[Federal Register: December 19, 2008 (Volume 73, Number 245)]
[Rules and Regulations]
[Page 78019-78069]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19de08-19]
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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; Final Rule
[[Page 78020]]
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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, Department of Labor, in
concurrence with the Wage and Hour Division, Employment Standards
Administration, Department of Labor.
ACTION: Final rule.
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SUMMARY: The Employment and Training Administration (ETA) of the
Department of Labor (DOL or the Department) is amending its regulations
to modernize the procedures for the issuance of labor certifications to
employers sponsoring H-2B nonimmigrants for admission to perform
temporary nonagricultural labor or services and the procedures for
enforcing compliance with attestations made by those employers.
Specifically, this Final Rule re-engineers the application filing and
review process by centralizing processing and by enabling employers to
conduct pre-filing recruitment of United States (U.S.) workers. In
addition, the rule enhances the integrity of the H-2B program through
the introduction of post-adjudication audits and procedures for
penalizing employers who fail to comply with program requirements. This
rule also makes technical changes to the regulations relating to both
the H-1B program and the permanent labor certification program to
reflect operational changes stemming from this regulation.
Although Congress has conferred the statutory authority to enforce
H-2B program requirements on the Department of Homeland Security (DHS),
recent discussions between DHS and the Department have yielded an
agreement for the delegation of H-2B enforcement authority from DHS to
the Department. This Final Rule contains the Wage and Hour Division
(WHD) regulations establishing the H-2B enforcement procedures that the
Department will institute pursuant to that agreement. Separately, this
Final Rule institutes conditions and procedures for the debarment of
employers, attorneys, and agents participating in the H-2B foreign
labor certification process. As discussed further below, the Department
intends to exercise its inherent authority under case law and general
principles of program administration to determine what entities
practice before it.
DATES: This Final Rule is effective January 18, 2009.
FOR FURTHER INFORMATION CONTACT: For information on the H-2B labor
certification process governed by 20 CFR 655.1 to 655.35, contact
William L. Carlson, Administrator, Office of Foreign Labor
Certification, Employment and Training Administration, U.S. Department
of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC
20210. Telephone: (202) 693-3010 (this is not a toll-free number).
Individuals with hearing or speech impairments may access the telephone
via TTY by calling the toll-free Federal Information Relay Service at
1-800-877-8339.
For information on the H-2B enforcement process governed by 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 Leading to the NPRM
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).
Section 214(c)(1) of the INA requires DHS to consult with
``appropriate agencies of the Government'' before granting any H-2B
visa petition submitted by an employer. 8 U.S.C. 1184(c)(1). The
regulations for the U.S. Citizenship and Immigration Services (USCIS),
the agency within DHS charged with the adjudication of nonimmigrant
benefits such as H-2B status, 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 visa program stems from its
obligation, outlined in DHS regulations, to certify, upon application
by a U.S. employer intending to petition DHS to admit 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).
The Department's role in the H-2B process is currently advisory to
DHS. 8 CFR 214.2(h)(6)(iii)(A). DHS 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, the Department's 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
process. Applications for labor certification are processed by the
Office of Foreign Labor Certification (OFLC) in ETA, the agency to
which the Secretary of Labor has delegated her advisory
responsibilities described in the DHS H-2B regulations, after they are
processed by the State Workforce Agency (SWA) having jurisdiction over
the area of intended employment.\1\ The SWA reviews the employer's
application and job offer (comparing the employer's offered wage
against the prevailing wage for the position); supervises U.S. worker
recruitment; and forwards completed applications to OFLC for further
review and final determination.
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\1\ The SWAs are agencies of State Government that receive
Federal Workforce Investment Act (WIA), Wagner-Peyser Act, and other
funds to administer our nation's state-based employment services
system and perform certain activities on behalf of the Federal
Government.
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Under current procedures, the employer must demonstrate that its
need for the services or labor is temporary as defined by one of four
regulatory standards: (1) A one-time occurrence; (2) a seasonal need;
(3) a
[[Page 78021]]
peakload need; or (4) an intermittent need. 8 CFR 214.2(h)(6)(ii)(B).
The employer or its authorized representative must currently submit to
the SWA a detailed statement of temporary need and supporting
documentation with the application for H-2B labor certification. Such
documentation must provide a description of the employer's business
activities and schedule of operations throughout the year, explain why
the job opportunity and the number of workers requested reflects its
temporary need, and demonstrate how the employer's need meets one of
these four regulatory standards. Based on longstanding practice and DOL
program guidance, the employer must also establish that the temporary
position is full-time and that the period of need is generally one year
or less, consistent with the standard under DHS regulations at 8 CFR
214.2h(6). This Final Rule clarifies that full-time employment, for
purposes of temporary labor certification employment, means at least 30
hours per week, except that 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 30 hours per week, that definition
governs.
Additionally, the employer must recruit from the U.S. labor market
to determine if a qualified U.S. worker is available for the position.
In addition, in order to ensure an adequate test of the labor market
for the position sought to be filled, the employer must comply with
other program requirements. For example, it must offer and subsequently
pay throughout the period of employment a wage that is equal to or
higher than the prevailing wage for the occupation at the skill level
and in the area of intended employment; provide terms and conditions of
employment that are not less favorable than those offered to the
foreign worker(s); and not otherwise inhibit the effective recruitment
and consideration of U.S. workers for the job.
Historically, the Department's review and adjudication of permanent
and temporary labor certification applications (including H-2B) 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 labor 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)
issues a labor certification for temporary employment under the H-2B
program, denies the certification, or issues a notice including the
reasons why such certification cannot be made. Prior to June 1, 2008,
the NPCs shared responsibility for processing of temporary labor
certification applications; each NPC had jurisdiction over and
processed applications from a different subset of states and
territories. Effective June 1, 2008, the NPCs specialized, each
assuming responsibility for different types of applications. Now, H-2B
temporary labor certification applications approved by the SWAs are
processed exclusively by the Chicago NPC. 73 FR 11944, Mar. 5, 2008.
Currently, the Department has no enforcement authority or process
to ensure H-2B workers who are admitted to the U.S. are employed in
compliance with H-2B labor certification requirements. Congress vested
DHS with that enforcement authority in 2005. See 8 U.S.C. 1184, as
amended by the Emergency Supplemental Appropriations Act for Defense,
the Global War on Terror, and Tsunami Relief of 2005, Public Law 109-
13, 119 Stat. 231. As described more fully below, the Department in
this Final Rule establishes the H-2B regulatory enforcement regime
proposed in the NPRM, consistent with the agreement for a delegation of
enforcement authority reached by the Department and DHS pursuant to 8
U.S.C. 1184(c)(14)(B). This enforcement regime also includes debarment
procedures for ETA and the Employment Standards Administration, Wage
and Hour Division (WHD), under the Department's inherent debarment
authority, which is explained in greater detail below.
B. Earlier Efforts To Reform the H-2B Regulatory Process
On January 27, 2005, DHS and the Department issued companion NPRMs
to significantly revise each agency's H-2B processing procedures. 70 FR
3984, Jan. 27, 2005; 70 FR 3993, Jan. 27, 2005. As proposed, those
changes to both agencies' regulations would have eliminated in whole
the Department's adjudicatory role, ending the current labor
certification process for most H-2B occupations and requiring employers
to submit labor-related attestations directly to USCIS as part of a
revised supplement accompanying the H-2B petition.
The two agencies received numerous comments on the joint NPRMs in
2005. Most commenters opposed the proposals to move the program
adjudication to USCIS and to eliminate the Department's role in
reviewing the need of employers and the recruitment of U.S. workers
except in post-adjudication audits. Commenter concerns focused in part
on the loss of the Department's experience in adjudicating issues of
temporary need and the potential adverse impact on U.S. workers. Based
on the significant concerns posed in those comments, and after further
deliberation within each agency, the Department and DHS have not
pursued their 2005 proposals. Consequently, the NPRM published by the
Department on January 27, 2005 (RIN 1205-AB36) was withdrawn in the
Department of Labor's Fall 2007 Regulatory Agenda. See http://
www.reginfo.gov/public/do/eAgendaViewRule?ruleID=221117.
As stated in the May 22, 2008, NPRM preceding this Final Rule, the
Department continued, however, to closely review the H-2B program
procedures in order to determine appropriate revisions to the H-2B
labor certification process. This ongoing systematic review was
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 similar increase during the first half of FY 2008) as well as
limited appropriations funding program-related operations.
On April 4, 2007, ETA issued Training and Employment Guidance
Letter (TEGL) No. 21-06, 72 FR 19961, Apr. 20, 2007, 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 update
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 ETA's
National Processing Centers (NPCs). In response to the
[[Page 78022]]
substantive concerns that were 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), and updating
procedures by allowing the NPC Certifying Officer (CO) to request
additional information from employers to facilitate the processing of
H-2B applications. 72 FR 36501, Jul. 3, 2007; 72 FR 38621, Jul. 13,
2007. Several issues were not addressed by those refinements,
particularly concerns relating to increasing workload and processing
delays, which required regulatory changes. This Final Rule addresses a
number of those unresolved issues.
C. Current Process Involving Temporary Labor Certifications and the
Need for a Redesigned System
As described in the May 22, 2008, NPRM, 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. The current,
duplicative process requires the employer to first file a temporary
labor certification with 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, which conducts a final review of
the application. This process 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 numerical limitation
or ``cap'' on visas under this program, as a result of which any
processing delay may prevent an employer from securing visas for H-2B
workers during any given half year period for which numbers are
available. 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) and 8 U.S.C.
1184(g)(10) (setting a cap of 33,000 as the number of H-2B visas that
may be allocated during each 6-month period of a fiscal year).
The increasing workload of the Department and SWAs poses a growing
challenge to the efficient and timely processing of applications. As
stated in the NPRM, 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 labor
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.
This increasing workload is exacerbated because 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 significant disparities in processing times among the
SWAs. 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 due to backlogs resulting from inadequate staffing or
funding, or other causes).\3\
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\2\ On June 17, 2008, the Department transmitted draft
legislation to the 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 labor certification 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 Save Our Small and Seasonal Businesses Act of 2005,
Public Law 109-13, Div. B, Title IV, 119 Stat. 318 (effective May
11, 2005) (exempting from numerical cap for FY 2005 and FY 2006
returning H-2B workers who had counted against the cap in one of the
three fiscal years preceding the fiscal year in which the visa
petition was filed), and Save Our Small and Seasonal Businesses Act
of 2006, included in the Defense Authorization Act for FY 2007, Sec.
1074, Public Law 109-364 (making amendment retroactive to October 1,
2006, and extending the exemption through FY 2007). These returning
worker provisions expired September 30, 2007. 8 U.S.C. 1184(g)(9)
(2007); INA sec. 214(g)(9); see also Sec. 14006, Public Law 108-287,
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, this Final Rule institutes
several significant measures to reengineer the Department's
administration of the program. These changes improve the process by
which employers obtain labor certification and where our program
experience has demonstrated additional measures would assist the
Department in protecting the job opportunities and wages of U.S.
workers. The Final Rule also provides greater accountability for
employers through penalties, up to and including debarment, as an
additional safeguard against abuse of the program.
D. Overview of Redesigned H-2B Foreign Labor Certification Process
As proposed in the NPRM and finalized in this rule, the redesigned
application process will require employers to complete recruitment
steps similar to those now required, but will require them to do so
prior to filing the application for labor certification. Once
recruitment is complete, this Final Rule maintains the requirement
proposed in the NPRM that the completed application be submitted
directly to DOL instead of being filed with a SWA. This Final Rule
eliminates the SWA duplicative review of the H-2B application. In
association with this Final Rule, the Department has redesigned the
application form currently used for the H-2A and H-2B temporary labor
certification programs and proposed a new ETA Form 9142. Additional
information about the new application form appears in the
Administrative Information section of this preamble. This rule does not
eliminate or federalize SWA activities (e.g., the job order and
interstate clearance process) that may ultimately support an employer's
H-2B application but are funded and governed independently under the
Wagner-Peyser Act. This rule does federalize prevailing wage
determinations, previously performed by the SWAs under this program.
To test the U.S. labor market appropriately, employers will be
required to first obtain from the Chicago NPC a prevailing wage rate to
be used in the recruitment of U.S. workers. To make this request,
employers in the non-agricultural labor certification programs will use
a new ETA Form 9141, which was designed and will be implemented in
conjunction with this Final Rule. As with the Form 9142, additional
information about the Form 9141 appears in the Administrative
Information section of the preamble. The employer will then follow
recruitment steps similar to those required under the current program.
The NPRM proposed increasing the number of required advertisements to
three. However, in response to comments, the Final Rule returns to the
current requirement of two advertisements, although it retains the
proposed requirement that one of those advertisements be placed on a
Sunday.
Consistent with the NPRM, this Final Rule requires the employer to
attest to and enumerate its recruitment efforts as part of the
application but does not require the employer to submit
[[Page 78023]]
supporting documentation with its application. To ensure the integrity
of the process, the Final Rule requires the employer to retain
documentation of its recruitment, as well as other documentation
specified in the regulations, for 3 years from the date of
certification. The employer will be required to provide this
documentation in response to a request for additional information by
the Certifying Officer (CO) before certification or by ETA pursuant to
an audit or in the course of an investigation by the Wage and Hour
Division (WHD) after a determination on the application has been
issued. The Department has set the document retention requirement at 3
years rather than the proposed 5 years in response to comments received
expressing concerns that five years would impose an unnecessary burden
on small employers, especially those that are mobile or have a mobile
component.
Employers or their authorized representatives (attorneys or agents)
will be required to submit applications using a new form designed to
demonstrate the employer's compliance with the obligations of the H-2B
program. As described in the NPRM and the Final Rule, the application
form will collect, in the form of attestations, information that is
largely required already by the current H-2B labor certification
process. These attestations are required from the employer to ensure
adherence to program requirements and to establish accountability. As
with recruitment, employers are required to retain records documenting
their compliance with all program requirements. An application that is
complete will be accepted by the NPC for processing and will undergo
final review by the Department.
Based on the Department's experience, and in response to concerns
voiced in public comments about the need for H-2B stakeholder guidance
and ETA staff training, we have added a transition period to the Final
Rule at new Sec. 655.5. Although the Final Rule takes effect 30 days
from publication, it phases in implementation based on employment start
dates listed in the application. Employers with a date of need on or
after October 1, 2009, will be governed by these new regulations.
Employers with a date of need on or after the rule's effective date but
prior to October 1, 2009, will follow the transitional process
described in Sec. 655.5. Additional information about the transition
process appears below.
In order to further protect the integrity of the program, 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 occur during processing to ensure the accuracy of
the information supplied by the employer. If an application does not
appear to be complete or merit approval on its face but requires
additional information in order to be adjudicated, the CO will issue a
Request for Further Information (RFI), a process the program already
employs. After Departmental review, an application will be certified or
denied.
As proposed in the NPRM and adopted in the Final Rule, the
introduction of new post-adjudication audits will serve, along with WHD
investigations, as both a quality control measure and a means of
ensuring program compliance. Audits will be conducted on adjudicated
applications meeting 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 on the application in question, initiate
Departmental supervised recruitment in future applications, and
penalties.\4\
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\4\ Further sanctions may be imposed by DHS. See 8 U.S.C.
1184(c)(14).
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As stated in the NPRM, the Department expects the modernized
processing of applications will yield a reduction in the overall
average time needed to process H-2B labor certification applications.
This process is expected to lead to greater certainty and
predictability for employers by reducing processing times which have
exceeded our historical 60-day combined State and Federal processing
timeframe.
II. Discussion of Comments on the Proposed Rule
In response to the proposed rule, the Department received 134
comments, of which 88 were unique and another 46 were duplicate form
comments. Commenters represented a broad range of constituencies for
the H-2B program, including individual employers, agents, industry
coalitions and trade groups, advocacy and legal aid organizations,
labor unions, a bar association, congressional oversight and
authorizing committees, and individual members of the public.
The Department received comments both in support and opposition to
the proposed regulation. Comments supported, for example, the
anticipated efficiencies of the proposed streamlined process and the
potential conversion to electronic filing. Broadly, other commenters
opposed the rule because they felt it would undermine program integrity
or weaken worker protections and U.S. worker access to job
opportunities. Still others believed the rulemaking untimely, given the
general weakening of the economy, or that the proposed rule failed to
address what they believed to be key problems underlying the program.
Several of those problems, such as the annual cap of 66,000 H-2B visas
per year, are statutory and cannot be changed through regulation.
In addition, as described in greater detail below, the Department
received comments raising a variety of concerns with specific proposals
and provisions within the rule. After reviewing those comments
thoughtfully and systematically, the Department has modified several
provisions and retained others as originally proposed in the NPRM.
Provisions of the NPRM that received comments are discussed below;
provisions that were not commented on or revised for technical reasons
have been adopted as proposed. The Department has made some technical
changes to the regulatory text for clarity and to improve readability,
but those changes were not designed to alter the meaning or intent of
the regulation.
A. Section 655.2--Territory of Guam
In the Final Rule, the Department has revised the discussion on the
authority of the Governor of Guam to clarify that the enforcement of
the provisions of the H-2B visa program in Guam resides with the
Governor, pursuant to DHS regulations.
B. Section 655.4--Definitions
Of the definitions proposed in the NPRM, comments were received on
the definitions for ``agent,'' ``attorney,'' ``employ,'' ``employer,''
``full time,'' ``representative,'' and ``United States worker.''
The proposed rule defined an agent as ``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.'' In
response to comments, the Department has corrected the typographical
error and replaced ``agricultural'' with ``nonagricultural.''
Some commenters supported the proposed definition of agent with
regard to its barring of associations or organizations of employers.
One bar
[[Page 78024]]
association commented there had been many abuses by agents in the past,
including the unauthorized practice of law, and recommended the
Department adopt the definition under DHS regulations at 8 CFR 292.1.
We have reviewed the guidelines under that section and concluded it is
inappropriate for the labor certification process. The standard set by
8 CFR 292.1 is not tailored to the Department's needs. For example, it
includes, among others, law students and ``reputable individuals.'' We
have determined such persons may not be appropriate to practice before
the Department, in particular for purposes of foreign labor
certification activities. That definition was designed to fit the needs
of another Federal agency and would eliminate many current individuals
who act on behalf of employers in the labor certification process with
the Department.
The Department acknowledges that allowing agents who are not
attorneys does not fit into the categories recognized by DHS and
creates a difference between the two agencies. The Department has
permitted agents who do not meet these criteria to appear before it for
decades. Agents who are not attorneys have represented claimants before
the Department in a wide variety of activities since long before the
development of H-2A program, and DOL's programs, where they intersect
with those of DHS, permit a broader range of representation. To change
such a long-standing practice in the context of this rulemaking would
represent a major change in policy that the Department is not prepared
to make at this time and was suggested in the NPRM seeking comments.
Consequently, the Department has not adopted this recommendation. The
Department will maintain its long-standing practice and policy with
respect to who may represent employers.
For greater clarity, a definition for ``Administrator, Wage and
Hour Division (WHD)'' has been added to the definition section of the
regulation to distinguish this official from the ``Administrator,
Office of Foreign Labor Certification (OFLC).'' Regulatory text has
been added where needed to distinguish between these officials.
The proposed rule defined an attorney as:
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.
In the Final Rule, the Department has reworded the definition to
provide more clarity regarding the bodies or courts that could suspend
or disbar an attorney. The Department has also revised the final
sentence in the definition to read: ``Such a person is permitted to act
as an agent or attorney for an employer and/or foreign worker under
this subpart.''
In the NPRM, the Department added a definition for ``employ'' and
made revisions to the definition of ``employer.'' A trade association
suggested that the Department eliminate the definition of ``employ''
but retain the definition of ``employer,'' stating that the definition
of ``employ'' adds nothing to clarify status or legal obligations under
the H-2B program and insinuates broad legal concepts that add
unnecessary confusion. As suggested by commenters, the Department has
deleted the definition of ``employ.'' We agree this definition did not
provide any additional clarification regarding status or legal
obligations related to the H-2B program and may generate some confusion
with other statutes.
The Department received comments that the requirement for a Federal
Employer Identification Number (FEIN) as incorporated in the definition
of ``employer'' could be problematic for some employers. One commenter
recommended the use of the DUNS number as a complement to the FEIN. The
``data universal numbering system'' (DUNS), which is operated by Dunn &
Bradstreet, issues nine-digit numbers that serve as unique identifiers
and are used, in cases, by the Federal Government or individual
businesses to track business entities. The Department has decided to
retain the definition as proposed, and notes that it is easy for
employers to obtain FEINs, which have the advantage of being assigned
by the Internal Revenue Service, although in paragraph (1)(iii) of the
definition we have added the phrase ``for purposes of the filing of an
application,'' to clarify the FEIN is information gathered specifically
at the point of application for H-2B labor certification. In paragraph
(1)(i) of the definition, the Department has replaced ``may'' with
``must'' to clarify U.S. workers must be referred to a U.S. location
for employment.
Commenters supported the inclusion of a definition for ``full
time.'' The Department agrees with one commenter's assertion that,
consistent with program practice, the definition should not be
construed to establish an actual obligation of the number of hours that
must be guaranteed each week. The parameters set forth in the
definition of ``full time'' refer to the number of hours that are
generally perceived to constitute that type of employment, as
distinguished from ``part time,'' and are not a requirement that an
employer offer a certain number of hours or any other terms or
conditions of employment.
The Department has also made changes to the definition of a job
contractor for purposes of clarity. The changes make clear that the job
contractor, rather than the contractor's client, must control the work
of the individual employee.
One trade association commented that to the extent the intent of
the rule is to define the respective liability of agents and
representatives, it should articulate a clear set of standards for
liability. The association found the definition of ``representative''
to be problematic and suggested deleting or revising it. The commenter
questioned whether the intent of the regulation was to make the
representative liable for any misrepresentations in an attestation made
on behalf of an employer. Because of potential overlaps with the
definition and role of agent, the commenter also requested the rule
clarify if, and under what circumstances, an agent is liable for
activities undertaken on behalf of an employer. The commenter
recommended the Department delete the provision on the representative's
role in the consideration of U.S. workers, questioning what rationale
the Department had for dictating under what circumstances an attorney
or other person can interview U.S. applicants for the job, and why the
Department is ``singling out'' attorneys within the definition.
The Department disagrees with the commenter's interpretation of the
liability of an agent or attorney for the acts of the employer. The
duties of an agent or attorney may vary widely and not all duties that
an agent or attorney undertakes may lead to liability. The Department
recognizes, however, that some of an agent's or attorney's duties in
representing an employer may put the agent or attorney in the role of
the employer and be a basis for assigning liability for the employer's
acts or omissions. For example, in undertaking to represent an employer
in the H-2A program, an agent or attorney not only performs
administrative tasks but also
[[Page 78025]]
submits attestations regarding the employer's obligations under the
program. Attorneys and agents undertake a significant duty in making
such representations. They are, therefore, responsible for reasonable
due diligence in ensuring that employers understand their
responsibilities under the program and are prepared to execute those
obligations. Agents and attorneys do not themselves make the factual
attestations and are not required to have personal knowledge that the
attestations they submit are accurate. They are, however, required to
inform the employers they represent of the employers' obligations under
the program, including the employers' liability for making false
attestations, and the prohibition on submitting applications containing
attestations they know or should know are false. Failure to perform
these responsibilities may render the agent or attorney personally
liable for false attestations. The Department has decided to retain the
definition as proposed.
One commenter believed that the definition of ``United States
worker'' presented in the NPRM was too narrow and that there are other
persons in the United States legally entitled to work in addition to
those in the categories listed. The Department disagrees and has
retained the proposed definition, as it is inclusive and consistent
with other provisions of immigration law and regulations that define
U.S. workers and persons authorized to work in the U.S.
The Department also added definitions for the terms
``Administrative Law Judge,'' ``Chief Administrative Law Judge,''
``Department of Homeland Security,'' and ``United States Citizenship
and Immigration Services,'' mirroring the definitions in the
Department's H-2A Final Rule. These terms and definitions were
inadvertently omitted from the proposed rule.
The Department has added a definition of the term ``strike'' to the
Final Rule. The definition clarifies that the Department will evaluate
whether job opportunities are vacant because of a strike, lockout, or
work stoppage on an individualized, position-by-position basis.
The Department also has added a definition of ``successor in
interest'' to make clear that the Department will consider the facts of
each case to determine whether the successor and its agents were
personally involved in the violations that led to debarment in
determining whether the successor constitutes a ``successor in
interest'' for purposes of the rule.
C. Section 655.5--Transition
The Department recognizes that implementing the provisions of the
Final Rule may be somewhat difficult for employers who have already
filed their applications with the SWA to begin recruiting U.S. workers.
Even though the NPRM put current and future users of H-2B workers on
notice regarding the Department's intention to publish a Final Rule,
the rule represents a departure from the current administration of the
program. H-2B employers, including those who expressed concern
regarding the time frame for a Final Rule, will require some period of
time to prepare and adjust their requests for nonimmigrant workers to
perform temporary or seasonal nonagricultural services or labor,
particularly in tandem with changes to DHS processing of cases, and
understand how to complete the Department's new forms for requesting a
prevailing wage and applying for temporary employment certification.
In response to comments, the Department is accordingly adopting a
transition period, outlined in new Sec. 655.5 (previously reserved).
Employers filing applications for H-2B workers on or after the
effective date of these regulations where the date of need for the
services or labor to be performed is before October 1, 2009, will be
required to obtain a prevailing wage determination from the SWA serving
the area of intended employment, rather than the NPC, but must meet all
of the other pre-filing recruitment requirements outlined in this
regulation before an Application for Temporary Employment Certification
can be filed with the NPC. However, employers filing applications on or
after the effective date of these regulations where the date of need
for H-2B workers is on or after October 1, 2009, must obtain a
prevailing wage determination from the NPC and comply with all of the
obligations and assurances detailed in this subpart. The SWAs will no
longer accept for processing applications filed by employers for H-2B
workers on or after the effective date of these regulations. Rather,
the SWAs will assist the Department's transition efforts by issuing
prevailing wage determinations where the employer's need for H-2B
workers is prior to October 1, 2009. This will allow the rest of the
pre-filing recruitment requirements, obligations and assurances to
become effective immediately. During this transition period, the
Department expects that SWAs will continue to allow employers to file
prevailing wage requests on forms they currently use in other visa
programs in order to minimize any confusion and expedite the prevailing
wage review process.
In order to complete the processing of applications filed with the
SWAs prior to the effective date of these regulations, the transition
procedures require the SWAs to continue to process all active
applications under the former regulations and transmit all completed
applications to the NPC for review and issuance of a final
determination. In circumstances where the SWA has already transmitted
the completed application to the NPC, the NPC will complete its review
in accord with the former regulations and issue a final determination.
OFLC intends to conduct several national stakeholder briefings to
familiarize program users with these requirements.
D. Section 655.6--Temporary Need
Congress 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, as explained in the NPRM, the Department will continue to
determine whether the employer has demonstrated that it has a need for
foreign labor that cannot be met by U.S. workers and that the need is
temporary in nature.
The controlling factor continues to be 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
(Nov. 30, 2006) (upholding the Department's position that a failure to
prove a specific temporary need precludes acceptance of temporary H-2A
application).
DHS regulations at 8 CFR 214.2(h)(6)(ii)(B) provide that a
petitioner's need be one of the following: (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) a seasonal need, in which the employer
establishes that the service or labor is recurring and is traditionally
tied to a season of the year; (3) a peakload need, 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.
As proposed in the NPRM, for purposes of a one-time occurrence,
under this Final Rule the Department will consider a position to be
temporary
[[Page 78026]]
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, and as long as that temporary need--
as demonstrated by the employer's attestations, temporary need
narrative, and other relevant information--is less than 3 consecutive
years. This interpretation is consistent with the rule proposed by
USCIS on August 20, 2008, 73 FR 49109, which is being finalized in
conjunction with this regulation.
