B temporary 
labor certification applications for a period of up to 2 years, or (ii) 
debarring the employer from future filings of H-2B temporary labor 
certification applications for a period of up to 3 years.
    (c) During the course of the audit examination, the CO may request 
supplemental information and/or documentation from the employer to 
complete the audit.
    (d) If, as a result of the audit or otherwise, the CO determines 
the employer failed to produce required documentation, or determines a 
material misrepresentation was made with respect to the application, or 
if the CO determines the employer failed to adequately conduct 
recruitment activities or failed to comply with any obligation required 
by this part, the employer may be required to conduct supervised 
recruitment under section Sec.  655.30 in future filings of temporary 
labor certification applications for up to 2 years; may be subject to 
debarment pursuant to Sec.  655.31 or other sanctions; or may be 
required to comply with other recruitment or documentation standards in 
filing future applications, including but not limited to additional 
advertising. The CO will provide the audit report and underlying 
documentation to DHS or another appropriate enforcement agency.


Sec. Sec.  655.25-655.29  [Reserved]


Sec.  655.30  Supervised recruitment.

    (a) Supervised recruitment. Where an employer is found to have been 
in violation of the program requirements in the previous year or years, 
or the employer failed to adequately conduct recruitment activities or 
failed in any obligation of this part, the CO may require pre-filing 
supervised recruitment.
    (b) Requirements. Supervised recruitment shall consist of 
advertising for the job opportunity in accordance with the required 
recruitment steps outlined under Sec.  655.15, except as otherwise 
provided below.
    (1) The CO will direct where the advertisements are to be placed.
    (2) The employer must supply a draft advertisement and job order to 
the CO for review and approval no less than 150 days before the date on 
which the foreign worker(s) will commence work unless notified by the 
CO of the need for Supervised Recruitment less than 150 days before the 
date of need, in which case the employer must supply the drafts within 
30 days of receipt of such notification.
    (3) Each advertisement must comport with the requirements of Sec.  
655.17(a).
    (c) Timing of advertisement.
    (1) The advertisement shall be placed in accordance with guidance 
provided by the CO.
    (2) The employer will notify the CO when the advertisements are 
placed.
    (d) Additional recruitment. The CO may require the employer to 
contact a union organization as an additional recruitment source if the 
CO determines it is appropriate for the occupation and customary in the 
industry in the geographical area. The employer will provide proof of 
correspondence and mailing by certified mail to the CO in the course of 
the supervised recruitment.
    (e) Recruitment report. No earlier than 2 days after the last day 
of the posting of the job order and no earlier than 5 calendar days 
after the date on which the last newspaper or journal advertisement 
appeared, the employer must prepare a detailed written report of the 
employer's supervised recruitment, signed by the employer as outlined 
in Sec.  655.15(i) of this part. The employer must submit the 
recruitment report to the CO as outlined in paragraph (f) below and 
must retain a copy for a period of no less than 5 years. The 
recruitment report must contain a copy of the advertisements placed and 
a copy of the job order, including the dates so placed.
    (f) The employer shall supply the CO with the required 
documentation or information within 30 days of the date of the first 
advertisement. If the employer does not do so, the CO may deny any 
applications filed by this employer for the remainder of the Federal 
Government fiscal year for which the recruitment was being conducted. 
The CO shall share the recruitment report with the Office of Special 
Counsel for Immigration-related Unfair Employment Practices of the

[[Page 29968]]

Department of Justice Civil Rights Division, if there is any reason to 
believe that the employer has deterred eligible U.S. workers to apply 
for the position filled by an H-2B worker, or discriminated against the 
eligible U.S. worker in the hiring process.


Sec.  655.31  Debarment.

    (a) Findings. (1) The Administrator, OFLC will notify the employer 
promptly after the discovery of a violation, but in no event later than 
5 years from the date of the occurrence of the violation, that the 
Department has found it necessary to debar the employer, attorney or 
agent for a period of up to 3 years from filing H-2B temporary labor 
certification applications if the employer, attorney or agent is found 
to have engaged in any of the following:
    (i) The willful provision or willful assistance in the provision of 
false or inaccurate information in applying for temporary labor 
certification;
    (ii) A pattern or practice of a failure to comply with the terms of 
the Application for Temporary Employment Certification;
    (iii) A pattern or practice of failure to comply with the audit 
process pursuant to Sec.  655.24;
    (iv) A pattern or practice of failure to comply with the supervised 
recruitment process pursuant to Sec.  655.30; or
    (v) Conduct resulting in a determination by a court, DHS, DOS, or 
Department of Justice of fraud or willful misrepresentation involving a 
temporary labor certification application or a violation of 8 U.S.C. 
1324b.
    (2) The Notice of Debarment shall be in writing; shall state the 
reason for the debarment finding, including a detailed explanation of 
how the employer, attorney or agent has participated in or facilitated 
one or more of the actions listed in paragraphs (a)(1)(i) through (v) 
of this section; shall state the start date and term of the debarment; 
and shall offer the employer an opportunity to request review before 
the BALCA. The notice shall state that to obtain such a review or 
hearing, the employer, within 30 calendar days of the date of the 
notice, shall file a written request to the Board of Alien Labor 
Certification Appeals, 800 K Street, NW., Suite 400-N, Washington, DC 
20001-8002, and simultaneously serve a copy to the Administrator, OFLC. 
If such a review is requested, the hearing shall be conducted pursuant 
to the procedures set forth in 29 CFR Part 18.
    (b) The debarment shall take effect on the start date identified in 
the Notice of Debarment unless a request for review is filed within the 
time permitted by this subpart. The timely filing of the request for 
review will stay the debarment pending the outcome of the review 
proceedings before BALCA.
    (c) False Statements. To knowingly and willfully furnish any false 
information in the preparation of the Application for Temporary 
Employment Certification and any supporting documentation, or to aid, 
abet, or counsel another to do so, is a Federal offense, punishable by 
fine or imprisonment up to 5 years, or both, under 18 U.S.C. 2 and 
1001. Other penalties apply as well to fraud or misuse of ETA 
immigration documents, including but not limited to Applications for 
Temporary Labor Certification, and to perjury with respect to such 
documents under 18 U.S.C. 1546 and 1621.
    (d) Appeal File. Whenever an employer has requested an 
administrative review before the BALCA of a debarment finding, the 
Administrator, OFLC, shall:
    (1) Assemble an indexed Appeal File; and
    (2) Send a copy of the Appeal File to the BALCA.
    (e) Final Appeal. The BALCA shall affirm, reverse, or modify the 
Administrator, OFLC's determination, and the Board's decision shall be 
provided to the employer, the Administrator, OFLC, and the DHS. The 
Board's decision shall be the final decision of the DOL.
    (f) Inter-Agency Reporting. After completion of the appeal process, 
the DOL will inform the DHS and other appropriate enforcement agencies 
of the findings.