Consistent with the final USCIS regulations, the Department
proposed--and the Final Rule permits--a one-time occurrence to include
one-time temporary events that have created the need for temporary
workers for up to 3 years. The Final Rule requires those employers to
request annual labor certifications based on new tests of the U.S.
labor market. As stated in the NPRM, we believe this is the best method
by which to ensure U.S. worker access to these job opportunities, but
recognize that an employer's need for workers to fill positions could,
in some cases, last more than one year.
The Department received a number of comments in response to the
proposed expansion of the one-time occurrence definition. A job
contractor commented that it did not believe the Department needed to
specifically authorize the possibility of a 3-year, one-time need,
since it could be inferred as already having the authority to certify
such situations as long as the employer's situation as described in the
application was compelling. However, the commenter believed that
establishing a maximum 3-year stay may be limiting under certain
circumstances such as rebuilding after natural disasters. It also
creates confusion and complexity for the employer applicants who may
not understand the distinction between a 3-year labor need broadly
speaking and a one-time occurrence. Under the NPRM and this Final Rule,
the extension of the temporary need definition from 1 year or less to
potentially up to 3 years does not apply to all categories of need. The
Department believes employers should understand that an H-2B visa will
only be granted for longer than 1 year in the case of a one-time
occurrence.
Neither the Department nor DHS is changing the long-established
definition of one-time occurrence which encompasses both unique non-
recurring situations but also any ``temporary event of a short duration
[that] has created the need for a temporary worker.'' For example, an
employer could utilize the H-2B program to secure a worker to replace a
permanent employee who was injured. Further, if that permanent
employee, upon returning to work, subsequently suffered another injury,
the same employer could utilize the H-2B program again to replace the
injured employee on the basis of a one-time occurrence. A one-time
occurrence might also arise when a specific project creates a need for
additional workers over and above an employer's normal workforce. For
example, if a shipbuilder got a contract to build a ship that was over
and above its normal workload, that might be a one-time occurrence.
However, the Department would not consider it a one-time occurrence if
the same employer filed serial requests for H-2B workers for each ship
it built.
The NPRM required that employers request recertification annually
where their one-time occurrence extends beyond 1 year. The Department
agrees with public comments that, where the need is one-time only, the
added burden and expense of an additional labor market test does not
make sense where the total period of need is less than 18 months.
Therefore, an employer with a one-time need that has been approved for
more than 1 year but less than 18 months will receive a labor
certification covering the entire period of need, and will not be
required to conduct another labor market test for the portion of time
beyond 12 months. An employer requesting certification based on a one-
time occurrence it expects to last 18 months or longer, however, will
be required to conduct one or more additional labor market tests.
A number of individual small business commenters were concerned
that the proposed changes went beyond the original intent of the
program and would leave the seasonal and peakload businesses for which
it was intended without adequate numbers of visas. They raised
longstanding concerns with what many believe is an arbitrarily low visa
cap and the strong competition among industries for the limited visas.
These commenters posited that expanding the term to 3 years would open
up the program to a wider number of industries, further increasing
competition for visas and effectively crowding out those employers for
which these commenters believe the visa was intended. One small
employer thought it would allow high tech businesses to participate in
the H-2B program to use up all the visas and leave other employers with
real peakload needs wanting. This employer also thought it would create
a security threat by letting visas be sold on the black market. SWAs
commenting also questioned the change in definition as being what they
described as a significant program change. While most employers of
highly skilled workers currently avail themselves of the H-1B visa
program, they are not precluded from seeking, as an alternative, H-2B
nonimmigrant status, if they otherwise meet the requirements of the H-
2B program. None of the changes proposed by the Department would make
the H-2B visa program any more or less available to highly skilled
workers or provide employers who might wish to use such persons as H-2B
workers with any greater advantage than other H-2B employers. In
addition, with respect to visas issued by the State Department based on
an approved DHS petition, the Department is unaware of any contemplated
change in this or the DHS rulemaking that would create an automatic 3-
year H-2B visa. Depending on reciprocity schedules, under current State
Department regulations, an initial H-2B visa is generally issued for a
year or less, or for the validity period of the approved H-2B petition,
but can be extended for additional periods of time to correspond to any
period of time DHS might extend such H-2B petition. Nothing in this
rule would change that.
Several Members of Congress submitted separate comments on behalf
of congressional committees. One U.S. Senator opposed the expansion of
the definition of a one-time occurrence as contrary to the 1987 legal
opinion of the Department of Justice, Office of the Legal Counsel. The
comment stated that the Department of Justice considered various views
of the proposed construction of ``temporarily'' in the context of the
H-2A visa program and declined to define temporary as up to 3 years.
According to the comment, the Justice opinion concluded that the
statutory text, Congressional intent, and sound policy compelled a
definition of temporary to be 1 year or less for all H-2
classifications. The comment also pointed to the Department's and DHS's
proposed rules on the H-2A program that retained the one year or less
definition of temporary (absent extraordinary circumstances) as
evidence that the current construction should be retained. The
commenter was concerned that the regulation would lead to abuse of the
H-2B program by encouraging some employers who want to take advantage
of the program to characterize long-term or permanent jobs as
temporary. The commenter believed that these longer-term jobs should be
filled by U.S. workers and, if none are available, only then through
the employment-based immigration visa process.
Several labor unions also commented on this provision, largely in
opposition.
[[Page 78027]]
One believed the proposal to be at odds with years of precedent and
immigration and workforce policy, as well as current law. The commenter
asserted that expanding the definition conflicts with DHS regulations,
runs counter to the purpose of the H-2B program, and undermines the
Congressional mandate to protect U.S. workers. Another labor
organization contended that if an employer's need is longer than a
short duration it is not a temporary need, and a period longer than a
year is not of short duration. This commenter opposed the inclusion of
this provision and urged the Department to withdraw this proposed
change. Another union proposed temporary employment be limited to six
months and ``certainly no longer than [1] year.'' Another labor
organization opposing the proposed provision did not believe that the
requirement that employers retest the labor market each year
represented a meaningful safeguard for domestic workers, particularly
if the Department were to adopt an attestation-based system where
recruitment of U.S. workers is not actively supervised by the SWAs. It
recommended the H-2B program be made consistent with the H-2A program
concerning the definition of temporary.
Several worker advocacy organizations also opposed this provision,
indicating their belief it was not in keeping with the objectives of
the program and would open most construction jobs in the country to be
potentially part of the program. An individual employer commented that
seasonal should mean 8 months or less so as to not compete with local
permanent jobs.
A law firm commented that the proposed changes went beyond what it
believed Congress intended and claimed anecdotally it would directly
and proportionally adversely affect the industries for which it felt
the program was designed. It believed that the problems with the
program are more associated with the delays and uncertainties related
to the inadequate number of visas as well as inadequate budget and
staffing at all levels of the application process. The commenter
recommended these problems would be best addressed by Congress and by
increased fees at each step. It also believed that this expansion of
the definition would encourage additional industries, most notably the
information technology industry, to participate and to put undue
pressure on an already pressured program.
Conversely, several employer and trade associations supported the
expanded provision. One employer association welcomed the change as
long in coming. Another supported it as a means to provide greater
flexibility across industries and regions. Still another recommended
that the 3-year provision be expanded beyond ``one-time need'' to the
other three categories of temporary need.
A legal association supported the proposal to expand temporary need
but suggested the Department rethink the requirement that employers
retest the market each year. According to the comment, requiring
employers to get a new prevailing wage and perform additional
recruitment and filing each year would increase workload for the
Department, increase costs to employers, and fails to recognize the
advantages of the employer having the availability of trained,
experienced workers. It recommended that a reasonable alternative would
be for employers to check the prevailing wage determination annually to
ensure that the workers are being paid the appropriate wage but not to
have to undertake further recruitment efforts.
Many SWAs commented on the proposed rule. On the issue of
temporariness, one SWA stated its support for retesting the labor
market each year. An employer association supported retesting the labor
market each year only in situations where there was a significant time
period beyond the ordinary 10-month period left on the labor
certification. It believed that this requirement would be too onerous
on employers if applied to jobs lasting only 18 months, for example.
Finally, a worker advocacy group recommended the addition of a
process either through the Department or the SWAs under which workers
could challenge the determination that the jobs are temporary.
The Department defers to the Department of Homeland Security and
will use their definition of temporary need as published in their Final
Rule on H-2B. Currently, that definition, including the four categories
of need, appears at 8 CFR 214.2(h)(6)(ii), and requires the employer
show extraordinary circumstances in order to establish a need for
longer than 1 year. DHS's Final Rule amends 8 CFR 214.2(h)(6)(ii)(B) to
eliminate the requirement for extraordinary circumstances and clarify
that a temporary need is one that ends in the near, definable future,
which in the case of a one-time occurrence could last longer than 1
year and up to 3 years. Accordingly, we have deleted the definitions we
had in our regulatory text in the NPRM and instead provided a reference
to the DHS regulations.
E. Section 655.10--Determination of Prevailing Wage for Labor
Certification Purposes
1. Federalizing Prevailing Wage Determinations
The Department proposed a new reengineered system to federalize the
issuance of prevailing wages, under which employers would obtain the
prevailing wage for the job opportunity directly from the NPC. As
proposed, the new federalized process would allow employers to file
prevailing wage requests with the appropriate NPC--designated as the
Chicago NPC for prevailing wage requests--no more than 90 days before
the start of recruitment. The proposed rule also clarified the validity
period for wage determinations. Based on annual updates to the
Occupational Employment Survey (OES) database, and depending on the
time of year that the prevailing wage determination (PWD) was 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. The NPRM sought comments from employers who had utilized the
program in the past on the efficacy of this proposed action.
The Department received numerous comments on this new process.
After consideration of all comments, we have decided to implement the
PWD process as proposed in the NPRM. However, to reflect the transition
from the current system to the new, the Final Rule now clarifies that
employers with a date of need on or after October 1, 2009, must seek a
PWD from the Chicago NPC prior to beginning recruitment, while
employers with prior dates of need will continue to seek PWDs from the
SWAs. However, consistent with the Department's intent to immediately
implement the Final Rule, and as set forth in Sec. 655.5 of this Final
Rule, SWAs will be required to follow the procedures instituted under
Sec. 655.10 for any prevailing wage determination requests submitted
on or after the date this Final Rule takes effect.
Overwhelmingly, commenters were concerned about the capability of
the NPC to provide timely and accurate prevailing wage determinations.
Commenters supporting the new centralized process included trade
associations, employer-based organizations, businesses, and individual
professionals with significant experience in the foreign labor
certification field. Of those, some requested reassurance that the
Department would allocate sufficient resources and training to the PWD
[[Page 78028]]
activity at the NPCs to prevent processing delays. They urged the
Department to institute mechanisms to ensure consistency between NPCs
and across job titles, descriptions, and requirements; and to offer
comprehensive training to employers, attorneys, and agents prior to
implementation.
Many commenters, including labor unions, advocacy organizations,
academic institutions, and SWAs expressed concern that the NPC staff
would not possess the same level of expertise, particularly locally-
oriented expertise, required to provide accurate, context-appropriate
prevailing wage determinations as the SWA staff. They believed this
could lead to reduced scrutiny, inaccuracy, backlogs, and delays, and
adversely affect U.S. worker wages and job opportunities. The SWAs that
commented on this issue were concerned that transferring the
determination to the NPCs would also degrade customer service, and some
questioned whether OES really keeps pace with changes in local
standards. One state has had success with its own system and
recommended the Department replicate that system on a national scale.
One advocacy organization expressed the view that centralization
would be particularly harmful to amusement park industry workers, which
currently use a weekly rate rather than an hourly rate. One employer
was concerned that NPC-issued PWDs would be inaccurate and biased in
favor of higher wages, raising program costs. Several commenters
opposed PWD federalization in its entirety and proposed full funding of
SWAs for these activities. In the alternative, they recommended that,
if the Department were to move forward, it hire staff with strong PWD
backgrounds and create a separate PWD unit within the NPC.
To guard against potential delays, some commenters requested that a
timeframe for the process be established, or recommended adjustments to
the process as proposed. A small business coalition recommended the
Department permit employers to recruit without first getting the PWD
from the NPC, so long as the employer accompanied its H-2B application
with a printout of a current and appropriate wage from O*NET, which is
the Internet wage survey the Department updates on an annual basis. A
large trade association made a similar recommendation, with a proviso
that if the employer has not used the correct wage from the database,
it would be required to restart the application process after obtaining
a PWD from the NPC. The Department also received a suggestion that
employers be allowed to get the OES rate themselves unless they want a
safe harbor which would be provided by getting the wage rate from the
NPC or SWA. Another commenter was concerned that employer surveys do
not provide the same safe harbor as SWA determinations and another
commenter was concerned that eliminating the SWA from the process meant
that the safe harbor would also be eliminated.
This Final Rule establishes rules under which employers may provide
their own information. Apart from those instances, the Department
believes there is greater value and potential for greater consistency
and efficiency in having the NPC provide the wage. The Department
believes that continued oversight at the Federal level is essential to
ensuring that the job opportunities are advertised and paid at the
required wage and therefore does not adversely affect U.S. worker
wages.
A number of commenters urged that within this new process, the
Department provide a vehicle for communication between program users
and NPC staff to resolve disagreements on the job opportunity or wage
level and educate program users on the Department's methodology. One
trade association recommended the Department disclose its methodology
for a PWD upon request from an employer with sufficient time to avoid
delaying the application. Other organizations conditioned their support
of the new process specifically on the creation of a mechanism for
communicating or interacting with the public. Some commenters observed
that the appeal process for wage determinations can be quite lengthy,
and not a viable option in the context of H-2B or H-1B, where timing is
critical; those commenters were particularly concerned that without
such communication the timeframe for resolving any prevailing wage
determination issues would be lengthened.
The Department recognizes its responsibility to provide an
efficient process for prevailing wage determinations. Now that the
backlog in the permanent labor program has been eliminated, resources
are being redirected to other OFLC priorities, including offsetting
some costs associated with the re-engineering of the temporary labor
certification programs. As the new program design is implemented, we
will allocate available appropriated resources to key activities,
including the PWD function. As part of this process, the Department
will focus on identifying areas where improvements could be made,
including developing and providing needed training. The Department will
also look to its stakeholder community for input and suggestions for
improvements.
The Department will provide stakeholder briefings on H-2B Final
Rule, is updating its Prevailing Wage Guidance for agricultural and
nonagricultural programs, and will provide additional training and
educational material as appropriate.
The Department will, to the extent feasible and within available
resources, seek to hire qualified staff, will train staff already on
board, and if appropriate, will consider establishing a separate PWD
unit at the Chicago NPC. In addition, the Department will strive to
provide timely, appropriate guidance to program users and SWAs to
ensure a successful transition and implementation. We remain confident
that federalizing the prevailing wage application component will
instill a high level of efficiency and consistency in the process 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.
As stated in the NPRM, the Department strongly believes that
shifting wage determination activities to NPC staff will reduce the
risk of job misclassification because of centralized staff experience,
thereby not only strengthening program integrity, but also ensuring
consistency in classification across States, resulting in improved
protections for U.S. workers.
As discussed in the NPRM, 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 that resulted in inconsistent PWDs.
Furthermore, where H-2B workers are required to work in several
different geographic areas that may be in the jurisdiction of several
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 a federalized
system will alleviate such confusion. Moreover, the Department's
current prevailing wage guidance requires SWAs refer--with certain
exceptions--to federally provided OES data to determine the appropriate
prevailing wage for jobs. Therefore, the NPC can provide the data
[[Page 78029]]
and there is no requirement for any local input or expertise.
The Department understands the desire for a fixed timeframe within
which an employer will receive a prevailing wage determination. The
timeframe depends on a number of factors, including the volume and
timing of requests received, the method by which the requests are
received (whether paper or electronic), the complexity of the request,
and the resources available. Nevertheless, the Department has committed
as part of the Final Rule to processing employer requests for
prevailing wage determinations within 30 days of receipt.
However, the Department acknowledges that this process of obtaining
a prevailing wage may endure a period of processing time fluctuation as
a result of the transition. We therefore recommend that, as an initial
matter, employers filing H-2B applications should file a Prevailing
Wage Determination Request, Form 9141, with the NPC at least 60 days in
advance of their initial recruitment efforts. The Department will make
every effort to process these requests within the 60 days. The
Department will analyze its experience with application patterns and
workload, as the NPCs take on the prevailing wage determinations in the
other programs handled by OFLC. During that time, the Department will
review not only the level of requests it receives, but the information
contained in the requests and whether the information received is
typically sufficient to be able to generate accurate prevailing wages,
or whether employers are providing deficient information. The
Department's intent is to substantially reduce the response time for
prevailing wage determinations and to design procedures, based upon the
results of its analyses to provide employers with greater certainty in
their expectation of response time from the NPC.
One commenter thought the prevailing wages would be based on a
national average as a result of the centralization in the NPC. That
commenter misunderstood the proposal; the wages will continue to be
based on applicable data for the area of intended employment. The
Department did not propose any change to the methodology used to
determine the wage rates under the H-2B program and continues to
support the use of OES data as the basis for the prevailing wage
determinations. The OES program produces occupational estimates by
geographic area and by industry. Estimates based on geographic areas
are available at the national, State, and metropolitan area levels.
Industry estimates are available for over 450 industry classifications
at the national level. The industry classifications correspond to the
sector, 3, 4, and 5-digit North American Industry Classification System
industrial groups. The OES program also provides data at the substate
level in addition to the State level. Data is compiled for each
metropolitan statistical area and for additional areas that completely
cover the balance of each state. It also offers the ability to
establish four wage-level benchmarks commonly associated with the
concepts of experience, skill, responsibility and difficulty variations
within each occupation.
In the Final Rule, the Department has revised Sec. 655.10(d) to
clarify that where the duration of a job opportunity is less than one
year or less, the prevailing wage determination will be valid for the
duration of the job opportunity.
2. Automating the PWD Process
Initially the PWD process will be a manual process. It is the
Department's goal to allow the PWD activity eventually to be conducted
electronically between the NPC and the employer. The Department sought
comment from potential program users on all aspects of its PWD
proposal, but in particular regarding the required use of an online
prevailing wage system and corresponding form for interaction with the
NPC.
The Department received several comments in support of an
electronic process. One commenter suggested the centralization of
prevailing wage determinations be delayed until the electronic process
was available. Another commenter suggested the electronic process
should not be mandatory for all employers, since not all employers have
access to the Internet. One commenter expressed concern that employers
would use an electronic system to ``shop'' for occupations with the
lowest wages to use in describing their job opportunities. The
Department disagrees with the suggestion we delay implementation of the
prevailing wage function until an electronic version is available. If
and when the Department implements an electronic application system, it
customarily makes special provisions for those who cannot access the
electronic system, and advises the public accordingly. The Department
appreciates the input on an electronic system and will take the
comments into consideration should a new system be proposed.
3. Extending the PWD Model to PERM, H-1B/H-1B1, E-3, and H-1C Programs
The Department received comments on its proposal to extend the
federalized wage determination process to other permanent and temporary
worker programs. Some believed that the Department should not include
other programs in an H-2B rulemaking. One commenter suggested that the
process should not be extended until the new system has proven to be
workable. Another commenter was concerned that extending the process to
these other programs would result in the total elimination of the
States when enforcement capacity is best kept at the State level. One
commenter who supported the federalization mentioned that the
assignment of occupational codes from the Standard Occupational
Classification (SOC) system is also key and should be reviewed. The SOC
system is used by many Federal agencies to classify workers into
occupational categories.
a. H-1B and PERM Programs
As proposed in the NPRM, for consistency and greater efficiency
across non-agricultural programs, this Final Rule extends the new
prevailing wage request processing model to the permanent labor
certification program, as well as to the H-1B, H-1B1, H-1C and E-3
specialty occupation nonimmigrant programs. As stated in the NPRM, the
new process will not alter the substantive requirements of foreign
labor certification programs, and we anticipate that, at least in the
foreseeable future, the methodology for determining appropriate wage
rates will remain much the same as it stands today. Our intent is to
modernize, centralize, and make the mechanics and analysis behind wage
determination more consistent. 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 based on OES
data, CBA rates, employer-provided surveys, or other appropriate
information. The Department's current prevailing wage guidance for non-
agricultural foreign labor certification programs has been in effect
since 2005 and is posted in the form of a memorandum on the OFLC Web
site. In the near term, the Department will update and formalize its
guidance for making prevailing wage determinations to maintain some
existing procedures and revise others such as to conform to these
regulations. As program experience administering
[[Page 78030]]
the PWD process grows, the Department may revise its guidance to
explain and assist employers in navigating the process.
To implement and standardize the new process, ETA has developed a
new standard Prevailing Wage Determination Request (PWDR) form for
employers to use in requesting the applicable wage regardless of
program or job classification. As stated in the NPRM, the Department is
considering means by which eventually such requests could be submitted,
and a prevailing wage provided, electronically.
For purposes of the permanent labor certification (PERM) program,
this rule amends the regulations at 20 CFR part 656 to reflect the
transfer of prevailing wage determination functions from the SWAs to
the NPCs and makes final the technical changes described in the
proposed rule.
For purposes of the H-1B program, this rule amends the regulations
at 20 CFR part 655 to reflect the transfer of PWD functions from the
SWAs to the NPCs and makes final the technical changes described in the
proposed rule. Department regulations covering the H-1B program also
govern the H-1B1 and E-3 programs, which both require the filing and
approval of a ``Labor Condition Application,'' or LCA, rather than a
``labor certification application.'' The Final Rule also amends Sec.
655.1112 governing the H-1C program, to provide for the federalization
of prevailing wage determinations.
As described in the NPRM and included in the Final Rule, under the
new process, for purposes of H-2B job classifications, NPC staff will
follow the requirements outlined under new 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 provisions
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.
These new regulatory sections supersede current regulations and
guidelines for all prevailing wage requests in the H-1B, H-1B1, E-3 and
PERM programs made on or after January 1, 2010, and for H-1C prevailing
wage requests made on or after the effective date of this Final Rule.
The Department appreciates that employers will require some time to
become accustomed to the new method of securing a prevailing wage
determination. The SWAs will also need a time of transition to complete
pending prevailing wage determination requests, just as the NPC will
require a corresponding time to fully implement the new form and
process. The Department believes keeping PWD activities with the SWAs
for PERM, H-1B and related programs until January 2010 will facilitate
the transition of Federal staff and program users to complete
federalization of prevailing wage determinations. Therefore, the
Chicago NPC will begin to provide prevailing wage determinations in
programs other than H-2B and H-1C on January 1, 2010. Given the limited
size of the H-1C program, and the possibility it may sunset in 2009,
the Department believes it can begin processing prevailing wage
determination requests shortly after this Final Rule takes effect.
Prevailing wage requests under the H-1C program made prior to the
effective date of this Final Rule will be governed by the Department's
current procedures and its 2005 guidance. Any prevailing wage requests
for other non-H-2B programs governed by this regulation made prior to
January 1, 2010, must be submitted to the SWA having jurisdiction over
the area of intended employment and will be valid for the period listed
on the determination issued by the SWA. Prevailing wage determinations
issued prior to January 1, 2010, by a SWA will be valid after October
1, 2010, if so determined by the SWA issuing them, and fully
enforceable as determined by the applicable regulation (H-1B, H-1B1, E-
3, H-1C or PERM).
b. H-1C Program
In the same way that the Department is in this Final Rule
establishing national processing for the obtaining of prevailing wages
through its National Processing Center for both H-1B (and by extension
H-1B1 and E-3) and PERM, it will also amend its H-1C regulations to
incorporate the same changes. This program, whose prevailing wage
processing amendments were inadvertently removed from the NPRM,
previously lapsed, but was reauthorized in December 2006, and is
scheduled to sunset again in December 2009.\5\ The Department has
determined that it is administratively prudent to move the prevailing
wage determination function to the Chicago NPC in the H-1C program as
in the other programs. This affects a very small number of employers
(only 14 hospitals are eligible to participate) and is consistent with
the reasoning for federalizing prevailing wage determinations that
applies to the other programs. As stated in the preamble to the NPRM,
the conversion to a federalized prevailing wage system has no effect on
the substantive requirements of foreign labor certification programs or
on the methodology by which the NPC will determine the prevailing wage
for workers to be admitted under any of the applicable visas. This
applies equally to H-1C. In fact, the majority of prevailing wage
determinations in the H-1C program are based on the wages contained in
collective bargaining agreements, making the need to obtain a wage
determination by the NPC frequently unnecessary. Facilities may begin
submitting H-1C prevailing wage requests to the Chicago NPC on the date
this Final Rule takes effect.
---------------------------------------------------------------------------
\5\ The Nursing Relief for Disadvantaged Areas Reauthorization
Act of 2005, Public Law 109-423, took effect December 20, 2006. The
Act reauthorized the H-1C nonimmigrant nurses program, a program
originally created by the Nursing Relief for Disadvantaged Areas Act
of 1999.
---------------------------------------------------------------------------
4. Section 655.10(b)(3)--Paying the Highest Prevailing Wage Across MSAs
As proposed in the NPRM, this Final Rule requires that, where a job
opportunity involves multiple worksites in areas of intended employment
and cross multiple Metropolitan Statistical Areas (MSAs) in multiple
counties or States with different prevailing wage rates, an employer
must pay the highest applicable wage rate of the applicable MSAs
throughout the term of employment. The U.S. worker responding to
recruitment and the foreign H-2B worker are entitled to know and rely
on the wage to be paid for the entire period of temporary employment.
The Department received comments on this requirement, both in
support and in opposition. One trade association supported the
proposal, concluding it would strengthen protections for U.S. workers
while not adding burden to its members, whom it said already paid the
highest prevailing wage rate in every MSA. A number of other employer
associations opposed the proposal, stating it was arbitrary, unfair,
would artificially increase costs for H-2B labor, and would undermine
the basic decision-making of many employers, who locate in areas with
low labor costs in order to save money.
The Department has decided to retain the requirement that employers
advertise and pay the highest of the applicable prevailing wages when
the job opportunity involves multiple worksites across multiple MSAs
with varying prevailing wage rates for that occupation and at those
worksites. This provision is retained because it provides greater
consistency and predictability
[[Page 78031]]
for both employers and the workers and ensures that U.S. workers who
are interested in the job opportunity would not be deterred due to
varying wage rates. It also ensures greater protection for workers
against possible wage manipulation by unscrupulous employers.
5. General Process or Data Integrity Concerns
Some commenters raised concerns about the integrity of the data
currently being used for prevailing wage determinations and recommended
changes to the OES survey itself. Others commented on different aspects
of the methodology and procedures. One commenter suggested that the
Department set the minimum wage rate for H-2B workers at or above the
wage (presumably the adverse effect wage rate) for H-2A workers in that
State. Another commenter suggested the Department require employers in
the construction industry to use, first, the Davis-Bacon Act (DBA)
survey wage rate; second, if no DBA wage existed, the collective
bargaining agreement rate; and as a last resort, the OES rate, if
neither of the other rates was available. Another commenter suggested
that the provision regarding when an employer may utilize a wage
determination under the Davis-Bacon Act also cover when an employer can
choose not to utilize that wage rate. One commenter believed that the
proposal did not correct what they claimed was a problem with the
Department's Bureau of Labor Statistics (BLS) wage rates being 2 years
out of date and also expressed concerns that piece rate policies have
led to depressed wages and suggested that the Department should require
advance written disclosure of piece rates on the job orders.
The Department appreciates these suggestions and concerns. However,
the Department did not propose changes to the sources of data to be
used for prevailing wage determinations and, therefore, these comments
are beyond the scope of the current rulemaking. The Department notes
that the proposed procedures that were retained in the Final Rule
already cover the use of wages specified in a collective bargaining
agreement. Similarly, these procedures provide that an employer may use
the Davis-Bacon wage and that such use is at the employer's option
unless the employer is a Federal construction contractor. There is a
similar provision that applies to Service Contract Act wage rates.
Some commenters suggested that employers should not be allowed to
submit their own wage surveys. The Department, however, believes that
employers should continue to have the flexibility to submit pertinent
wage information and therefore, the Final Rule continues the
Department's policy of permitting employers to provide an independent
wage survey under certain guidelines. It also continues to provide for
an appeal process in the event of a dispute over the applicable
prevailing wage.
F. Section 655.15--Employer Conducted Pre-Filing Recruitment
Under the Final Rule, employers will continue to be required to
test the labor market for qualified U.S. workers at prevailing wages no
more than 120 days before the date the work must begin (``date of
need''). This will ensure the jobs are made available to U.S. workers
most likely to qualify for the positions in question. As described in
the NPRM and finalized under this rule, 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 test the labor market. These steps are similar to those
required under the current H-2B program. However, application
processing and consistency will be improved by having employers conduct
the recruitment before forwarding the recruitment report and
application to the Department for review. Additionally, we will
continue the Department's current requirement that recruitment take
place no more than 120 days before the date of need to ensure jobs are
advertised to U.S. workers with adequate notice.
This Final Rule retains the requirement in the proposal that
employer recruitment efforts be documented and retained for production
to the Department or other Federal agencies. As stated in the NPRM, the
recruitment documentation requirements will be satisfied by copies of
the pages containing the advertisement from the newspapers in which the
job opportunity appeared and, if appropriate, correspondence signed by
the employer demonstrating that labor or trade organizations were
contacted. Documentation of a SWA job order will be satisfied by copies
of the job order downloaded from the Internet showing the beginning and
the ending date of the posting or a copy of the job order provided by
the SWA with the dates of posting listed, or other proof of publication
from the SWA containing the text of the job order. However, in response
to public comments, the Final Rule requires record retention for 3
years, which is 2 years less than the Department originally proposed.
As proposed, the Final Rule permits employers to place their own
newspaper advertisements. The Department has revised the proposed
requirement of three advertisements and will in this Final Rule revert
to the current requirement of two advertisements. The Department,
however, has maintained in this Final Rule the proposed requirement
that one of the two advertisements must be placed in a Sunday edition
of a newspaper closest to the area of intended employment. The
Department has also added a clarification that the newspaper chosen
needs to have a reasonable distribution.
The Department received several comments that supported the shift
to a pre-filing recruitment model. One of these commenters recommended
that the job order process should also be centralized or that timelines
for posting job orders should be established and SWAs should have staff
dedicated to working with H-2B job orders. The centralization of the
job order process was not envisioned by this regulation, and would
require separate rulemaking. Moreover, posting job orders and referring
individuals to those jobs is a core function of the SWAs and one that
remains at the local level in this rule. Additionally, the Department
believes the SWAs must have the flexibility to assign their limited
resources based on needs and priorities and declines to establish a
timeline for SWAs to post job orders.
The Department received a number of comments about the proposed
timeframe for pre-filing recruitment; some opposing recruitment so far
in advance of the date of need and others suggesting the timeframe be
lengthened. The commenters who were opposed to the proposal generally
believed that U.S. workers would not be able or willing to commit to
temporary jobs so far ahead of the actual start date or would indicate
they would accept the jobs but then fail to report on the actual start
date. These commenters believed this would result in delays, additional
costs to employers and the Department, and the late arrival of H-2B
workers because new applications would have to be filed. One commenter
opposed the early pre-filing recruitment and believed the result would
be a false indication that no U.S. workers were available. Another
commenter opined that employer compliance would be reduced due to the
pre-filing recruitment. One SWA recommended that the period for
recruitment be shortened because 120 days in advance is not suitable
when serious job seekers are looking for
[[Page 78032]]
temporary employment and stating their view that those U.S. workers who
apply are rarely offered employment because the employer knows foreign
workers are available. The commenter was further concerned that the
U.S. workers who are hired that far in advance of the date of need are
not reliable and will not report for work. In contrast, two commenters
suggested a longer recruitment period--one recommended 180 days in
advance of the date of need--to provide employers with greater
flexibility. The Department declines to extend the period of
recruitment to 180 days prior to the date of need because we do not
believe recruitment that far in advance would be effective given the
concerns expressed by some of the commenters and our own extensive
program experience.
One commenter was concerned that the proposed pre-filing
recruitment period, when combined with a prevailing wage determination
request submission 90 days prior to the recruitment start date,
advanced the timeframe for beginning the application to more than 6
months prior to the date of need. This commenter stated this was not
characteristic of a user-friendly program. The Department understands
that there are trade-offs when designing a new system. In this case, in
order to provide the employer more flexibility and eliminate an extra
layer of government bureaucracy, the process must begin earlier.
One commenter was concerned about the validity of the pre-filing
recruitment when, after completing the recruitment and submitting the
application, the employer's needs change and it requires a modification
to a term or condition on the application. This commenter questioned
whether the recruitment would be considered a valid test of the labor
market since, unlike the current process, the underlying application
and job order will not have been approved prior to the recruitment
effort. The commenter recommended that the Department provide in the
regulation that as long as the recruitment was conducted based on the
job description and offered wage as determined by the CO and the job
order was accepted by the SWA, the recruitment would be considered
valid irrespective of any required modifications. It is unclear what
kind of modifications would be warranted and, therefore, the Department
cannot respond directly to this comment. For example, if a timely-filed
application requires a technical modification, but the modification
cures the defect and allows the application to resume processing, then
the recruitment will continue to be valid for as long as the petition
is pending at the NPC and valid for purposes of a final determination.
However, if an employer's needs change in a way that requires a
substantive correction in one or more key terms and conditions of
employment--for example, wages or occupation--the NPC will require that
the position be readvertised. Changes in terms of employment contained
in the underlying job offer will trigger a requirement for a new labor
market test.
The Department's requirement that the employer submit an acceptable
job order to the appropriate SWA for posting mandates that the employer
complete and submit information regarding all of the job duties and
terms and conditions of the job offer: The job duties, the minimum
qualifications required for the position (if any), any special
requirements, and the rate of pay. This information is normally
submitted to the SWA for acceptance prior to the employer's
recruitment; as long as the employer's advertisements do not depart
from the descriptions contained in the accepted job order, they will be
deemed acceptable by the Department. At the same time, the SWA will be
the arbiter of the job's acceptability for the job order, and as the
job order must be accepted prior to the commencing of recruitment in
this Final Rule, all recruitment must reflect the job as accepted by
the SWA as well.
The Department has decided to eliminate the document retention
requirement in its entirety with respect to applications not certified;
therefore, any employer whose application has been denied can discard
the records relevant to the denied application immediately upon
receiving the denial notice or whenever the decision becomes final if
the employer appeals the decision. If the denial is overturned, the
application becomes subject to the document retention requirements for
approved cases. The Department determined that a document retention
requirement in such cases serves no governmental purpose and is
unnecessarily burdensome on employers. The Department would, in
virtually all such cases, already have copies of the employer's
supporting documentation rendering such a retention requirement
unnecessary.
1. Section 655.15(g)--Unions as a Source of Labor
As proposed, the rule would have required that if the job
opportunity were in an industry, region and occupation in which union
recruitment is customary, the appropriate union organization must be
contacted. A number of commenters were concerned that the proposed
provision placed too great a reliance on the employer's ability to
determine what the Department will later decide is ``appropriate for
the occupation and customary to the industry and area of intended
employment.'' One of these commenters suggested that even if contacting
a union may be appropriate in some industries, it would be entirely
inappropriate in the construction industry and, at a minimum, the
construction industry should be expressly excluded from this
requirement under a Final Rule. Another commenter suggested that the
requirement was unnecessary, as the required newspaper advertising
would reach the same pool of applicants. Another commenter believed the
requirement was not authorized by statute and the Department has no
basis to impose it. Additionally, the commenter expressed concern that
the requirement also has the potential to subject non-unionized
employers to ``salting'' campaigns, during which union organizers
retain employment in union shops for the sole purpose of organizing the
workforce. According to this commenter, the requirement could unfairly
and unnecessarily inject the Department into an area in which it should
not be involved.
One specialty bar association opined that the requirement to use
unions as a recruitment source would be unworkable in practice, stating
that in their experience, unions will not refer workers to non-union
shops. The commenter recommended the regulation instead use the
approach of the permanent labor certification program, which requires
union contact for unionized employers only.
The Department has considered these comments and agrees with the
many concerns raised about the proposed requirement, in particular
concerns about vagueness and ambiguity, and the dilemma employers would
face in trying to interpret and implement the requirement. Accordingly,
we have revised the provision to require an employer to contact a labor
organization only in cases where the employer is already a party to a
collective bargaining agreement that covers the occupation at the
worksite that is the subject of the H-2B application. The employer's
obligation is only to contact the local affiliate of labor organization
that is party to the existing collective bargaining agreement that
covers the occupation at the worksite that is the subject of the H-2B
application.
[[Page 78033]]
2. Section 655.15(i)--Referral of U.S. Workers and SWA Employment
Verification
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 H-2B program, the Department proposed that
SWAs verify the employment eligibility of U.S. workers they refer for
nonagricultural employment services with the SWA. The Department
received a significant number of comments on the practicality of this
provision.
Comments on this subject were received from national associations,
numerous SWAs, several labor advocacy organizations, and members of
Congress. Commenters generally opposed the proposal for a variety of
legal, programmatic, resource-related, and policy-based reasons.
Most of the commenters were SWAs that noted the burden this new
provision would create. Many saw it as an unfunded Federal mandate in
violation of the Unfunded Mandates Reform Act. More than one referred
to the Department's recent inclusion of the requirement as a condition
for receiving further labor certification grant funding.
As stated in the preamble to the NPRM, the Department is not
insensitive to the resource constraints facing state agencies in their
administration of the H-2B program. However, as we stated in the NPRM,
we do not believe that the requirement will result in a significant
increase in workload or administrative burden not covered by
Department-provided resources.
In addition, notwithstanding funding limitations, there is a
strong, longstanding need for a consistent verification requirement at
the State government level. The Department is not leaving States to
their own devices. Precisely to ensure that available Federal funding
supports verification activities, the Department has added the
verification requirement as an allowable cost under the foreign labor
certification grant agreement. The Department also funds State
employment services under the Wagner-Peyser Act, and for many years
States have made Wagner-Peyser grant funding a part of their annual
financial plan. To the extent that State functions related to foreign
labor certification depend extensively on activities that are already
part and parcel of the employment service system, State labor agencies
can continue to rely on Wagner-Peyser to support that portion of
activity. Ultimately, while cognizant of the challenges posed by
funding limitations, we expect States to comply as they do with other
regulatory requirements and other terms and conditions of their foreign
labor certification grant.
SWAs also expressed concern about possible discrimination suits.
The requirement to verify employment eligibility does not violate
constitutional prohibitions against disparate impact. The eligibility
requirement is similar to verification requirements to gain access to
other similar public benefits.
One SWA said it would be impossible to implement verification of
work eligibility because they have a virtual one-stop system that is
self-service for both employers and job seekers and the SWA would be
unable to certify that applicants referred to those job orders are
employment-eligible. While we do not disagree that an in-person
verification requirement may impact the decisions of a limited number
of otherwise eligible workers, such impact does not outweigh the
significant value of verification. Moreover, SWAs can respond to any
possible inconvenience to workers by designating or creating additional
in-person locations where eligibility can be verified. This is not a
problem unique to SWAs--workers may be required to travel great
distances to reach a prospective employer, who then (absent a SWA
certification) would be required to verify work eligibility. In the
end, although employment eligibility verification does require some
amount of extra time and effort, the Department has determined that
simple convenience must cede to the overarching goal of a legal
workforce and has drafted its regulations accordingly.
Several SWAs also pointed out that under the new regulations it
will be impossible to identify H-2B job orders, especially now that the
SWA will no longer receive a copy of the application or determine
prevailing wages and be only responsible for placing the job order. The
Final Rule now requires the job order carry a notation identifying it
as a job order to be placed in connection with a future application for
H-2B workers.
Several other commenters supported the contention made by the SWAs
that this requirement will drain SWA resources. A few commenters seem
to have interpreted this requirement as mandating the use of the ``E-
Verify'' electronic system. However, although both the NPRM and the
Final Rule require the use of the DHS process, which requires the
completion of I-9 forms and process, the use of the electronic E-verify
system is optional.
The Department's expectation is that SWAs will not expend public
resources to refer undocumented workers to H-2B job opportunities. The
employment verification provisions included in this regulation are part
of a concerted effort--one that includes regulation, written guidance,
and ongoing outreach and education--to address longstanding weaknesses
and to strengthen the integrity of the program.
3. Section 655.15(h)--Layoff Provisions
Under the NPRM, an employer seeking to employ H-2B workers would
have been required to attest that it is not displacing any similarly
employed permanent U.S. worker 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). The Department received a number of comments from various
groups on this provision. We have addressed those below, in conjunction
with comments on the layoff provisions at Sec. 655.22(k).
G. Section 655.17--Advertising Requirements
As proposed in the NPRM, the Final Rule requires employers to
advertise for available U.S. workers. The advertisement must: (1)
Identify the employer with sufficient clarity to notify 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 application (ETA Form 9141); 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
Prevailing Wage Determination Request or on the application, and must
not contain terms and conditions of
[[Page 78034]]
employment which are less favorable than those that would be offered to
an H-2B worker.
The Department received multiple comments on the newspaper
advertising requirements. Several commenters believed that the
requirements, especially the requirement for three ads that was
proposed in the NPRM (rather than the two required under the current
program), would increase employer costs and time devoted to the
application process but not yield additional U.S. workers. The
requirement for advertising in a Sunday edition of a newspaper was seen
as particularly objectionable due to the higher costs for Sunday ads
and the belief that many nonprofessional workers do not read Sunday
newspaper editions. Some commenters suggested employers should have the
flexibility to use other recruitment methods, such as Web sites that
have proved successful in locating seasonal workers. Others were
concerned that without SWA guidance, employers would have to guess as
to the correctness of their ads, risking that if the CO subsequently
determined there were errors in the advertisements, it would be too
late to get the workers needed. One commenter was concerned that no
process was provided for requiring an employer to revise its ad if the
content was determined to be unduly restrictive.
As previously discussed, this Final Rule requires two newspaper
advertisements which must include one Sunday edition. Sunday editions
have traditionally provided the most comprehensive job advertisements
and many U.S. workers potentially seeking employment would normally
choose the Sunday paper to review. Employers can, however, always
conduct more recruitment than is required, such as posting the
opportunity on job search Web sites.
One commenter inquired about the process for employers to follow in
selecting an alternate publication in lieu of one of the newspaper ads.
Other commenters were concerned about the choice of the specific
newspaper in which to advertise and believed that the NPC would not be
able to determine the most appropriate newspaper in all cases. One
commenter suggested that the SWA should be involved in the process and
provide guidance regarding newspaper choices. Another commenter asked
whether there would be specific guidance regarding advertisements for
live-in jobs, such as those for housekeepers, child monitors, and
similar positions. The Department believes that staff at the NPC will
be able to handle such issues. The Department declines in the Final
Rule to specify the requirements to a high level of detail, as
appropriate publication may vary, for example by industry or industry
practice, and as the Department normally issues such guidance in the
form of Standard Operating Procedures or other policy guidance.
H. Section 655.20--Direct Filing With the NPC and Elimination of SWA
Role
Consistent with the proposed rule, the Final Rule eliminates the
role of the SWAs in accepting and reviewing H-2B labor certification
applications. Once the Final Rule is effective, employers will file H-
2B applications directly with the NPC, consistent with the transition
provisions of the regulation and with the Department's specialization
of its two processing centers effective June 1, 2008. Employers with
dates of need prior to October 1, 2009, will submit prevailing wage
determination requests SWA, which will process them under the PWD
procedures established under Sec. 655.10 of this Final Rule. In the
long term, under these regulations, each employer will continue to be
required to place a job order with the appropriate SWA as part of pre-
filing recruitment, and SWAs will continue to place H-2B-associated job
orders in their respective Employment Service systems. This proposal
received comments from a broad range of constituencies, including
employers, employer associations, advocacy organizations, labor unions,
State agencies, and elected officials. Most of the commenters opposed
this provision.
Many commenters remarked that the elimination of the SWA portion of
the process only shifted activities previously performed by the SWAs to
the NPCs without actually improving the process. These commenters
believed that eliminating the duplicate SWA review and increasing the
Federal role in reviewing applications would result in increased
delays, particularly when the Department has acknowledged that its
funding has not kept pace with increased workloads in the H-2B program.
Others also mentioned possible processing delays and were especially
concerned that those industries with later dates of need could be
locked out of the program.
Other commenters were concerned the new process would result in the
loss of local labor market and prevailing practice expertise in the
review process, including checks and balances now in the system, and
would increase the potential for fraud. These commenters asserted that
the knowledge and expertise of local staff in reviewing and processing
applications was essential to the integrity of the H-2B certification
process. Some commenters also criticized the NPCs for what they view as
``ignoring their own regulations'' and ``misconstruing the
certification process.'' Several commenters also believed elimination
of the duplicate SWA review would result in decreased assistance for
employers. One SWA stated that employers would be left without a source
for guidance which would drive up the demand for agents, thereby
increasing the costs to employers. An employer expressed the opinion
that the new process would replace longstanding relationships with SWA
employees and reliable determinations with unpredictable determinations
and potentially overly stringent penalties.
The Department remains committed to modernizing the application
process and continues to believe that the submission of applications
directly to the NPC is the most effective way of accomplishing this
goal. Processing of H-2B applications by NPC staff will allow for
greater consistency for employers, regardless of their industry or
location, in both the time required and quality of the application
review. The Department believes that by specializing in H-2B
application processing, NPC staff will have greater program expertise
than SWA staff who are often required to implement a number of diverse
programs during the course of their workday, and will generate
additional efficiencies in application processing. Therefore, this
federalized review of applications will lead to more efficient
processing, greater consistency of review, and more effective
administration. It will also enable the Department to better identify
and implement program improvements.
Eliminating the SWAs' participation in the application review
process will provide more efficient review of applications, as well as
greater consistency of review. The Department disagrees that NPC staff
have insufficient knowledge to undertake this role given that they
already perform it. In fact, NPC reviewers who currently review H-2B
applications have, in some cases, more experience with such
applications than many SWA staff.
Moreover, the SWAs have not been removed from the process--they
will continue their traditional role in the recruitment process and
working with employers on the specifics of the job order. SWAs will be
responsible for clearing and posting job orders, both intrastate and
interstate, thus reducing the risk for employers to make mistakes with
respect to job descriptions,
[[Page 78035]]
minimum requirements, and other application particulars. SWAs will, as
part of these duties, review the job offer, its terms and conditions,
any special requirements, and the justifications as part of the SWAs'
duties to clear and post such orders.
I. Section 655.20--Form Submission and Electronic Filing
The Final Rule requires employers to submit applications on paper,
through an information collection (form) modified significantly from
the current form to reflect an attestation-based filing process. As
stated in the NPRM, the Department will consider in the future an
electronic submission system similar to that employed in other programs
administered by OFLC, should resources be made available.
The Department received a number of comments from SWAs, a specialty
bar association, a large trade association, a small-business coalition,
and several industry groups largely supportive of the potential
conversion to electronic applications. One commenter encouraged prompt
migration to electronic filing, as the commenter felt this would make
program data easier to gather, more accurate, and more shareable across
federal agencies. A few comments expressed concern that electronic
filing would be mandatory for everyone, and recommended that, in the
event the Department converted to electronic submission, it maintain
paper filing as an option. Two commenters were concerned making
electronic submission mandatory could cause undue hardship to employers
that do not have Internet access, are not computer literate, or do not
have access to a computer. One bar association recommended the
Department not require electronic filing until the system was error-
free, that any electronic filing system not include system-generated
denials as the PERM system does, and that any defects receive an RFI.
The Department takes seriously these recommendations. We will determine
appropriate timing for the development and implementation of an
electronic system based on program need and available resources. We
have learned--as have programs users--from our experience with the
electronic filing process used in the permanent program, and will apply
those lessons to any system we institute for the H-2B program.
J. Section 655.21--Supporting Evidence of Temporary Need
As proposed, this Final Rule provides the employer a variety of
options for documenting the basis of its temporary need, to be retained
by the employer and submitted in the event of a Request for Further
Information (RFI), a post-adjudication audit, a WHD investigation, or
another agency investigation. As explained in the NPRM, for most
employers participating in the H-2B program, demonstrating a seasonal
or peakload temporary need can best be evidenced by summarized monthly
payroll records 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. Such records, however, are
not the only means by 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 exists and is temporary in nature. 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 Department's new H-2B temporary labor certification application
form is designed to require both a short narrative on 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 required, the
RFI process will be employed. The form also contains an attestation to
be signed under penalty of perjury to confirm the employer's temporary
H-2B need.
As explained in the NPRM and consistent with current program
practice, employers should be wary 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.
K. Section 655.22--Obligations of H-2B Employers and Attestation-Based
Application
The Department proposed, and this Final Rule institutes, the shift
to an attestation-based filing system. The new application form
contains a series of attestations to confirm employers' adherence to
its obligations under the H-2B program. The information and
attestations on the form will provide the necessary assurances for the
Department to initially verify program compliance. As described in the
NPRM, the Department anticipates the shift to an attestation-based
application will have a number of benefits, including a reduction in
processing times while maintaining program integrity.
The Department received numerous comments, many of them negative,
on the move to an attestation-based application. Some commenters
believed that an attestation-based application would reduce the role of
the SWA and thus eliminate local expertise; decrease employer
compliance; increase erroneous approvals; and increase the likelihood
that the Department will simply ``rubber stamp'' the certifications and
weaken U.S. worker protections. The Department disagrees with these
assumptions and conclusions. The Department believes that an
attestation-based application, backed by audits, is within the
Secretary's statutory discretion to implement and is an effective means
to ensure that all statutory and regulatory criteria are met and all
program requirements are satisfied. Similar approaches have been used
successfully by the Department in other contexts, such as in the
current permanent labor certification process.
One commenter suggested the Department require that the employer
always be the applicant, even if an agent is used, because neither an
agent nor the employer would be able to attest to all of the required
obligations. This commenter also feared that an employer could shield
itself from responsibility by using an agent for such prohibited acts
as requiring recruitment fees to be paid by the foreign worker. The
Department disagrees with this commenter. In the H-2B program, the
agent simply represents the employer in the labor certification
process. The employer is ultimately responsible for its obligations
under the program and it
[[Page 78036]]
is the employer who signs the application form, and attests to the
veracity of the information provided and that it will meet all of its
obligations.
One commenter appeared to confuse the H-2B and H-2A programs. This
commenter referred to the 50 percent rule, an H-2A program feature, and
requested that the Department include a grace period for a foreign
worker to find another employer if dismissed under the 50 percent rule.
In the current H-2A temporary agricultural program, employers must hire
a qualified U.S. worker who applies for a position certified under a
temporary labor certification, if that worker applies during the first
half of the certified period of employment. The H-2B program has no
such provision and the Department declines to impose one, especially as
this was not proposed in the NPRM.
The Department received a number of comments on the specific
obligations of H-2B employers outlined in the proposed rule. One
commenter pointed out a semantic error in proposed Sec. 655.22(a),
which stated the employer must attest that ``no U.S. workers'' are
available. The commenter correctly pointed out that an employer cannot
possibly have such broad knowledge and that the statute does not
require such knowledge. The Department has deleted that provision.
There were other comments about word choice and semantics and, where
appropriate, the Department has changed the wording to make the
attestations easier to understand.
The Department has also added language to the provision, in Sec.
655.22(a), that requires that H-2B job opportunities offer terms and
working conditions that are ``normal to U.S. workers similarly
employed'' to clarify that normal is synonymous with not unusual. This
is within the range of generally accepted meanings of the term. See,
e.g., Black's Law Dictionary 1086 (8th ed. 2004) (``The term describes
not just forces that are constantly and habitually operating but also
forces that operate periodically or with some degree of frequency. In
this sense, its common antonyms are unusual and extraordinary.'');
Webster's Unabridged Dictionary 1321 (2d ed. 2001) (supplying ``not
abnormal'' as one of several definitions). Thus, ``normal'' does not
require that a majority of employers in the area use the same terms or
working conditions. If there are no other workers in the area of
intended employment who are performing the same work activity, the
Department will look to workers outside the area of intended employment
to assess the normality of an employer's proposed productivity
standard.
Unless otherwise noted, no substantive change is intended. Below,
we respond to comments on specific obligations and describe substantive
changes made to those subsections. In cases where the Final Rule
deletes or adds provisions, the numbering has changed accordingly from
that published in the NPRM.
1. Section 655.22(a)--U.S. Worker Unavailability
The Department proposed that employers seeking to hire H-2B workers
attest there were no U.S. workers in the area of intended employment
capable of performing the temporary services or labor in the job
opportunity. Comments on this provision reflected strong concern that
employers cannot attest to the actual unavailability of U.S. workers,
but simply that the employer has tested the labor market appropriately
and in good faith to demonstrate that capable U.S. workers did not
respond to its recruitment efforts or ultimately were not available
(either due to lawful rejection by the employer, failure on the
worker's part to follow through or remain on the job, etc.) to perform
the labor or services. The Department agrees and has deleted this
provision from the Final Rule.
2. Section 655.22(f)--Worker Abandonment and Employer Notification to
the Department and DHS
The Department's NPRM would have required employers to notify the
Department and DHS within 48 hours if an H-2B worker separated from
employment prior to the end date of employment in the labor
certification. This notification requirement would have also applied if
the H-2B worker absconded from or abandoned employment prior to the end
date of employment. This requirement was included to ensure that if the
basis for the worker's status ended before the end date on the
application, both DHS and the Department could take appropriate action
to monitor the program.
The Department received a number of comments in opposition to this
requirement, primarily from employers and employer and trade
associations. Several employer associations shared the concern that, in
their view, the requirement represented a new and unfair liability for
employers, opening them up to potential legal action from H-2B
employees if the employee left to pursue other legal employment before
the end of the contract period. One association found it problematic,
given the perception that this worker population is more transient than
the workforce at large. It also was concerned about the administrative
burden on employers to comply with the requirement. It asserted that
employers were unlikely to know the real circumstances of the worker's
departure, if it was a legal extension or change of status or something
else. Consistent with a number of other comments either seeking or
recommending clarification to the notice requirement, this association
stated that such status determinations are complex legal issues and
employers should not be required to make them. It also believed that
the reporting requirement was unlikely to accomplish anything without
imposing additional significant burdens on employers and that it was
unlikely that DHS would pursue individuals who are the subject of these
reports. A small business association agreed about the unreasonableness
of the potential burden on employers and was concerned that the
requirement would ask small businesses to become unpaid Immigration
Service agents responsible for enforcing immigration laws.
A trade association found the required 48 hours for notification to
be an extremely limited period of time for notification, and a burden
on employers. It recommended that, if the requirement were continued,
it should be extended to 30 days. Further, this trade association
recommended that DHS create a simple reporting method to allow
employers to provide the information directly through the Internet or
by telephone. The requirement was described as too vague and not
providing enough specifics as to when the employer would be required to
do such notification.
An individual employer found insufficient safeguards in the
proposal, as there was no indication of actions that the bureaucracy at
the Department or DHS would take based on the information. The employer
wanted the two departments to be more specific as to how the
information was to be used.
An employer agent believed the requirement was inappropriate in
these regulations, as it was tangential to the Department's role
regarding the availability of U.S. workers or preventing adverse affect
on U.S. workers, and believed that it created additional confusion and
potential liability for employers. Similarly, an employer association
thought the requirement inappropriate and did not clearly outline the
process by which employers would make such notifications. Additionally,
the employer association asked for
[[Page 78037]]
additional guidance as to what information would be required for
employers to document separation or job abandonment and was concerned
that violations of this provision could lead to debarment from future
participation in the program.