Sec.  655.32  Labor certification determinations.

    (a) The Administrator, OFLC, is the Department's National CO. The 
Administrator and the CO(s) in the NPC(s) have the authority to certify 
or deny temporary labor certification applications. If the 
Administrator has directed that certain types of temporary labor 
certification applications or specific applications be handled by the 
National OFLC, or another OFLC NPC, the Director(s) of the ETA NPC(s) 
shall refer such applications to the Administrator who may then direct 
another NPC process the Application.
    (b) A CO making a determination shall either grant or deny the 
temporary labor certification application on the basis of whether or 
not:
    (1) The employer has complied with the requirements of this 
subpart.
    (2) The nature of the employer's need is temporary and justified 
based on a one-time occurrence, seasonal, peakload, or intermittent 
basis. To determine this, the CO shall take into account, among other 
things, the duration of employment as listed on the application, the 
statement of temporary need contained therein, and any other 
documentation submitted to substantiate the chosen standard of 
temporary need, if requested in the course of reviewing the 
application.
    (3) The job opportunity does not contain duties, requirements or 
other conditions that preclude consideration of U.S. workers or 
otherwise inhibit their effective recruitment for the temporary job 
opportunity. To determine this, the CO shall consider the following 
factors as attested to by the employer:
    (i) The job opportunity is not vacant because the former 
occupant(s) is or are on strike or locked out in the course of a labor 
dispute involving a work stoppage or the job is at issue in a labor 
dispute involving a work stoppage;
    (ii) The job opportunity's terms, conditions, and/or occupational 
environment are not contrary to Federal, State, or local law(s);
    (iii) The employer has a physical location within the U.S. to which 
domestic workers can be referred and hired for employment;
    (iv) The employer is paying the wage required by Sec.  655.22(g) 
for the job to be performed for the duration of the approved 
certification; and
    (v) The requirements of the job opportunity are not unduly 
restrictive or represent a combination of duties not normal to the 
occupation being requested for certification, unless the highest wage 
for the jobs being combined is being paid.
    (4) There are not one or more U.S. workers who are capable and 
available for the temporary job opportunity. The total number of job 
openings that are available to U.S. workers must be no less than the 
number of openings the employer has listed on the application.
    (5) The employment of the foreign worker will not otherwise 
adversely affect the wages and working conditions of similarly employed 
U.S. workers.
    (c) The CO shall notify the employer in writing of the labor 
certification determination.
    (d) If temporary labor certification is granted, the CO must send 
the certified application and a Final Determination letter to the 
employer, or, if appropriate, to the employer's agent or attorney, 
indicating the employer may file all the documents with the appropriate 
USCIS office.
    (e) If temporary labor certification is denied, the Final 
Determination letter will:

[[Page 29969]]

    (1) Detail the reason(s) why certification cannot be made;
    (2) If applicable, address the availability of U.S. workers in the 
occupation as well as the prevailing wages and working conditions of 
similarly employed U.S. workers in the occupation;
    (3) Indicate the specific DOL policy(ies) with which the employer 
should have, but does not appear to have, complied; and
    (4) Advise the employer of the right to appeal the decision or to 
file a new application in accordance with specific instructions 
provided by the CO.
    (f) Partial Certification. The CO may, in his/her discretion, issue 
a partial certification, reducing either the period of need or the 
number of foreign workers being requested for certification, limiting 
the certification to the actual need demonstrated by the employer, 
based upon information the CO receives in the course of processing the 
temporary labor certification application, an audit, or otherwise.


Sec.  655.33  Administrative review.

    (a) Request for review. If a temporary labor certification is 
denied, in whole or in part, under Sec.  655.32, the employer may 
request review of the denial by the BALCA. The request for review:
    (1) Must be sent to the BALCA, with a copy simultaneously sent to 
the CO who denied the application, within 10 days of the date of 
determination;
    (2) Must clearly identify the particular temporary labor 
certification determination for which review is sought;
    (3) Must set forth the particular grounds for the request;
    (4) Must include a copy of the Final Determination; and
    (5) May contain only legal argument and such evidence as was 
actually submitted to the CO in support of the application.
    (b) Upon the receipt of a request for review, the BALCA will issue 
a docketing statement to the employer, the CO, and the Associate 
Solicitor for Employment and Training Legal Services, Office of the 
Solicitor, U.S. Department of Labor, Washington, DC 20210. The 
docketing statement will set the briefing schedule for the review 
within the following timeframes:
    (1) The CO must assemble and submit the Appeal File within 10 days 
of receipt of the docketing statement using means to ensure same day or 
overnight delivery;
    (2) The employer's brief must be filed within 10 days after the day 
the Appeal File is submitted;
    (3) The CO's brief must be filed within 10 days after the day the 
employer's brief is due; and
    (4) Reply briefs are not permitted.
    (c)(1) The Appeal File must be in chronological order, must have 
the index on top followed by the most recent document, and must have 
consecutively numbered pages. The Appeal File must contain the request 
for review, the complete application file, and copies of all the 
written material upon which the denial was based.
    (2) The CO must send the Appeal File to the employer and the BALCA, 
Office of Administrative Law Judges.
    (d) The Chief Administrative Law Judge may designate a single 
member or a three member panel of the BALCA to consider a particular 
case.
    (e) The BALCA must review a denial of temporary labor certification 
only on the basis of the Appeal File, the request for review, and any 
Statements of Position or legal briefs submitted and must:
    (1) Affirm the denial of the temporary labor certification; or
    (2) Direct the CO to grant the certification; or
    (3) Remand to the CO for further action,
    (f) The BALCA should notify the employer, the CO, and the Solicitor 
of Labor of its decision within 20 days of the filing of the CO's 
brief.


Sec.  655.34  Validity of temporary labor certifications.

    (a) Validity Period. A temporary labor certification shall be valid 
only for the duration of the job opportunity for which certification is 
being requested by the employer. The validity period shall be the 
beginning and ending dates of certified employment, as listed on the 
application. The beginning date of certified employment cannot be 
earlier than the date certification was granted by the CO.
    (b) Scope of Validity. A temporary labor certification is valid 
only for the number of foreign workers, the area of intended 
employment, the specific occupation and duties, the beginning and 
ending dates of employment, and the employer specified on the 
application.
    (c) Amendments to Applications.
    (1) Applications may be amended to increase the number of workers 
requested in the initial application by not more than 20 percent (50 
percent for employers of less than 10 workers) without requiring an 
additional recruitment period for U.S. workers. Requests for increases 
above the percent prescribed, without additional recruitment, may be 
approved by the CO only when the request is submitted in writing, the 
need for additional workers could not have been foreseen, and the 
services or products will be in jeopardy prior to the expiration of an 
additional recruitment period.
    (2) Applications may be amended to make minor changes in the period 
of employment, as stated in the application, including the job offer, 
only when a written request is submitted to the CO and approved in 
advance. In considering whether to approve the request, the CO shall 
review the reason(s) for the request, determine whether each reason is 
justified, and take into account the effect(s) of a decision to approve 
on the adequacy of the underlying test of the domestic labor market for 
the job opportunity.
    (3) Other minor technical amendments to the application, including 
the job offer, may be requested if the CO determines the proposed 
amendment(s) are justified and will have no significant effect upon the 
CO's ability to make the labor certification determination required 
under this paragraph.
    (4) An employer may not change the date of need without obtaining 
written approval of such amendment in accordance with this section.
    (5) The CO may change the date of need to reflect an amended date 
when delay occurs in the adjudication of the Application, through no 
fault of the employer, and a certification would begin after the 
initial date of need.


Sec.  655.35  Required departure.

    (a) Limit to worker's stay. As defined further in DHS regulations, 
a temporary labor certification shall limit the authorized period of 
stay for any H-2B worker whose admission is based upon it. 8 CFR 
214.2(h). A foreign worker may not remain beyond the validity period of 
admission by DHS in H-2B status nor beyond separation from employment, 
whichever occurs first, absent any extension or change of such worker's 
status pursuant to DHS regulations.
    (b) Notice to worker. Upon establishment of a program by DHS for 
registration of departure, an employer must notify any H-2B worker 
starting work at a job opportunity for which the employer has obtained 
labor certification that the H-2B worker, when departing the U.S. by 
land at the conclusion of employment as outlined in paragraph (a) of 
this section, must register such departure at the place and in the 
manner prescribed by DHS.


Sec.  655.50  Enforcement process.

    (a) Authority of the WHD Administrator. The Administrator shall

[[Page 29970]]

perform all the Secretary's investigative and enforcement functions 
under sections 101(a)(15)(H)(ii)(b), 214(c) and (g) of the INA (8 
U.S.C. 1101(a)(15)(H)(ii)(b), 1184(c) and (g)), pursuant to the 
delegation of authority from the Secretary of DHS to the Secretary of 
DOL.
    (b) Conduct of investigations. The Administrator shall conduct such 
investigations as may, in the judgment of the Administrator, be 
appropriate and in connection therewith, enter and inspect such places 
and such records (and make transcriptions or copies thereof), question 
such persons and gather such information as deemed necessary by the 
Administrator to determine compliance regarding the matters which are 
the subject of investigation.
    (c) Employer cooperation/availability of records. An employer shall 
at all times cooperate in administrative and enforcement proceedings. 
An employer being investigated shall make available to the 
Administrator such records, information, persons, and places as the 
Administrator deems appropriate to copy, transcribe, question, or 
inspect. No employer subject to the provisions of sections 
101(a)(15)(H)(ii)(b) and 214(c) of the INA and/or of this subpart shall 
interfere with any official of the Department performing an 
investigation, inspection, or law enforcement function pursuant to 8 
U.S.C. 1101(a)(15)(H)(ii)(b) or 1184(c). Any such interference shall be 
a violation of the labor certification application and of this part, 
and the Administrator may take such further actions as the 
Administrator considers appropriate. (Federal criminal statutes 
prohibit certain interference with a Federal officer in the performance 
of official duties. 18 U.S.C. 111 and 18 U.S.C. 1114.)
    (d) Confidentiality. The Administrator shall, to the extent 
possible under existing law, protect the confidentiality of any person 
who provides information to the Department in confidence in the course 
of an investigation or otherwise under this subpart.


Sec.  655.55  [Reserved]


Sec.  655.60  Violations.

    (a) The WHD Administrator, through investigation, shall determine 
whether an employer has--
    (1) Filed a petition with ETA that willfully misrepresents a 
material fact.
    (2) Substantially failed to meet any of the conditions of the labor 
certification application attested to, as listed in Sec.  655.22, or 
any of the conditions of the DHS Form I-129, Petition for a 
Nonimmigrant Worker for an H-2B worker, listed in 8 CFR 214.2(h), 
including to provide working conditions normal to workers similarly 
employed in the area of intended employment and not less favorable than 
those offered to the foreign workers and that it is offering a job that 
contains no unduly restrictive job requirements. Such working 
conditions shall include, but are not limited to: hours; shifts; 
vacation periods; seniority-based preferences for training programs; 
and work schedules.