The Department reviewed the comments received on this specific
reporting requirement and the concerns raised by the employers and
associations on its implementation. The Department acknowledges that
many of these concerns have merit, and has therefore sought to provide
clarifications and limitations in the Final Rule to address these
concerns. The Department did not, however, discern sufficient
justification from these comments to eliminate the requirement in its
entirety. The notification is necessary in all circumstances because
the early separation of a worker impacts not only the rights and
responsibilities of the employer and worker but also implicates DOL's
and DHS's enforcement responsibilities. Although any abscondment is a
loss to the employer, the Government requires notification to be able
to better track workers who are in the country on a temporary basis
with limited work authorization.
The Department acknowledges the need for clarification in the
provision to ensure that the 48-hour requirement begins to run only
when the abandonment is actually discovered. The Department has
therefore added language to the provision clarifying that the employer
must notify DOL no later than 2 work days after such abandonment or
termination is discovered by the employer. The Department has added
further clarification to ensure that employers must meet the identical
standards for notification to DOL as to DHS, so that an abscondment
occurs when the worker has not reported for work for a period of 5
consecutive work days without the consent of the employer to that non-
reporting. This is intended to clarify for the employer that the same
standard of reporting applies across both agencies, making it easier on
the employer to make the report. There is no requirement that the
notification be made by certified mail, however. A file copy of a
letter sent by normal U.S. mail, with notation of the posting date,
will suffice. However, in addition, the Department revised the
notification requirement to reflect a time period of no later than 2
work days after the employer discovers the employee has absconded,
which, consistent with DHS, has been defined as 5 consecutive work days
of not reporting for work. To make the standard further consistent
across agencies, for purposes of this provision the Department will
defer to DHS on the definition of the term ``working day.''
3. Section 655.22(g)--Deductions and Prohibition on Transfer of Costs
The NPRM prohibited deductions by the employer or any third party,
including a recruiter, for any expenses including recruitment fees and
any other deductions not expressly permitted by law. Both worker
advocacy organizations and an employer of H-2B workers commented that
the provision was confusing and ambiguous. Worker advocates objected
that it was unclear whether employees could be required to pay
recruiting costs directly, while an employer objected to the payment of
recruiting costs that were not clearly defined in the proposal. We
agree that the rule as proposed was confusing. The confusion resulted
in part from the fact that employer cost shifting is addressed
elsewhere in the regulations, in Sec. 655.22(j). Further, cost
shifting by third parties presents an identical problem under the H-2A
program but was dealt with in a different manner in the NPRM.
Accordingly we are revising the language concerning cost shifting by
third parties to mirror Sec. 655.105(p) of the H-2A Final Rule to read
as follows: ``The employer has contractually forbidden any foreign
labor contractor or recruiter whom the employer engages in
international recruitment of H-2A workers to seek or receive payments
from prospective employees, except as provided for in DHS regulations
at 8 CFR 214.2(h)(5)(xi)(A).''
The Final Rule makes clear that recruiters may not pass on expenses
to H-2B workers. Examples of exploitation of foreign workers, who in
some instances have been required to give recruiters thousands of
dollars to secure a job, have been widely reported. The Department is
concerned that workers who heavily indebt themselves to secure a place
in the H-2B program may be subject to exploitation in ways that would
adversely affect the wages and working conditions of U.S. workers by
creating conditions akin to indentured servitude, driving down wages
and working conditions for all workers, foreign and domestic. We
believe that requiring employers to incur the costs of recruitment is
reasonable, even when taking place in a foreign country. Employers may
easily band together for purposes of recruitment to defray costs. The
fact that a recruiter is essential to the securing of such worker does
not dissuade the Department from requiring the employer to bear the
expense; rather, it underscores the classification of that payment as a
cost allocable to the employer.
The Department recognizes that its power to enforce regulations
across international borders is constrained. However, it can and should
do as much as possible in the U.S. to protect workers from unscrupulous
recruiters. Consequently, the Department is requiring that the employer
make, as a condition of applying for labor certification, the
commitment that the employer is contractually forbidding any foreign
labor contractor or recruiter whom the employer engages in
international recruitment of H-2B workers to seek or receive payments
from prospective employees.
The Department has also revised this section in the Final Rule to
omit restrictions on deductions that are already covered in Sec.
655.22(j), and we are incorporating the following language which is
identical to the language in 20 CFR 655.104(p) of the H-2A Final Rule:
``The employer must make all deductions from the worker's paychecks
that are required by law. The job offer must specify all deductions not
required by law that the employer will make from the worker's paycheck.
All deductions must be reasonable. However, an employer subject to the
FLSA may not make deductions that would violate the FLSA.''
4. Section 655.22(h) [(g) in Final Rule]--Basis for Offered Wage
This provision requires that the offered wage not be based on
commission, bonuses, or other incentives unless the employer guarantees
that the wage paid will equal or exceed the prevailing wage. The second
sentence of the proposed provision further stated that ``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.'' This sentence
received several comments. A worker's rights advocacy group claimed the
Department will not achieve its objective of protecting foreign workers
from paying fees that should be paid by the employer. This commenter
provided an example of a practice by one employer who required workers
to pay for tests to determine their welding and fitting skills in
preparation for employment in the United States. This
[[Page 78038]]
commenter further recommended that this section should clarify that
costs paid directly by workers are de facto deductions for the purpose
of calculating compliance with the offered wage, even if employers do
not directly deduct them and also that DOL should clarify its position
on which costs are considered to benefit employers and thus require
reimbursement and include specific examples of such costs. This
commenter also believed that similar language in the FLSA was
confusing. The Department appreciates the detailed analysis provided by
this commenter, but we believe the statutory requirements, which are
based on decades of administration of the Federal wage and hour laws,
are clear and that it is not necessary to make the recommended changes.
5. Section 655.22(i) [(h) in Final Rule]--Position Is Temporary and
Full-Time
The Department proposed that an employer seeking to employ H-2B
workers be required to attest that the job opportunity is for a full-
time, temporary position. One commenter suggested the proposed
regulation could harm U.S. workers by guaranteeing full-time work for
the period to foreign workers, while there is no such guarantee
provided to U.S. workers in any seasonal position. The commenter also
stated that while employers can state their intention to hire temporary
workers full-time, if the weather does not cooperate, the employer may
have no choice but to reduce hours in a particular week and that under
this provision, the employer would not be able to do this, causing
significant harm to the business and the U.S. workers whose hours would
need to be reduced even further in order to ensure that foreign workers
were paid a full-time wage. The commenter recommended a revised
attestation stating: ``The job opportunity is a bona fide, temporary
position and hours worked will be comparable to the full time hours
worked by associates in the same position at the employment site.'' As
stated in the preamble to the NPRM, the H-2B program has always
required that the positions being offered be temporary and full-time in
nature, and 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. To provide additional
clarity, the Department, in Sec. 655.4 has provided a definition of
full-time employment that reflects our experience in the administration
of this program. We will continue to make determinations of whether
work is full-time for foreign labor certification purposes based on the
facts, program experience, customary practice in the industry, and any
investigation of the attestation. The Department has therefore decided
to retain the proposed language.
6. Section 655.22(k) [(i) in Final Rule]--Layoff Provisions
Under the NPRM, an employer seeking to employ H-2B workers would
have been required to attest that it is not displacing any similarly
employed 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. The Department
received a number of comments from various groups on this provision.
A number of commenters favored the requirement, noting that it
assisted efforts to ensure that employers cannot lay off U.S. workers
after seeking to hire H-2B workers to perform the same services. Other
commenters, however, had concerns regarding the implementation of the
prohibition and the potential liability.
Several commenters were concerned that the requirement to contact
former employees who had been laid off would be onerous, given the
difficulties in reaching what is purportedly a transient population,
making such contact unduly burdensome. The Department finds this
argument unpersuasive. The commenter did not support the summary
statements that all temporary or seasonal help is transient and
rootless in the communities in which the work is performed. Even
assuming that such workers do not have lasting ties to the employer,
employers generally maintain continuing contact with former employees
for many purposes--including, but not limited to, the provision of
payroll tax information the following year and the transfer or
disposition of benefits (including unemployment benefits). Moreover, by
limiting the requirement for such contact to the 120 days or less
before the employer's date of need for the H-2B workers, the employer's
last contact information would likely be current, making such contact,
generally speaking, relatively simple.
One commenter asserted that the layoff provision conflicts with the
definition of seasonality, noting that by definition a seasonal
employee will always be laid off within the period set forth in an
annual cycle. An employer association also objected to the provision on
the ground that requiring the consideration of U.S. workers would force
employers who laid off U.S. workers at the end of one season to hire
them again at the commencement of the next season because the timing
would put the next season within the 120-day window.
In response to these comments, the Department has limited the
applicability of the layoff provision to 120 days on either side of the
date of need. This broad period of time, covering two thirds of the
year, will protect U.S. workers near the time of recruiting for and
hiring H-2B workers, which is when U.S. workers are most vulnerable,
but avoids the complications of overlapping seasons noted by some
commenters.
The Department notes that much of the concern of those commenters
regarding the re-hiring of U.S. workers stems from a belief that such
workers will not show up or be interested in being re-hired. But, by
limiting the applicability of the provision to within 120 days of the
date of need (as well as the actual occupation and the area of intended
employment of the sought-after H-2B certification), this provision
affords laid off workers a reasonable opportunity to apply for
vacancies for which they qualify, striking an appropriate balance
between worker protection and employer needs.
Some commenters noted the need for a strengthening of the layoff
provision, calling for additional safeguards against massive layoffs of
U.S. workers by strengthening requirements for how employers will
demonstrate they have made efforts to contact former employees. The
Department declines to do so at this time. Employers will be allowed to
document their contact of former employees using any objective means at
their disposal in a manner guaranteed to ensure a good faith contact
effort has been made. The Department does not have evidence at this
time that employers will engage in fraudulent behavior with respect to
this requirement. The Department will monitor this attestation, and all
other employer attestations, through post-certification audits and will
note the need for program modifications through that process.
7. Section 655.22(l) [(j) in Final Rule]--Prohibition Against Payments
As in the proposal, the Final Rule requires that an employer attest
that it has not and will not shift the costs of preparing or filing the
H-2B temporary labor certification application to the temporary worker,
including the costs of domestic recruitment or attorneys' and agent
fees. The domestic recruitment, legal, and other costs associated with
[[Page 78039]]
obtaining the labor certification are 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 and protect the wages of the
foreign worker from deterioration by unwarranted deduction. The
Department will continue to permit employers, consistent with the Fair
Labor Standards Act (FLSA), to make deductions from a worker's pay for
the reasonable cost of furnishing housing and transportation, as well
as worker expenses such as passport and visa fees (see fuller
discussion below concerning transportation costs under the FLSA).
This section, pertaining to the receipt of payments by the employer
from the employee or a third party, received many comments. Some of the
commenters opposed the provision in its entirety, arguing it will make
the program prohibitively expensive for employers. Other commenters
were concerned the requirement would eliminate the current practice of
having the employee pay for part of the recruiting and visa costs as an
incentive for the workers not to leave the employer. Others supported
this provision in its entirety, while still others agreed with the
intent of the provision but found the language ambiguous. One specialty
bar association not only supported the prohibition on cost-shifting for
recruitment, but asked the Department to strengthen the prohibition
language. However, this commenter was adamantly opposed to the
prohibition against foreign workers paying the attorney's fees. The
Department disagrees with the comments opposing this provision. We
believe that these expenses are the costs of doing business and should
be borne by the employer. The Department took all comments into
consideration and modified the provision to clarify and strengthen the
prohibition. The Final Rule applies the prohibition to attorneys and
agents, not simply to employers. As rewritten, the provision eliminates
reference to payments from ``any other party;'' it applies only to
payments from the employees.
This section in the NPRM also would have prohibited the employer
from receiving payments ``of any kind for any activity related to the
labor certification'' process. The Department received a comment
arguing that the phrase ``received payment * * * as an incentive or
inducement to file'' is ambiguous. The Department took this comment
into consideration and removed reference to incentive or inducement.
In addition, and based upon the comments received, the Department
has revised the provision on cost-shifting for greater clarity. As
mentioned above, the Department has eliminated the qualifying language
regarding the incentive and inducement to filing, again to simplify for
all employers engaging in recruitment activities what is prohibited. By
simplifying the provision to prohibit employers who submit applications
from seeking or receiving payment for any activity related to the
recruitment of H-2B workers, the Department hopes to achieve consistent
and enforceable compliance.
With regard to the application of the FLSA to H-2B workers' inbound
subsistence and transportation costs, we note that a number of district
courts have issued decisions on this question. See De Leon-Granados v.
Eller & Sons Trees Inc., 2008 WL 4531813 (N.D. Ga., Oct. 7, 2008);
Rosales v. Hispanic Employee Leasing Program, 2008 WL 363479 (W.D.
Mich. Feb. 11, 2008); Rivera v. Brickman Group, 2008 WL 81570 (E.D. Pa.
Jan. 7, 2008); Castellanos-Contreras v. Decatur Hotels, LLC, 488 F.
Supp. 2d 565 (E.D. La. 2007); Recinos-Recinos v. Express Forestry Inc.,
2006 WL 197030 (E.D. La. Jan. 24, 2006). These district courts have
referenced the appellate court's decision in Arriaga v. Florida Pacific
Farms, L.L.C., 305 F.3d 1228 (11th Cir. 2002), which held that growers
violated the minimum wage provisions of the FLSA by failing to
reimburse farmworkers during their first workweek for travel expenses
(and visa and immigration fees) paid by the workers employed by the
growers under the H-2A program. Under the FLSA, pre-employment expenses
incurred by workers that are properly business expenses of the employer
and primarily for the benefit of the employer are considered ``kick-
backs'' of wages to the employer and are treated as deductions from the
employees' wages during the first workweek. 29 CFR 531.35. Such
deductions must be reimbursed by the employer during the first workweek
to the extent that they effectively result in workers' weekly wages
being below the minimum wage. 29 CFR 531.36. Although the employer in
the Arriaga case did not itself make direct deductions from the
workers' wages, the Court held that the costs incurred by the workers
amounted to ``de facto deductions'' that the workers absorbed, thereby
driving the workers' wages below the statutory minimum. The Eleventh
Circuit reasoned that the transportation and visa costs incurred by the
workers were primarily for the benefit of the employer and necessary
and incidental to the employment of the workers and stated that
``[t]ransportation charges are an inevitable and inescapable
consequence of having H-2A foreign workers employed in the United
States; these are costs which arise out of the employment of H-2A
workers.'' Finally, the court held that the growers' practices violated
the FLSA minimum wage provisions, even though the H-2A regulations
provide that the transportation costs need not be repaid until the
workers complete 50 percent of the contract work period. The Eleventh
Circuit noted that the H-2A regulations require employers to comply
with applicable federal laws, and in accepting the contract orders in
this case, the ETA Regional Administrator informed the growers in
writing that their obligation to pay the full FLSA minimum wage is not
overridden by the H-2A regulations.
The Department believes that the better reading of the FLSA and the
Department's own regulations is that relocation costs under the H-2A
program are not primarily for the benefit of the employer, that
relocation costs paid for by H-2A workers do not constitute kickbacks
within the meaning of 29 CFR 531.35, and that reimbursement of workers
for such costs in the first paycheck is not required by the FLSA.
The FLSA requires employers to pay their employees set minimum
hourly wages. 29 U.S.C. 206(a). The FLSA allows employers to count as
wages (and thus count toward the satisfaction of the minimum wage
obligation) the reasonable cost of ``furnishing [an] employee with
board, lodging, or other facilities, if such board, lodging, or other
facilities are customarily furnished by such employer to his
employees.'' 29 U.S.C. 203(m). The FLSA regulations provide that
``[t]he cost of furnishing `facilities' found by the Administrator to
be primarily for the benefit or convenience of the employer will not be
recognized as reasonable [costs within the meaning of the statute] and
may not therefore be included in computing wages.'' 29 CFR 531.3(d)(1).
The FLSA regulations further provide examples of various items that the
Department has deemed generally to be qualifying facilities within the
meaning of 29 U.S.C. 203(m) (see also 29 CFR 531.32(a)), as well as
examples of
[[Page 78040]]
various items that the Department has deemed generally not to be
qualifying facilities (see 29 CFR 531.3(d)(2), 29 CFR 531.32(c)).
Separate from the question whether items or expenses furnished or
paid for by the employer can be counted as wages paid to the employee,
the FLSA regulations contain provisions governing the treatment under
the FLSA of costs and expenses incurred by employees. The regulations
specify that wages, whether paid in cash or in facilities, cannot be
considered to have been paid by the employer and received by the
employee unless they are paid finally and unconditionally, or ``free
and clear.'' 29 CFR 531.35. Thus, ``[t]he wage requirements of the Act
will not be met where the employee `kicks-back' directly or indirectly
to the employer or to another person for the employer's benefit the
whole or part of the wage delivered to the employee. This is true
whether the `kick-back' is made in cash or in other than cash. For
example, if the employer requires that the employee must provide tools
of the trade that will be used in or are specifically required for the
performance of the employer's particular work, there would be a
violation of the Act in any workweek when the cost of such tools
purchased by the employee cuts into the minimum or overtime wages
required to be paid him under the Act.'' Id. The regulations treat
employer deductions from an employee's wages for costs incurred by the
employer as though the deductions were a payment from the employee to
the employer for the items furnished or services rendered by the
employer, and applies the standards set forth in the ``kick-back''
provisions at 29 CFR 531.35 to those payments. Thus, ``[d]eductions for
articles such as tools, miners' lamps, dynamite caps, and other items
which do not constitute `board, lodging, or other facilities' '' are
illegal ``to the extent that they reduce the wages of the employee in
any such workweek below the minimum required by the Act.'' 29 CFR
531.36(b).
In sum, where an employer has paid for a particular item or
service, under certain circumstances it may, pursuant to 29 U.S.C.
203(m), count that payment as wages paid to the employee. On the other
hand, when an employee has paid for such an item or service, an
analysis under 29 CFR 531.35 is required to determine whether the
payment constitutes a ``kick-back'' of wages to the employer that
should be treated as a deduction from the employee's wages.
The Arriaga court seems to have assumed that all expenses
necessarily fall into one of these two categories--that either they
qualify as wages under 29 U.S.C. 203(m) or they constitute a ``kick-
back'' under 29 CFR 531.35. See Arriaga, 305 F.3d at 1241-42 (stating
that if a payment ``may not be counted as wages'' under 29 U.S.C.
203(m), then ``the employer therefore would be required to reimburse
the expense up to the point the FLSA minimum wage provisions have been
met'' under 29 CFR 531.35 and 29 CFR 531.36). That is incorrect. For
example, if an employer were to give an employee a valuable item that
was not ``customarily furnished'' to his or her employees, the employer
would not be able to count the value of that item as wages under 29
U.S.C. 203(m) unless the employer ``customarily furnished'' the item to
his or her employees. Nevertheless, since the employee paid nothing for
that item, it clearly would not constitute a ``kick-back'' of wages to
the employer that would have to be deducted from the employee's wages
for purposes of determining whether the employer met its minimum wage
obligations under 29 U.S.C. 206(a). Similarly, if a grocery employee
bought a loaf of bread off the shelf at the grocery store where he or
she worked as part of an arms-length commercial transaction, the
payment made by the employee to the employer would not constitute a
``kick-back'' of wages to the employer, nor would the loaf of bread
sold by the employer to the employee be able to be counted toward the
employee's wages under 29 U.S.C. 203(m). Both parties would presumably
benefit equally from such a transaction--it would neither be primarily
for the benefit of the employer, nor would it be primarily for the
benefit of the employee.
Expenses paid by an employer that are primarily for the employer's
benefit cannot be counted toward wages under 29 U.S.C. 203(m). See 29
CFR 531.3(d). Similarly, expenses paid by an employee cannot constitute
a ``kick-back'' unless they are for the employer's benefit. See 29 CFR
531.35. An analysis conducted under 29 U.S.C. 203(m) determining that a
particular kind of expense is primarily for the benefit of the employer
will thus generally carry through to establish that the same kind of
expense is primarily for the benefit of the employer under 29 CFR
531.35. Each expense, however, must be analyzed separately in its
proper context.
The question at issue here is whether payments made by H-2B
employees for the cost of relocating to the United States, whether paid
to a third party transportation provider or paid directly to the
employer, constitutes a ``kick-back'' of wages within the meaning of 29
CFR 531.35. If the payment does constitute a ``kick-back,'' then the
payment must, as the Arriaga court decided, be counted as a deduction
from the employee's first week of wages under the FLSA for purposes of
determining whether the employer's minimum wage obligations have been
met.
The Department does not believe that an H-2B worker's payment of
his or her own relocation expenses constitutes a ``kick-back'' to the
H-2B employer within the meaning of 29 CFR 531.35. It is a necessary
condition to be considered a ``kick-back'' that an employee-paid
expense be primarily for the benefit of the employer. The Department
need not decide for present purposes whether an employee-paid expense's
status as primarily for the benefit of the employer is a sufficient
condition for it to qualify as a ``kick-back,'' because the Department
does not consider an H-2B employee's payment of his or her own
relocation expenses to be primarily for the benefit of the H-2B
employer.
Both as a general matter and in the specific context of guest
worker programs, employee relocation costs are not typically considered
to be ``primarily for the benefit'' of the employer. Rather, in the
Department's view, an H-2B worker's inbound transportation costs either
primarily benefit the employee, or equally benefit the employee and the
employer. In either case, the FLSA and its implementing regulations do
not require H-2B employers to pay the relocation costs of H-2B
employees. Arriaga and the district courts that followed its reasoning
in the H-2B context misconstrued the Department's regulations and are
wrongly decided.
As an initial matter, any weighing of the relative balance of
benefits derived by H-2B employers and employees from inbound
transportation costs must take into account the fact that H-2B workers
derive very substantial benefits from their relocation. Foreign workers
seeking employment under the H-2B nonimmigrant visa program often
travel great distances, far from family, friends, and home, to accept
the offer of employment. Their travel not only allows them to earn
money--typically far more money than they could have in their home
country over a similar period of time--but also allows them to live and
engage in non-work activities in the U.S. These twin benefits are so
valuable to foreign workers that these workers have proven willing in
many instances to pay recruiters thousands of dollars (a practice that
the Department is now taking measures to curtail) just to gain access
to the job opportunities, at times
[[Page 78041]]
going to great lengths to raise the necessary funds. The fact that H-2B
workers travel such great distances and make such substantial
sacrifices to obtain work in the United States indicates that the
travel greatly benefits those employees.
Most significantly, however, the Department's regulations
explicitly state that ``transportation furnished employees between
their homes and work where the travel time does not constitute hours
worked compensable under the Act and the transportation is not an
incident of and necessary to the employment'' are qualifying
``facilities'' under 29 U.S.C. 203(m). 29 CFR 531.32(a). As qualifying
facilities, such expenses cannot by definition be primarily for the
benefit of the employer. 29 CFR 531.32(c). The wording of the
regulation does not distinguish between commuting and relocation costs,
and in the context of the H-2B program, inbound relocation costs fit
well within the definition as they are between the employee's home
country and the place of work.
The Arriaga court ruled that H-2A relocation expenses are primarily
for the benefit of the employer in part because it believed that under
29 CFR 531.32, ``a consistent line'' is drawn ``between those costs
arising from the employment itself and those that would arise in the
ordinary course of life.'' 305 F.3d at 1242. The court held that
relocation costs do not arise in the ordinary course of life, but
rather arise from employment. Id. Commuting costs and relocation costs
cannot be distinguished on those grounds, however. Both kinds of
expenses are incurred by employees for the purpose of getting to a work
site to work. Moreover, an employee would not rationally incur either
kind of expense but for the existence of the job. Both the employer and
the employee derive benefits from the employment relationship, and,
absent unusual circumstances, an employee's relocation costs to start a
new job cannot be said to be primarily for the benefit of the employer.
That is not to say that travel and relocation costs are never
properly considered to be primarily for the benefit of an employer. The
regulations state that travel costs will be considered to be primarily
for the benefit of the employer when they are ``an incident of and
necessary to the employment.'' 29 CFR 531.32(c). This might include,
for example, a business trip, or an employer-imposed requirement that
an employee relocate in order to retain his or her job. Relocation
costs to start a new job will rarely satisfy this test, however.
In a literal sense it may be necessary to travel to a new job
opportunity in order to perform the work, but that fact, without more,
does not render the travel an ``incident'' of the employment. Inbound
relocation costs are not, absent unusual circumstances, any more an
``incident of * * * employment'' than is commuting to a job each day.
Indeed, inbound relocation costs are quite similar to commuting costs
in many respects, which generally are not considered compensable. Cf.
DOL Opinion Letter WH-538 (Aug. 5, 1994) (stating that travel time from
home to work is ``ordinary home-to-work travel and is not compensable''
under the FLSA); Vega ex rel. Trevino v. Gasper, 36 F.3d 417 (5th Cir.
1994) (finding travel to and from work and home not compensable
activity under Portal-to-Portal Act). In fact, there is no reason to
believe that the drafters of 29 U.S.C. 203(m) and 206(a) ever intended
for those provisions to indirectly require employers to pay for their
employees' relocation and commuting expenses. To qualify as an
``incident of * * * employment'' under the Department's regulations,
transportation costs must have a more direct and palpable connection to
the job in question than merely serving to bring the employee to the
work site.
Taking the Arriaga court's logic to its ultimate conclusion would
potentially subject employers across the U.S. to a requirement to pay
relocation expenses for all newly hired employees--or at least to pay
relocation expenses for all newly hired foreign employees, since
international relocation is perhaps less ``ordinary'' than
intranational relocation. That simply cannot be correct. The language
of 29 U.S.C. 203(m) and 206(a) and their implementing regulations
provide a very thin reed on which to hang such a seismic shift in
hiring practices, particularly so many years after those provisions
have gone into effect. Nor does the fact that H-2B workers are
temporary guest workers change the equation. Even assuming that H-2B
workers derive somewhat less benefit from their jobs because they are
only temporary, that fact alone would not render the worker's
relocation expenses an ``incident'' of the temporary job. If it did,
ski resorts, camp grounds, shore businesses, and hotels would all be
legally required to pay relocation costs for their employees at the
beginning of each season--again, a result that is very difficult to
square with the language and purpose of 29 U.S.C. 203(m) and 29 CFR
531.35.
A stronger argument could be made, perhaps, that employers derive a
greater-than-usual benefit from relocation costs when they hire foreign
guest workers such as H-2B workers, because employers generally are not
allowed to hire guest workers unless they have first attempted but
failed to recruit U.S. workers. Thus, such employers have specifically
stated a need to hire non-local workers. Given the substantially
greater benefit that foreign guest workers generally derive from work
opportunities in the United States than they do from employment
opportunities in their home countries, however, the Department believes
that this at most brings the balance of benefits between the employer
and the worker into equipoise. Moreover, the employer's need for non-
local workers does nothing to transform the relocation costs into an
``incident'' of the job opportunity in a way that would render the
employee's payment of the relocation expenses a ``kick-back'' to the
employer. If it did, courts would soon be called upon every time an
employer hired an out-of-state worker to assess just how great the
employer's need for the out-of-state employee was in light of local
labor market conditions. Conversely, the courts would also have to
inquire into the employee's circumstances, and whether the employee had
reasonably comparable job prospects in the area from which the employee
relocated. Again, the Department does not believe such a result is
consistent with the text or the intent of the FLSA or the Department's
implementing regulations.