Sec.  655.65  Remedies for violations.

    (a) Upon determining that an employer has willfully failed to pay 
wages, in violation of the attestation required by Sec.  655.22(g) or 
willfully required employees to pay for fees or expenses prohibited by 
Sec.  655.22(l), or willfully made impermissible deductions from pay as 
provided in Sec.  655.22(h), the WHD Administrator shall assess civil 
money penalties equal to the difference between the amount that should 
have been paid and the amount that actually was paid to such 
nonimmigrant(s), not to exceed $10,000.
    (b) Upon determining that an employer has terminated by layoff or 
otherwise any employee described in Sec.  622.55(k), within the period 
described in that section, the Administrator shall assess civil money 
penalties equal to the wages that would have been earned but for the 
layoff at the H-2B rate for that period, not to exceed $10,000. No 
civil money penalty shall be assessed, however, if the employee refused 
the job opportunity, or was terminated for lawful, job-related reasons.
    (c) The Administrator may assess civil money penalties in an amount 
not to exceed $10,000 per violation for any substantial failure to meet 
the conditions provided in the labor condition application or the DHS 
Form I-129, Petition for a Nonimmigrant Worker for an H-2B worker, or 
any willful misrepresentation in the application or petition, or a 
failure to cooperate with a Department audit or investigation.
    (d) Substantial failure in (c) above shall mean a willful failure 
that constitutes a significant deviation from the terms and conditions 
of the labor condition application or the DHS Form I-129, Petition for 
a Nonimmigrant Worker for an H-2B worker.
    (e) For purposes of this subpart, ``willful failure'' means a 
knowing failure or a reckless disregard with respect to whether the 
conduct was contrary to section 214(c) of the INA, or this subpart. See 
McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988); see also Trans 
World Airlines v. Thurston, 469 U.S. 111 (1985).
    (f) The provisions of this subpart become applicable upon the date 
that the employer's labor condition application is certified and/or 
upon the date employment commences, whichever is earlier. The 
employer's submission and signature on the labor certification 
application and DHS Form I-129, Petition for a Nonimmigrant Worker for 
an H-2B worker constitutes the employer's representation that the 
statements on the application are accurate and its acknowledgment and 
acceptance of the obligations of the program. The employer's acceptance 
of these obligations is re-affirmed by the employer's submission of the 
petition (Form I-129), supported by the labor certification.
    (g) In determining the amount of the civil money penalty to be 
assessed pursuant to (c) above, the Administrator shall consider the 
type of violation committed and other relevant factors. In determining 
the level of penalties to be assessed, the highest penalties shall be 
reserved for willful failures to meet any of the conditions of the 
application 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, or violations, by the employer 
under the INA and this subpart, and 8 CFR 214.2;
    (2) The number of workers affected by the violation or violations;
    (3) The gravity of the violation or violations;
    (4) Efforts made by the employer in good faith to comply with the 
INA and regulatory provisions of this subpart and at 8 CFR 214.2(h);
    (5) The employer's explanation of the violation or violations;
    (6) The employer's commitment to future compliance; and
    (7) The extent to which the employer achieved a financial gain due 
to the violation, or the potential financial loss, potential injury or 
adverse effect with respect to other parties.
    (h) Disqualification from approval of petitions. Where the 
Administrator finds a substantial failure to meet any conditions of the 
application or in a DHS Form I-129, Petition for a Nonimmigrant Worker 
for an H-2B worker or a willful misrepresentation of a material fact in 
an application or in a DHS Form I-129, the Administrator may recommend 
that DHS disqualify the employer from the approval of any petitions 
filed by, or on behalf of, the employer pursuant to sections 204 and 
214(c) of the INA for a period of no less than 1 year, and no more than 
5 years.

[[Page 29971]]

    (i) If the Administrator finds a violation of the provisions 
specified in this subpart, the Administrator may impose such other 
administrative remedies as the Administrator determines to be 
appropriate, including but not limited to reinstatement of displaced 
U.S. workers or other appropriate legal or equitable remedies.
    (j) The civil money penalties determined by the Administrator to be 
appropriate are immediately due for payment upon the assessment by the 
Administrator, or upon the decision by an administrative law judge 
where a hearing is timely requested, or upon the decision by the 
Secretary where review is granted. The employer shall remit the amount 
of the civil money penalty by certified check or money order made 
payable to the order of ``Wage and Hour Division, Labor.'' The 
remittance shall be delivered or mailed to the Wage and Hour Division 
office in the manner directed in the Administrator's notice of 
determination. The payment or performance of any other remedy 
prescribed by the Administrator shall follow procedures established by 
the Administrator.
    (k) The Federal Civil Penalties Inflation Adjustment Act of 1990, 
as amended (28 U.S.C. 2461 note), requires that inflationary 
adjustments to civil money penalties in accordance with a specified 
cost-of-living formula be made, by regulation, at least every 4 years. 
The adjustments are to be based on changes in the Consumer Price Index 
for all Urban Consumers (CPI-U) for the U.S. City Average for All 
Items. The adjusted amounts will be published in the Federal Register. 
The amount of the penalty in a particular case will be based on the 
amount of the penalty in effect at the time the violation occurs.


Sec.  655.70  Administrator's determination.

    (a) The WHD Administrator's determination shall be served on the 
employer by personal service or by certified mail at the employer's 
last known address. Where service by certified mail is not accepted by 
the employer, the Administrator may exercise discretion to serve the 
determination by regular mail.
    (b) The Administrator shall file with the Chief Administrative Law 
Judge, U.S. Department of Labor, a copy of the Administrator's 
determination.
    (c) The Administrator's written determination shall:
    (1) Set forth the determination of the Administrator and the reason 
or reasons therefore, and in the case of a finding of violation(s) by 
an employer, prescribe the amount of any civil money penalties assessed 
and the reason therefore.
    (2) Inform the employer that a hearing may be requested pursuant to 
Sec.  655.71 of this part.
    (3) Inform the employer that in the absence of a timely request for 
a hearing, received by the Chief Administrative Law Judge within 15 
calendar days of the date of the determination, the determination of 
the Administrator shall become final and not appealable.
    (4) Set forth the procedure for requesting a hearing, give the 
addresses of the Chief Administrative Law Judge (with whom the request 
must be filed) and the representative(s) of the Solicitor of DOL (upon 
whom copies of the request must be served).
    (5) Where appropriate, inform the employer that the Administrator 
will notify ETA and the DHS of the occurrence of a violation by the 
employer.


Sec.  655.71  Request for hearing.

    (a) An employer desiring review of a determination issued under 
Sec.  655.70, including judicial review, shall make a request for such 
an administrative hearing in writing to the Chief Administrative Law 
Judge at the address stated in the notice of determination. If such a 
request for an administrative hearing is timely filed, the WHD 
Administrator's determination shall be inoperative unless and until the 
case is dismissed or the Administrative Law Judge issues an order 
affirming the decision.
    (b) An employer may request a hearing where the Administrator 
determines, after investigation, that the employer has committed 
violation(s). In such a proceeding, the Administrator shall be the 
prosecuting party, and the employer shall be the respondent.
    (c) No particular form is prescribed for any request for hearing 
permitted by this section. However, any such request shall:
    (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 employer believes 
such determination is in error;
    (5) Be signed by the employer making the request or by an 
authorized representative of such employer; and
    (6) Include the address at which such employer or authorized 
representative desires to receive further communications relating 
thereto.
    (d) The request for such hearing shall be received by the Chief 
Administrative Law Judge, at the address stated in the Administrator's 
notice of determination, no later than 15 calendar days after the date 
of the determination. An employer which fails to meet this 15-day 
deadline for requesting a hearing may thereafter participate in the 
proceedings only by consent of the administrative law judge.
    (e) The request may be filed in person, by facsimile transmission, 
by certified or regular mail, or by courier service. For the requesting 
employer's protection, if the request is by mail, it should be by 
certified mail. If the request is by facsimile transmission, the 
original of the request, signed by the employer or authorized 
representative, shall be filed within ten days.
    (f) Copies of the request for a hearing shall be sent by the 
employer or authorized representative to the WHD official who issued 
the Administrator's notice of determination, to the representative(s) 
of the Solicitor of DOL identified in the notice of determination.


Sec.  655.72  Hearing rules of practice.

    (a) Except as specifically provided in this subpart, and to the 
extent they do not conflict with the provisions of this subpart, 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 shall apply to administrative proceedings under this 
subpart.
    (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) shall not apply, 
but principles designed to ensure production of relevant and probative 
evidence shall guide the admission of evidence. The administrative law 
judge may exclude evidence which is immaterial, irrelevant, or unduly 
repetitive.


Sec.  655.73  Service of pleadings.

    (a) Under this subpart, 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 administrative law judge 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 
administrative law judge proceeding shall be served on the attorneys 
for the WHD

[[Page 29972]]

Administrator. One copy shall 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 shall be served on the attorney 
representing the Administrator in the proceeding.
    (c) Time will be computed beginning with the day following the 
action and includes the last day of the period unless it is a Saturday, 
Sunday, or federally-observed holiday, in which case the time period 
includes the next business day.


Sec.  655.74  Conduct of proceedings.

    (a) Upon receipt of a timely request for a hearing filed pursuant 
to and in accordance with Sec.  655.71 of this subpart, the Chief 
Administrative Law Judge shall promptly appoint an administrative law 
judge to hear the case.
    (b) The administrative law judge shall notify all parties of the 
date, time and place of the hearing. All parties shall be given at 
least 14 calendar days notice of such hearing.
    (c) The administrative law judge 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 shall be served 
upon each other party. Post-hearing briefs will not be permitted except 
at the request of the administrative law judge. When permitted, any 
such brief shall be limited to the issue or issues specified by the 
administrative law judge, shall be due within the time prescribed by 
the administrative law judge, and shall be served on each other party.


Sec.  655.75  Decision and order of administrative law judge.

    (a) The administrative law judge shall issue a decision. If any 
party desires review of the decision, including judicial review, a 
petition for Secretary's review thereof shall be filed as provided in 
Sec.  655.76 of this subpart. If a petition for review is filed, the 
decision of the administrative law judge shall be inoperative unless 
and until the Secretary issues an order affirming the decision, or, 
unless and until 30 calendar days have passed after the Secretary's 
receipt of the petition for review and the Secretary has not issued 
notice to the parties that the Secretary will review the administrative 
law judge's decision.
    (b) The decision of the administrative law judge shall include a 
statement of findings and conclusions, with reasons and basis 
therefore, upon each material issue presented on the record. The 
decision shall also include an appropriate order which may affirm, 
deny, reverse, or modify, in whole or in part, the determination of the 
Administrator; the reason or reasons for such order shall be stated in 
the decision.
    (c) In the event that the Administrator assesses civil money 
penalties for wage violation(s) of Sec. Sec.  655.22(g), 655.22(l), or 
655.22(h) based upon a PWD obtained by the Administrator from ETA 
during the investigation and the administrative law judge determines 
that the Administrator's request was not warranted, the administrative 
law judge shall remand the matter to the Administrator for further 
proceedings on the Administrator's determination. If there is no such 
determination and remand by the administrative law judge, the 
administrative law judge shall accept as final and accurate the wage 
determination obtained from ETA or, in the event the employer filed a 
timely complaint through the Employment Service complaint system, the 
final wage determination resulting from that process. Under no 
circumstances shall the administrative law judge 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 administrative law judge shall not render determinations as 
to the legality of a regulatory provision or the constitutionality of a 
statutory provision.
    (e) The decision shall be served on all parties in person or by 
certified or regular mail.