It is true, of course, that H-2B employers derive some benefit from
an H-2B worker's inbound travel. To be compensable under the FLSA,
however, the question is not whether an employer receives some benefit
from an item or paid-for cost, but rather whether they receive the
primary benefit. Significantly, despite the fact that employers nearly
always derive some benefit from the hiring of state-side workers as
well, such workers' relocation costs generally have not been considered
to be ``primarily for the benefit of the employer.'' That is so because
the worker benefits from the travel either more than or just as much as
the employer.
In sum, the Department believes that the costs of relocation to the
site of the job opportunity generally is not an ``incident'' of an H-2B
worker's employment within the meaning of 29 CFR 531.32, and is not
primarily for the benefit of the H-2B employer. The Department states
this as a definitive interpretation of its own regulations and expects
that courts will defer to that interpretation.
[[Page 78042]]
8. Section 655.22(m) [(k) in Final Rule]--Bona Fide Inquiry
As proposed in the NPRM, the Final Rule at Sec. 655.22(k) requires
an employer that is a job contractor to attest that if it places its
employees at the job sites of other employers, it has made a written
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 120 days of the date of need. To comply
with this attestation, the Department is requiring the employer to
inquire in writing to and receive a written response from the employer
where the relevant H-2B worker 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 proposed attestation at Sec. 655.22(k) 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.
The Department received several comments on this secondary
placement attestation provision. While some were in favor of the
requirement, some employer associations expressed concern that making
such an inquiry of their clients was unfair and unduly burdensome. The
Department acknowledges that this attestation imposes an additional
level of inquiry between job contractors and their clients where the
contractor will be providing H-2B workers at a client site. The INA's
mandate of the unavailability of persons capable of performing the job
duties for which the H-2B workers are sought is at the heart of this
requirement.
It is the H-2B worker's job activity, rather than the identity of
the H-2B worker's employer, which is required to be measured against
the availability of U.S. workers; the H-2B worker can be admitted only
upon assurances of the unavailability of unemployed persons able to
take the H-2B job opportunity. As a result, an H-2B worker performing
duties at company X, for which company Y has hired him and pays him,
may have an adverse effect not only on employees at the petitioning job
contractor company employing him but also the company benefiting from
his or her services. The limitations imposed by the Department--area of
intended employment, occupation, and timing--provide parameters to
reassure employers while at the same time enabling them to ensure full
compliance with the mandates of the H-2B program.
One commenter agreed with this provision but did not believe a
labor contractor should be held liable for the statements provided by
those entities. The Department believes this commenter misinterpreted
this section. The job contractor should make a bona fide inquiry and
document the inquiry and response. If it later turns out that the
employer who received the H-2B worker from the job contractor displaced
a U.S. worker during the stated timeframe, proof of the employer's
negative response to the job contractor's bona fide inquiry will
relieve the job contractor of liability for that violation.
Another commenter requested that we strike this provision in its
entirety because it does not allow for change in circumstances that
would warrant displacing U.S. workers. The Department sees no reason
why the U.S. worker would have to be displaced over the foreign worker
and therefore, declines to eliminate this provision.
Finally, an industry association commented that H-2B workers
employed by carnivals and circuses are constantly being placed on job
sites of other employers as they travel the circuit and that this
requirement is too difficult to comply with. It is difficult for the
Department to discern, from the manner in which this comment was
written, whether the H-2B workers are being paid by one petitioning
employer throughout the itinerary or whether these H-2B workers are
placed on the payroll of the fixed-site employer at each location. The
Department has not made any changes to this section, as no compliance
challenge was clearly communicated.
9. Section 655.22(o) [(m) in Final Rule]--Notice to Worker of Required
Departure
Under the Final Rule, employers have a responsibility to inform
foreign workers of their duty to leave the United States at the end of
the authorized period of stay, and to pay for the return transportation
of the H-2B worker if that worker is dismissed early. As stated in the
NPRM, DHS will establish a new land-border exit pilot program for
certain 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.
The Department received one comment on the duty to inform the
worker of the obligation to depart from the country. This commenter
opined that it is not the responsibility of employers to become unpaid
immigration officers. The Department is not suggesting that it is
placing any burden on employers to act as immigration officers. The
Department has retained the requirement, while clarifying it to be
consistent with DHS's regulations on this issue.
10. Section 655.22(p) [(n) in Final Rule]--Representation of Need
The Final Rule requires the employer to attest that it truly and
accurately stated the number of workers needed, the dates of need, and
the reasons underlying the temporary need in its labor certification
request. The Department received two comments on this provision. One
requested that we change the words ``truly and accurately'' to
``reasonable and good faith'' based on estimates from information
available at the time of filing the certification. The Department has
considered this change but declines to amend the regulatory language.
The concern of the commenter of the need for flexibility is found in
the provision in both the NPRM and this Final Rule regarding amendments
(Sec. 655.34(c)(2)) of the start date of the certification. Any need
for additional flexibility on the part of the Department must be
balanced against the Department's need to ensure integrity in an
attestation-based program; giving freedom to change its dates of need
allows unscrupulous employers to submit applications not based on an
actual need, thus circumventing the entire process in an attempt to
obtain limited visas.
The second commenter expressed concern with the date of need
requirement and requested the Department change several sections on
which this attestation is predicated. One of the major concerns of this
commenter was the potential need to amend start dates after
certification if an employer must wait for visa numbers to become
available. The Department has, however, retained the underlying
provision for this attestation. While the Department permits amendment
of the start date of the certification by the employer both prior to
certification (Sec. 655.34(c)(2)) and after certification to certify a
late adjudication (Sec. 655.34(c)(4)), the reconciliation of the start
date becomes an issue for DHS adjudication. The Department notes that a
regulatory provision allowing movement of the date of need after
certification would be inconsistent with the DHS proposed rule, which
would not permit the filing of a petition whose start date was
inconsistent with the start date of the labor certification.
This commenter also proposed, in the alternative, that employers be
allowed
[[Page 78043]]
to submit their I-129 labor certification applications to DHS with a
note that they have submitted their request for an amendment to the
Department and that the Department be required to adjudicate the
request for amendment within five days. The Department considered the
comment and has decided not to establish a deadline for the processing
of amendment requests. We defer to DHS to determine what is appropriate
for its adjudication of I-129 petitions which falls exclusively under
its jurisdiction.
L. Retention of Supporting Documentation
The Final Rule contains a modified requirement that employers
retain specified documentation outlined in the proposed regulations to
demonstrate compliance with program requirements. The proposed
retention period was for 5 years. This documentation must be provided
in the event of an RFI, post-adjudication audit, WHD investigation or
other similar activity. The Department received a few comments in
response to this proposed requirement. One small business coalition
expressed its support, while another organization expressed concern
that a 5-year document retention requirement was too long, especially
for small employers, or employers like circuses and carnivals that are
mobile or have a mobile component. Another commenter requested the
Department prepare and provide a list to H-2B employers in one place,
in plain language--perhaps as part of broad stakeholder compliance
assistance--the documentation that should be retained. In response to
concerns about the length of time for records retention, the Department
has reduced the requirement from 5 years to 3 years. The documentation
required will support specific attestations by the employer under the
program. We will provide additional guidance in the course of
individual and broad-based technical assistance and educational
outreach to the employer community, including on the OFLC Web site. We
will consider the issuance of additional written guidance, as
appropriate.
M. Section 655.23(c)--Request for Further Information
The Department proposed to issue a Request for Further Information
(RFI) within 14 days of receiving the application, if needed, for the
purpose of adjudicating the application for labor certification. All of
those who commented on this provision requested that the timeframes be
changed, but most also recommended an additional provision that would
obligate the Department to process and respond to the information
received through the RFI within a certain period of time. The
Department agrees and shortened both the issuance and response time to
7 days. The Department also has added a provision that obligates the CO
to issue a Final Determination within 7 business days of receiving the
employer's response, or by 60 days before the date of need, whichever
is greater.
N. Section 655.24--Post-Adjudication Audits
The Department proposed to use various selection criteria for
identifying applications for audit review after the application has
been adjudicated in an effort to maintain and enhance program
integrity. The audits are meant to permit the Department to ensure
compliance with the terms and conditions by an employer and to fulfill
the Secretary's statutory mandate to certify applications only where
unemployed U.S. workers capable of performing such services cannot be
found. Failure by an employer to respond to the audit could lead to
debarment from the program as could a finding by the Department that
the employer has not been complying with the terms and conditions
attested to in the application. The Department received many comments
on this provision. They were equally divided between those that opposed
post-adjudication audits and those that believed audits are an
effective tool to enhance integrity. Those who opposed the post-
adjudication audits did not make any alternative suggestions on how the
Department could determine compliance with the program. Therefore, with
no other alternatives available, the Department believes its initial
analysis is correct and, therefore, has not made any substantive
changes to this section, save for including the option for the CO to
refer any findings that an employer violated the terms and conditions
of the program with respect to eligible U.S. workers to the Department
of Justice, Civil Rights Division, Office of Special Counsel for Unfair
Immigration Related Employment Practices, as suggested by one
commenter.
O. Section 655.30--Supervised Recruitment
The Department proposed to require certain employers to engage in
supervised pre-filing recruitment to ensure compliance with recruitment
requirements. One comment was received on this provision. The commenter
believes that the NPC will be unable to handle such a responsibility as
effectively and as efficiently as did the local SWAs and that it will
affect the integrity of the program. The Department respectfully
disagrees with this commenter and has retained the provision as
proposed. We believe that centralizing the process will provide
uniformity and expertise that will enhance program integrity. Further,
in the permanent labor certification program, supervised recruitment is
conducted under Federal guidance and not SWA supervision.
P. Section 655.31--Debarment
The Department's NPRM proposed a mechanism allowing the Department
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 program's statutory
requirements. Further, debarment and other enforcement mechanisms,
e.g., audits, are necessary and reasonable program compliance checks to
balance the transition to an attestation-based filing system. 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 for 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
employment-based immigration program.
Upon further consideration, based in part upon the Department's
recent efforts to modernize its H-2A labor certification regulations,
the Department has decided to modify the debarment provision so that it
more closely parallels the debarment provision for the H-2A regulation
at 20 CFR 655.118, given the similarity of the H-2A and H-2B labor
certification programs. While many of the grounds for debarment are
substantially similar in the Final Rule as in the NPRM, the Final Rule
contains additional safeguards for both workers and employers, which
are explained in greater detail below.
1. Debarment Authority
An advocacy organization questioned the Department's authority to
debar attorneys, agents, or employers from the H-2B program and
asserted that a determination of a violation should only be made after
notice of violation and an
[[Page 78044]]
opportunity for a hearing. The debarment of entities from participating
in a government program is an inherent part of an agency's
responsibility to maintain the integrity of that program. As the Second
Circuit found in Janik Paving & Construction, Inc. v. Brock, 828 F.2d
84 (2d Cir. 1987), the Department possesses an inherent authority to
refuse to provide a benefit or lift a restriction for an employer that
has acted contrary to the welfare of U.S. workers. In assessing the
Department's authority to debar violators, the court found that ``[t]he
Secretary may * * * make such rules and regulations allowing reasonable
variations, tolerances, and exemptions to and from any or all
provisions * * * as [s]he may find necessary and proper in the public
interest to prevent injustice of undue hardship or to avoid serious
impairment of the conduct of Government business.'' Id. at 89.
In addition, although the Administrative Procedure Act provides
that parties are entitled to appear before the agency with legal
counsel, see 5 U.S.C. 555(b), this provision ``leaves intact the
agencies' control over both lawyers and non-lawyers who practice before
them,'' Attorney General's Manual on the APA (1947) at 65. The
Department's debarment of attorneys and agents under the H-2B program
is also consistent with the Department's longstanding practice of
regulating attorneys and representatives who appear before the agency.
See, e.g., In re judicial inquiry re Miroslaw Kusmirek, 2000-INA-116
(Sept. 18, 2002) (sanctioning a representative for providing forged
documents to the Department of Labor).
In order to encourage compliance, the regulatory scheme for the H-
2B program relies on attestations, audits, investigations and the
remedial measure of debarment. Use of debarment as a mechanism to
encourage compliance has been endorsed in the INA for a number of
foreign labor certification and attestation programs. Ensuring the
integrity of a statutory program enacted to protect U.S. workers is an
important part of the Department's mission.
As part of the Department's inherent debarment authority, the
Department may determine the particular procedures that may apply to
the process. Accordingly, it is within the Department's authority to
require the OFLC Administrator to issue a Notice of Intent to Debar no
later than 2 years after the occurrence of the violation; offer the
employer an opportunity to submit evidence in rebuttal; and if the
rebuttal evidence is not timely filed or if the Administrator
determines that the employer, attorney, or agent more likely than not
meets one or more of the bases for debarment, issue a Notice of
Debarment which may be subject to administrative appeal through the
Department's Board of Alien Labor Certification Appeals (BALCA). Like
the NPRM, the Final Rule provides that the Notice of Debarment shall be
in writing, state the reason for the debarment finding and duration of
debarment, and identify the appeal rights. Additionally, the Final Rule
provides that the debarment will take effect on the start date
identified in the Notice of Debarment unless the administrative appeal
is properly filed within 30 days of the date of the Notice, thereby,
staying the debarment pending the outcome of the appeal.
2. Grounds for Debarment
While a union and a state agency expressed their support for the
debarment provisions, a law firm asserted that the debarment was an
unduly strict sanction for minor violations of new procedures, the
details of which are still not clear. We disagree with the commenter's
characterization of violations warranting debarment as ``minor.'' The
Department will not debar for ``minor'' violations. Rather most of the
violations that will be the basis of potential debarment actions
require a pattern or practice of acts that: (1) Are significantly
injurious to the wages or benefits offered under the H-2B program or
working conditions of a significant number of the employer's U.S. or H-
2B workers; (2) reflect a significant failure to offer employment to
each qualified domestic worker who applied for the job opportunity for
which certification was being sought, except for lawful job-related
reasons; (3) reflect a significant failure to comply with the
employer's obligations to recruit U.S. workers; (4) reflect a
significant failure to comply with the RFI or audit process; (5)
reflect the employment of an H-2B worker outside the area of intended
employment, or in an activity/activities not listed in the job order
(other than an activity minor and incidental to the activity/activities
listed in the job order), or after the period of employment specified
in the job order and any approved extension; or (6) reflect a
significant failure to comply with supervised recruitment. However, the
Department recognizes that there are some acts which the Department
would have no other available remedy to enforce would warrant debarment
even without a pattern or practice. These acts are set forth separately
under Sec. 655.31(d)(2) through (5). These acts are: Fraud; the
failure to cooperate with a DOL investigation or with a DOL official
performing an investigation, inspection or law enforcement function;
the failure to comply with one or more sanctions or remedies imposed by
the ESA, or with one or more decisions of the Secretary or court; and a
single heinous act showing such flagrant disregard for the law that
future compliance with program requirements cannot reasonably be
expected.
As to the details of the violation not being clear, we believe that
the regulations are quite clear in setting forth the various grounds
under which an employer, attorney or agent may be debarred. The
Department understands the seriousness of debarment as a penalty and,
in considering the comments received in response to the NPRM, believes
that the resulting debarment provision upholds the integrity of the H-
2B labor certification program and puts employers on notice of what
violations are sufficiently serious that could result in potential
debarment.
Additionally, the law firm requested a provision for training prior
to being subject to sanctions such as debarment. While we do not think
that it is necessary to address such training directly in the
regulation, OFLC will issue further guidance, as appropriate, to orient
stakeholders and staff to these new provisions.
3. Debarment of Attorneys and Agents
An international recruiting company requested that the Department
apply a different standard for the debarment of attorneys and agents
from the debarment of employers. In particular, the commenter asserted
that the evidence to debar the agent or attorney would need to be
legally significant since they do not share in the task of employment
and stated that many agents accept information from the employer at
face value and accept information as true. While attorneys and agents
are not strictly liable for all actions of the employers they represent
they do have responsibilities attendant to their participation in the
program. Employers, agents, and attorneys each must remain aware of
their particular responsibilities under the labor certification process
and of the consequences of submitting false or misleading information
to a Federal agency. Accordingly, the regulation provides that the
Administrator may debar agents and attorneys not only for participating
in, but also having knowledge of, or having reason to know of, the
employer's substantial violation.
An advocacy organization objected to the omission of appeal rights
for
[[Page 78045]]
attorneys and agents with respect to a Notice of Debarment. The
commenter stressed that since attorneys and agents may themselves be
subject to a Notice of Debarment, they ought to have recourse to
correct a conceivably incurred or unfair decision. The commenter also
noted that there may be certain instances where the interests of an
employer and attorney or agent may diverge with respect to pursuing an
appeal and the latter would be harmed due to the lack of appeal rights.
The commenter also noted that the Department's permanent labor
certification regulations provide not only the employer but any
debarred person or entity the right to appeal the debarment decision.
We agree with commenter's concern and have included references to
attorneys' and agents' rebuttal and appeal rights, in additional to
that of employers.
4. Use of Labor Contractors
An advocacy organization expressed a concern that employers would
manipulate their legal identities resulting in abuses that would not be
cured by debarment. In particular, the commenter set forth a scenario
in which a company would retain a labor contractor or temporary agency
to serve as the ``employer'' for a group of foreign workers at the
company's work site. The commenter was concerned that the company would
take advantage of a labor contractor's false claim that no domestic
workers could be found, yet only the labor contractor would be debarred
as the ``employer,'' thus allowing the company to hire another labor
contractor to repeat the same abuses.
The commenter seems to presume all labor contractors would commit
violations of the program, which is a generalization that unfairly
portrays law abiding labor contractors in a negative light.
Nonetheless, this is a situation that would be of concern to the
Department and, if appropriate, we would pursue administrative means to
ascertain the veracity of applications and information submitted to the
Department.
5. Review of Debarment Determinations
The Department did not receive comments about the procedures for
the review of the Administrator, OFLC's debarment determinations.
However, to ensure consistency across programs, the Department has
included in the Final Rule procedures, identical to those set forth in
the Department's H-2A Final Rule, for hearings before an administrative
law judge and review of the administrative law judge's decision by the
Administrative Review Board. Under the Final Rule, a debarred party may
request a hearing which would be governed by the procedures in 29 CFR
part 18, and administrative law judge decisions would not be required
to be issued within a set period of time. We believe that this process
provides a period of time that is both sufficient for thorough
consideration of the grounds for debarment and expedient enough so as
to allow the Department to debar bad actors before they can cause any
additional harm while also minimizing the period of uncertainty for
employers in the case of a successful appeal.
Q. Section 655.32--Labor Certification Determinations
The proposed language delineated the criteria by which the
Administrator of OFLC will certify or deny applications. The
commenters, though citing this particular section of the NPRM, actually
commented on the attestation-based process in general. Their comments
were incorporated into that discussion above.
R. Section 655.33--Appeals to the BALCA
The Department's and DHS's NPRMs proposed a new model for the
adjudication of H-2B applications. Under current procedures, the
Department does not provide for any administrative review of decisions
either denying H-2B labor certification applications or rendering a
non-determination. Currently, the Department's decisions are advisory
to DHS and employers whose applications are denied or issued a non-
determination by the Department may submit countervailing evidence to
DHS and have access to administrative review under DHS procedures.
Under the DHS NPRM, the countervailing evidence process is eliminated
and employers seeking to file H-2B visa petitions will be required to
present an approved labor certification from DOL. Since DOL decisions
denying H-2B labor certification will no longer be subject to
additional review outside of the Department, we concluded that it would
be appropriate to provide an employer whose labor certification
application is denied an opportunity to seek review in the Department.
The Department's NPRM included such a procedure providing for
administrative review before the BALCA.
The Department received a number of comments on this portion of the
NPRM, the majority of which expressed dissatisfaction with the
proposal. We have carefully reviewed these comments and made several
changes in response. Several commenters expressed satisfaction with the
current appeal process and requested that it not be changed. To the
extent these comments related to concerns about the length of that
process, that question is discussed below. To the extent the commenters
expressed a preference for the retention of the current practice in
which countervailing evidence can be submitted to DHS when an H-2B
labor certification application is denied, similar comments were
submitted to DHS in response to its NPRM and DHS made no change in its
Final Rule. We defer to and adopt DHS's response on this issue.
Likewise, the concern expressed by one commenter that the time spent
utilizing the Department's appeals procedures will delay employers
getting into the queue at DHS for the limited number of available H-2B
visas, is a matter that is addressed by DHS in their Final Rule.
With regard to matters directly related to the Department's
proposal, a number of commenters objected to the provision that
precluded the submission of new evidence to the BALCA. We believe these
commenters do not recognize the totality of the proposal. The NPRM
provides that before a CO can deny an H-2B application, the CO must
issue an RFI that apprises the employer of the grounds for the proposed
denial and provides an opportunity to submit additional information.
The Department does not see any reason to provide another opportunity
to submit necessary information. In addition, providing such an
opportunity would inevitably delay issuance of final decisions from the
BALCA. Concerns about delays at the BALCA were expressed by a number of
commenters even in the absence of any authorization for the submission
of new evidence.
Several commenters expressed concern that the appeal process before
the BALCA would take too long. One noted specifically that no time
limit was contained for the BALCA to issue its docketing statement and
a briefing schedule. It was also pointed out that the NPRM provided
merely that the BALCA ``should'' notify the employer of its decision
within 20 days of the filing of the CO's brief. In response to comments
reflecting concerns about the timeliness of the appeal process, the
Final Rule reflects significantly shorter time frames, with the BALCA
decision due no later than 15 business days after the request for
review is filed.
One commenter suggested the possibility of allowing worker
representatives to participate in the administrative appeal process. We
have rejected that suggestion. Generally, the
[[Page 78046]]
Department's labor certification procedures do not involve
participation by third parties and we do not believe that their
involvement would enhance the process given the nature of the labor
certification determination.
S. Section 655.34(c)--Amendments
The Department received several comments on the provision requiring
the amendment of labor certifications if the start dates change and/or
the number of workers change. All commenters opposed this change. One
commenter admitted that employers set their start date based on the
availability of visa numbers. Other commenters claimed that this
provision makes it impracticable to adjust to market fluctuations
during the season. The Department appreciates the candid comments about
the difficulties this new requirement will create. However, the
Department's experience is that many times dates of need or number of
workers needed are changed to such a degree that the recruitment
previously done is stale by the time USCIS receives the application.
Changes to start dates, especially as the practice has become more
common, also raise a concern that U.S. workers who might indeed be
available for work on the new start date were not given the chance to
apply originally. Therefore, this requirement represents a reasonable
and logical solution. The only changes made to the section were for
clarification purposes.
T. Section 655.35--Required Departure
In consultation with DHS, the Department proposed to include, as
part of the employer's obligations, the requirement that employers
provide notice to the H-2B workers of their required departure at the
end of their authorized stay or separation from employment, whichever
occurs first. This section was designed in anticipation of DHS
establishing a registration of departure program. The provision
requires employers to inform their H-2B workers of their obligation to
register their departure at the port of exit. The Department received
one comment suggesting that we eliminate this provision because it is
unworkable due to the requirement for specific entry and exit points,
which is inevitably a guarantee for violations occurring. This
commenter also suggested we work with DHS instead. The Department
respectfully declines to eliminate this language. The entry-exit ports
and requirements continue to be matters of immigration under DHS's
jurisdiction; this language simply makes it an employer's obligation to
inform foreign workers of the workers' responsibility. The Department
did consult with DHS on this language to establish this employer
obligation and lay the appropriate groundwork as DHS continues to build
their next-generation entry-exit system.
U. Delegation of Enforcement Authority
As previously discussed, the INA provides the Department no direct
authority to enforce any conditions concerning the employment of H-2B
workers, including the prevailing wage attestation. DHS possesses that
authority pursuant to secs. 103 and 214(a) and (c) of the INA. 8 U.S.C.
1103 and 8 U.S.C. 1184(c)(14)(A). DHS may also delegate its authority
to the Department under secs. 103(a)(6) and 214(c)(14)(B) of the INA. 8
U.S.C. 1103(a)(6) and 8 U.S.C. 1184(c)(14)(B). DHS has chosen to
delegate its enforcement authority to DOL, which provides the basis for
the new enforcement provisions of this subpart. The delegation will not
take effect until this rule becomes effective.
V. Section 655.50(c)--Availability of Records in the Enforcement
Process
Language has been added to Sec. 655.50(c) to describe the
employer's responsibility to make records available when those records
are maintained in a central office.
W. Section 655.60--Compliance With Application Attestations
The NPRM proposed a WHD enforcement program addressing H-2B
employers' compliance with attestations made as a condition of securing
authorization to employ H-2B workers. The proposed enforcement program
also covered 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 would be reviewed in WHD enforcement actions.
This Final Rule adopts this proposal.
A trade union and U.S. Senator commented that the proposal did not
include a mechanism for accepting complaints of potential violations.
The Department intends to accept complaints, as it does under other
statutes it administers such as the Fair Labor Standards Act (FLSA), 29
U.S.C. 201 et seq., which does not have a specific regulatory mechanism
for the acceptance of complaints. Thus, the Department has not added a
specific regulatory procedure here.
Another trade union commented that the Department should adopt the
definition of ``employ'' found in the FLSA, which defines the term to
include ``suffer or permit to work.'' In fact, the proposed regulations
included such a definition. However, the terms ``employer'' and
``employee'' were defined in terms of the common law test of employment
which does not include ``suffer or permit to work.'' Since the two
concepts are different and the use of the ``suffer or permit'' test is
precluded by the U.S. Supreme Court opinion in Nationwide Mutual Ins.
v. Darden, 503 U.S. 318, 322-323 (1992), the reference to ``suffer or
permit to work'' has been removed.
X. Section 655.65--Remedies for Violations of H-2B Attestations
1. Section 655.65(a) and (b)--Assessment of Civil Money Penalties
Under the proposed rule, the WHD would assess civil monetary
penalties in an amount not to exceed $10,000 per violation for a
substantial 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 DOL application or DHS petition; or a failure to
cooperate with a Department of Labor audit or investigation. No comment
addressed this provision and it is adopted in the Final Rule, with one
change--in accordance with the statutory provisions, the Final Rule
clearly reflects that the WHD Administrator may access civil money
penalties when appropriate.
2. Section 655.65(i)--Reinstatement of Illegally Displaced U.S. Workers
Under the NPRM the WHD would seek reinstatement of similarly
employed 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. No comments addressed this proposal and
it is adopted in the Final Rule.
3. Section 655.65(i)--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 administrative remedies for violations as it determines
to be appropriate.
[[Page 78047]]
The Department sought public comments on whether back wages can be
assessed under the H-2B program when an employer fails to pay the
prevailing wage rate. The most extensive comments received were from a
U.S. Senator asserting that the lack of back pay as a remedy is a
``weakness of the Department's enforcement proposal'' and that back pay
is ``an essential make-whole remedy for both H-2B program participants
and American workers * * * [and] would provide a key incentive for
otherwise vulnerable workers to come forward and protect their
rights.'' The Senator also stated that ``[t]here is ample authority
establishing that similarly broad grants of remedial authority are
sufficient to authorize an award of back [pay], even when this remedy
is not specifically enumerated.''
The Department has carefully considered whether Congress has
provided authority to assess back wages under the H-2B provisions. The
Department concludes that the H-2B statutory provisions provide the
Secretary with the authority to seek back wages for failure to pay the
required wage even though the statute does not specifically list this
remedy. The INA broadly authorizes DHS to, ``in addition to any other
remedy authorized by law, impose such administrative remedies
(including civil monetary penalties * * *) as the Secretary of Homeland
Security determines to be appropriate[.]'' 8 U.S.C. 1184(c)(14)(i). As
noted above, that authority has been delegated to the Department of
Labor. Awarding back pay is unquestionably the most appropriate remedy
for failure to pay the required wage. It is also consistent with the
statutory grant of authority and will further the purposes of the H-2B
program because it will reduce employers' incentives to bypass U.S.
workers in order to hire and exploit H-2B foreign workers, and guard
against depressing U.S. workers' wage rates.
A number of courts have concluded that, under similarly broad
grants of remedial authority, the Secretary may establish back pay as
an appropriate sanction even in the absence of explicit statutory
authority. See, e.g., Commonwealth of Kentucky Dept. of Human Resources
v. Donovan, 704 F.2d 288, 294-96 (6th Cir. 1983) (ruling that the
Secretary of Labor had authority to award back pay under Comprehensive
Employment and Training Act (CETA) both prior to the 1978 statutory and
regulatory amendments and pursuant to the 1978 amendments); City of
Philadelphia v. U.S. Dept. of Labor, 723 F.2d 330, 332 (3d Cir. 1983);
United States v. Duquesne Light Co., 423 F. Supp. 507, 509 (W.D. Pa.
1976) (in government contracting case, back pay appropriate under E.O.
11246).
The preamble to the NPRM, 73 FR 29946, noted that the H-1B
provisions of the INA, unlike the H-2B provisions, contain a separate
provision requiring that the Secretary assess back wages in cases where
an employer has failed to pay the LCA-specified wages. 8 U.S.C.
1182(n)(2)(D) (``If the Secretary finds, after notice and opportunity
for a hearing, that an employer has not paid wages at the wage level
specified under the [LCA] * * * the Secretary shall order the employer
to provide for payment of such amounts of back pay as may be required
to comply with the [H-1B] requirements * * * whether or not [other
penalties have] been imposed.''). The H-1B back pay provision is,
however, different from either programs' general, broad grant of
remedial authority by being mandatory and by imposing no standard for
the severity of wage violations (e.g., willfulness or ``substantial
violation'') for the collection of back wages. Therefore, the failure
to include the mandate in H-2B simply means that the Secretary is not
required to seek back pay in cases where the employer has failed to pay
the LCA-specified wages; it does not bear on the Secretary's discretion
to seek back pay in such cases. The Department concludes that the
statutory language of the H-2B program provides the Secretary with the
discretionary authority to seek back pay, provided there is a finding
of a ``substantial violation'' or willfulness, in cases where the
employer has failed to pay the LCA-specified wages. See 8 U.S.C.
1184(c)(14)(A)(i). The Department has modified the Final Rule
accordingly.
Y. Comments Beyond the Scope
In addition to those discussed above, the Department received
numerous comments that were beyond the scope of or not directly
relevant to the proposed regulation. We did not respond to these
comments, but find it appropriate to note them. They included: Calls
for the Department to work with Congress to extend the Save Our Small
and Seasonal Business Act returning workers provision; calls for the
Congress to raise the H-2B 66,000 annual visa cap, or to allocate visa
numbers more equitably across States; calls for the government to
``recapture'' H-2B visa numbers that expire the same year they are
issued so they can be used for different workers; calls for the
Congress to increase funding for all Federal agencies administering the
H-2B visa program, and the SWAs, either through appropriations, or
applications or fraud preventions fees; requests that DHS establish a
special fraud investigative unit for certain visa related crimes and
offenses; concerns about the requirement that workers use DHS's
designated entry-exit system, and about the burdens and policies behind
such a system; a request that foreign workers be given a two-month
grace period between employers when the worker needs an extension but
the workers' visas terminate before the beginning of their next
employment; a request that employers have the authority to activate or
deactivate the H-2B visa like a credit card to allow immediate action
and loss of status if the worker fails to comply with the terms of the
H-2B contract; calls for the government to require that H-2B workers
(over whom the Department has no jurisdiction save for the areas
covered in this Final Rule) purchase travel insurance or prohibit H-2B
workers from identifying themselves as ``self-employed'' on their
federal tax forms, or to eliminate the requirement that H-2B workers
pay Social Security or Medicare; opinions that the United States has
sufficient foreign workers to meet the needs of U.S. employers,
especially at a time when the economy is slowing down and many U.S.
workers are unemployed; calls for U.S. employers to provide higher
wages and better working conditions; and a call for H-2B workers to be
permitted representation by Federally-funded legal services
corporations, and that resources for such counsel be increased.
III. Administrative Information
A. Executive Order 12866--Regulatory Planning and Review
Under Executive Order (E.O.) 12866, the Department must determine
whether a regulatory action is ``significant'' and therefore, subject
to the requirements of the E.O. and subject to review by the Office of
Management and Budget (OMB). Section 3(f) of the E.O. defines a
``significant regulatory action'' as an action that is likely to result
in a rule that: (1) Has an annual effect on the economy of $100 million
or more or adversely and materially affects a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local or tribal governments or communities (also
referred to as ``economically significant''); (2) creates serious
inconsistency or otherwise interferes with an action taken or planned
by another agency; (3) materially alters the budgetary impacts of
entitlement grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raises novel legal or policy
issues
[[Page 78048]]
arising out of legal mandates, the President's priorities, or the
principles set forth in the E.O.
The Department determined that this regulation is a ``significant
regulatory action'' under sec. 3(f)(4). This Final Rule implements a
significant policy related to the President's policies on immigration.
However, the Department determined that this rule is not an
``economically significant'' rule under E.O. 12866 because it will not
have an annual effect on the economy of $100 million or more.
Analysis Considerations
The direct incremental costs employers will incur because of this
Final Rule, above and beyond the current costs required by the program
as it is currently implemented, are not economically significant. The
total annual cost associated with this Final Rule is approximately
$1,872,769 per year or $166 per employer. The only additional costs on
employers resulting from this Final Rule are those involved in (1) the
placement of a Sunday advertisement, which replaces one of the former
daily advertisement and the additional paperwork costs; (2) the new
paperwork and retention requirements; and (3) contacting laid-off
workers to notify them of a job opportunity.\6\
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\6\ The Department notes that this cost is not new to the H-2B
program because it has been required in program guidance. However,
because it is new to the regulation, we have included it in this
analysis.
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Cost of the Sunday Advertisement
The cost range for advertising and recruitment is taken from a
recent (October 2008) 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 cost of advertising in a Sunday
paper instead of during the week is approximately $234, which
represents an increase of approximately $31.16 over the weekday
advertisement.\7\ The additional total cost for the 11,267 employers
utilizing the H-2B program of one Sunday ad would average approximately
$351,080 assuming that such ads would not have been placed by the
business as part of its normal practices to recruit U.S. workers.\8\
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\7\ The Department based this average on 10 locations with the
highest number of H-2B applications, including the following:
Houston, Texas; Orlando, Florida; Vail, Colorado; Orange County,
California; Cape Cod, Massachusetts; Detroit, Michigan; Baton Rouge,
Louisiana; Houma, Louisiana; Columbus, Ohio; and Washington, DC.
\8\ The Department notes that this cost is based on the highest
costs in each location. Fees are likely to be lower given that many
newspapers offer lower rates for consecutive ads, for placing two
ads in the same week, or for purchasing a Sunday and weekday ad.
---------------------------------------------------------------------------
Cost of Paperwork and Record Retention Requirements
The paperwork and record retention costs are minimal, as records
will require a burden of approximately 1.35 hours per year per
application. 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, a total
cumulative burden of 15,210 hours will result in a total cost of
$874,118, or $77.58 per employer.
Cost To Notify Laid-Off Workers of Job Opportunity
A final cost to employers for implementing the requirements of this
Final Rule is the cost associated with notifying laid-off workers of a
job opportunity. The Department estimates that the total cost to meet
this requirement is $647,571 or $57.48 per employer. To make this cost
determination, the Department estimated it would take an employer's
Human Resources Manager approximately 3 minutes to notify each laid-off
worker. The Department does not have data to determine how many laid-
off workers an employer would be required to notify. Therefore, the
Department projected this number based on the total number of employees
requested on the applications. Based on PY 2006 data, employers
requested visas for 247,287 foreign workers, for an average of 22
employees per employer. We then multiplied this number by 3 minutes
(the time estimate to notify each laid-off worker) to determine that it
will take each employer approximately one hour to meet this
requirement. Thus, the cost per employer is the hourly salary for the
Human Resource Manager to make the calls or $57.47.
Benefits
We also project that employers will experience significant time-
savings as a result of the reengineered 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 fiscal year (FY) 2007
(October 1, 2006-September 30, 2007). Although the Department cannot
estimate the cost savings as a result of this time saved, it believes
that employers will experience a variety of economic benefits,
including benefits from predictability of workforce size and
availability regardless of geographic area, as a result of
reengineering the application process.
The Department received seven comments related to the cost of this
rulemaking. One comment was directed at the cost to small businesses
and has been addressed in Section B of this section of the preamble
below. The remaining six comments were related to the costs to the
SWAs, which is not a cost calculated in the total cost of this Final
Rule because they are considered transfer costs under OMB Circular A-4.
Therefore, the Department has addressed those comments in Section C of
this section of the preamble. The Department notes, however, that based
on the comments, it reduced the number of required advertisements from
three in the preamble to two in this Final Rule, which is reflected in
the cost analysis above.
B. Regulatory Flexibility Analysis/SBREFA
The Regulatory Flexibility Act (RFA) at 5 U.S.C. 603 requires
agencies to prepare a regulatory flexibility analysis to determine
whether a regulation will have a significant economic impact on a
substantial number of small entities. Section 605 of the RFA allows an
agency to certify a rule in lieu of preparing an analysis if the
regulation is not expected to have a significant economic impact on a
substantial number of small entities. A significant economic impact is
defined as eliminating more than 10 percent of the businesses' profits;
exceeding 1 percent of the gross revenue of the entities in a
particular sector; or exceeding 5 percent of the labor costs of the
entities in the sector. Further under the Small Business Regulatory
Enforcement Fairness Act of 1996, 5 U.S.C. 801 (SBREFA), an agency is
required to produce compliance guidance for small entities if the rule
has a significant economic impact. Although the RFA and the SBREFA
analyses were included as separate preamble sections in the proposed
rule, the Department has included them in one preamble section in this
Final Rule to avoid unnecessary duplication. The Department has
certified that this Final Rule does not have a significant economic
impact on a substantial number of small entities.
1. Definition of a Small Entity
A small entity is one that is ``independently owned and operated
and which is not dominant in its field of operation.'' The definition
of small business varies from industry to
[[Page 78049]]
industry to the extent necessary to properly reflect industry size
differences. An agency must either use the SBA definition for a small
entity, or, establish an alternative definition. Given that this
rulemaking crosses industry sectors, the Department has adopted the SBA
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. Historically however, the Department has not collected
information about an employer's industry classification, annual
revenues, or number of employees currently on payroll in the H-2B
program. Therefore, the Department 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.
2. Factual Basis for Certification
The factual basis for such a certification is that this Final Rule
does not affect a substantial number of small entities and 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. As mentioned earlier, the Department does not collect
information regarding the numbers of small entities participating in
the H-2B program. The Department believes that this rule may
potentially affect as many as 11,267 employers participating in this
program, assuming that each employer only has one application.
Although there may be a substantial number of small entities
impacted by this Final Rule, the Department has determined that this
rule will not have a significant economic impact on those small
businesses that utilize the program. The RFA and the 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. Even though the foreign
labor certification programs are open to all industries, the Department
does not have sufficient data to analyze the universe of H-2B
applicants by industry sector. However, the Department was able to
analyze the PY 2006 data to determine that landscape occupations \9\
accounted for approximately 31 percent of all the applications filed.
According to SBA guidelines for the landscape industry, all employers
with annual receipts at or below $6.5 million are considered small
businesses. The cost of this rule for those employers at this threshold
would be approximately .003 percent of their annual revenues; even for
employers with annual receipts of only $500,000, the cost would
represent only .036 percent of revenues.\10\ The Department also
recognizes that there are potentially very small business that might be
affected. Therefore, for purposes of comparing costs, this rule would
cost small entities that had gross annual receipts of $120,000 and
profits of $12,000 approximately .15 percent of their revenues, which
would not be significant.
---------------------------------------------------------------------------
\9\ The Department notes that this was the only occupation that
could be paralleled with the industry classifications required by
the SBA and described in 13 CFR 121.201. The landscape industry
includes grounds keeping, lawn services, landscaping, tree planting,
tree trimming, and tree surgeons. However, the Department does not
require employers to list a North American Industry Classification
System (NAICS) code for each employment position under the H-2B
program, and therefore, the data calculated for this example is not
as accurate as it would be with NAICS coding. For instance, some
landscaping duties require bricklaying, which we note has been used
as a separate employment category on some of the applications.
Without the coding it is not possible to categorize occupations
accurately. Therefore, the Department notes that we used this
industry merely to provide an example of how this rule could affect
a category of employers.
\10\ The cost of the rule ($166) divided by the projected annual
receipts of the business.
---------------------------------------------------------------------------
The Department believes that the costs incurred by employers under
this Final 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 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 pay an additional $31.16 to meet the advertising
requirements for a job opportunity, and will spend an additional 1.35
hours staff time preparing the standardized application, narrative
statement of temporary need, final recruitment report, and retaining
all other required documentation (e.g., newspaper ads, business
necessity) for audit purposes or $81.57 per employer. The Department
also estimated that it will take an employer approximately one hour to
notify laid-off workers of a job opportunity, or $66.46.
Using the RFA standard to determine whether a rule will have a
substantial impact on a significant number of small businesses, the
Department determined that this Final Rule will not eliminate more than
10 percent of the businesses' profits; exceed 1 percent of the gross
revenue of the entities in a particular sector; or exceed 5 percent of
the labor costs of the entities in the sector. The total cost per
employer is approximately $179, which represents .15 percent of the
gross receipts and profits of a small entity with $120,000 in revenues
and $12,000 profits. Therefore, this rule will not have a significant
impact on a substantial number of small businesses.
The Department received one comment on this section, which
generally stated that the rule would increase the cost to employers,
especially given the changes to advertising. Although this statement is
partly true given that the cost of the rule increased by approximately
$179, in light of the other non-quantifiable benefits, the Final Rule
will likely represent a cost-savings to the employer. Therefore, for
the reasons stated, the Department believes that 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.
C. Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act (UMRA) of 1995 (2
U.S.C. 1501 et seq.) directs agencies to assess the effects of a
Federal regulatory action on State, local, and tribal governments, and
the private sector to determine whether the regulatory action imposes a
Federal mandate. A Federal mandate is defined in the Act at 2 U.S.C.
658(5)-(7) to include 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,
[[Page 78050]]
excluded from any reporting requirement under the Act.
The Department received six comments on this section from SWAs
related to the increase in cost and workload and/or the lack of funding
to support the new H-2B processing requirements. One commenter
generally noted that its jurisdiction was neither financially nor
functionally prepared to take on this added workload. Three States
specifically stated that the funds provided under the Wagner-Peyser Act
were insufficient to carry out their H-2B responsibilities prior to the
changes in this rule, and the new eligibility verification requirements
increased their funding challenges. Three States specifically related
the lack of resources to the additional cost of storing and processing
the I-9 documents related to the eligibility verification requirements.
The Department disagrees that this Final Rule imposes an unfunded
mandate. As noted in the proposed rule, 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. 73 FR 29950, May 28, 2008. However,
we do not believe that this requirement will result in a significant
workload increase or administrative burden. The Department points out
that although there may be some new requirements for SWAs, there are
also many requirements for SWAs that have been eliminated in this Final
Rule given the reengineered approach. The Department believes reduced
burden from the old requirements more than offsets any additional
burden finalized here. The SWAs will experience a direct impact on
their foreign labor certification activities in the elimination of
certain H-2B activities under this Final Rule. These eliminated
activities are currently funded by the Department under grants provided
under the Wagner-Peyser Act, 29 U.S.C. 49 et seq. In addition, other
tools will be available to the SWAs to make this requirement relatively
easy to implement, such as the E-Verify system. As a result, the net
effect of this Final Rule will likely be to ensure the amounts of such
grants available to each State correspond or even increase relative to
its workload under the H-2B program in the receipt, processing and
monitoring of each application.
One State commented that the new eligibility verification
requirements could lead to discriminatory practices subject to legal
challenge, which in this commenter's opinion, the legal costs
associated with any defense also represented an unfunded mandate. The
Department believes it is premature to presume that the States will
have to bear a significant cost to defend against any potential
litigation associated with the implementation of this Final Rule, and
which is typically considered part of a grantee's programmatic
responsibility, should it occur.
Therefore, for the reasons stated above, the Department finds that
this Final Rule does not impose an unfunded mandate.
D. Executive Order 13132--Federalism
Executive Order 13132 addresses the Federalism impact of an
agency's regulations on the States' authority. Under E.O. 13132,
Federal agencies are required to consult with States prior to and
during the implementation of national policies that have a direct
effect on the States, the relationship between the Federal Government
and the States, or on the distribution of power and responsibilities
among the various levels of government. Further, an agency is permitted
to limit a State's discretion when it has statutory authority and the
regulation is a national activity that addresses a problem of national
significance.
The Department received one comment on this section. This commenter
stated that the Department's reversal of a long-standing position on
U.S. worker self-attestation creates a Federalism impact. According to
this commenter, TEGL 11-07, Change 1, mandates that SWAs perform pre-
employment eligibility verifications on every U.S. worker that requests
a referral to an H-2A job order. This commenter requests that the
Department prepare a summary impact statement and acknowledge that many
States currently have attestation-based systems for U.S. worker access
to public labor exchange services.
The Department disagrees with this commenter's assessment of a
Federalism impact and therefore, the need for a summary impact
statement. In this case there is no direct effect on the States because
the States are not in the best position to address the needs to re-
engineer a Federal program to relieve the backlog that has occurred due
to inadequate staffing, funding, or other issues of concern. The issues
addressed by the regulations are of national concern to ensure an
effective program that regulates temporary alien workers and protects
U.S. workers.
As noted elsewhere in this preamble, the Department attempted to
reform this program in 2005. To meet the demands of the considerable
workload increases for both the Department and the SWAs and limited
appropriations, the Department determined that regulatory changes were
still necessary. These changes are consistent with the Department's
review, program experience, and years of stakeholder feedback on
longstanding concerns about the integrity of the prior program.
Therefore, as a program of national scope, the Department is
implementing requirements that apply uniformly to all States.
Even if there were an argument that the Department should defer to
the States on the eligibility verification requirements, the Department
is authorized by the INA to implement Federal regulations to ensure
consistency across States on immigration matters. Therefore, rather
than having separate eligibility verification processes that vary from
State to State, the Department is exercising its right under the INA to
impose consistent requirements for all participants across the H-2B
program. In addition, given that the H-2B program is an immigration-
related program, it also is a program of national security and
therefore, of national significance with Federal oversight and
uniformity. The verification requirement 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.
Further, the relationship the States have with this program and the
Federal Government is through grants from the Department to the States
for the sole purpose of maintaining consistency across States. As a
voluntary Federal program, the Department may change the direction from
time to time as dictated by the changes to immigration-related
concerns, but at the same time are consistent with the underlying
legislation.
Therefore, for the reasons stated, the Department has determined
that this rule does not have sufficient Federalism implications to
warrant the preparation of a summary impact statement.
E. Executive Order 13175--Indian Tribal Governments
Executive Order 13175 requires Federal agencies to develop policies
in consultation with tribal officials when those policies have tribal
implications. This Final Rule regulates the H-2B visa program and does
not have tribal implications. Therefore, the Department has determined
that this E.O. does not apply to this rulemaking. The Department did
not receive any comments related to this section.
[[Page 78051]]
F. Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact
of Federal regulations and policies on families. The assessment must
address whether the regulation strengthens or erodes the stability,
integrity, autonomy, or safety of the family.
The Final Rule does not have an impact on the autonomy or integrity
of the family as an institution, as it is described under this
provision. The Department did not receive any comments related to this
section.
G. Executive Order 12630--Protected Property Rights
Executive Order 12630, Governmental Actions and the Interference
with Constitutionality Protected Property Rights, prevents the Federal
government from taking private property for public use without
compensation. It further institutes an affirmative obligation that
agencies evaluate all policies and regulations to ensure there is no
impact on constitutionally protected property rights. Such policies
include rules and regulations that propose or implement licensing,
permitting, or other condition requirements or limitations on private
property use, or that require dedications or exactions from owners of
private property.
The Department did not receive any comments on this section. The
Department certifies that this Final Rule does not infringe on
protected property rights.
H. Executive Order 12988--Civil Justice Reform
Section 3 of E.O. 12988, Civil Justice Reform, requires Federal
agencies to draft regulations in a manner that will reduce needless
litigation and will not unduly burden the Federal court system.
Therefore, agencies are required to review regulations for drafting
errors and ambiguity; to minimize litigation; ensure that it provides a
clear legal standard for affected conduct rather than a general
standard; and promote simplification and burden reduction.
The rule has been drafted in clear language and with detailed
provisions that aim to minimize litigation. The purpose of this Final
Rule is to reengineer the H-2B program and simplify the application
process. Therefore, the Department has determined that the regulation
meets the applicable standards set forth in sec. 3 of E.O. 12988. The
Department received no comments regarding this section.
I. Plain Language
Every Federal agency is required to draft regulations that are
written in plain language to better inform the public about policies.
The Department has assessed this Final Rule under the plain language
requirements and determined that it follows the Government's standards
requiring documents to be accessible and understandable to the public.
The Department did not receive any comments related to this section.
J. Executive Order 13211--Energy Supply
This Final Rule is not subject to E.O. 13211, which assesses
whether a regulation is likely to have a significant adverse effect on
the supply, distribution, or use of energy. Accordingly, the Department
has determined that this rule does not represent a significant energy
action and does not warrant a Statement of Energy Effects. The
Department did not receive any comments related to this section.
K. Paperwork Reduction Act
1. Summary
As part of its continuing effort to reduce paperwork and respondent
burden, the Department of Labor conducts a preclearance consultation
program to provide the general public and Federal agencies with an
opportunity to comment on proposed and continuing collections of
information in accordance with the Paperwork Reduction Act of 1995
(PRA) (44 U.S.C. 3506(c)(2)(A)). This helps to ensure that requested
data can be provided in the desired format, reporting burden (time and
financial resources) is minimized, collection instruments are clearly
understood, and the impact of collection requirements on respondents
can be properly assessed.
In accordance with the Paperwork Reduction Act (44 U.S.C. 3501),
information collection requirements, which must be implemented as a
result of this regulation, a clearance package containing proposed
forms was submitted to OMB on February 14, 2008, along with its
proposed rule to reform the H-2A agricultural foreign labor
certification program, and then again on May 22, 2008, in conjunction
with the H-2B proposed rulemaking preceding this Final Rule. Therefore,
the public was given 60 days to comment on this information collection
with both submissions, for a total of 120 days. All comments received
were taken into consideration and a final package was submitted to OMB.
The collection of information for the current H-2B program under the
regulations in effect prior to the effective date of this rule were
approved under OMB control number 1205-0015 (Form ETA 750).
This Final Rule implements the use of the new information
collection, which OMB approved on November 21, 2008 under OMB control
number 1205-0466. The Expiration Date is November 30, 2011. The new
forms, ETA 9141 and ETA 9142, have a public reporting burden estimated
to average 55 minutes for Form ETA 9141 and 2.75 hours for Form ETA
9142 per response or application filed.
This paperwork package applies--as does this Final Rule--to the H-
2B, H-1B, H-1B1, H-1C, E-3, and PERM programs. The burden hours
associated with the additional programs are a result of the wage
determination and retention of document requirements. Under this Final
Rule, and the implementation schedule it establishes, employers
applying to any of these programs must use the ETA Form 9141, a single,
Federal form that replaces the State-specific forms previously used to
obtain prevailing wage determinations. There are no additional costs to
the employer associated with the implementation of this new form, as
costs are defined by the Paperwork Reduction Act. As the Department
notes elsewhere in this preamble, the H-1C program was inadvertently
removed. Consistent with the proposed rule at 73 FR 29947, May 28,
2008, it was the Department's intention to standardize all forms for
better program effectiveness and efficiency in its non-agricultural
programs, which necessarily extends also to the H-1C program.
For an additional explanation of how the Department calculated the
burden hours and related costs, the Paperwork Reduction Act package for
this information collection may be obtained from the RegInfo.gov Web
site at http://www.reginfo.gov/public/do/PRAMain or by contacting the
Department at: Office of Policy Development and Research, Department of
Labor, 200 Constitution Ave., NW., Washington, DC 20210 or by phone
request to 202-693-3700 (this is not a toll-free number) or by e-mail
at DOL_PRA_PUBLIC@dol.gov.
The Department received six comments on this section, all related
to the H-2B program. One commenter stated that the form ETA 9141 was
unnecessarily long and complex and should be simplified. The Department
has attempted to shorten the form and make it easier to use. It has
been reduced from seven pages to four pages.
[[Page 78052]]
Three of the comments related to the burden associated with the
paperwork requirements. Two final commenters stated that they did not
have the funding or staff time to manage the record retention
requirements or to process and store the paperwork. None of the
commenters specifically addressed the issue of our methodology or
assumptions, or the other programs to which the ETA 9141 now applies.
The paperwork burden estimate for the form used for the H-2B
program under the regulations in effect prior to the effective date of
this Final Rule, (form ETA 750--OMB control number 1205-0015) was
approximately 1.4 hours. Under this new collection of information, the
Department estimates that the burden will be approximately 2.75 hours
for Form ETA 9142. We based this calculation on a burden estimate of
1.4 hours for those program requirements that remained the same and
allocated approximately 1.35 hours for the additional information
requirements.
Although the Department did not receive any comments related to the
remaining programs (H-1B, H-1B1, E-3, H-1C, and PERM), it notes that
only the Form ETA 9141 applies to these programs. This Form will be
used in lieu of the State form for submitting a prevailing wage
request. Although the burden hours for each State application vary, the
Department estimates the burden hours to complete the State forms to be
approximately 1.0 hour. As a result, and for the reasons discussed
elsewhere in this preamble, the Department does not expect the
paperwork burden hours to increase for these programs.
In sum, without more persuasive analysis rebutting the analysis
used by the Department, we assume our calculations are representative
of the actual hourly burden for the new collection, which represents no
increase for most programs and a minimal increase for the H-2B program.
L. 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.
0
For the reasons stated in the preamble, the Department of Labor amends
20 CFR parts 655 and 656 as follows:
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
0
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)(E)(iii), 1101(a)(15)(H)(i) and (ii), 1182(m), (n) and
(t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); sec. 3(c)(1),
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 (8 U.S.C. 1182
note); 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).
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 authority repealed.
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).
0
2. Revise the heading of Part 655 to read as set forth above.
0
3. Revise subpart A to read as follows:
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 Application Filing Transition.
655.6 Temporary need.
655.7 [Reserved]
655.8 [Reserved]
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 [Reserved]
655.13 [Reserved]
655.14 [Reserved]
655.15 Required pre-filing recruitment.
655.17 Advertising requirements.
655.18 [Reserved]
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 [Reserved]
655.26 [Reserved]
655.27 [Reserved]
655.28 [Reserved]
655.29 [Reserved]
655.30 Supervised recruitment.
655.31 Debarment.
655.32 Labor certification determinations.
655.33 Administrative review.
655.34 Validity of temporary labor certifications.
655.35 Required departure.
655.50 Enforcement process.
655.55 Complaints.
655.60 Violations.
655.65 Remedies for violations.
655.70 WHD 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 OFLC 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 admit
nonimmigrant workers on H-2B visas for temporary
[[Page 78053]]
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, secs. 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)(iv) require that, except for Guam, the petitioning H-2B
employer attach to its 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 filing of
the petition for H-2B classification 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) 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.
(1) This subpart sets forth the procedures through which employers
may apply for H-2B labor certifications, as well as the procedures by
which such applications are considered and how they are granted or
denied.