Sec.  655.76  Appeal of administrative law judge decision.

    (a) The WHD Administrator or an employer desiring review of the 
decision and order of an administrative law judge, including judicial 
review, shall petition the Department's Administrative Review Board 
(Board) to review the decision and order. To be effective, such 
petition shall be received by the Board within 30 calendar days of the 
date of the decision and order. Copies of the petition shall be served 
on all parties and on the administrative law judge.
    (b) No particular form is prescribed for any petition for the 
Board's review permitted by this subpart. However, any such petition 
shall:
    (1) Be dated;
    (2) Be typewritten or legibly written;
    (3) Specify the issue or issues stated in the administrative law 
judge 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) Attach copies of the administrative law judge's decision and 
order, and any other record documents which would assist the Board in 
determining whether review is warranted.
    (c) Whenever the Board determines to review the decision and order 
of an administrative law judge, a notice of the Board's determination 
shall be served upon the administrative law judge, upon the Office of 
Administrative Law Judges, and upon all parties to the proceeding 
within 30 calendar days after the Board's receipt of the petition for 
review. If the Board determines that it will review the decision and 
order, the order shall be inoperative unless and until the Board issues 
an order affirming the decision and order.
    (d) Upon receipt of the Board's notice, the Office of 
Administrative Law Judges shall within 15 calendar days forward the 
complete hearing record to the Board.
    (e) The Board's notice shall specify:
    (1) The issue or issues to be reviewed;
    (2) The form in which submissions shall be made by the parties 
(e.g., briefs);
    (3) The time within which such submissions shall be made.
    (f) All documents submitted to the Board shall be filed with the 
Administrative Review Board, Room S-4309, U.S. Department of Labor, 
Washington, DC 20210. An original and two copies of all documents shall 
be filed. Documents are not deemed filed with the Board until actually 
received by the Board. All documents, including documents filed by 
mail, shall be received by the Board either on or before the due date.
    (g) Copies of all documents filed with the Board shall be served 
upon all other parties involved in the proceeding.
    (h) The Board's final decision shall be served upon all parties and 
the administrative law judge.


Sec.  655.80  Notice to the ETA and DHS.

    (a) The WHD Administrator shall notify the DHS and ETA of the final 
determination of any violation recommending that DHS not approve

[[Page 29973]]

petitions filed by an employer. The Administrator's notification will 
address the type of violation committed by the employer and the 
appropriate statutory period for disqualification of the employer from 
approval of petitions.
    (b) The Administrator shall notify the DHS and ETA upon the 
earliest of the following events:
    (1) Where the Administrator determines that there is a basis for a 
finding of violation by an employer, and no timely request for hearing 
is made; or
    (2) Where, after a hearing, the administrative law judge issues a 
decision and order finding a violation by an employer, and no timely 
petition for review is filed with the Department's Administrative 
Review Board (Board); or
    (3) Where a timely petition for review is filed from an 
administrative law judge's decision finding a violation and the Board 
either declines within 30 days to entertain the appeal, pursuant to or 
the Board reviews and affirms the administrative law judge's 
determination; or
    (4) Where the administrative law judge finds that there was no 
violation by an employer, and the Board, upon review, issues a 
decision, holding that a violation was committed by an employer.
    (c) DHS, upon receipt of notification from the Administrator 
pursuant to paragraph (a) of this section, shall determine whether to 
deny petitions filed with respect to that employer under sections 204 
or 214(c) of the INA (8 U.S.C. 1154 and 1184(c)) and, in the event such 
petitions are denied, the time period of such denials.
    4. Amend 655.715 by adding a definition for the ``Center Director'' 
to read as follows:


Sec.  655.715  Definitions.

* * * * *
    Center Director means a DOL official to whom the Administrator has 
delegated his authority for purposes of NPC operations and functions.
* * * * *
    5. Amend Sec.  655.731 to revise paragraphs (a)(2) introductory 
text and (a)(2)(ii) to read as follows:


Sec.  655.731  What is the first LCA requirement regarding wages?

* * * * *
    (a) * * *
    (2) The prevailing wage for the occupational classification in the 
area of intended employment must be determined as of the time of filing 
the application. The employer shall base the prevailing wage on the 
best information available as of the time of filing the application. 
Except as provided in this section, the employer is not required to use 
any specific methodology to determine the prevailing wage and may 
utilize a wage obtained from an ETA NPC, an independent authoritative 
source, or other legitimate sources of wage data. One of the following 
sources shall be used to establish the prevailing wage:
* * * * *
    (ii) If the job opportunity is in an occupation, which is not 
covered by paragraph (a)(2)(i) of this section, the prevailing wage 
shall be the arithmetic mean of the wages of workers similarly 
employed, except that the prevailing wage shall be the median when 
provided by paragraphs (a)(2)(ii)(A), (b)(3)(iii)(B)(2), and 
(b)(3)(iii)(C)(2) of this section. The prevailing wage rate shall be 
based on the best information available. The Department believes the 
following prevailing wage sources are, in order of priority, the most 
accurate and reliable:
    (A) ETA National Processing Center (NPC) determination. Upon 
receipt of a written request for a PWD, the NPC will determine whether 
the occupation is covered by a collective bargaining agreement, which 
was negotiated at arms length, and, if not, determine the arithmetic 
mean of wages of workers similarly employed in the area of intended 
employment. The wage component of the Bureau of Labor Statistics 
Occupational Employment Statistics survey shall be used to determine 
the arithmetic mean, unless the employer provides an acceptable survey. 
The NPC shall determine the wage in accordance with section 212(t) of 
the INA. If an acceptable employer-provided wage survey provides a 
median and does not provide an arithmetic mean, the median shall be the 
prevailing wage applicable to the employer's job opportunity. In making 
a PWD, the Chicago NPC will follow Sec.  656.40 of this chapter and 
other administrative guidelines or regulations issued by ETA. The 
Chicago NPC shall specify the validity period of the PWD, which in no 
event shall be for less than 90 days or more than 1 year from the date 
of the determination.
    (1) An employer who chooses to utilize an NPC PWD shall file the 
labor condition application within the validity period of the 
prevailing wage as specified in the PWD. Any employer desiring review 
of an NPC PWD, including judicial review, shall follow the appeal 
procedures at Sec.  656.41 of this chapter. Employers which challenge 
an NPC PWD under Sec.  656.41 must obtain a ruling prior to filing an 
LCA. In any challenge, the Department and the NPC shall not divulge any 
employer wage data, which were collected under the promise of 
confidentiality. Once an employer obtains a PWD from the Chicago NPC 
and files an LCA supported by that PWD, the employer is deemed to have 
accepted the PWD (as to the amount of the wage) and thereafter may not 
contest the legitimacy of the PWD by filing an appeal with the CO (see 
Sec.  656.41 of this chapter) or in an investigation or enforcement 
action.
    (2) If the employer is unable to wait for the Chicago NPC to 
produce the requested prevailing wage for the occupation in question, 
or for the CO and/or the BALCA to issue a decision, the employer may 
rely on other legitimate sources of available wage information as set 
forth in paragraphs (a)(2)(ii)(B) and (C) of this section. If the 
employer later discovers, upon receipt of the PWD from the Chicago NPC, 
that the information relied upon produced a wage below the prevailing 
wage for the occupation in the area of intended employment and the 
employer was paying below the NPC-determined wage, no wage violation 
will be found if the employer retroactively compensates the H-1B 
nonimmigrant(s) for the difference between wage paid and the prevailing 
wage, within 30 days of the employer's receipt of the PWD.
    (3) In all situations where the employer obtains the PWD from the 
Chicago NPC, the Department will deem that PWD as correct (as to the 
amount of the wage). Nevertheless, the employer must maintain a copy of 
the NPC PWD. A complaint alleging inaccuracy of an NPC PWD, in such 
cases, will not be investigated.
    (B) An independent authoritative source. The employer may use an 
independent authoritative wage source in lieu of an NPC PWD. The 
independent authoritative source survey must meet all the criteria set 
forth in paragraph (b)(3)(iii)(B) of this section.
* * * * *
    6. Amend paragraph 655.731 to revise paragraph (b)(3)(iii) to read 
as follows:


Sec.  655.731  What is the first LCA requirement, regarding wages?

* * * * *
    (b) * * *
    (3) * * *
    (iii) * * *
    (A) A copy of the prevailing wage finding from the NPC for the 
occupation within the area of intended employment.
* * * * *

[[Page 29974]]

    7. Amend Sec.  655.731 to revise paragraph (d)(2) and (d)(3) to 
read as follows:


Sec.  655.731  What is the first LCA requirement, regarding wages?

* * * * *
    (d) * * *
    (2) In the event the Administrator obtains a prevailing wage from 
ETA pursuant to paragraph (d)(1) of this section, and the employer 
desires review, including judicial review, the employer shall challenge 
the ETA prevailing wage only by filing a request for review under Sec.  
656.41 of this chapter within 30 days of the employer's receipt of the 
PWD from the Administrator. If the request is timely filed, the 
decision of ETA is suspended until the Center Director issues a 
determination on the employer's appeal. If the employer desires review, 
including judicial review, of the decision of the NPC Center Director, 
the employer shall make a request for review of the determination by 
the Board of Alien Labor Certification Appeals (BALCA) under Sec.  
656.41(e) of this chapter within 30 days of the receipt of the decision 
of the Center Director. If a request for review is timely filed with 
the BALCA, the determination by the Center Director is suspended until 
the BALCA issues a determination on the employer's appeal. In any 
challenge to the wage determination, neither ETA nor the NPC shall 
divulge any employer wage data which was collected under the promise of 
confidentiality.
    (i) Where an employer timely challenges an ETA PWD obtained by the 
Administrator, the 30-day investigative period shall be suspended until 
the employer obtains a final ruling. Upon such a final ruling, the 
investigation and any subsequent enforcement proceeding shall continue, 
with ETA's PWD serving as the conclusive determination for all 
purposes.
    (ii) [Reserved]
    (3) For purposes of this paragraph (d), ETA may consult with the 
appropriate NPC to ascertain the prevailing wage applicable under the 
circumstances of the particular complaint.

PART 656--LABOR CERTIFICATION PROCESS FOR PERMANENT EMPLOYMENT OF 
ALIENS IN THE UNITED STATES

    8. The authority citation continues to read as follows:

    Authority: 8 U.S.C. 1182(a)(5)(A), 1189(p)(1); section 122, 
Public Law 101-649, 109 Stat. 4978; and Title IV, Public Law 105-
277, 112 Stat. 2681.

    9. Amend Sec.  656.3 by revising the definitions of ``Prevailing 
wage determination (PWD)'' and ``State Workforce Agency (SWA)'' to read 
as follows:


Sec.  656.3  Definitions, for purposes of this part, of terms used in 
this part.

* * * * *
    Prevailing wage determination (PWD) means the prevailing wage 
provided or approved by an ETA National Processing Center (NPC), in 
accordance with ETA guidance governing foreign labor certification 
programs. This includes PWD requests processed for purposes of employer 
petitions filed with DHS under Schedule A or for sheepherders.
* * * * *
    State Workforce Agency (SWA), formerly known as State Employment 
Security Agency (SESA), means the state agency that receives funds 
under the Wagner-Peyser Act to provide employment-related services to 
U.S. workers and employers and/or administers the public labor exchange 
delivered through the state's one-stop delivery system in accordance 
with the Wagner-Peyser Act.
* * * * *


Sec.  656.15  [Amended]

    10. Amend Sec.  656.15 as follows:
    A. Amend paragraph (a) by removing the words ``in duplicate''.
    B. Remove paragraph (f) and redesignate paragraph (g) as paragraph 
(f).
    11. Amend Sec.  656.40 by revising paragraphs (a), (b) introductory 
text, (c), (g), (h) and (i) to read as follows:


Sec.  656.40  Determination of prevailing wage for labor certification 
purposes.