(2) This subpart sets forth the procedures governing the
Department's investigatory, inspection, and law enforcement functions
to assure compliance with the terms and conditions of employment under
the H-2B program. The authority for such functions has been delegated
by the Secretary of Homeland Security to the Secretary of Labor and re-
delegated within the Department to the Employment Standards
Administration (ESA) Wage and Hour Division (WHD). This subpart sets
forth the WHD'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, or enforce compliance
with the provisions of the H-2B visa program provisions in the
Territory of Guam. Pursuant to DHS regulations, 8 CFR 214.2(h)(6)(v)
administration of the H-2B temporary labor certification program is
performed by the Governor of Guam, or the Governor's designated
representative.
Sec. 655.3 Special procedures.
(a) Systematic process. This subpart provides procedures for the
processing of H-2B applications from employers for the certification of
employment of nonimmigrant positions in nonagricultural employment.
(b) Establishment of special procedures. The Office of Foreign
Labor Certification (OFLC) Administrator has the authority to establish
or to devise, continue, revise, or revoke special procedures in the
form of variances for the processing of certain H-2B applications when
employers can demonstrate, upon written application to the OFLC
Administrator, that special procedures are necessary. These include
special procedures currently in effect for the handling of applications
for tree planters and related reforestation workers, professional
athletes, boilermakers coming to the U.S. on an emergency basis, and
professional entertainers. Prior to making determinations under this
paragraph (b), the OFLC Administrator may consult with employer and
worker representatives.
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.
Administrative Law Judge means a person within the Department's
Office of Administrative Law Judges appointed pursuant to 5 U.S.C.
3105, or a panel of such persons designated by the Chief Administrative
Law Judge from the Board of Alien Labor Certification Appeals
established by part 656 of this chapter, which will hear and decide
appeals as set forth in Sec. 655.115.
Administrator, Office of Foreign Labor Certification (OFLC) means
the primary official of the Office of Foreign Labor Certification, ETA,
or the Administrator's designee.
Administrator, Wage and Hour Division (WHD), Employment Standards
Administration means the primary official of the WHD, or the
Administrator's designee.
Agent means a legal entity or person authorized to act on behalf of
the employer for temporary non-agricultural labor certification
purposes that is not itself an employer as defined in this subpart. The
term ``agent''' specifically excludes associations or other
organizations of employers.
Applicant means a lawful U.S. worker who is applying for a job
opportunity for which an employer has filed an Application for
Temporary Employment Certification (Form ETA 9142).
Application for Temporary Employment Certification means the Office
of Management and Budget (OMB)-approved form submitted by an employer
to secure a temporary nonagricultural labor certification determination
from DOL. A complete submission of the Application for Temporary
Employment Certification includes the form, all valid wage
determinations as required by Sec. 655.101(a)(1) and the U.S. worker
recruitment report.
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 currently a member in good
standing of the bar of the highest court of any State, possession,
territory, or commonwealth of the United States, or the District of
Columbia, and who is not under suspension, debarment or disbarment from
practice before any court or the Department, the Board of Immigration
Appeals, the immigration judges, or DHS under 8 CFR 292.3, 1003.101.
Such a person is permitted to act as an agent or attorney for an
employer under this subpart.
Board of Alien Labor Certification Appeals (BALCA or Board) means
the permanent Board established by part 656 of this chapter, chaired by
the Chief Administrative Law Judge, and consisting of Administrative
Law Judges assigned to the Department and designated by the Chief
Administrative Law Judge to be members of BALCA.
[[Page 78054]]
The Board is located in Washington, DC, and reviews and decides appeals
in Washington, DC.
Center Director means the OFLC official to whom the OFLC
Administrator has delegated his authority for purposes of National
Processing Center (NPC) operations and functions.
Certifying Officer (CO) means the OFLC official designated by the
Administrator, OFLC with making programmatic determinations on
employer-filed applications under the H-2B program.
Chief Administrative Law Judge means the chief official of the
Department's Office of Administrative Law Judges or the Chief
Administrative Law Judge's designee.
Date of need means the first date the employer requires services of
the H-2B workers as listed on the application.
Department of Homeland Security (DHS) means the Federal agency
having jurisdiction over certain immigration-related functions, acting
through its agencies, including the U.S. Citizenship and Immigration
Services.
Eligible worker means an individual who is not an unauthorized
alien (as defined in sec. 274A(h)(3) of the INA, 8 U.S.C. 1324a(h)(3),
or in this paragraph (c)) with respect to the employment in which the
worker is engaging.
Employee means employee as defined under the general common law of
agency. Some of the factors relevant to the determination of employee
status include: The hiring party's right to control the manner and
means by which the work is accomplished; the skill required to perform
the work; the source of the instrumentalities and tools for
accomplishing the work; the location of the work; the hiring party's
discretion over when and how long to work; and whether the work is part
of the regular business of the hiring party. Other applicable factors
should be considered and no one factor is dispositive.
Employer means:
(1) A person, firm, corporation or other association or
organization:
(i) Has a place of business (physical location) in the U.S. and a
means by which it may be contacted;
(ii) Has an employer relationship with respect to H-2B employees or
related U.S. workers under this part; and
(iii) Possesses, for purposes of the filing of an application, 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 may be
considered to jointly employ that employee.
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 by 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 30 or more hours per week, except that 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 30 hours per
week, that definition shall have precedence.
H-2B Petition means the form and accompanying documentation
required by DHS for employers seeking to employ foreign persons as H-2B
nonimmigrant workers.
INA means the Immigration and Nationality Act, as amended, 8 U.S.C.
1101 et seq.
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, which is not an
affiliate, branch or subsidiary of the job contractor, and where the
job contractor will not exercise any supervision or control in the
performance of the services or labor to be performed other than hiring,
paying, and firing the workers.
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 United States, its
territories, possessions, or commonwealths cannot be the subject of an
Application for Temporary Employment Certification.
Joint employment means that where two or more employers each have
sufficient definitional indicia of employment to be considered the
employer of an employee, those employers may be considered to jointly
employ that employee. An employer in a joint employment relationship to
an employee may be considered a ``joint employer'' of that employee.
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, or 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 sec. 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 wage estimates for occupations at the State and MSA
levels.
Prevailing Wage Determination (PWD) means the prevailing wage for
the position, as described in Sec. 655.10(b), that is the subject of
the Application for Temporary Employment Certification.
Professional Athlete shall have the meaning ascribed to it in INA
sec. 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 an individual 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. A representative who interviews
and/or considers U.S. workers for the job that is subject of the
Application must be the person who normally interviews or
[[Page 78055]]
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, 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 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 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.).
Strike means a labor dispute wherein employees engage in a
concerted stoppage of work (including stoppage by reason of the
expiration of a collective-bargaining agreement) or engage in any
concerted slowdown or other concerted interruption of operations.
Whether a job opportunity is vacant by reason of a strike or lock out
will be determined by evaluating for each position identified as vacant
in the Application for Temporary Employment Certification whether the
specific vacancy has been caused by the strike or lock out.
Successor in Interest means that, in determining whether an
employer is a successor in interest, the factors used under Title VII
of the Civil Rights Act and the Vietnam Era Veterans' Readjustment
Assistance Act will be considered. When considering whether an employer
is a successor, the primary consideration will be the personal
involvement of the firm's ownership, management, supervisors, and
others associated with the firm in the violations resulting in
debarment. Normally, wholly new management or ownership of the same
business operation, one in which the former management or owner does
not retain a direct or indirect interest, will not be deemed to be a
successor in interest for purposes of debarment. A determination of
whether or not a successor in interest exists is based on the entire
circumstances viewed in their totality. The factors to be considered
include:
(1) Substantial continuity of the same business operations;
(2) Use of the same facilities;
(3) Continuity of the work force;
(4) Similarity of jobs and working conditions;
(5) Similarity of supervisory personnel;
(6) Similarity in machinery, equipment, and production methods;
(7) Similarity of products and services; and
(8) The ability of the predecessor to provide relief.
United States (U.S.), when used in a geographic sense, means the
continental United States, Alaska, Hawaii, the Commonwealth of Puerto
Rico, and the territories of Guam, the Virgin Islands, and, as of the
transition program effective date, as defined in the Consolidated
Natural Resources Act of 2008, Public Law 110-229, Title VII, the
Commonwealth of the Northern Mariana Islands.
United States Citizenship and Immigration Services (USCIS) means
the Federal agency within DHS making the determination under the INA
whether to grant petitions filed by employers seeking H-2B workers to
perform temporary nonagricultural work in the U.S.
United States Worker (U.S. Worker) means a worker who is either
(1) A citizen or national of the U.S.; or
(2) An alien who is lawfully admitted for permanent residence in
the U.S., is admitted as a refugee under sec. 207 of the INA, is
granted asylum under sec. 208 of the INA, or is an immigrant otherwise
authorized (by the INA or by DHS) to be employed in the U.S.
Within [number and type] days will, for purposes of determining an
employer's compliance with timing requirements with respect to appeals
and requests for review, begin to run on the first business day after
the Department sends a notice to the employer by means normally
assuring next-day delivery, and will end on the day that the employer
sends whatever communication is required by these rules back to the
Department, as evidenced by a postal mark or other similar receipt.
Sec. 655.5 Application Filing Transition.
(a) Compliance with these regulations. Except as provided in
paragraphs (b) and (c) of this section, employers filing applications
for H-2B workers on or after the effective date of these regulations
where the date of need for the services or labor to be performed is on
or after October 1, 2009, must comply with all of the obligations and
assurances in this subpart. SWAs will no longer accept for processing
applications filed by employers for H-2B workers for temporary or
seasonal nonagricultural services on or after January 18, 2009.
(b) Applications filed under former regulations. (1) For
applications filed with the SWAs serving the area of intended
employment prior to the effective date of these regulations, the SWAs
shall continue to process all active applications under the former
regulations and transmit all completed applications to the appropriate
NPC for review and issuance of a labor certification determination.
(2) For applications filed with the SWAs serving the area of
intended employment prior to the effective date of these regulations
that were completed and transmitted to the NPC, the NPC shall continue
to process all active applications under the former regulations and
issue a labor certification determination.
(c) Applications filed with the NPC under these regulations.
Employers filing applications on or after the effective date of these
regulations where their date of need for H-2B workers is prior to
October 1, 2009, must receive a prevailing wage determination from the
SWA serving the area of intended employment. The SWA shall process such
requests in accordance with the provisions of Sec. 655.10. Once the
employer receives its prevailing wage determination from the SWA, it
must conduct all of the pre-filing recruitment steps set forth under
this subpart prior to filing an Application for Temporary Employment
Certification with the NPC.
Sec. 655.6 Temporary need.
(a) To use the H-2B program, the employer must establish that its
need for nonagricultural services or labor is temporary, regardless of
whether the underlying job is permanent or temporary. 8 CFR
214.2(h)(6)(ii).
(b) The employer's need is considered temporary if justified to the
Secretary as either a one-time occurrence, a seasonal need, a peakload
need, or an intermittent need, as defined by the Department of Homeland
Security. 8 CFR 214.2(h)(6)(ii)(B).
(c) Except where the employer's need is based on a one-time
occurrence, the Secretary will, absent unusual circumstances, deny an
Application for Temporary Employment Certification where the employer
has a recurring, seasonal or peakload need lasting more than 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
in addition to the needs of each individual employer with
[[Page 78056]]
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 must
be retained by the employer for a period of no less than 3 years from
the date of the labor certification.
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 NPC in accordance with the procedures
established by this regulation.
(2) The employer must obtain a prevailing wage determination that
is valid either on the date recruitment begins or the date of filing a
complete 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. Prevailing wages shall be determined 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 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 BLS Occupational Employment
Statistics Survey (OES) shall be used to determine the arithmetic mean,
unless the employer provides a survey acceptable to OFLC under
paragraph (f) of this section.
(3) If the job opportunity involves multiple worksites within an
area of intended employment and different prevailing wage rates exist
for the same opportunity and staff level within the area of intended
employment, the prevailing wage shall be based on the highest
applicable wage among all relevant worksites.
(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 use 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 NPC will 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 within 30 days of receipt of the request
for a prevailing wage determination. The employer must offer this wage
(or higher) to both its H-2B workers and any similarly employed U.S.
worker hired in response to the recruitment required as part of the
application.
(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
comparable 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 NPC must specify the validity period of
the prevailing wage, which in no event may be more than 1 year or less
than 3 months from the determination date. For employment that is less
than one year in duration, the prevailing wage determination shall
apply and shall be paid the prevailing wage by the employer, at a
minimum, for the duration of the employment.
(e) Professional athletes. In computing the prevailing wage for a
professional athlete when the job opportunity is covered by
professional sports league rules or regulations, the wage set forth in
those rules or regulations is considered the prevailing wage (see sec.
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 NPC will consider wage information provided by the
employer in making a Prevailing Wage Determination. 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 specific
information about the survey methodology, including such items as
sample size and source, sample selection procedures, and survey job
descriptions, to allow a determination of the adequacy of the data
provided and validity of the statistical methodology used in conducting
the survey in accordance with guidance issued by the OFLC national
office.
(3) The survey must be based upon recently collected data:
(i) Any published survey must have been published within 24 months
of the date of submission, must be the most current edition of the
survey, and must be based on data collected not more than 24 months
before the publication date.
(ii) A survey conducted by the employer must be based on data
collected within 24 months of the date it is submitted for
consideration.
(4) If the employer-provided survey is found not to be acceptable,
the NPC shall 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 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 wage level assigned to its job opportunity,
or if the NPC informs the employer its survey is not acceptable, or if
there is another legitimate basis for such a review, the employer may
submit supplemental information to the NPC.
(2) The NPC must consider one supplemental submission relating to
the employer's survey, the skill level 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, the NPC must
[[Page 78057]]
inform the employer, in writing, 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.
(h) The prevailing 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 employer must retain the PWD
for 3 years and submitted to a CO in the event it is requested in an
RFI or an audit or to 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) Request for review of prevailing wage determinations. Any
employer desiring review of a PWD must make a written request for such
review within 10 days of the date from when the final PWD was issued.
The request for review must be sent to the NPC postmarked no later than
10 days after the determination; clearly identify the PWD for which
review is sought; set forth the particular grounds for the request; and
include all materials submitted to the NPC for purposes of securing the
PWD.
(b) NPC Review. Upon the receipt of a written request for review,
the NPC shall review the employer's request and accompanying
documentation, including any supplementary material submitted by the
employer.
(c) Designations. The Director of the 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 upon which the PWD was made and after review may:
(1) Affirm the PWD issued by the NPC; or
(2) Modify the PWD.
(e) Request for review by BALCA. Any employer desiring review of a
CO's decision on a PWD must make a written request for review of the
determination by BALCA within 30 calendar days of the date of the
decision of the CO. The CO must receive the written request for BALCA
review no later than the 30th day after the date of 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 decision on the PWD by the 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. 655.33.
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, except where specifically exempted from some or all of those
requirements by these regulations or special procedures. Applications
submitted not meeting this requirement shall not be accepted for
processing.
(b) General Attestation Obligation. An employer must attest on the
Application for Temporary Employment Certification to having performed
all required steps of the recruitment process as specified in this
section.
(c) Retention of documentation. The employer filing the Application
for Temporary Employment Certification must maintain documentation of
its advertising and recruitment efforts, including prevailing wage
determinations, as required in this subpart and be prepared, upon
written request, to submit this documentation in response to an RFI
from the CO prior to the CO rendering a Final Determination or in the
event of a CO-directed audit examination. The documentation required in
this section must be retained by the employer for a period of no less
than 3 years from the date of the certification.
(d) Recruitment Steps. An employer filing an application must:
(1) Obtain a prevailing wage determination from the NPC in
accordance with procedures in Sec. 655.10;
(2) Submit a job order to the SWA serving the area of intended
employment;
(3) Publish two print advertisements (one of which must be on a
Sunday, except as provided in paragraph (f)(4) of this section); and
(4) Where the employer is a party to a collective bargaining
agreement governing the job classification that is the subject of the
H-2B labor certification application, the employer must formally
contact the local union that is party to the collective bargaining
agreement as a recruitment source for able, willing, qualified, and
available U.S. workers.
(e) Job Order. (1) The employer must place an active job order with
the SWA serving the area of intended employment no more than 120
calendar days before the employer's date of need for H-2B workers,
identifying it as a job order to be placed in connection with a future
application for H-2B workers. Unless otherwise directed by the CO, the
SWA must keep the job order open for a period of not less than 10
calendar days. 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 has been identified
to begin. Upon placing a job order, the SWA receiving the job order
under this paragraph shall promptly transmit, on behalf of the
employer, a copy of the active job order to all States listed in the
application as anticipated worksites.
(2) The job order submitted by the employer to the SWA must satisfy
all the requirements for newspaper advertisements contained in Sec.
655.17.
(f) Newspaper Advertisements. (1) During the period of time that
the job order is being circulated for intrastate clearance by the SWA
under paragraph (e) of this section, the employer must publish an
advertisement on 2 separate days, which may be consecutive, one of
which must be a Sunday advertisement (except as provided in paragraph
(f)(2) of this section), in a newspaper of general circulation serving
the area of intended employment that has a reasonable distribution and
is appropriate to the occupation and the workers likely to apply for
the job opportunity. Both newspaper advertisements must be published
only after the job order is placed for active recruitment by the SWA.
(2) If the job opportunity is located in a rural area that does not
have a newspaper with a Sunday edition, the
[[Page 78058]]
employer must, in place of a Sunday edition advertisement, advertise in
the regularly published daily edition with the widest circulation in
the area of intended employment.
(3) The newspaper advertisements must satisfy the requirements
contained in Sec. 655.17. The employer must maintain copies of
newspaper pages (with date of publication and full copy of
advertisement), or 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 and the dates of publication
furnished by the newspaper.
(4) If a professional, trade or ethnic publication is more
appropriate for the occupation and the workers likely to apply for the
job opportunity than a general circulation newspaper, and is the most
likely source to bring responses from able, willing, qualified, and
available U.S. workers, then the employer may use a professional, trade
or ethnic publication in place of one of the newspaper advertisements,
but may not replace the Sunday advertisement (or the substitute
permitted by paragraph (f)(2) of this section).
(g) Labor Organizations. During the period of time that the job
order is being circulated for intrastate clearance by the SWA under
paragraph (e) of this section, an employer that is already a party to a
collective bargaining agreement governing the job classification that
is the subject of the H-2B labor certification application must
formally contact by U.S. Mail or other effective means the local union
that is party to the collective bargaining agreement. An employer
governed by this paragraph must maintain dated logs demonstrating that
such organizations were contacted and notified of the position openings
and whether they referred qualified U.S. worker(s), including number of
referrals, or were non-responsive to the employer's request.
(h) Layoff. If there has been a layoff of U.S. workers by the
applicant employer in the occupation in the area of intended employment
within 120 days of the first date on which an H-2B worker is needed as
indicated on the submitted Application for Temporary Employment
Certification, the employer must document it has notified or will
notify each laid-off worker of the job opportunity involved in the
application and has considered or will consider each laid-off worker
who expresses interest in the opportunity, and the result of the
notification and consideration.
(i) Referral of U.S. workers. SWAs may only refer for employment
individuals for whom they have verified identity and employment
authorization through the process for employment verification of all
workers that is established by INA sec. 274A(b). SWAs must provide
documentation certifying the employment verification that satisfies the
standards of INA sec. 274A(a)(5) and its implementing regulations at 8
CFR 274a.6.
(j) Recruitment Report. (1) No fewer than 2 calendar days after the
last date on which the job order was posted and no fewer 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 H-2B
application until the recruitment report is completed. The recruitment
report must be submitted to the NPC with the application. The employer
must retain a copy of the recruitment report for a period of 3 years.
(2) The recruitment report must:
(i) Identify each recruitment source by name;
(ii) 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, and the disposition of each
worker, including any applicable laid-off workers;
(iii) If applicable, explain the lawful job-related reason(s) for
not hiring any U.S. workers who applied or were referred to the
position.
(3) The employer must retain r[eacute]sum[eacute]s (if available)
of, and evidence of contact with (which may be in the form of an
attestation), each U.S. worker who applied or was referred to the job
opportunity. Such r[eacute]sum[eacute]s and evidence of contact must be
retained along with the recruitment report for a period of no less than
3 years, and must be provided in response to an RFI or in the event of
an audit or an 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 meet the requirements set forth in this
section and must contain terms and conditions of employment which are
not less favorable than those to be offered to the H-2B workers. All
advertising must contain the following information:
(a) The employer's name and appropriate contact information for
applicants to send r[eacute]sum[eacute]s directly to the employer;
(b) The geographic area of employment with enough specificity to
apprise applicants of any travel requirements and where applicants will
likely have to reside to perform the services or labor;
(c) If transportation to the worksite(s) will be provided by the
employer, the advertising must say so;
(d) A description of the job opportunity (including the job duties)
for which labor certification is sought with sufficient detail to
apprise applicants of services or labor to be performed and the
duration of the job opportunity;
(e) The job opportunity's minimum education and experience
requirements and whether or not on-the-job training will be available;
(f) The work hours and days, expected start and end dates of
employment, and whether or not overtime will be available;
(g) The wage offer, or in the event that there are multiple wage
offers, the range of applicable wage offers, each of which must not be
less than the highest of the prevailing wage, the Federal minimum wage,
State minimum wage, or local minimum wage applicable throughout the
duration of the certified H-2B employment; and
(h) That the position is temporary and the total number of job
openings the employer intends to fill.
Sec. Sec. 655.18-655.19 [Reserved]
Sec. 655.20 Applications for temporary employment certification.
(a) Application Filing Requirements. An employer who desires to
apply for labor certification of temporary employment for one or more
nonimmigrant foreign positions must file a completed Application for
Temporary Employment Certification form, and a copy of the recruitment
report completed in accordance with Sec. 655.15(j).
(b) Filing. An employer must complete the Application for Temporary
Employment Certification and send it by U.S. Mail or private mail
courier to the NPC. Employers are strongly encouraged to keep receipts
of any mailings. The Department will publish a Notice in the Federal
Register identifying the address or addresses to which applications
must be mailed, and will also post these addresses on the Department's
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 attorney or agent if the employer is represented
by an attorney or agent). The Department
[[Page 78059]]
may, at a future date, require applications to be filed electronically
in addition to or instead of by U.S. Mail or private mail courier.
(c) 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 employer-members under the H-2B
program.
(d) Certification of more than one position may be requested on the
application as long as all H-2B 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.
(e) Except where otherwise permitted under Sec. 655.3, only one
Application for Temporary Employment Certification may be filed for
worksite(s) within one area of intended employment for each job
opportunity with an employer.
(f) Where a one-time occurrence lasts longer than one year, but
less than 18 months, the employer will be issued a labor certification
for the entire period of need. Where a one-time occurrence lasts 18
months or longer, the employer will be required to conduct another
labor market for the portion of time beyond 12 months.
Sec. 655.21 Supporting evidence for temporary need.
(a) Statement of Temporary Need. Each Application for Temporary
Employment Certification must include attestations regarding temporary
need in the appropriate sections. The employer must include a detailed
statement of temporary need containing 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;
(3) An explanation regarding how the request for temporary labor
certification meets one of the regulatory standards of a one-time
occurrence, seasonal, peakload, or intermittent need under Sec.
655.6(b) as defined by DHS under 8 CFR 214.2(h)(6)(ii)(B); and
(4) If applicable, a statement justifying any increase or decrease
in the number of H-2B positions being requested for certification from
the previous year.
(b) Request for Supporting Evidence. In circumstances where the CO
requests evidence or documentation substantiating the employer's
temporary need through a RFI under Sec. 655.23(c) to support a Final
Determination, or notifies the employer that its application is being
audited under Sec. 655.24, the employer must timely furnish the
requested supplemental information or evidence or documentation.
Failure to provide the information requested or late submissions may be
grounds for the denial of the application. All such documentation or
evidence 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
by the employer filing the Application for Temporary Employment
Certification must be retained for a period of no less than 3 years
from the date of the certification.
Sec. 655.22 Obligations of H-2B employers.
An employer seeking H-2B labor certification must attest as part of
the Application for Temporary Employment Certification that it will
abide by the following conditions of this subpart:
(a) The employer is offering terms and working conditions normal to
U.S. workers similarly employed in the area of intended employment,
meaning that they may not be unusual for workers performing the same
activity in the area of intended employment, and which are not less
favorable than those offered to the H-2B worker(s) and are not less
than the minimum terms and conditions required by this subpart.
(b) The specific job opportunity for which the employer is
requesting H-2B certification is not vacant because the former
occupant(s) is (are) on strike or locked out in the course of a labor
dispute involving a work stoppage.
(c) The job opportunity is open to any qualified U.S. worker
regardless of race, color, national origin, age, sex, religion,
handicap, or citizenship, and the employer has conducted the required
recruitment, in accordance with the regulations, and has been
unsuccessful in locating sufficient numbers of qualified U.S.
applicants for the job opportunity for which labor certification is
sought. Any U.S. worker applicants were rejected only for lawful, job-
related reasons, and the employer must retain records of all
rejections.
(d) During the period of employment that is the subject of the
labor certification application, the employer will comply with
applicable Federal, State and local employment-related laws and
regulations, including employment-related health and safety laws;
(e) 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 during the entire period of the approved H-2B labor certification.
(f) Upon the separation from employment of 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 (or any
other method specified by the Department or DHS in the Federal Register
or the Code of Federal Regulations) of the separation from employment
not later than 2 work days after such separation is discovered by the
employer. An abandonment or abscondment shall be deemed to begin after
a worker fails to report for work at the regularly scheduled time for 5
consecutive working days without the consent of the employer. Employees
may be terminated for cause.
(g)(1) 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, or the legal Federal, State, or local minimum wage,
whichever is highest. The employer must make all deductions from the
worker's paychecks that are required by law. The job offer must specify
all deductions not required by law that the employer will make from the
worker's paycheck. All deductions must be reasonable. However, an
employer subject to the FLSA may not make deductions that would violate
the FLSA.
(2) The employer has contractually forbidden any foreign labor
contractor or recruiter whom the employer engages in international
recruitment of H-2B workers to seek or receive payments from
prospective employees, except as provided for in DHS regulations at 8
CFR 214.2(h)(5)(xi)(A). This provision does not prohibit employers or
their agents from receiving reimbursement for costs that are the
responsibility of the worker, such as government required passport or
visa fees.
(h) The job opportunity is a bona fide, full-time temporary
position, the qualifications for which are consistent with the normal
and accepted qualifications required by non-H-2B employers in the same
or comparable occupations.
(i) The employer has not laid off and will not lay off any
similarly employed U.S. worker in the occupation that is the subject of
the Application for
[[Page 78060]]
Temporary Employment Certification in the area of intended employment
within the period beginning 120 calendar days before the date of need
through 120 calendar days after the date of need, except where the
employer also attests that it offered the job opportunity that is the
subject of the application to those laid off U.S. worker(s) and the
U.S. worker(s) either refused the job opportunity or was rejected for
the job opportunity only for lawful, job-related reasons.
(j) The employer and its attorney or agents have not sought or
received payment of any kind from the employee for any activity related
to obtaining the labor certification, including payment of the
employer's attorneys' or agent fees, Application for Temporary
Employment Certification, or recruitment costs. For purposes of this
paragraph, payment includes, but is not limited to, monetary payments,
wage concessions (including deductions from wages, salary, or
benefits), kickbacks, bribes, tributes, in kind payments, and free
labor.
(k) 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 written bona fide inquiry
as to whether the other employer has displaced or intends to displace
any similarly employed U.S. workers within the area of intended
employment within the period beginning 120 days before through 120
calendar days after the date of need, and the other employer provides
written confirmation that it has not so displaced and does not intend
to displace such U.S. workers, and
(2) All worksites are listed on the certified Application for
Temporary Employment Certification, including amendments or
modifications.
(l) The employer 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.