    (a) Application process. The employer must request a PWD from the 
ETA NPC having jurisdiction over the proposed area of intended 
employment, on a form or in a manner prescribed by ETA. The NPC will 
provide the employer with an appropriate prevailing wage rate. The NPC 
shall determine the wage in accordance with section 212(t) of the INA. 
Unless the employer chooses to appeal the center's PWD under Sec.  
656.41(a), it files the Application for Permanent Employment 
Certification either electronically or by mail with the processing 
center of jurisdiction and maintains the PWD in its files. The 
determination shall be submitted to the CO, if requested.
    (b) Determinations. The National Processing Center will determine 
the appropriate prevailing wage as follows: * * *
    (c) Validity Period. The National Processing Center must specify 
the validity period of the prevailing wage, which in no event may be 
less than 90 days or more than 1 year from the determination date. To 
use a prevailing wage rate provided by the NPC, employers must file 
their applications or begin the recruitment period required by 
Sec. Sec.  656.17(e) or 656.21 within the validity period specified by 
the NPC.
* * * * *
    (g) Employer-provided wage information.
    (1) If the job opportunity is not covered by a CBA, or by a 
professional sports league's rules or regulations, the NPC will 
consider wage information provided by the employer in making a PWD. An 
employer survey can be submitted either initially or after NPC issuance 
of a PWD derived from the OES survey. In the latter situation, the new 
employer survey submission will be deemed a new PWD request.
    (2) In each case where the employer submits a survey or other wage 
data for which it seeks acceptance, the employer must provide the NPC 
with enough information about the survey methodology, including such 
items as sample size and source, sample selection procedures, and 
survey job descriptions, to allow the NPC to make a determination about 
the adequacy of the data provided and validity of the statistical 
methodology used in conducting the survey in accordance with guidance 
issued by the ETA national office.
    (3) The survey submitted to the NPC must be based upon recently 
collected data:
    (i) A published survey must have been published within 24 months of 
the date of submission to the NPC, must be the most current edition of 
the survey, and the data upon which the survey is based must have been 
collected within 24 months of the publication date of the survey.
    (ii) A survey conducted by the employer must be based on data 
collected within 24 months of the date it is submitted to the NPC.
    (4) if the employer-provided survey is found not to be acceptable, 
the NPC will inform the employer in writing of the reasons the survey 
was not accepted.
    (5) The employer, after receiving notification that the survey it 
provided for NPC consideration is not acceptable, may file supplemental 
information as provided by paragraph (h) of this section, file a new 
request for a PWD, or appeal under Sec.  656.41.
    (h) Submittal of supplemental information by employer.

[[Page 29975]]

    (1) If the employer disagrees with the skill level assigned to its 
job opportunity, or if the NPC informs the employer its survey is not 
acceptable, or if there are other legitimate bases for such a review, 
the employer may submit supplemental information to the NPC.
    (2) The NPC will consider one supplemental submission about the 
employer's survey or the skill level the NPC assigned to the job 
opportunity or any other legitimate basis for the employer to request 
such a review. If the NPC does not accept the employer's survey after 
considering the supplemental information, or affirms its determination 
concerning the skill level, it will inform the employer of the reasons 
for its decision.
    (3) The employer may then apply for a new wage determination or 
appeal under Sec.  656.41.
    (i) Frequent users. The Secretary will issue guidance pursuant to 
which employers receiving a PWD from an NPC may directly obtain a wage 
determination to apply to a subsequent application, when the wage is 
for the same occupation, skill level, and area of intended employment. 
In no case may the wage rate the employer provides the NPC be lower 
than the highest wage required by any applicable Federal, state, or 
local law.
* * * * *
    12. Revise Sec.  656.41 to read as follows:


Sec.  656.41  Review of prevailing wage determinations.

    (a) Review of NPC PWD. Any employer desiring review of a PWD made 
by a CO must make a request for such review within 30 days of the date 
from when the PWD was issued. The request for review must be sent to 
the director of the NPC that issued the PWD within 30 days of the date 
of the PWD; clearly identify the PWD from which review is sought; set 
forth the particular grounds for the request; and include all the 
materials pertaining to the PWD submitted to the NPC up to the date of 
the PWD received from the NPC.
    (b) Processing of request by NPC. Upon the receipt of a request for 
review, the NPC will review the employer's request and accompanying 
documentation, and add any material that may have been omitted by the 
employer, including any material the NPC sent the employer up to the 
date of the PWD.
    (c) Review on the record. The director will review the PWD solely 
on the basis upon which the PWD was made and, upon the request for 
review, may either affirm or modify the PWD.
    (d) Request for review by BALCA. Any employer desiring review of 
the director's determination must make a request for review by the 
BALCA within 30 days of the date of the director's decision.
    (1) The request for review, statements, briefs, and other 
submissions of the parties and amicus curiae must contain only legal 
arguments and only such evidence that was within the record upon which 
the director made his/her affirmation of the PWD.
    (2) The request for review must be in writing and addressed to the 
director of the NPC making the determination. Upon receipt of a request 
for a review, the director will assemble an indexed appeal file in 
reverse chronological order, with the index on top followed by the most 
recent document.
    (3) The director will send the Appeal File to the Office of 
Administrative Law Judges, BALCA. The BALCA handles the appeals in 
accordance with Sec. Sec.  656.26 and 656.27 of this part.

    Signed in Washington, DC, this 13th day of May, 2008.
Brent R. Orell,
Acting Assistant Secretary, Employment and Training Administration.
Alexander J. Passantino,
Acting Administrator, Wage and Hour Division, Employment Standards 
Administration.
[FR Doc. E8-11214 Filed 5-21-08; 8:45 am]

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