(m) Unless the H-2B worker will be sponsored by another subsequent
employer, the employer will inform H-2B workers of the requirement that
they leave the U.S. at the end of the authorized period of stay
provided by DHS or separation from the employer, whichever is earlier,
as required in Sec. 655.35 of this part (absent any extension or
change of such worker's status or grace period pursuant to DHS
regulations), and that if dismissed by the employer prior to the end of
the period, the employer is liable for return transportation.
(n) The dates of temporary need, reason for temporary need, and
number of positions being requested for labor certification 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 or private
courier shall be considered filed when determined by the NPC to be
complete. Incomplete applications shall not be accepted for processing
or assigned a receipt date, but shall be returned by U.S. Mail to the
employer or the employer's representative as incomplete.
(b) Processing. The CO will review complete applications for an
absence of errors that would prevent certification and for compliance
with the criteria for certification. The CO will make a determination
to certify, deny, or issue a Request for Further Information prior to
making a Final Determination on the application. Criteria for
certification, as used in this subpart, are whether the employer has:
established the need for the nonagricultural services or labor to be
performed is temporary in nature; established that the number of worker
positions being requested for certification is justified and represent
bona fide job opportunities; made all the assurances and met all the
obligations required by Sec. 655.22; and complied with all
requirements of the program.
(c) Request for Further Information. (1) If the CO determines that
the employer has made all necessary attestations and assurances, but
the application fails to comply with one or more of the criteria for
certification in paragraph (b) of this section, the CO must issue a RFI
to the employer. The CO will issue the written RFI within 7 calendar
days of the receipt of the application, and send it by means normally
assuring next-day delivery.
(2) The RFI must:
(i) Specify the reason(s) why the application is not sufficient to
grant temporary labor certification, citing the relevant regulatory
standard(s) and/or special procedure(s);
(ii) Specify a date, no later than 7 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; and
(iii) State 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
unusual circumstances warrant, the CO may issue one or more additional
RFIs prior to issuing a Final Determination.
(3) The CO will issue the Final Determination or the additional RFI
within 7 business days of receipt of the employer's response, or within
60 days of the employer's date of need, whichever is later.
(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 all
documentation within the specified time period, may 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 H-2B temporary labor certification
applications.
Sec. 655.24 Audits.
(a) Discretion. OFLC will conduct audits of H-2B temporary labor
certification applications. The applications selected for audit will be
chosen within the sole discretion of OFLC.
(b) Audit Letter. When an application is selected for audit, the CO
shall issue an audit letter to the employer. The audit letter will:
(1) State the application has been selected for audit and note
documentation that must be submitted by the employer;
(2) Specify a date, no fewer than 14 days and no more than 30 days
from the date of the audit letter's issuance, by which the required
documentation must be received by the CO; and
(3) Advise that failure to comply with the audit process may result
in a finding by the CO to:
(i) Require 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) Debar the employer from future filings of H-2B temporary labor
certification applications as provided in Sec. 655.31.
(c) Supplemental information. During the course of the audit
examination, the CO may request supplemental information and/or
documentation from the employer to complete the audit.
[[Page 78061]]
(d) Audit violations. If, as a result of the audit, the CO
determines the employer failed to produce all required documentation,
or determines that the employer made a material misrepresentation with
respect to the application, the employer may be required to conduct
supervised recruitment under Sec. 655.30 in future filings of H-2B
temporary labor certification applications for up to 2 years, or may be
subject to debarment pursuant to Sec. 655.31 or other sanctions. The
CO may provide the audit findings and underlying documentation to DHS,
WHD, or another appropriate enforcement agency. The CO may refer any
findings that an employer discouraged an eligible U.S. worker from
applying, or failed to hire, discharged, or otherwise discriminated
against an eligible U.S. worker, to the Department of Justice, Civil
Rights Division, Office of Special Counsel for Unfair Immigration
Related Employment Practices.
Sec. Sec. 655.25-655.29 [Reserved]
Sec. 655.30 Supervised recruitment.
(a) Supervised recruitment. Where an employer is found to have
violated program requirements, to have made a material
misrepresentation to the Department, or to have 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 or opportunities 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 fewer 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 comply with the requirements of Sec.
655.17(a).
(4) The advertisement shall be placed in accordance with guidance
provided by the CO.
(5) The employer will notify the CO when the advertisements are
placed.
(c) Recruitment report. No fewer than 2 days after the last day of
the posting of the job order and no fewer 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). The employer must submit the recruitment report to the CO
within 30 days of the date of the first advertisement and must retain a
copy for a period of no less than 3 years. The recruitment report must
contain a copy of all advertisements and a copy of the SWA job order,
including the dates so placed.
(d) The CO may refer any findings that an employer or its
representative discouraged an eligible U.S. worker from applying, or
failed to hire, discharged, or otherwise discriminated against an
eligible U.S. worker, to the Department of Justice, Civil Rights
Division, Office of Special Counsel for Unfair Immigration Related
Employment Practices.
Sec. 655.31 Debarment.
(a) The Administrator, OFLC may not issue future labor
certifications under this subpart to an employer and any successor in
interest to the debarred employer, subject to the time limits set forth
in paragraph (c) of this section, if:
(1) The Administrator, OFLC finds that the employer substantially
violated a material term or condition of its temporary labor
certification with respect to the employment of domestic or
nonimmigrant workers; and
(2) The Administrator, OFLC issues a Notice of Intent to Debar no
later than 2 years after the occurrence of the violation.
(b) The Administrator, OFLC may not issue future labor
certifications under this subpart to an employer represented by an
agent or attorney, subject to the time limits set forth in paragraph
(c) of this section, if:
(1) The agent or attorney participated in, had knowledge of, or had
reason to know of, the employer's substantial violation; and
(2) The Administrator issues the agent or attorney a Notice of
Intent to Debar no later than 2 years after the occurrence of the
violation.
(c) No employer, attorney, or agent may be debarred under this
subpart for more than 3 years.
(d) For the purposes of this section, a substantial violation
includes:
(1) A pattern or practice of acts of commission or omission on the
part of the employer or the employer's agent that:
(i) Are significantly injurious to the wages or benefits offered
under the H-2B program or working conditions of a significant number of
the employer's U.S. or H-2B workers;
(ii) Reflect a significant failure to offer employment to each
qualified domestic worker who applied for the job opportunity for which
certification was being sought, except for lawful job-related reasons;
(iii) Reflect a significant failure to comply with the employer's
obligations to recruit U.S. workers as set forth in this subpart;
(iv) Reflect a significant failure to comply with the RFI or audit
process pursuant to Sec. Sec. 655.23 or 655.24;
(v) Reflect the employment of an H-2B worker outside the area of
intended employment, or in an activity/activities, not listed in the
job order (other than an activity minor and incidental to the activity/
activities listed in the job order), or after the period of employment
specified in the job order and any approved extension; or
(vi) Reflect a significant failure to comply with the supervised
recruitment process pursuant to Sec. 655.30.
(2) Fraud involving the Application for Temporary Employment
Certification or a response to an audit;
(3) A significant failure to cooperate with a DOL investigation or
with a DOL official performing an investigation, inspection, or law
enforcement function under this subpart;
(4) A significant failure to comply with one or more sanctions or
remedies imposed by the ESA for violation(s) of obligations under this
subpart found by that agency (if applicable), or with one or more
decisions or orders of the Secretary or a court order secured by the
Secretary; or
(5) A single heinous act showing such flagrant disregard for the
law that future compliance with program requirements cannot reasonably
be expected.
(e) DOL procedures for debarment under this section will be as
follows:
(1) The Administrator, OFLC will send to the employer, attorney, or
agent a Notice of Intent to Debar by means normally ensuring next-day
delivery, which will contain a detailed statement of the grounds for
the proposed debarment. The employer, attorney, or agent may submit
evidence in rebuttal within 14 calendar days of the date the notice is
issued. The Administrator, OFLC must consider all relevant evidence
presented in deciding whether to debar the employer, attorney, or
agent.
(2) If rebuttal evidence is not timely filed by the employer,
attorney, or agent, the Notice of Intent to Debar will become the final
decision of the Secretary and take effect immediately at the end of the
14-day period.
[[Page 78062]]
(3) If, after reviewing the employer's timely filed rebuttal
evidence, the Administrator, OFLC determines that the employer,
attorney, or agent more likely than not meets one or more of the bases
for debarment under Sec. 655.31(d), the Administrator, OFLC will
notify the employer, by means normally ensuring next-day delivery,
within 14 calendar days after receiving such timely filed rebuttal
evidence, of his/her final determination of debarment and of the
employer, attorney, or agent's right to appeal.
(4) The Notice of Debarment must be in writing, must state the
reason for the debarment finding, including a detailed explanation of
the grounds for and the duration of the debarment, and must offer the
employer, attorney, or agent an opportunity to request a hearing. The
notice must state that to obtain such a review or hearing, the debarred
party must, within 30 calendar days of the date of the notice file a
written request to the Chief Administrative Law Judge, United States
Department of Labor, 800 K Street, NW., Suite 400-N, Washington, DC
20001-8002, and simultaneously serve a copy to the Administrator, OFLC.
The debarment will take effect 30 days from the date the Notice of
Debarment is issued, unless a request for a hearing is properly filed
within 30 days from the date the Notice of Debarment is issued. The
timely filing of a request for a hearing stays the debarment pending
the outcome of the appeal.
(5)(i) Hearing. Within 10 days of receipt of the request for a
hearing, the Administrator, OFLC will send a certified copy of the ETA
case file to the Chief Administrative Law Judge by means normally
assuring next-day delivery. The Chief Administrative Law Judge will
immediately assign an ALJ to conduct the hearing. The procedures in 29
CFR part 18 apply to such hearings, except that the request for a
hearing will not be considered to be a complaint to which an answer is
required.
(ii) Decision. After the hearing, the ALJ must affirm, reverse, or
modify the Administrator, OFLC 's determination. The ALJ's decision
must be provided immediately to the employer, Administrator, OFLC, DHS,
and DOS by means normally assuring next-day delivery. The ALJ's
decision is the final decision of the Secretary, unless either party,
within 30 calendar days of the ALJ's decision, seeks review of the
decision with the Administrative Review Board (ARB).
(iii) Review by the ARB.
(A) Any party wishing review of the decision of an ALJ must, within
30 days of the decision of the ALJ, petition the ARB to review the
decision. Copies of the petition must be served on all parties and on
the ALJ. The ARB must decide whether to accept the petition within 30
days of receipt. If the ARB declines to accept the petition or if the
ARB does not issue a notice accepting a petition within 30 days after
the receipt of a timely filing of the petition, the decision of the ALJ
shall be deemed the final agency action. If a petition for review is
accepted, the decision of the ALJ shall be stayed unless and until the
ARB issues an order affirming the decision. The ARB must serve notice
of its decision to accept or not to accept the petition upon the ALJ
and upon all parties to the proceeding in person or by certified mail.
(B) Upon receipt of the ARB's notice to accept the petition, the
Office of Administrative Law Judges shall promptly forward a copy of
the complete hearing record to the ARB.
(C) Where the ARB has determined to review such decision and order,
the ARB shall notify each party of:
(1) The issue or issues raised;
(2) The form in which submissions shall be made (i.e., briefs, oral
argument, etc.); and
(3) The time within which such presentation shall be submitted.
(D) The ARB's final decision must be issued within 90 days from the
notice granting the petition and served upon all parties and the ALJ,
in person or by certified mail. If the ARB fails to provide a decision
within 90 days from the notice granting the petition, the ALJ's
decision will be the final decision of the Secretary.
(f) Inter-Agency Reporting. After completion of the appeal process,
DOL will inform DHS and other appropriate enforcement agencies of the
findings and provide a copy of the Notice of Debarment.
Sec. 655.32 Labor certification determinations.
(a) COs. The Administrator, OFLC, is the Department's National CO.
The Administrator, and the CO(s) in the NPC (by virtue of delegation
from the Administrator), have the authority to certify or deny
applications for temporary employment certification under the H-2B
nonimmigrant classification. If the Administrator directs that certain
types of temporary labor certification applications or specific
applications under the H-2B nonimmigrant classification be handled by
the National OFLC, the Director of the Chicago NPC will refer such
applications to the Administrator.
(b) Determination. The CO will make a determination either to grant
or deny the Application for Temporary Employment Certification. The CO
will grant the application if and only if the employer has met all the
requirements of this subpart, including the criteria for certification
defined in Sec. 655.23(b), thus demonstrating that an insufficient
number of qualified U.S. workers are available for the job opportunity
for which certification is sought and the employment of the H-2B
workers will not adversely affect the benefits, wages, and working
conditions of similarly employed U.S. workers.
(c) Notice. The CO will notify the employer in writing (either
electronically or by U.S. Mail) of the labor certification
determination.
(d) Approved certification. If temporary labor certification is
granted, the CO must send the certified Application for Temporary
Employment Certification and a Final Determination letter to the
employer, or, if appropriate, to the employer's agent or attorney with
a copy to the employer. The Final Determination letter will notify the
employer to file the certified application and any other documentation
required by USCIS with the appropriate USCIS office.
(e) Denied certification. If temporary labor certification is
denied, the Final Determination letter will:
(1) State the reason(s) certification is denied, citing the
relevant regulatory standards and/or special procedures;
(2) If applicable, address the availability of U.S. workers in the
occupation as well as the prevailing benefits, wages, and working
conditions of similarly employed U.S. workers in the occupation and/or
any applicable special procedures;
(3) Offer the employer an opportunity to request administrative
review of the denial available under Sec. 655.33, or to file a new
application in accordance with specific instructions provided by the
CO; and
(4) State that if the employer does not request administrative
review in accordance with Sec. 655.33, the denial is final and the
Department will not further consider that application for temporary
alien nonagricultural labor certification.
(f) Partial Certification. The CO may, in his/her discretion, and
to ensure compliance with all statutory and regulatory requirements,
issue a partial certification, reducing either the period of need, the
number of H-2B positions being requested, or both, based upon
information the CO receives in the course of processing the temporary
labor certification application, an RFI, or otherwise. If a partial
labor certification
[[Page 78063]]
is issued, the Final Determination letter will:
(1) State the reason(s) for which either the period of need and/or
the number of H-2B positions requested has been reduced, citing the
relevant regulatory standards and/or special procedures;
(2) If applicable, address the availability of U.S. workers in the
occupation;
(3) Offer the employer an opportunity to request administrative
review of the partial labor certification available under Sec. 655.33;
and
(4) State that if the employer does not request administrative
review in accordance with Sec. 655.33, the partial labor certification
is final and the Department will not further consider that application
for temporary nonagricultural labor certification.
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 calendar 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 CO shall, within
5 business days assemble and submit the Appeal File using means to
ensure same day or overnight delivery, to the BALCA, the employer, and
the Associate Solicitor for Employment and Training Legal Services,
Office of the Solicitor, U.S. Department of Labor.
(c) Within 5 business days of receipt of the Appeal File, the
counsel for the CO may submit, using means to ensure same day or
overnight delivery, a brief in support of the CO's decision.
(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
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 counsel for
the CO of its decision within 5 business days of the submission of the
CO's brief or 10 days after receipt of the Appeal File, whichever is
earlier, using means to ensure same day or overnight delivery.
Sec. 655.34 Validity of temporary labor certifications.
(a) Validity Period. A temporary labor certification is valid only
for the period of time between the beginning and ending dates of
employment, as certified by the OFLC Administrator on the Application
for Temporary Employment Certification. The certification expires on
the last day of authorized employment.
(b) Scope of Validity. A temporary labor certification is valid
only for the number of H-2B positions, the area of intended employment,
the specific services or labor to be performed, and the employer
specified on the certified Application for Temporary Employment
Certification and may not be transferred from one employer to another.
(c) Amendments to Applications. (1) Applications may be amended at
any time, before the CO's certification determination, to increase the
number of positions requested in the initial application by not more
than 20 percent (50 percent for employers requesting less than 10
positions) 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 reasonably foreseen, and the employer's services or products will
be in jeopardy prior to the time that new H-2B workers could be
secured.
(2) Applications may be amended to make minor changes in the period
of employment, only when a written request is submitted to the CO and
written approval obtained in advance. In considering whether to approve
the request, the CO will review the reason(s) for the request,
determine whether the reason(s) are on the whole 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 amendments to the application, including elements of the
job offer and the place of work, may be requested, in writing, and will
be granted 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 Sec. 655.32.
(4) The CO may change the date of need to reflect an amended date
when delays occur in the adjudication of the Application for Temporary
Employment Certification, through no fault of the employer, and the
certification would otherwise become valid 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)(13). A foreign worker may not remain in the U.S. 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 or grace period pursuant to
DHS regulations.
(b) Notice to worker. Upon establishment of a pilot program by DHS
for registration of departure, the 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 described in paragraph (a) of
this section, must register such departure at the place and in the
manner prescribed by DHS. This requirement will apply only to H-2B
foreign workers entering from ports of entry participating in the DHS
pilot program.
Sec. 655.50 Enforcement process.
(a) Authority of the WHD Administrator. The WHD Administrator shall
perform all the Secretary's investigative and enforcement functions
under secs. 1101(a)(15)(H)(ii)(b), 103(a)(6), and 214(c) of the INA,
pursuant to the delegation of authority from the Secretary of Homeland
Security to the Secretary of Labor.
(b) Conduct of investigations. The Administrator, WHD, shall,
either pursuant to a complaint or otherwise, conduct such
investigations as may, in the judgment of the Administrator, be
appropriate, and in connection therewith, may 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
[[Page 78064]]
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 WHD
Administrator such records, information, persons, and places as the
Administrator deems appropriate to copy, transcribe, question, or
inspect. Where the records are maintained at a central recordkeeping
office, other than in the place or places of employment, such records
must be made available for inspection and copying within 72 hours
following notice from the Secretary, or a duly authorized and
designated representative. No employer or representative or agent of an
employer subject to the provisions of secs. 1101(a)(15)(H)(ii)(b) and
214(c) of the INA and/or of this subpart shall interfere with any
official of the Department who is 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 subpart,
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 WHD 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. 655.60 Violations.
The WHD Administrator, through investigation, shall determine
whether an employer has--
(a) Filed a petition with ETA that willfully misrepresents a
material fact.
(b) 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 in 8 CFR 214.2(h).
(c) Misrepresented a material fact to the State Department during
the visa application process.
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(e) or
willfully required employees to pay for fees or expenses prohibited by
Sec. 655.22(j), or willfully made impermissible deductions from pay as
provided in Sec. 655.22(g), the WHD Administrator may assess civil
money penalties that are equal to the difference between the amount
that should have been paid and the amount that actually was paid to
such 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) of this part,
within the period described in that section, the Administrator may
assess civil money penalties that are 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 H-2B Application for Temporary
Employment Certification or the DHS Form I-129, Petition for a
Nonimmigrant Worker for an H-2B worker or successor form, or any
willful misrepresentation in the application or petition, or a failure
to cooperate with a Department audit or investigation.
(d) Substantial failure in paragraph (b) of this section 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 or
successor form.
(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 sec. 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 or successor form 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 paragraphs (b) and (c) of this section, the WHD
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 U.S. or H-2B workers employed by the employer and
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 to the employer's
workers.
(h) Disqualification from approval of petitions. Where the WHD
Administrator finds a substantial failure to meet any conditions of the
application or in a DHS Form I-129, or a willful misrepresentation of a
material fact in an application or in a DHS Form I-129, as those terms
are defined in Sec. 655.31, the Administrator may recommend that ETA
debar the employer for a period of no less than 1 year, and no more
than 3 years.
(i) If the WHD 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 reinstatement of displaced U.S. workers, or
other appropriate legal or equitable remedies. If the WHD Administrator
finds that an employer has not paid wages at the wage level specified
under the application and required by Sec. 655.22(e), the
Administrator may require the employer to provide for payment of such
amounts of back pay as may be required to comply with the requirements
of Sec. 655.22(e).
[[Page 78065]]
(j) The civil money penalties determined by the WHD Administrator
to be appropriate are due for payment within 30 days of 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 WHD 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 WHD Administrator shall file with the Chief Administrative
Law Judge, U.S. Department of Labor, a copy of the Administrator's
determination.
(c) The WHD 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 back wages and civil money
penalties assessed and the reason therefor.
(2) Inform the employer that a hearing may be requested pursuant to
Sec. 655.71.
(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 Labor
(upon whom copies of the request must be served).
(5) Where appropriate, inform the employer that the Administrator
will notify ETA and 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. In such a
proceeding, the Administrator shall be the prosecuting party, and the
employer shall be the respondent. 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) 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.
(c) The request for such hearing must be received by the Chief
Administrative Law Judge, at the address stated in the WHD
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.
(d) 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 10 days.
(e) Copies of the request for a hearing shall be sent by the
employer or authorized representative to the WHD official who issued
the WHD Administrator's notice of determination, and to the
representative(s) of the Solicitor of Labor 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 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 service
and includes the last day of the period
[[Page 78066]]
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, 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 Administrative Review Board (Board) review thereof shall
be filed as provided in Sec. 655.76. If a petition for review is
filed, the decision of the administrative law judge shall be
inoperative unless and until the Board issues an order affirming the
decision, or unless and until 30 calendar days have passed after the
Board's receipt of the petition for review and the Board has not issued
notice to the parties that the Board 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, WHD; the reason or reasons for such order shall be
stated in the decision.
(c) In the event that the WHD Administrator assesses back wages for
wage violation(s) of Sec. 655.22(e), (g), or (j) based upon a PWD
obtained by the Administrator from OFLC 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
OFLC or, in the event the employer filed a timely appeal under Sec.
655.11, 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); and
(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, U.S. Department of Labor, 200 Constitution
Avenue, NW., Room S-5220, 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 OFLC and DHS.
(a) The WHD Administrator shall, as appropriate, notify DHS and
OFLC of the final determination of a violation and recommend that DHS
not approve 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 DHS and OFLC 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
[[Page 78067]]
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, or 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.
0
4. Amend Sec. 655.715 by adding a definition for the ``Center
Director'' to read as follows:
Sec. 655.715 Definitions.
* * * * *
Center Director means the Department official to whom the
Administrator has delegated his authority for purposes of NPC
operations and functions.
* * * * *
0
5. Amend Sec. 655.731 by revising paragraphs (a)(2) introductory text,
(a)(2)(ii), (b)(3)(iii)(A), and (d)(2) and (3) 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 OFLC NPC (OES), 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 following prevailing wage
sources may be used:
(A) OFLC National Processing Center (NPC) determination. Prior to
January 1, 2010, the SWA having jurisdiction over the area of intended
employment shall continue to receive and process prevailing wage
determination requests, but shall do so in accordance with these
regulatory provisions and Department guidance. On or after January 1,
2010, the NPC shall receive and process prevailing wage determination
requests in accordance with these regulations and with Department
guidance. Upon receipt of a written request for a PWD on or after
January 1, 2010, 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 secs. 212(n) and 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 20 CFR 656.40 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 20 CFR 656.41. Employers which challenge an NPC PWD under
20 CFR 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 collected under the promise of confidentiality. Once an
employer obtains a PWD from the 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 20 CFR 656.41) or in an
investigation or enforcement action.
(2) If the employer is unable to wait for the 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 NPC, that the information
relied upon produced a wage below the final PWD and the employer was
paying the NPC-determined wage, no wage violation will be found if the
employer retroactively compensates the H-2B 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
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.
* * * * *
(b) * * *
(3) * * *
(iii) * * *
(A) A copy of the prevailing wage finding from the NPC for the
occupation within the area of intended employment.
* * * * *
* * * * *
(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 OFLC 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
[[Page 78068]]
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 collected under the promise of confidentiality.
(i) Where an employer timely challenges an OFLC 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 the PWD as determined by the BALCA serving as the conclusive
determination for all purposes.
(ii) [Reserved]
(3) For purposes of this paragraph (d), OFLC may consult with the
NPC to ascertain the prevailing wage applicable under the circumstances
of the particular complaint.
0
6. Amend Sec. 655.1102 to add the definition of ``Office of Foreign
Labor Certification (OFLC)'' to read as follows:
Sec. 655.1102 What are the definitions of terms that are used in
these regulations?
* * * * *
Office of Foreign Labor Certification (OFLC) means the
organizational component within the ETA that provides national
leadership and policy guidance and develops regulations and procedures
to carry out the responsibilities of the Secretary of Labor under the
INA concerning foreign workers seeking admission to the United States.
* * * * *
0
7. Amend Sec. 655.1112 by revising paragraph (c)(2) to read as
follows:
Sec. 655.1112 Element II--What does ``no adverse effect on wages and
working conditions'' mean?
* * * * *
(c) * * *
(2) Determination of prevailing wage for H-1C purposes. In the
absence of collectively bargained wage rates, the National Processing
Center (NPC) having jurisdiction as determined by OFLC shall determine
the prevailing wage for similarly employed nurses in the geographic
area in accordance with administrative guidelines issued by ETA for
prevailing wage determination requests submitted on or after the
effective date of these regulations.
(i) Prior to the effective date of these regulations, the SWA
having jurisdiction over the area of intended employment shall continue
to receive and process prevailing wage determination requests in
accordance with the regulatory provisions and Department guidance in
effect prior to January 1, 2009. On or after the effective date of
these regulations, the NPC shall receive and process prevailing wage
determination requests in accordance with these regulations and with
Department guidance. A facility seeking to determine the prevailing
wage must request a prevailing wage determination from the NPC having
jurisdiction for providing the prevailing wage over the proposed area
of intended employment not more than 90 days prior to the date the
attestation is submitted to the Department. The NPC must enter its wage
determination on the form it uses and return the form with its
endorsement to the employer. Once a facility obtains a prevailing wage
determination from the NPC and files an attestation supported by that
prevailing wage determination, the facility shall be deemed to have
accepted the prevailing wage determination as accurate and appropriate
(as to both the occupational classification and the wage rate) and
thereafter shall not contest the legitimacy of that prevailing wage
determination in an investigation or enforcement action pursuant to
subpart M of this part.
(ii) A facility may challenge the prevailing wage determination
with the NPC having provided such determination according to
administrative guidelines issued by ETA, but must obtain a final ruling
prior to filing an attestation.
* * * * *
PART 656--LABOR CERTIFICATION PROCESS FOR PERMANENT EMPLOYMENT OF
ALIENS IN THE UNITED STATES
0
8. The authority citation for part 656 is revised to read as follows:
Authority: 8 U.S.C. 1182(a)(5)(A), 1182(p)(1); sec.122, Public
Law 101-649, 109 Stat. 4978; and Title IV, Public Law 105-277, 112
Stat. 2681.
0
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 OFLC National Processing Center (NPC), in
accordance with OFLC 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]
0
10. Amend Sec. 656.15:
0
a. By removing the words ``in duplicate;'' from paragraph (a); and
0
b. By removing paragraph (f) and redesignating paragraph (g) as
paragraph (f).
0
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
NPC, on a form or in a manner prescribed by OFLC. Prior to January 1,
2010, the SWA having jurisdiction over the area of intended employment
shall continue to receive and process prevailing wage determination
requests in accordance with the regulatory provisions and Department
guidance in effect prior to January 1, 2009. On or after January 1,
2010, the NPC shall receive and process prevailing wage determination
requests in accordance with these regulations and with Department
guidance. The NPC will provide the employer with an appropriate
prevailing wage rate. The NPC shall determine the wage in accordance
with sec. 212(t) of the INA. Unless the employer chooses to appeal the
center's PWD under Sec. 656.41(a) of this part, 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
[[Page 78069]]
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 of this part 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 OFLC 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. (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 of this part.
(i) Frequent users. The Secretary will issue guidance regarding the
process by which employers may 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.
(ii) [Reserved]
* * * * *
0
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.
Signed in Washington, DC, this 12th day of December, 2008.
Brent R. Orrell,
Deputy Assistant Secretary, Employment and Training Administration.
Alexander J. Passantino,
Acting Administrator, Wage and Hour Division, Employment Standards
Administration.
[FR Doc. E8-29995 Filed 12-18-08; 8:45 am]
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